EXHIBIT 10.1
EXECUTION COPY
$320,000,000
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of May 7, 1999
Among
CENTRAL TRACTOR FARM & COUNTRY, INC.
(to be renamed "Quality Stores, Inc.")
as Borrower,
CT HOLDING, INC.,
(to be renamed "QSI Holdings, Inc.")
as Holding,
and
THE INITIAL LENDERS, INITIAL ISSUING BANK AND
SWING LINE BANK NAMED HEREIN
as Initial Lenders, Initial Issuing Bank and Swing Line Bank
and
FLEET NATIONAL BANK
as Administrative Agent
and
NATIONSBANK, N.A.
as Syndication Agent
and
DLJ CAPITAL FUNDING, INC.
as Documentation Agent
and
U.S. BANK NATIONAL ASSOCIATION,
FIRST UNION NATIONAL BANK and
THE HUNTINGTON NATIONAL BANK
as Co-Agents
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<TABLE>
<CAPTION>
T A B L E O F C O N T E N T S
Section Page
<S> <C>
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms.............................................................................2
1.02. Computation of Time Periods......................................................................28
1.03. Accounting Terms.................................................................................28
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Advances.....................................................................................29
2.02. Making the Advances..............................................................................31
2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit...............................33
2.04. Repayment of Advances............................................................................35
2.05. Termination or Reduction of the Commitments......................................................37
2.06. Prepayments......................................................................................38
2.07. Interest.........................................................................................40
2.08. Fees.............................................................................................41
2.09. Conversion of Advances...........................................................................42
2.10. Increased Costs, Etc.............................................................................43
2.11. Payments and Computations........................................................................44
2.12. Taxes............................................................................................46
2.13. Sharing of Payments, Etc.........................................................................48
2.14. Use of Proceeds..................................................................................48
2.15. Defaulting Lenders...............................................................................49
2.16. Removal of Lender................................................................................51
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Effective Date...........................................................51
3.02. Conditions Precedent to Each Borrowing and Issuance..............................................56
3.03. Determinations Under Section 3.01................................................................57
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties...................................................................57
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants............................................................................64
5.02. Negative Covenants...............................................................................68
5.03. Reporting Requirements...........................................................................75
5.04. Financial Covenants..............................................................................78
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default................................................................................81
6.02. Actions in Respect of the Letters of Credit upon Default.........................................84
ARTICLE VII
THE ADMINISTRATIVE AGENT
7.01. Authorization and Action.........................................................................85
7.02. Administrative Agent's Reliance, Etc.............................................................85
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7.03. Fleet and Affiliates.............................................................................85
7.04. Lender Party Credit Decision.....................................................................86
7.05. Indemnification..................................................................................86
7.06. Successor Administrative Agents..................................................................87
ARTICLE VIII
8.01. Guaranty.........................................................................................88
8.02. Guaranty Absolute................................................................................89
8.03. Waivers and Acknowledgments......................................................................90
8.04. Subrogation......................................................................................90
8.05. Continuing Guarantee; Assignments................................................................91
ARTICLE IX
MISCELLANEOUS
9.01. Amendments, Etc..................................................................................91
9.02. Notices, Etc.....................................................................................92
9.03. No Waiver; Remedies..............................................................................92
9.04. Costs and Expenses...............................................................................92
9.05. Right of Set-off.................................................................................94
9.06. Binding Effect...................................................................................94
9.07. Assignments and Participations...................................................................94
9.08. Execution in Counterparts........................................................................97
9.09. No Liability of the Issuing Bank.................................................................98
9.10. Confidentiality..................................................................................98
9.11. Jurisdiction, Etc................................................................................98
9.12. Governing Law....................................................................................99
9.13. Waiver of Jury Trial.............................................................................99
</TABLE>
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SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Disclosed Litigation
Schedule III - Subsidiaries
Schedule IV - Authorizations, Etc.
Schedule V - Plans
Schedule VI - Existing Debt
Schedule VII - Owned Real Property
Schedule VIII - Leased Real Property
Schedule IX - Material Contracts
Schedule X - Investments
Schedule XI - Intellectual Property
Schedule XII - Reserved
Schedule XIII - Liens
Schedule XIV - Surviving Debt
Schedule XV - Environmental Disclosure
Schedule XVI - Excluded Asset Acquisitions
EXHIBITS
Exhibit A-1 - Form of Tranche A Term Note
Exhibit A-2 - Form of Tranche B Term Note
Exhibit A-3 - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Pledge Agreement
Exhibit F - Form of Subsidiary Guaranty
Exhibit G - Form of Solvency Certificate
Exhibit H - Form of Opinion of Sullivan & Worcester
Exhibit I - Form of Borrowing Base Certificate
<PAGE>
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
SECOND AMENDED AND RESTATED CREDIT AGREEMENT dated as of May
7, 1999 among Central Tractor Farm & Country, Inc., a Delaware corporation (to
be renamed, Quality Stores, Inc.) (the "Borrower"), CT Holding, Inc., a Delaware
corporation (to be renamed QSI Holdings, Inc.) ("Holding"), the banks, financial
institutions and other institutional lenders listed on the signature pages
hereof as the Initial Lenders (the "Initial Lenders"), the Initial Issuing Bank
(as hereinafter defined), the Swing Line Bank (as hereinafter defined), Fleet
National Bank ("Fleet"), as administrative agent (together with any successor
appointed pursuant to Article VII, the "Administrative Agent") for the Lender
Parties (as hereinafter defined), NationsBank, N.A., as syndication agent (the
"Syndication Agent") for the Lender Parties, and DLJ Capital Funding, Inc., as
documentation agent (the "Documentation Agent") for the Lender Parties.
PRELIMINARY STATEMENTS:
(1) The Borrower and Holding entered into an Amended and
Restated Credit Agreement as of July 3, 1997 (as heretofore amended, modified,
or otherwise supplemented, the "Existing Credit Agreement"), with the financial
institutions and other institutional lenders party thereto (the "Existing
Lenders"), Fleet, as administrative agent for the Existing Lenders, NationsBank,
N.A., as syndication agent for the Existing Lenders and DLJ Capital Funding,
Inc., as documentation agent for the Existing Lenders.
(2) Pursuant to the Existing Credit Agreement, the Borrower
requested that the Existing Lenders make advances to it, and issue letters of
credit for its account, in an aggregate principal amount of up to $150,000,000,
on the terms and conditions set forth therein.
(3) The Borrower has entered into an agreement and plan of
reorganization dated as of March 27, 1999 (as the same may be amended, modified
or otherwise supplemented from time to time in accordance with the provisions of
this Agreement, the "Merger Agreement") among Holding, the Borrower, Quality
Stores, Inc., a Delaware corporation (the "Company"), and certain shareholders
of the Company (the "Company Shareholders"), pursuant to which the Company will
merge with and into the Borrower, with the Borrower being the surviving
corporation (the "Merger").
(4) Immediately following the Merger, the Borrower will change
its name to "Quality Stores, Inc.", and Holding will change its name to "QSI
Holdings, Inc."
(5) The Borrower has requested that the Initial Lenders
hereunder enter into this Agreement to amend and restate the Existing Credit
Agreement and to lend the Borrower and issue Letters of Credit (as defined
herein) for the benefit of the Borrower from time to time in an aggregate
principal amount of up to $320,000,000. The Initial Lenders hereunder have
indicated their willingness to amend and restate the Existing Credit Agreement
and to agree to lend such amounts on the terms and conditions of this Agreement.
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NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree that, subject to the satisfaction of the conditions set forth in Section
3.01, the Existing Credit Agreement is amended and restated in its entirety to
read as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Accepting Lenders" has the meaning specified in Section
2.06(c).
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with Fleet
at its office at One Federal Street, Boston, Massachusetts 02211, ABA
No. 011 5000 10 Agency Services Wire Suspense, Account No.
1510352-03-156, Attention: Timothy J. Callahan.
"Advance" means a Tranche A Term Advance, a Tranche B Term
Advance, a Revolving Credit Advance, a Swing Line Advance or a Letter
of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agreement Value" means, for each Hedge Agreement, on any date
of determination, an amount determined by the Administrative Agent
equal to: (a) in the case of a Hedge Agreement documented pursuant to
the Master Agreement (Multicurrency-Cross Border) published by the
International Swap and Derivatives Association, Inc. (the "Master
Agreement"), the amount, if any, that would be payable by any Loan
Party or any of its Subsidiaries to its counterparty to such Hedge
Agreement, as if (i) such Hedge Agreement was being terminated early on
such date of determination, (ii) such Loan Party or Subsidiary was the
sole "Affected Party", and (iii) the Administrative Agent was the sole
party determining such payment amount (with the Administrative Agent
making such determination pursuant to the provisions of the form of
Master Agreement); or (b) in the case of a Hedge Agreement traded on an
exchange, the mark-to-market value of such Hedge Agreement, which will
be the unrealized loss on such Hedge Agreement to the Loan Party or
Subsidiary of a Loan Party party to such Hedge Agreement determined by
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the Administrative Agent based on the settlement price of such Hedge
Agreement on such date of determination, or (c) in all other cases, the
mark-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary
of a Loan Party party to such Hedge Agreement determined by the
Administrative Agent as the amount, if any, by which (i) the present
value of the future cash flows to be paid by such Loan Party or
Subsidiary exceeds (ii) the present value of the future cash flows to
be received by such Loan Party or Subsidiary pursuant to such Hedge
Agreement; capitalized terms used and not otherwise defined in this
definition shall have the respective meanings set forth in the above
described Master Agreement.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Prime Rate Advance and such Lender Party's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.
"Applicable Margin" means (x) during the period from the date
hereof through October 31, 1999, (i) in respect of the Tranche A Term
Facility and the Revolving Credit Facility, 1.50% per annum for Prime
Rate Advances and 2.75% per annum for Eurodollar Rate Advances, and
(ii) in respect of the Tranche B Term Facility, 2.00% per annum for
Prime Rate Advances and 3.25% per annum for Eurodollar Rate Advances
and (y) thereafter, a percentage per annum determined by reference to
the Debt to EBITDA Ratio as set forth below:
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Tranche A Term Facility/ Tranche B Term Facility
Revolving Credit Facility
------------------------------------- -----------------------------------
Prime Rate Eurodollar Rate Prime Rate Eurodollar Rate
Advances Advances Advances Advances
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Level I .375% 1.625% 1.75% 3.0%
less than 2.5:1
Level II .625% 1.875% 1.75% 3.0%
2.5:1 or greater,
but less than 3.0:1
Level III .875% 2.125% 2.0% 3.25%
3.0:1 or greater,
but less than 3.5:1
Level IV 1.25% 2.5% 2.0% 3.25%
3.5:1 or greater,
but less than 4.0:1
Level V 1.5% 2.75% 2.0% 3.25%
4.0:1 or greater
</TABLE>
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The Applicable Margin for each Prime Rate Advance shall be determined
by reference to the Debt to EBITDA Ratio in effect from time to time
and the Applicable Margin for each Eurodollar Rate Advance shall be
determined by reference to the ratio in effect on the first day of each
Interest Period for such Advance; provided, however, that no change in
the Applicable Margin shall be effective until three Business Days
after the date on which the Administrative Agent receives financial
statements pursuant to Section 5.03(b), (c) or (d) and a certificate of
the chief financial officer of the Borrower demonstrating such Debt to
EBITDA Ratio.
"Applicable Percentage" means (x) during the period from the
date hereof through October 31, 1999, 0.50% per annum and (y)
thereafter, a percentage per annum determined by reference to the Debt
to EBITDA Ratio as set forth below:
Debt to EBITDA Ratio Applicable Percentage
-------------------------------------------------------------
Level I
less than 3.5:1 0.375%
Level II
3.5:1 or greater 0.5%
The Applicable Percentage shall be determined by reference to the Debt
to EBITDA Ratio in effect from time to time; provided, however, that no
change in the Applicable Percentage shall be effective until three
Business Days after the date on which the Administrative Agent receives
financial statements pursuant to Section 5.03(b), (c) or (d) and a
certificate of the chief financial officer of the Borrower
demonstrating such Debt to EBITDA Ratio.
"Appropriate Lender" means, at any time, with respect to (a)
any of the Tranche A Term Facility, the Tranche B Term Facility or
Revolving Credit Facility, a Lender that has a Commitment with respect
to such Facility at such time, (b) the Letter of Credit Facility, (i)
the Issuing Bank and (ii) if the other Revolving Credit Lenders have
made Letter of Credit Advances pursuant to Section 2.03(c) that are
outstanding at such time, each such other Revolving Credit Lender and
(c) the Swing Line Facility, (i) the Swing Line Bank and (ii) if the
other Revolving Credit Lenders have made Swing Line Advances pursuant
to Section 2.02(b) that are outstanding at such time, each such other
Revolving Credit Lender.
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 9.07 and in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrower's Account" means the account of the Borrower
maintained by the Borrower with Fleet at its office at One Federal
Street, Boston, Massachusetts 02110, ABA No. 011 000 138, Account No.
937 3835380, Attention: Maria Vieira.
"Borrowing" means a Tranche A Term Borrowing, a Tranche B Term
Borrowing, a Revolving Credit Borrowing or a Swing Line Borrowing.
"Borrowing Base Deficiency" means, at any time, the failure of
(a) the Loan Value of the Eligible Collateral at such time to equal or
exceed (b) the sum of (i) the aggregate principal amount of the
Revolving Credit Advances, the Letter of Credit Advances and the Swing
Line Advances outstanding at such time plus (ii) the aggregate
Available Amount under all Letters of Credit outstanding at such time.
"Borrowing Base Certificate" means a certificate in
substantially the form of Exhibit J hereto, duly certified by the chief
financial officer of the Borrower.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in Boston, Massachusetts or New
York, New York and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on in the
London interbank market.
"Capital Expenditures" means, for any Person for any period,
the sum of (without duplication) (a) all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such
period for equipment, fixed assets, real property or improvements, or
for replacements or substitutions therefor or additions thereto, that
have been or should be, in accordance with GAAP, reflected as additions
to property, plant or equipment on a Consolidated balance sheet of such
Person or have a useful life of more than one year and all cash
expenditures made during such period to acquire a Person that as a
result of such acquisition becomes a wholly owned Subsidiary whose
assets include equipment, fixed assets, real property or improvements
to be reflected as additional property, plant or equipment plus (b) the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures. For purposes of this definition, the purchase price of
equipment that is purchased simultaneously with the trade-in of
existing equipment or with insurance proceeds or Net Cash Proceeds
shall be included in Capital Expenditures only
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to the extent of the gross amount of such purchase price less the
credit granted by the seller of such equipment for the equipment being
traded in at such time or the amount of such insurance proceeds or Net
Cash Proceeds, as the case may be. For purposes of the Loan Documents,
Capital Expenditures for any Person for any period shall exclude (x)
all expenditures made, directly or indirectly, by such Person or any of
its Subsidiaries during such period in connection with the asset
acquisitions described on Schedule XVI hereto plus (y) the aggregate
principal amount of all Debt (including Obligations under Capitalized
Leases) assumed or incurred in connection with any such expenditures.
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"Cash Collateral Account" has the meaning specified in the
Security Agreement.
"Cash Equivalents" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens other than Liens created under the Collateral Documents and
having a maturity of not greater than 360 days from the date of
acquisition thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates
of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the
parent of which issues) commercial paper rated as described in clause
(c), is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1 billion,
(c) commercial paper in an aggregate amount of no more than $2.5
million per issuer outstanding at any time, issued by any corporation
organized under the laws of any State of the United States and rated at
least "Prime-1" (or the then equivalent grade) by Moody's Investors
Service, Inc. or "A-1" (or the then equivalent grade) by Standard &
Poor's Ratings Group, or (d) mutual funds which invest exclusively in
those assets described in clauses (a)-(c) hereto.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Childs Management Agreement" means the Management Agreement
dated as of March 27, 1997 between the Borrower, Holding and J.W.
Childs Associates, L.P., as the same may be amended, modified or
otherwise supplemented from time to time in accordance with the
provisions of this Agreement.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Administrative Agent for the
benefit of the Secured Parties.
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"Collateral Documents" means the Security Agreement, the
Pledge Agreement, the Mortgages and any other agreement that creates or
purports to create a Lien in favor of the Administrative Agent for the
benefit of the Lender Parties.
"Commitment" means a Tranche A Term Commitment, a Tranche B
Term Commitment, a Revolving Credit Commitment or a Letter of Credit
Commitment.
"Company" has the meaning specified in the Preliminary
Statements.
"Company Shareholders" has the meaning specified in the
Preliminary Statements.
"Confidential Information" means information that any Loan
Party or Affiliate thereof furnishes to the Administrative Agent or any
Lender Party that is proprietary in nature, including financial
information, projections, business plans and other information in a
writing marked, labeled or otherwise identified as confidential, but
does not include any such information that is or becomes generally
available to the public other than as a result of a breach by the
Administrative Agent or any Lender Party of its obligations hereunder
or that is or becomes available to the Administrative Agent or such
Lender Party from a source other than a Loan Party or Affiliate or
advisor thereof.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
"Country General" means Country General, Inc., a Delaware
corporation.
"Current Assets" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets of
a company conducting a business the same as or similar to that of such
Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"Current Liabilities" of any Person means all items (including
taxes accrued as estimated, but excluding Debt) that in accordance with
GAAP would be classified as current liabilities of such Person.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services
(other than trade payables incurred in the ordinary course of such
Person's business), (c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments, (d) all
Obligations of such Person created or arising under any conditional
sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), (e) all Obligations
of such Person as lessee under Capitalized Leases, (f) all Obligations,
contingent or otherwise, of such Person under acceptance, letter of
credit or similar facilities, (g) for the purposes of determining
whether a Default has occurred under Section 6.01(e) only, all
Obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any capital stock of or other
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ownership or profit interest in such Person or any other Person or any
warrants, rights or options to acquire such capital stock, valued, in
the case of Redeemable Preferred Stock, at the greater of its voluntary
or involuntary liquidation preference plus accrued and unpaid
dividends, (h) all Obligations of such Person in respect of Hedge
Agreements, (i) all Debt of others referred to in clauses (a) through
(h) above or clause (j) below guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or indirectly
by such Person through an agreement (i) to pay or purchase such Debt or
to advance or supply funds for the payment or purchase of such Debt,
(ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such
Debt against loss, (iii) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such
services are rendered) or (iv) otherwise to assure a creditor against
loss, and (j) all Debt referred to in clauses (a) through (i) above of
another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Debt.
"Debt for Borrowed Money" of any Person means all items of
Debt that, in accordance with GAAP, would be classified as indebtedness
on a Consolidated balance sheet of such Person (and excluding, in any
event, Debt under Hedge Agreements).
"Debt to EBITDA Ratio" means, for any fiscal month of Holding,
a ratio of (A) Debt of Holding and its Subsidiaries (other than any
Debt of Holding that bears interest on a payment-in-kind basis) as at
the end of such fiscal month (provided, that the amount of Debt in
respect of Revolving Credit Advances as at the end of such fiscal month
shall be deemed to be the average aggregate amount of Revolving Credit
Advances outstanding hereunder or under the Existing Credit Agreement
during the last twelve months) less the sum of cash and Cash
Equivalents held by Holding and its Subsidiaries as at the end of such
fiscal month to (B) Consolidated EBITDA for the most recently completed
twelve fiscal months of Holding and its Subsidiaries.
"Declining Lenders" has the meaning specified in Section
2.06(c).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to the Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time which has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(e) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
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"Defaulted Amount" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under any
other Loan Document at or prior to such time which has not been so paid
as of such time, including, without limitation, any amount required to
be paid by such Lender Party to (a) the Swing Line Bank pursuant to
Section 2.02(b) to purchase a portion of a Swing Line Advance made by
the Swing Line Bank, (b) the Issuing Bank pursuant to Section 2.03(c)
to purchase a portion of a Letter of Credit Advance made by the Issuing
Bank, (c) the Administrative Agent pursuant to Section 2.02(e) to
reimburse the Administrative Agent for the amount of any Advance made
by the Administrative Agent for the account of such Lender Party, (d)
any other Lender Party pursuant to Section 2.13 to purchase any
participation in Advances owing to such other Lender Party and (e) the
Administrative Agent or the Issuing Bank pursuant to Section 7.05 to
reimburse the Administrative Agent or the Issuing Bank for such Lender
Party's ratable share of any amount required to be paid by the Lender
Parties to the Administrative Agent or the Issuing Bank as provided
therein. In the event that a portion of a Defaulted Amount shall be
deemed paid pursuant to Section 2.15(b), the remaining portion of such
Defaulted Amount shall be considered a Defaulted Amount originally
required to be paid hereunder or under any other Loan Document on the
same date as the Defaulted Amount so deemed paid in part.
"Defaulting Lender" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"Disclosed Litigation" has the meaning specified in Section
3.01(j).
"Documentation Agent" has the meaning specified in the recital
of parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis, of (a) net income (or net loss), (b) interest
expense, (c) income tax expense, (d) depreciation expense, (e)
amortization expense, (f) all extraordinary, unusual or non-recurring
losses (and in any event including all write-offs resulting from SFAS
121 adjustments, and all non-cash losses, and including without
limitation, costs associated with closing the Iowa facility, severance
payments, stay bonuses, and other integration costs) deducted in
determining such net income (or net loss) less all extraordinary,
unusual or non-recurring gains added in determining the net income (or
net loss) for such Period, (g) all expenses relating to the Merger
(including without limitation, costs associated with closing the Iowa
facility, severance payments, stay bonuses, and other integration
costs) to the extent deducted from such net income (or net loss) for
such Period, and (h) for the period ending July 31, 1999, $1,952,000,
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and for the period ending October 31, 1999, $955,000 (in each case
representing earnings and non-recurring expenses in connection with
certain acquisitions made by the Borrower in 1998), in each case of
Holding and its Subsidiaries (including, without limitation, for all
calculations of EBITDA, the Company and its Subsidiaries), determined
in accordance with GAAP for such period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (a) with respect to any Facility
(other than the Letter of Credit Facility), (i) a Lender; (ii) an
Affiliate of a Lender; (iii) a commercial bank organized under the laws
of the United States, or any State thereof, and having total assets in
excess of $500,000,000; (iv) a savings and loan association or savings
bank organized under the laws of the United States, or any State
thereof, and having total assets in excess of $500,000,000; (v) a
commercial bank organized under the laws of any other country that is a
member of the OECD or has concluded special lending arrangements with
the International Monetary Fund associated with its General
Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of
$500,000,000, so long as such bank is acting through a branch or agency
located in the United States; (vi) the central bank of any country that
is a member of the OECD; (vii) a finance company, insurance company or
other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary
course of its business and having total assets (i) in excess of
$500,000,000 in the case of assignees under the Revolving Credit
Facility, and (ii) in excess of $100,000,000 in all other cases; and
(viii) any other Person approved by the Administrative Agent and the
Borrower, such approval not to be unreasonably withheld or delayed, and
(b) with respect to the Letter of Credit Facility, a Person that is an
Eligible Assignee under subclause (iii) or (v) of clause (a) of this
definition and is approved by the Administrative Agent and the
Borrower, such approval not to be unreasonably withheld or delayed;
provided, however, that neither any Loan Party nor any Affiliate of a
Loan Party shall qualify as an Eligible Assignee under this definition.
"Eligible Collateral" means, collectively, Eligible Inventory
and Eligible Receivables.
"Eligible Inventory" means all Inventory of the Borrower and
the Subsidiary Guarantors other than the following classes of
Inventory:
(a) Inventory consisting of "perishable agricultural
commodities" within the meaning of the Perishable Agricultural
Commodities Act of 1930, as amended, and the regulations
thereunder, or on which a Lien has arisen or may arise in
favor of agricultural producers under comparable state or
local laws;
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(b) Inventory that is obsolete, unusable or otherwise
unavailable for sale;
(c) Inventory with respect to which the
representations and warranties set forth in Section 8 of the
Security Agreement applicable to Inventory are not true and
correct;
(d) Inventory consisting of promotional, marketing,
packaging or shipping materials and supplies;
(e) Inventory that fails to meet all standards
imposed by any governmental agency, or department or division
thereof, having regulatory authority over such Inventory or
its use or sale;
(f) Inventory that is subject to any licensing,
patent, royalty, trademark, trade name or copyright agreement
with any third party from whom the Borrower has received
notice of a dispute in respect of any such agreement;
(g) Inventory located outside the United States;
(h) Inventory that is not in the possession of or
under the sole control of the Borrower or a Subsidiary (other
than Inventory in transit);
(i) Inventory consisting of work in progress; and
(j) Inventory in respect of which the Security
Agreement, after giving effect to the related filings of
financing statements that have then been made, if any, does
not or has ceased to create a valid and perfected first
priority lien or security interest in favor of the Lender
Parties securing the Secured Obligations.
"Eligible Receivables" means all Receivables of the Borrower
and the Subsidiary Guarantors other than the following classes of
Receivables:
(a) Receivables that do not arise out of sales of
goods or rendering of services in the ordinary course of the
Borrower's business;
(b) Receivables on terms other than those normal or
customary in the Borrower's business;
(c) Receivables owing from any Person that is an
Affiliate of the Borrower;
(d) Receivables more than 90 days past original
invoice date or more than 60 days past the date due;
(e) Receivables owing from any Person that (i) has
disputed liability for any Receivable owing from such Person
or (ii) has otherwise asserted any claim, demand or liability,
whether by action, suit, counterclaim or otherwise;
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(f) Receivables owing from any Person that shall take
or be the subject of any action or proceeding of a type
described in Section 6.01(f);
(g) Receivables (i) owing from any Person that is
also a supplier to or creditor of the Borrower or (ii)
representing any manufacturer's or supplier's credits,
discounts, incentive plans or similar arrangements entitling
the Borrower to discounts on future purchase therefrom;
(h) Receivables arising out of sales to account
debtors outside the United States;
(i) Receivables arising out of sales on a
bill-and-hold, guaranteed sale, sale-or-return, sale on
approval or consignment basis or subject to any right of
return, set-off or charge-back out of the ordinary course of
business;
(j) Receivables owing from an account debtor that is
an agency, department or instrumentality of the United States
or any State thereof; and
(k) Receivables in respect of which the Security
Agreement, after giving effect to the related filings of
financing statements that have then been made, if any, does
not or has ceased to create a valid and perfected first
priority lien or security interest in favor of the Lender
Parties securing the Secured Obligations.
"Employment Agreements" means each of the agreements, dated on
or about May 7, 1999, among the Borrower, Holding, and each of David E.
Enos, G. Dean Longnecker, James T. McKitrick, Denny Starr and John R.
Pearson.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material, including, without
limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or third
party for damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or legally binding and enforceable judicial or
agency interpretation, policy or guidance that has the force and effect
of law relating to pollution or protection of the environment, public
or employee health and safety or natural resources, including, without
limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous
Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
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"Equity Investors" means J.W. Childs and its Affiliates and
co-investors, Fenway Partners Capital Fund, L.P. and its Affiliates,
Fleet Equity Partners and its Affiliates, and stockholders of Holding
following the Merger that are parties to the Stockholders Agreement.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for imposition of a lien under Section 302(f) of ERISA shall have been
met with respect to any Plan; (g) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, such Plan; provided, however, that the
occurrence of the event or condition described in Section 4042(a)(4) of
ERISA shall be an ERISA Event only if the PBGC has notified any Loan
Party or any ERISA Affiliate in writing that it intends to institute
proceedings to terminate a Plan pursuant to such section or has
threatened in writing to do so.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
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<PAGE>
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum (rounded upward, if necessary, to the nearest
1/32 of one percent) as determined on the basis of the offered rates
for deposits in U.S. dollars, for a period of time comparable to such
Interest Period which appears on the Telerate Page 3750 as of 11:00
A.M. (London time) two Business Days before the first day of such
Interest Period, provided, however, that if the rate described above
does not appear on the Telerate System on any applicable interest
determination date, the Eurodollar Rate shall be the rate (rounded
upward as described above, if necessary) for deposits in dollars for a
period substantially equal to the interest period on the Reuters Page
"LIBO" (or such other page as may replace the LIBO page on that service
for the purpose of displaying such rates), as of 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period.
If both the Telerate and Reuters system are unavailable, then
the rate for that date will be determined on the basis of the offered
rates for deposits in U.S. dollars for a period of time comparable to
such Interest Period which are offered by four major banks in the
London interbank market at approximately 11:00 A.M. (London time) two
Business Days before the first day of such Interest Period as selected
by the Administrative Agent. The principal London office of each of the
four major London banks will be requested to provide a quotation of its
U.S. dollar deposit offered rate. If at least two such quotations are
provided, the rate for that date will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the
rate for that date will be determined on the basis of the rates quoted
for loans in U.S. dollars to leading European banks for a period of
time comparable to such Interest Period offered by major banks in New
York City at approximately 11:00 A.M. (New York City time) two Business
Days before the first day of such Interest Period. In the event that
the Administrative Agent is unable to obtain any such quotation as
provided above, it will be deemed that the Eurodollar Rate for such
Interest Rate cannot be determined.
In the event that the Board of Governors of the Federal
Reserve System shall impose a Eurodollar Rate Reserve Percentage with
respect to Eurocurrency Liabilities, the Eurodollar Rate for an
Interest Period shall be equal to the amount determined above for such
Interest Period divided by a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
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<PAGE>
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any period, the amount by which
(a) the sum of (i) Consolidated net income (or loss) of Holding and its
Subsidiaries for such period plus (ii) the aggregate amount of all
non-cash charges deducted in arriving at such Consolidated net income
(or loss) plus (iii) if there was a net increase in Consolidated
Current Liabilities of Holding and its Subsidiaries during such period,
the amount of such net increase plus (iv) if there was a net decrease
in Consolidated Current Assets (excluding cash and Cash Equivalents) of
Holding and its Subsidiaries during such period, the amount of such net
decrease less (v) the aggregate amount of all non-cash credits included
in arriving at such Consolidated net income (or loss) less (vi) if
there was a net decrease in Consolidated Current Liabilities of Holding
and its Subsidiaries during such period, the amount of such net
decrease less (vii) if there was a net increase in Consolidated Current
Assets (excluding cash and Cash Equivalents) of Holding and its
Subsidiaries during such period, the amount of such net increase less
(viii) the aggregate amount of cash paid by Holding and its
Subsidiaries in respect of Capital Expenditures during such period or
committed during such period to be paid in respect of Capital
Expenditures (so long as such commitment is required to be funded on or
prior to the date which is six months following the end of such period)
less (ix) to the extent not otherwise excluded from the calculation of
Excess Cash Flow for such period, an amount equal to the net gain, if
any, attributable to the sale, lease, transfer or any disposition of
property and assets of Holding and its Subsidiaries and included in
determining the consolidated net income of Holding and its Subsidiaries
for such period less (x) without duplication, the aggregate amount of
all cash payments made by Holding and its Subsidiaries in respect of
the permanent reduction of Debt (of the type referred to in clauses
(a), (b), (c), (d), (e), (f) and (g) of the definition thereof) during
such period exceeds (b) $4,000,000; provided, however, that the amount
of Capital Expenditures deducted pursuant to clause (viii) shall not
include any amounts deducted in the calculation of Excess Cash Flow in
the prior period.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Existing Debt" means Debt of the Borrower, the Company and
their respective Subsidiaries outstanding immediately before the date
hereof.
"Existing Lenders" has the meaning specified in the
Preliminary Statements.
"Extension of Credit" means a Borrowing or an issuance of a
Letter of Credit hereunder.
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<PAGE>
"Extraordinary Receipt" means any cash received by or paid to
or for the account of any Person not in the ordinary course of
business, including, without limitation, tax refunds, pension plan
reversions, proceeds of insurance (other than proceeds of business
interruption insurance to the extent such proceeds constitute
compensation for lost earnings), condemnation awards (and payments in
lieu thereof) and indemnity payments in respect of loss or damage to
equipment, fixed assets or real property; provided, however, that an
Extraordinary Receipt shall not include (a) cash receipts received from
proceeds of insurance, condemnation awards (or payments in lieu
thereof) or indemnity payments to the extent that such proceeds, awards
or payments in respect of loss or damage to equipment, fixed assets or
real property are reinvested (or in respect of which expenditures were
previously incurred) in the business of the Borrower and its
Subsidiaries, so long as such reinvestment is made within 15 months
after the receipt of such Extraordinary Receipts or (b) amounts
received by any Person in respect of any third party claim against such
Person and applied to pay (or to reimburse such Person for its prior
payment of) such claim and the costs and expenses of such Person with
respect thereto.
"Facility" means the Tranche A Term Facility, the Tranche B
Term Facility, the Revolving Credit Facility, the Swing Line Facility
or the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"Fenway Management Agreement" means the Consulting Agreement
dated as of July 3, 1997 between the Borrower, Holding and Fenway
Partners, Inc. as the same may be amended, modified or otherwise
supplemented from time to time in accordance with the provisions of
this Agreement.
"Fiscal Year" means, for Holding and its Consolidated
Subsidiaries, (i) the fiscal year ending in October 1998, (ii) the
fiscal year ending in January 2000 and (iii) thereafter, each fiscal
year ending in January or February of any calendar year.
"Fixed Charge Coverage Ratio" means, at any date of
determination, the ratio of (a) (i) Consolidated EBITDA for the most
recently completed four fiscal quarters of Holding or its Subsidiaries
less (ii) the amount of cash Capital Expenditures made by Holding and
its Subsidiaries during such fiscal period less (iii) the amount of
cash income taxes paid by Holding and its Subsidiaries during such four
fiscal quarter period to (b) the sum of (i) cash interest payable on
all Debt for Borrowed Money plus (ii) principal amounts of all Debt for
Borrowed Money required to be repaid (in the case of Advances other
than Advances under the Term Facilities, only to the extent accompanied
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by a permanent reduction in the related Commitments), in the case of
each item specified in this clause (b), by Holding and its Subsidiaries
during such four fiscal quarters; provided, however, that if such four
fiscal quarter period includes any or all of the fiscal quarters ending
on July 31, 1999, October 31, 1999, or January 31, 2000, (x) the amount
referred to in clause (b)(i) shall be the actual amount for the fiscal
quarters ended after the Closing Date multiplied by a fraction the
numerator of which is four and the denominator of which is the number
of fiscal quarters that have elapsed since the Closing Date and (y) the
amount referred to in clause (b)(ii) shall be $6,200,000.
"GAAP" has the meaning specified in Section 1.03.
"Guaranty" has the meaning specified in Section 8.01.
"Hazardous Materials" means (a) petroleum or petroleum
products, radioactive materials, asbestos-containing materials,
polychlorinated biphenyls and radon gas and (b) any other chemicals,
materials or substances designated or classified as hazardous or toxic,
regulated under, any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a
Lender Party in its capacity as a party to a Secured Hedge Agreement.
"Holding" has the meaning specified in the recital of parties
hereto.
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Initial Issuing Bank" means Fleet.
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Prime Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, two, three or six months (or, to the extent permitted under
Section 2.02(c), one week), as the Borrower may, upon notice received
by the Administrative Agent not later than 11:00 A.M. (Boston,
Massachusetts) on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
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(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
such Facility unless, after giving effect to such selection,
the aggregate principal amount of Prime Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on
or prior to such principal repayment installment date for such
Facility shall be at least equal to the aggregate principal
amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Inventory" means all Inventory referred to in Section 1(b) of
the Security Agreement.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or other
ownership or profit interest, warrants, rights, options, obligations or
other securities of such Person, any capital contribution to such
Person or any other investment in such Person, including, without
limitation, any arrangement pursuant to which the investor incurs Debt
of the types referred to in clause (i) or (j) of the definition of
"Debt" in respect of such Person.
"Issuing Bank" means the Initial Issuing Bank and each
Eligible Assignee to which the Letter of Credit Commitment hereunder
has been assigned pursuant to Section 9.07.
"J.W. Childs" means J.W. Childs Equity Partners, L.P.
"L/C Cash Collateral Account" has the meaning specified in the
Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.04(e)(ii).
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"Lender Party" means any Lender, the Issuing Bank or the Swing
Line Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 9.07.
"Letter of Credit" has the meaning specified in Section
2.01(e).
"Letter of Credit Advance" means an advance made by the
Issuing Bank or any Revolving Credit Lender pursuant to Section
2.03(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to the
Issuing Bank at any time, the amount set forth opposite the Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if the Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for the Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section
9.07(d) as the Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the amount of the Issuing Bank's Letter of Credit Commitment
at such time, as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means (a) for purposes of this Agreement and
the Notes and any amendment or modification hereof or thereof and for
all other purposes other than for purposes of the Collateral Documents,
(i) this Agreement, (ii) the Notes, (iii) the Collateral Documents,
(iv) each Letter of Credit Agreement and (v) the Subsidiary Guaranty
and (b) for purposes of the Collateral Documents, (i) this Agreement,
(ii) the Notes, (iii) the Collateral Documents, (iv) each Letter of
Credit Agreement, (v) each Secured Hedge Agreement, and (vi) the
Subsidiary Guaranty, in each case as amended or otherwise modified from
time to time.
"Loan Parties" means the Borrower, Holding and each Subsidiary
Guarantor.
"Loan Value" means, with respect to (i) any Eligible
Inventory, 65% of the value of such Eligible Inventory and (ii) any
Eligible Receivable, 80% of the unpaid face amount of such Eligible
Receivable.
"Margin Stock" has the meaning specified in Regulation U.
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"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or Holding and
their respective Subsidiaries, in each case taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or Holding and
their respective Subsidiaries, in each case taken as a whole, (b) the
rights and remedies of the Administrative Agent or any Lender Party
under any Loan Document or (c) the ability of the Loan Parties (taken
as a whole) to perform their Obligations under the Loan Documents.
"Material Contract" means, with respect to any Loan Party,
each contract to which such Person is a party involving aggregate
consideration payable to or by such Person of $10,000,000 or more in
any year or otherwise material to the business, condition (financial or
otherwise), operations, performance, properties or prospects of the
Loan Parties taken as a whole.
"Merger" has the meaning specified in the Preliminary
Statements.
"Merger Agreement" has the meaning specified in the
Preliminary Statements.
"Mortgage" has the meaning specified in Section 5.01(n).
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance of
any Debt or capital stock or other ownership or profit interest, any
securities convertible into or exchangeable for capital stock or other
ownership or profit interest or any warrants, rights, options or other
securities to acquire capital stock or other ownership or profit
interest by any Person, or any Extraordinary Receipt received by or
paid to or for the account of any Person, the aggregate amount of cash
received from time to time (whether as initial consideration or through
payment or disposition of deferred consideration) by or on behalf of
such Person in connection with such transaction after deducting
therefrom only (without duplication) (a) reasonable and customary
brokerage commissions, underwriting fees and discounts, legal fees,
finder's fees and other similar fees and commissions, in each case to
the extent, but only to the extent, that the amounts so deducted are,
actually paid (or required to be paid) to a Person that is not an
Affiliate of such Person or any Loan Party or any Affiliate of any Loan
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Party, (b) any Debt permitted by Section 5.02(b)(iv) and secured by
assets being sold in such transaction that is required to be paid from
such proceeds, and (c) income taxes that, as estimated by the Borrower
in good faith, will be required to be paid by the Borrower and its
Subsidiaries in cash as a result of, and within 15 months after, such
sale or disposition, in each case specified in clauses (a), (b) and (c)
to the extent, but only to the extent, that the amounts so deducted are
properly attributable to such transaction or to the asset that is the
subject thereof and (d) in the case of any lease that is a sublease,
any rentals payable under the prime lease; provided, however, that Net
Cash Proceeds from the sale, lease, transfer or other disposition of
any asset shall not include any amount of cash proceeds reinvested in
the business of the Borrower and its Subsidiaries, so long as such
reinvestment is made within 15 months after the receipt of such Net
Cash Proceeds.
"Nonratable Assignment" means an assignment by a Lender Party
pursuant to Section 9.07(a) of a portion of its rights and obligations
under this Agreement, other than an assignment of a uniform, and not a
varying, percentage of all of the rights and obligations of such Lender
Party under and in respect of all of the Facilities (other than the
Letter of Credit Facility and the Swing Line Facility).
"Note" means a Tranche A Term Note, a Tranche B Term Note or a
Revolving Credit Note.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"Notice of Renewal" has the meaning specified in Section
2.01(d).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Notice of Termination" has the meaning specified in Section
2.01(d).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
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"OECD" means the Organization for Economic Cooperation and
Development.
"Open Year" means a taxable year of any Loan Party or any of
its Subsidiaries or Affiliates for which Federal income tax returns
have been filed and for which the applicable statute of limitations for
assessment or collection has not occurred by reason of extension or
otherwise.
"Other Taxes" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permanent Debt" means the $105,000,000 original principal
amount of 10-N% Senior Notes due 2007 issued by the Borrower.
"Permanent Debt Documents" means the agreements and
instruments which govern the terms of the Permanent Debt, as the same
may be amended, modified or otherwise supplemented from time to time in
accordance with the provisions of this Agreement.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business, in
each case (i) in existence less than 90 days from the date of creation
thereof or (ii) being contested in good faith by the Borrower or any
Subsidiary in appropriate proceedings (so long as the Borrower or such
Subsidiary shall, in accordance with GAAP, have set aside on its books
adequate reserves with respect thereto); (c) deposits or pledges made
in the ordinary course of business (i) in connection with, or to secure
payment of, workers' compensation, unemployment insurance, old age
pensions or other social security, (ii) in connection with casualty
insurance maintained in accordance with the provisions of any Loan
Document, (iii) to secure the performance of bids, tenders or leases,
(iv) to secure statutory obligations or surety or appeal bonds or (v)
to secure indemnity, performance or other similar bonds in the ordinary
course of business; (d) any interest or title of a lessor or sublessor
and any restriction or encumbrance to which the interest or title of
such lessor or sublessor may be subject that is incurred in the
ordinary course of business and, either individually or when aggregated
with all other Permitted Liens in effect on the date of determination,
could not be reasonably expected to have a Material Adverse Affect; (e)
Liens in favor of customs and revenue authorities arising as a matter
of law or pursuant to a bond to secure payment of customs duties in
connection with the importation of goods; (f) Liens arising out of
judgments or awards that do not constitute events of default under
Section 6.01(g) or (h), and (g) easements, rights of way and other
encumbrances on title to real property that do not render title to the
property encumbered thereby unmarketable or materially adversely affect
the use of such property for its present purposes.
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"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pledge Agreement" has the meaning specified in Section
3.01(n)(ix).
"Preferred Stock" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Prepayment Amount" has the meaning specified in Section
2.06(c).
"Prepayment Date" has the meaning specified in Section
2.06(c).
"Prime Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by Fleet
in Boston, Massachusetts from time to time, as Fleet's prime
rate; and
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
"Prime Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Pro Rata Share" of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's
Revolving Credit Commitment at such time and the denominator of which
is the Revolving Credit Facility at such time.
"Receipt Date" has the meaning specified in Section 2.06(c).
"Receivables" means all Receivables referred to in Section
1(c) of the Security Agreement.
"Redeemable" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any
such right or Obligation that (a) the issuer has undertaken to redeem
on or prior to the Termination Date at a fixed or determinable date or
dates, whether by operation of a sinking fund or otherwise, or upon the
occurrence of a condition not solely within the control of the issuer
or (b) is redeemable at the option of the holder (other than as
provided in the Stockholders Agreement or an Employment Agreement);
provided, however, that the term "Redeemable" shall not include any
such right or Obligation that is redeemable solely by being exchanged
for common stock of the issuer.
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"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Related Documents" means the Merger Agreement, the
Stockholders Agreement, the Childs Management Agreement, the Fenway
Management Agreement, the Employment Agreements and the Permanent Debt
Documents.
"Required Lenders" means at any time Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate
principal amount of the Advances outstanding at such time, (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, (c) the aggregate unused Commitments under the Tranche A Term
Facility at such time, (d) the aggregate unused Commitments under the
Tranche B Term Facility, and (e) the aggregate Unused Revolving Credit
Commitments at such time; provided, however, that if any Lender shall
be a Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity
as a Lender) and outstanding at such time, (B) such Lender's Pro Rata
Share of the aggregate Available Amount of all Letters of Credit issued
by such Lender and outstanding at such time, (C) the unused Term
Commitments of such Lender at such time and (D) the Unused Revolving
Credit Commitment of such Lender at such time. For purposes of this
definition, the aggregate principal amount of Swing Line Advances owing
to the Swing Line Bank and of Letter of Credit Advances owing to the
Issuing Bank and the Available Amount of each Letter of Credit shall be
considered to be owed to the Lenders ratably in accordance with their
respective Revolving Credit Commitments.
"Responsible Officer" means any executive officer of any Loan
Party or any of its Subsidiaries.
"Revolving Credit Advance" has the meaning specified in
Section 2.01(c).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders.
"Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Revolving Credit
Commitment" or, if such Lender has entered into one or more Assignments
and Acceptances, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as such
Lender's "Revolving Credit Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Lenders' Revolving Credit Commitments at such time.
"Revolving Credit Lender" means any Lender that has a
Revolving Credit Commitment.
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"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Revolving Credit Lender, in
substantially the form of Exhibit A-3 hereto, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from the
Revolving Credit Advances made by such Lender.
"Secured Hedge Agreements" means any Hedge Agreement required
or permitted under Article V that is entered into by and between the
Borrower and any Hedge Bank.
"Secured Obligations" has the meaning specified in the
Security Agreement.
"Secured Parties" means the Administrative Agent, the Lender
Parties, and the Hedge Banks.
"Security Agreement" has the meaning specified in Section
3.01(n)(viii).
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"Standby Letter of Credit" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"Stockholders Agreement" means the QSI Holdings, Inc.
Stockholders Agreement dated as of May 7, 1999 among Holding, the
Persons listed as the "JWC Holders" on the signature pages thereof, the
Persons listed as the "Other Holders" on the signature pages thereof,
the Persons listed as the "Management Holders" on the signature pages
thereof and the Persons listed as "Quality Holders" on the signature
pages thereof, as the same may be amended, modified or otherwise
supplemented from time to time in accordance with the provisions of
this Agreement.
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"Subordinated Debt" means any Debt of the Borrower that is
subordinated to the Obligations of the Borrower under the Loan
Documents on, and that otherwise contains, terms and conditions
reasonably satisfactory to the Required Lenders.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such partnership, joint
venture or limited liability company or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Subsidiary Guarantor" means Country General and each other
Subsidiary of the Borrower.
"Subsidiary Guaranty" has the meaning set forth in Section
3.01(n)(x).
"Surviving Debt" has the meaning set forth in Section 3.01(g).
"Swing Line Advance" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(d) or (b) any Revolving Credit
Lender pursuant to Section 2.02(b).
"Swing Line Bank" means Fleet.
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section
2.01(c).
"Syndication Agent" has the meaning specified in the recital
of parties to this Agreement.
"Tax Certificate" has the meaning specified in Section
5.03(o).
"Taxes" has the meaning specified in Section 2.12(a).
"Term Facilities" means the Tranche A Term Facility and the
Tranche B Term Facility.
"Termination Date" means the earlier of April 30, 2006 and the
date of termination in whole of the Tranche A Term Commitments, the
Tranche B Term Commitments, the Letter of Credit Commitments and the
Revolving Credit Commitments pursuant to Section 2.05 or 6.01.
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"Trade Letter of Credit" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of Inventory to the Borrower or any of its Subsidiaries to
effect payment for such Inventory.
"Tranche A Term Advance" has the meaning specified in Section
2.01(a).
"Tranche A Term Borrowing" means a borrowing consisting of
simultaneous Tranche A Term Advances of the same Type made by the
Tranche A Term Lenders.
"Tranche A Term Commitment" means, with respect to any Tranche
A Term Lender at any time, the amount set forth opposite such Lender's
name on Schedule 1(a) hereto under the caption "Tranche A Term
Commitment" or, if such Lender has entered into one or more Assignments
and Acceptances, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as such
Lender's "Tranche A Term Commitment," as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"Tranche A Term Facility" means, at any time, the aggregate
amount of the Tranche A Term Lenders' Tranche A Term Commitments at
such time.
"Tranche A Term Lender" means any Lender that has a Tranche A
Term Commitment.
"Tranche A Term Note" means a promissory note of the Borrower
payable to the order of any Tranche A Term Lender, in substantially the
form of Exhibit A-1 hereto, evidencing the indebtedness of the Borrower
to such Lender resulting from the Tranche A Term Advance made by such
Lender.
"Tranche A Termination Date" means the earlier of October 31,
2004 and the date of termination in whole of the Tranche A Term
Commitments, the Letter of Credit Commitments and the Revolving Credit
Commitments pursuant to Section 2.05 or 6.01.
"Tranche B Term Advance" has the meaning specified in Section
2.01(b).
"Tranche B Term Borrowing" means a borrowing consisting of
simultaneous Tranche B Term Advances of the same type made by the
Tranche B Term Lenders.
"Tranche B Term Commitment" means, with respect to any Tranche
B Term Lender at any time, the amount set forth opposite such Lender's
name on Schedule 1(b) hereto under the caption "Tranche B Term
Commitment" or, if such Lender has entered into one or more Assignments
and Acceptances, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 9.07(d) as such
Lender's "Tranche B Term Commitment," as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"Tranche B Term Facility" means, at any time, the aggregate
amount of the Tranche B Term Lenders' Tranche B Term Commitments at
such time.
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"Tranche B Term Lender" means any Lender that has a Tranche B
Term Commitment.
"Tranche B Term Note" means a promissory note of the Borrower
payable to the order of any Tranche B Term Lender, in substantially the
form of Exhibit A-2 hereto, evidencing the indebtedness of the Borrower
to such Lender resulting from the Tranche B Term Advance made by such
Lender.
"Transaction" means the Merger and the amendment and
restatement of the Existing Credit Agreement.
"Transaction Documents" means, collectively, the Loan
Documents and the Related Documents.
"Type" refers to the distinction between Advances bearing
interest at the Prime Rate and Advances bearing interest at the
Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to
any Revolving Credit Lender at any time, (a) such Lender's Revolving
Credit Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Revolving Credit Advances, Swing Line Advances
and Letter of Credit Advances made by such Lender (in its capacity as a
Lender) and outstanding at such time, plus (ii) such Lender's Pro Rata
Share of (A) the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Bank pursuant to Section
2.03(c) and outstanding at such time and (C) the aggregate principal
amount of all Swing Line Advances made by the Swing Line Bank pursuant
to Section 2.01(d) and outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section
3(1) of ERISA, that is maintained for employees of any Loan Party or in
respect of which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f) ("GAAP").
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ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Tranche A Term Advances.
Each Tranche A Term Lender severally agrees, on the terms and conditions
hereinafter set forth, to make a single advance (a "Tranche A Term Advance") to
the Borrower on the date hereof in an amount not to exceed such Lender's Tranche
A Term Commitment at such time. The Tranche A Term Borrowing shall consist of
Tranche A Term Advances made simultaneously by the Tranche A Term Lenders
ratably according to their Tranche A Term Commitments. Amounts borrowed under
this Section 2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Tranche B Term Advances. Each Tranche B Term Lender
severally agrees, on the term and conditions hereinafter set forth, to make a
single advance (a "Tranche B Term Advance") to the Borrower on the date hereof
in an amount not to exceed such Lender's Tranche B Term Commitment at such time.
The Tranche B Term Borrowing shall consist of Tranche B Term Advances made
simultaneously by the Tranche B Term Lenders ratably according to their Tranche
B Team Commitments. Amounts borrowed under this Section 2.01(b) and repaid or
prepaid may not be reborrowed.
(c) The Revolving Credit Advances. Each Revolving Credit
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a "Revolving Credit Advance") to the Borrower from time to
time on any Business Day during the period from the date hereof until the
Tranche A Termination Date in an amount for each such Advance not to exceed such
Lender's Unused Revolving Credit Commitment at such time; provided, however,
that Revolving Credit Advances on the date hereof shall not exceed an aggregate
principal amount equal to $70,000,000. Each Revolving Credit Borrowing shall be
in an aggregate amount of $1,000,000 or an integral multiple of $250,000 in
excess thereof (other than a Borrowing the proceeds of which shall be used
solely to repay or prepay in full outstanding Swing Line Advances or outstanding
Letter of Credit Advances) and shall consist of Revolving Credit Advances made
simultaneously by the Revolving Credit Lenders ratably according to their
Revolving Credit Commitments. Within the limits of each Revolving Credit
Lender's Unused Revolving Credit Commitment in effect from time to time, the
Borrower may borrow under this Section 2.01(c), prepay pursuant to Section
2.06(a) and reborrow under this Section 2.01(c).
(d) The Swing Line Advances. The Borrower may request the
Swing Line Bank to make, and the Swing Line Bank shall make, on the terms and
conditions hereinafter set forth, Swing Line Advances to the Borrower from time
to time on any Business Day during the period from the date hereof until the
Tranche A Termination Date (i) in an aggregate amount not to exceed at any time
outstanding $10,000,000 (the "Swing Line Facility") and (ii) in an amount for
each such Swing Line Borrowing not to exceed the aggregate of the Unused
Revolving Credit Commitments of the Revolving Credit Lenders at such time. No
Swing Line Advance shall be used for the purpose of funding the payment of
principal of any other Swing Line Advance. Each Swing Line Borrowing shall be in
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an amount of $250,000 or an integral multiple of $100,000 in excess thereof and
shall be made as a Prime Rate Advance. Within the limits of the Swing Line
Facility and within the limits referred to in clause (ii) above, the Borrower
may borrow under this Section 2.01(d), repay pursuant to Section 2.04(d) or
prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(d).
(e) Letters of Credit. The Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue letters of credit (the "Letters
of Credit") for the account of the Borrower from time to time on any Business
Day during the period from the date hereof until 30 days before the Tranche A
Termination Date (i) in an aggregate Available Amount for all Letters of Credit
not to exceed at any time the Issuing Bank's Letter of Credit Commitment at such
time and (ii) in an Available Amount for each such Letter of Credit not to
exceed the Unused Revolving Credit Commitments of the Revolving Credit Lenders
at such time. No Letter of Credit shall have an expiration date (including all
rights of the Borrower or the beneficiary to require renewal) later than the
earlier of 5 days before the Tranche A Termination Date and (A) in the case of a
Standby Letter of Credit one year after the date of issuance thereof, but may by
its terms be renewable annually upon notice (a "Notice of Renewal") given to the
Issuing Bank and the Administrative Agent on or prior to any date for notice of
renewal set forth in such Letter of Credit but in any event at least three
Business Days prior to the date of the proposed renewal of such Standby Letter
of Credit and upon fulfillment of the applicable conditions set forth in Article
III unless the Issuing Bank has notified the Borrower (with a copy to the
Administrative Agent) on or prior to the date for notice of termination set
forth in such Letter of Credit but in any event at least 30 Business Days prior
to the date of automatic renewal of its election not to renew such Standby
Letter of Credit (a "Notice of Termination"); provided that the terms of each
Standby Letter of Credit that is automatically renewable annually shall (x)
require the Issuing Bank to give the beneficiary named in such Standby Letter of
Credit notice of any Notice of Termination, (y) permit such beneficiary, upon
receipt of such notice, to draw under such Standby Letter of Credit prior to the
date such Standby Letter of Credit otherwise would have been automatically
renewed and (z) not permit the expiration date (after giving effect to any
renewal) of such Standby Letter of Credit in any event to be extended to a date
later than 5 days before the Tranche A Termination Date. If either a Notice of
Renewal is not given by the Borrower or a Notice of Termination is given by the
Issuing Bank pursuant to the immediately preceding sentence, such Standby Letter
of Credit shall expire on the date on which it otherwise would have been
automatically renewed; provided, however, that even in the absence of receipt of
a Notice of Renewal the Issuing Bank may in its discretion, unless instructed to
the contrary by the Administrative Agent or the Borrower, deem that a Notice of
Renewal had been timely delivered and in such case, a Notice of Renewal shall be
deemed to have been so delivered for all purposes under this Agreement. Any
"Letters of Credit" (as defined in the Existing Credit Agreement) that are
issued and outstanding on the date hereof shall be deemed to be Letters of
Credit hereunder. Within the limits of the Letter of Credit Facility, and
subject to the limits referred to above, the Borrower may request the issuance
of Letters of Credit under this Section 2.01(e), repay any Letter of Credit
Advances resulting from drawings thereunder pursuant to Section 2.03(c) and
request the issuance of additional Letters of Credit under this Section 2.01(e).
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(f) All "Advances" under the Existing Credit Agreement shall
be deemed to be Advances for all purposes hereunder.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.03, each Borrowing shall be made on notice,
given not later than 12:00 Noon (Boston, Massachusetts time) on the third
Business Day prior to the date of the proposed Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or the first Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Prime Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each Appropriate Lender prompt notice thereof by telecopier.
Each such notice of a Borrowing (a "Notice of Borrowing") shall be by telephone,
confirmed immediately in writing or telecopier, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Facility under which such Borrowing is to be made, (iii) Type of Advances
comprising such Borrowing, (iv) aggregate amount of such Borrowing and (v) in
the case of a Borrowing consisting of Eurodollar Rate Advances, initial Interest
Period for each such Advance. Each Appropriate Lender shall, before 11:00 A.M.
(Boston, Massachusetts time) on the date of such Borrowing, make available for
the account of its Applicable Lending Office to the Administrative Agent at the
Administrative Agent's Account, in same day funds, such Lender's ratable portion
of such Borrowing in accordance with the respective Commitments under the
applicable Facility of such Lender and the other Appropriate Lenders. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower by crediting the Borrower's Account.
(b) Each Swing Line Borrowing shall be made on notice, given
not later than 12:00 Noon (Boston, Massachusetts time) on the date of the
proposed Swing Line Borrowing, by the Borrower to the Swing Line Bank and the
Administrative Agent. Each such notice of a Swing Line Borrowing (a "Notice of
Swing Line Borrowing") shall be by telephone, confirmed immediately in writing,
or telecopier, specifying therein the requested (i) date of such Borrowing, (ii)
amount of such Borrowing and (iii) maturity of such Borrowing (which maturity
shall be no later than the seventh day after the requested date of such
Borrowing). The Swing Line Bank will make the amount of the requested Swing Line
Advance available to the Administrative Agent at the Administrative Agent's
Account, in same day funds. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower by
crediting the Borrower's Account. Upon written demand by the Swing Line Bank,
with a copy of such demand to the Administrative Agent, each other Revolving
Credit Lender shall purchase from the Swing Line Bank, and the Swing Line Bank
shall sell and assign to each such other Revolving Credit Lender, such other
Lender's Pro Rata Share of such outstanding Swing Line Advance as of the date of
such demand, by making available for the account of its Applicable Lending
Office to the Administrative Agent for the account of the Swing Line Bank, by
deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Swing Line
Advance to be purchased by such Lender. The Borrower hereby agrees to each such
sale and assignment. Each Revolving Credit Lender agrees to purchase its Pro
Rata Share of an outstanding Swing Line Advance on (i) the Business Day on which
demand therefor is made by the Swing Line Bank, provided that notice of such
demand is given not later than 11:00 A.M. (Boston, Massachusetts time) on such
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Business Day or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by the
Swing Line Bank to any other Revolving Credit Lender of a portion of a Swing
Line Advance, the Swing Line Bank represents and warrants to such other Lender
that the Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other representation or warranty and assumes
no responsibility with respect to such Swing Line Advance, the Loan Documents or
any Loan Party. If and to the extent that any Revolving Credit Lender shall not
have so made the amount of such Swing Line Advance available to the
Administrative Agent, such Revolving Credit Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Swing Line Bank until the
date such amount is paid to the Administrative Agent, at the Federal Funds Rate.
If such Lender shall pay to the Administrative Agent such amount for the account
of the Swing Line Bank on any Business Day, such amount so paid in respect of
principal shall constitute a Swing Line Advance made by such Lender on such
Business Day for purposes of this Agreement, and the outstanding principal
amount of the Swing Line Advance made by the Swing Line Bank shall be reduced by
such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may select Eurodollar Rate Advances having an
initial Interest Period of one week for the initial Borrowing hereunder, and for
the period from the Closing Date to the date that is the earlier of 30 days
after the Closing Date and the date on which the Administrative Agent notifies
the Borrower and the Lender Parties that the Facilities are fully syndicated,
and, thereafter, the Borrower may select Eurodollar Rate Advances for any
Borrowing if the aggregate amount of such Borrowing is at least $1,000,000 or if
the obligation of the Appropriate Lenders to make Eurodollar Rate Advances shall
not then be suspended pursuant to Section 2.09 or Section 2.10 and (ii) the
Advances may not be outstanding as part of more than 20 separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, if the Borrower fails to fulfill on or before the date
specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III and the Advance to be made by such Lender as
part of such Borrowing, as a result of such failure, is not made on such date,
the Borrower will pay to the Administrative Agent for each Appropriate Lender an
amount equal to the present value (calculated in accordance with this Section
2.02(d)) of interest for the Interest Period specified in such Notice of
Borrowing on the amount of such Advance, at a rate per annum equal to the excess
of (a) the Eurodollar Rate that would have been in effect for such Interest
Period over (b) the Eurodollar Rate applicable on the date of determination to a
deemed Interest Period ending on the last day of such Interest Period. The
present value of such additional interest shall be calculated by discounting the
amount of such interest for each day in the Interest Period specified in such
Notice of Borrowing from such day to the date of such repayment or termination
at an interest rate per annum equal to the interest rate determined pursuant to
the preceding sentence, and by adding all such amounts for all such days during
such period. The determination by the Administrative Agent of such amount of
interest shall, in the absence of manifest error, be conclusive.
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(e) Unless the Administrative Agent shall have received notice
from an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) or (b) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender's Advance as part of such Borrowing for all
purposes.
(f) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 12:00 Noon (Boston, Massachusetts time)
on the third Business Day prior to the date of the proposed issuance of such
Letter of Credit, by the Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Revolving Credit Lender prompt notice thereof by
telecopier. Each such notice of issuance of a Letter of Credit (a "Notice of
Issuance") shall be by telephone, confirmed immediately in writing or
telecopier, specifying therein the requested (A) date of such issuance (which
shall be a Business Day), (B) Available Amount of such Letter of Credit, (C)
expiration date of such Letter of Credit, (D) name and address of the
beneficiary of such Letter of Credit and (E) form of such Letter of Credit, and
shall be accompanied by such application and agreement for letter of credit as
the Issuing Bank may specify to the Borrower for use in connection with such
requested Letter of Credit (a "Letter of Credit Agreement"). All "Letters of
Credit" under the Existing Credit Agreement shall be deemed to be Letters of
Credit for all purposes under the Loan Documents. If (x) the requested form of
such Letter of Credit is acceptable to the Issuing Bank in its sole discretion
and (y) it has not received notice of objection to such issuance from Lenders
holding at least a majority of the Revolving Credit Commitments, the Issuing
Bank will, upon fulfillment of the applicable conditions set forth in Article
III, make such Letter of Credit available to the Borrower at its office referred
to in Section 9.02 or as otherwise agreed with the Borrower in connection with
such issuance. In the event and to the extent that the provisions of any Letter
of Credit Agreement shall conflict with this Agreement, the provisions of this
Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish
(A) to the Administrative Agent on the first Business Day of each week a written
report summarizing issuance and expiration dates of Letters of Credit issued
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during the previous week and drawings during such week under all Letters of
Credit, (B) to each Revolving Credit Lender on the first Business Day of each
month a written report summarizing issuance and expiration dates of Letters of
Credit issued during the preceding month and drawings during such month under
all Letters of Credit and (C) to the Administrative Agent and each Lender on the
first Business Day of each calendar quarter a written report setting forth the
average daily aggregate Available Amount during the preceding calendar quarter
of all Letters of Credit.
(c) Drawing and Reimbursement. The payment by the Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Letter of Credit Advance,
which shall be a Prime Rate Advance, in the amount of such draft. Upon written
demand by the Issuing Bank, with a copy of such demand to the Administrative
Agent, each Revolving Credit Lender shall purchase from the Issuing Bank, and
the Issuing Bank shall sell and assign to each such Revolving Credit Lender,
such Lender's Pro Rata Share of such outstanding Letter of Credit Advance as of
the date of such purchase, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the Issuing Bank,
by deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Letter of
Credit Advance to be purchased by such Lender. Promptly after receipt thereof,
the Administrative Agent shall transfer such funds to the Issuing Bank. The
Borrower hereby agrees to each such sale and assignment. Each Revolving Credit
Lender agrees to purchase its Pro Rata Share of an outstanding Letter of Credit
Advance on (i) the Business Day on which demand therefor is made by the Issuing
Bank, provided notice of such demand is given not later than 11:00 A.M. (Boston,
Massachusetts time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after such time. Upon
any such assignment by the Issuing Bank to any other Revolving Credit Lender of
a portion of a Letter of Credit Advance, the Issuing Bank represents and
warrants to such other Lender that the Issuing Bank is the legal and beneficial
owner of such interest being assigned by it, free and clear of any liens, but
makes no other representation or warranty and assumes no responsibility with
respect to such Letter of Credit Advance, the Loan Documents or any Loan Party.
If and to the extent that any Revolving Credit Lender shall not have so made the
amount of such Letter of Credit Advance available to the Administrative Agent,
such Revolving Credit Lender agrees to pay to the Administrative Agent forthwith
on demand such amount together with interest thereon, for each day from the date
of demand by the Issuing Bank until the date such amount is paid to the
Administrative Agent, at the Federal Funds Rate for its account or the account
of the Issuing Bank, as applicable. If such Lender shall pay to the
Administrative Agent such amount for the account of the Issuing Bank on any
Business Day, such amount so paid in respect of principal shall constitute a
Letter of Credit Advance made by such Lender on such Business Day for purposes
of this Agreement, and the outstanding principal amount of the Letter of Credit
Advance made by the Issuing Bank shall be reduced by such amount on such
Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
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SECTION 2.04. Repayment of Advances. (a) Tranche A Term
Advances. The Borrower shall repay to the Administrative Agent for the ratable
account of the Tranche A Term Lenders the aggregate outstanding principal amount
of the Tranche A Term Advances on the following dates in the amounts indicated
(which amounts shall be reduced as a result of the application of prepayments in
accordance with the order of priority set forth in Section 2.06):
Date Amount
---- ------
July 31, 1999 $1,875,000
October 31, 1999 $625,000
January 31, 2000 $1,875,000
April 30, 2000 $625,000
July 31, 2000 $7,500,000
October 31, 2000 $2,500,000
January 31, 2001 $7,500,000
April 30, 2001 $2,500,000
July 31, 2001 $7,500,000
October 31, 2001 $2,500,000
January 31, 2002 $7,500,000
April 30, 2002 $2,500,000
July 31, 2002 $7,500,000
October 31, 2002 $2,500,000
January 31, 2003 $7,500,000
April 30, 2003 $2,500,000
July 31, 2003 $7,500,000
October 31, 2003 $2,500,000
January 31, 2004 $7,500,000
April 30, 2004 $2,500,000
July 31, 2004 $11,250,000
October 31, 2004 $3,750,000
provided, however, that the final principal installment shall be repaid on the
Tranche A Termination Date and in any event shall be in an amount equal to the
aggregate principal amount of the Tranche A Term Advances outstanding on such
date.
(b) Tranche B Term Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Tranche B Term Lenders the
aggregate outstanding principal amount of the Tranche B Term Advances on the
following dates in the amounts indicated (which amounts shall be reduced as a
result of the application of prepayments in accordance with the order of
priority set forth in Section 2.06):
Date Amount
---- ------
July 31, 1999 $450,000
October 31, 1999 $150,000
January 31, 2000 $450,000
April 30, 2000 $150,000
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July 31, 2000 $450,000
October 31, 2000 $150,000
January 31, 2001 $450,000
April 30, 2001 $150,000
July 31, 2001 $450,000
October 31, 2001 $150,000
January 31, 2002 $450,000
April 30, 2002 $150,000
July 31, 2002 $450,000
October 31, 2002 $150,000
January 31, 2003 $450,000
April 30, 2003 $150,000
July 31, 2003 $450,000
October 31, 2003 $150,000
January 31, 2004 $450,000
April 30, 2004 $150,000
July 31, 2004 $450,000
October 31, 2004 $150,000
January 31, 2005 $28,350,000
April 30, 2005 $9,450,000
July 31, 2005 $28,350,000
October 31, 2005 $9,450,000
January 31, 2006 $28,350,000
April 30, 2006 $9,450,000
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term Advances outstanding on such date.
(c) Revolving Credit Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Revolving Credit Lenders on
the Tranche A Termination Date the aggregate outstanding principal amount of the
Revolving Credit Advances then outstanding.
(d) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Revolving Credit Lender that has made a Swing Line Advance the outstanding
principal amount of each Swing Line Advance made by each of them on the earlier
of the maturity date specified in the applicable Notice of Swing Line Borrowing
(which maturity shall be no later than the seventh day after the requested date
of such Borrowing) and the Tranche A Termination Date.
(e) Letter of Credit Advances. (i) The Borrower shall repay to
the Administrative Agent for the account of the Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of demand and the Tranche A Termination Date the aggregate outstanding principal
amount of the Letter of Credit Advances then outstanding.
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(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral
or other collateral, or any release or amendment or waiver of or
consent to departure from the Guaranty or any other guarantee, for all
or any of the Obligations of the Borrower in respect of the L/C Related
Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower or a guarantor (other than the
gross negligence or willful misconduct of the Issuing Bank).
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower may, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Tranche A Term Commitments, the Tranche B Term Commitments and the Letter
of Credit Facility and the Unused Revolving Credit Commitments; provided,
however, that each partial reduction of a Facility (i) shall be in an aggregate
amount of $1,000,000 or an integral multiple of $250,000 in excess thereof and
(ii) shall be made ratably among the Appropriate Lenders in accordance with
their Commitments with respect to such Facility. Each reduction of the unused
portion of the Commitments under the Term Facilities pursuant to this subsection
(a) shall be applied pro rata to each of the Term Facilities.
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(b) Mandatory. (i) After the date of the Tranche A Term
Borrowing, upon each repayment or prepayment of the Tranche A Term Advances, the
aggregate Tranche A Term Commitments of the Tranche A Term Lenders shall be
automatically and permanently reduced, on a pro rata basis, by an amount equal
to the amount by which the aggregate Tranche A Term Commitments immediately
prior to such reduction exceed the aggregate unpaid principal amount of the
Tranche A Term Advances then outstanding.
(ii) After the date of the Tranche B Term Borrowing, upon each
repayment or prepayment of the Tranche B Term Advances, the aggregate Tranche B
Term Commitments of the Tranche B Term Lenders shall be automatically and
permanently reduced, on a pro rata basis, by an amount equal to the amount by
which the aggregate Tranche B Term commitments immediately prior to such
reduction exceed the aggregate unpaid principal amount of the Tranche B Term
Advances then outstanding.
(iii) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Revolving Credit
Facility by the amount, if any, by which the amount of the Letter of Credit
Facility exceeds the Revolving Credit Facility after giving effect to such
reduction of the Revolving Credit Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may,
upon at least one Business Day's notice in the case of Prime Rate Advances and
three Business Days' notice in the case of Eurodollar Rate Advances, in each
case to the Administrative Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding aggregate principal amount of the Advances
comprising part of the same Borrowing in whole or ratably in part, together with
accrued interest to the date of such prepayment on the aggregate principal
amount prepaid; provided, however, that (x) each partial prepayment (other than
in respect of a prepayment of the Swing Line Advances) shall be in an aggregate
principal amount of $250,000 or an integral multiple of $250,000 in excess
thereof, (y) each partial prepayment of Swing Line Advances shall be in an
aggregate principal amount of $250,000 or an integral multiple of $100,000 in
excess thereof and (z) if any prepayment of a Eurodollar Rate Advance is made on
a date other than the last day of an Interest Period for such Advance the
Borrower shall also pay any amounts owing pursuant to Section 9.04(c). In
respect of each such optional prepayment of a Term Facility, 50% of the amount
of such prepayment in respect of such Term Facility shall be applied to the
installments of such Term Facility in direct order of maturity and the remaining
50% shall be applied to the installments of such Term Facility in inverse order
of maturity.
(b) Mandatory. (i) The Borrower shall, on the 15th day
following each date on which the Borrower delivers the annual financial
statements pursuant to Section 5.03(d) (commencing with January 2001), prepay an
aggregate principal amount of the Advances comprising part of the same
Borrowings in an amount equal to (x) if the Debt to EBITDA Ratio for the related
Fiscal Year is less than 3:1, 50% of Excess Cash Flow for such Fiscal Year and
(y) at all other times, 75% of Excess Cash Flow for such Fiscal Year. The
Borrower shall also, on the sixth month anniversary of each Fiscal Year, prepay
an aggregate principal amount of Advances comprising part of the same Borrowings
in an amount equal to (x) if the Debt to EBITDA Ratio for the related Fiscal
Year is less than 3:1, 50% and (y) at all other times, 75% of any Capital
Expenditures deducted in the calculation of Excess Cash Flow for the preceding
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Fiscal Year and not actually made on or prior to such sixth month anniversary.
Each such prepayment shall be applied ratably to each of the Term Facilities;
provided, however, that 50% of the amount of such prepayment in respect of a
Term Facility shall be applied to the installments of such Term Facility in
direct order of maturity and the remaining 50% shall be applied to the
installments of such Term Facility in inverse order of maturity. Upon the
payment in full of the Term Advances, there shall be no further mandatory
prepayments pursuant to this Section 2.05(b)(i).
(ii) The Borrower shall, on the third Business Day following
the date of receipt of the Net Cash Proceeds by any Loan Party or any of its
Subsidiaries from (A) the sale, lease, transfer or other disposition of any
assets of any Loan Party or any of its Subsidiaries (other than any sale, lease,
transfer or other disposition of assets pursuant to clause (i) of Section
5.02(e)), subject to the proviso to the definition of Net Cash Proceeds, (B) the
incurrence or issuance by any Loan Party or any of its Subsidiaries of any Debt
(other than Debt incurred or issued pursuant to Section 5.02(b)), (C) the sale
or issuance after the Effective Date by any Loan Party or any of its
Subsidiaries of any capital stock or other ownership or profit interest, any
securities convertible into or exchangeable for capital stock or other ownership
or profit interest or any warrants, rights or options to acquire capital stock
or other ownership or profit interest (other than the sale or issuance of (w)
capital stock (other than Redeemable capital stock) of Holding to any Equity
Investor, (x) any capital stock or rights or options to acquire capital stock in
Holding to officers, employees or directors of Holding or any Subsidiary
thereof, (y) common stock of Holding as contemplated by the Merger Agreement and
(z) capital stock by any wholly-owned Subsidiary of any Loan Party to such Loan
Party) and (D) any Extraordinary Receipt received by or paid to or for the
account of any Loan Party or any of its Subsidiaries and not otherwise included
in clause (A), (B) or (C) above (subject to the proviso to the definition of
Extraordinary Receipt), prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings equal to the amount of such Net Cash
Proceeds. Each such prepayment shall be applied ratably to each of the Term
Facilities; provided, however, that 50% of such amount of such prepayment in
respect of a Term Facility shall be applied to the installments of such Term
Facility in direct order of maturity and the remaining 50% shall be applied to
the installments of such Term Facility in inverse order of maturity. Upon the
payment in full of the Term Advances, there shall be no further mandatory
prepayments pursuant to this Section 2.05(b)(ii).
(iii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Revolving Credit Advances comprising part of
the same Borrowings, the Letter of Credit Advances and the Swing Line Advances
equal to the amount by which (A) the sum of the aggregate principal amount of
(x) the Revolving Credit Advances, (y) the Letter of Credit Advances and (z) the
Swing Line Advances then outstanding plus the aggregate Available Amount of all
Letters of Credit then outstanding exceeds (B) the lesser of the Revolving
Credit Facility and the Loan Value of Eligible Collateral on such Business Day.
(iv) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral
Account to equal the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility on such
Business Day.
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(v) Prepayments of the Revolving Credit Facility made pursuant
to clause (iii) above shall be first applied to prepay Letter of Credit Advances
then outstanding until such Advances are paid in full, second applied to prepay
Swing Line Advances then outstanding until such Advances are paid in full, third
applied to prepay Revolving Credit Advances then outstanding comprising part of
the same Borrowings until such Advances are paid in full and fourth deposited in
the L/C Cash Collateral Account to cash collateralize 100% of the Available
Amount of the Letters of Credit then outstanding. Upon the drawing of any Letter
of Credit for which funds are on deposit in the L/C Cash Collateral Account,
such funds shall be applied to reimburse the Issuing Bank or the Revolving
Credit Lenders, as applicable.
(vi) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
(c) Tranche B Term Opt-Out. Any Tranche B Term Lender, may,
with the approval of the Borrower, elect not to accept any prepayment of the
Tranche B Term Facility. Upon receipt by the Administrative Agent of any
prepayment, the amount of the prepayment that is available to prepay the Tranche
B Term Advances shall be deposited in the Cash Collateral Account (the
"Prepayment Amount"), pending application of such amount on the Prepayment Date
as set forth below and promptly after such receipt (the date of such receipt
being the "Receipt Date"), the Administrative Agent shall give written notice to
the Tranche B Term Lenders of the amount available to prepay the Tranche B Term
Advances and the date on which such prepayment shall be made (the "Prepayment
Date"), which date shall be 5 days after the Receipt Date. Any Lender declining
such prepayment (a "Declining Lender") shall give written notice to the
Administrative Agent by 11:00 A.M. (Boston, Massachusetts time) on the Business
Day immediately preceding the Prepayment Date. On the Prepayment Date, an amount
equal to that portion of the Prepayment Amount accepted by the Tranche B Term
Lenders other than the Declining Lenders (such Lenders being the "Accepting
Lenders") to prepay Tranche B Term Advances owing to such Accepting Lenders
shall be withdrawn from the Cash Collateral Account and applied to prepay
Tranche B Term Advances owing to such Accepting Lenders on a pro rata basis. Any
amounts that would otherwise have been applied to prepay Advances under the
Tranche B Term Facility owing to Declining Lenders shall instead be applied
ratably to prepay the remaining Tranche A Term Advances as provided in Sections
2.06(a) or (b) as the case may be; provided further that upon prepayment in full
of the Tranche A Term Advances, the remainder of any Prepayment Amount shall be
applied ratably to prepay Tranche B Term Advances owing to Declining Lenders.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Prime Rate Advances. During such periods as such Advance
is a Prime Rate Advance, a rate per annum equal at all times to the sum
of (A) the Prime Rate in effect from time to time plus (B) the
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Applicable Margin in effect from time to time, payable in arrears on
the last day of each March, June, September and December during such
periods and on the date such Prime Rate Advance shall be Converted or
paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Applicable Margin in effect on the first day of such Interest
Period, payable in arrears on the last day of such Interest Period and,
if such Interest Period has a duration of more than three months, on
each day that occurs during such Interest Period every three months
from the first day of such Interest Period and on the date such
Eurodollar Rate Advance shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default under Section 6.01(a) or 6.01(f), the Borrower shall
pay interest on (i) the unpaid principal amount of each Advance owing to each
Lender, payable in arrears on the dates referred to in clause (a)(i) or (a)(ii)
above and on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid on such Advance pursuant to clause
(a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law, the
amount of any interest, fee or other amount payable hereunder that is not paid
when due, from the date such amount shall be due until such amount shall be paid
in full, payable in arrears on the date such amount shall be paid in full and on
demand, at a rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid, in the case of interest, on the Type of Advance
on which such interest has accrued pursuant to clause (a)(i) or (a)(ii) above,
and, in all other cases, on Prime Rate Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a), the Administrative Agent shall
give notice to the Borrower and each Appropriate Lender of the applicable
interest rate determined by the Administrative Agent for purposes of clause
(a)(i) or (ii).
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay
to the Administrative Agent for the account of the Lenders a commitment fee,
from the date hereof in the case of each Initial Lender and from the effective
date specified in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Tranche A Termination Date,
payable in arrears on the last Business Day of each March, June, September and
December, commencing June 30, 1999, and on the Tranche A Termination Date, at a
rate equal to the Applicable Percentage per annum on the sum of the average
daily Unused Revolving Credit Commitment of each Appropriate Lender plus such
Lender's Pro Rata Share of the average daily outstanding Swing Line Advances
during such quarter; provided, however, that no commitment fee shall accrue on
any of the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the last Business Day of each March,
June, September and December, commencing June 30, 1999, and on the earliest to
occur of the full drawing expiration, termination or cancellation of any such
Letter of Credit and on the Tranche A Termination Date, on such Lender's Pro
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Rata Share of the average daily aggregate Available Amount during such quarter
of (A) all Standby Letters of Credit outstanding from time to time at a rate per
annum equal to the Applicable Margin in effect from time to time for Eurodollar
Advances comprising a Revolving Credit Borrowing and (B) all Trade Letters of
Credit outstanding from time to time at a rate per annum equal to the excess of
(x) the Applicable Margin in effect from time to time for Eurodollar Advances
comprising a Revolving Credit Borrowing over (y) 1.00%.
(ii) The Borrower shall pay to the Issuing Bank, for its own
account, such commissions, issuance fees, fronting fees, transfer fees and other
fees and charges in connection with the issuance or administration of each
Letter of Credit as the Borrower and the Issuing Bank shall agree.
(c) Administrative Agent's Fees. The Borrower shall pay to the
Administrative Agent for its own account such fees as may from time to time be
agreed between the Borrower and the Administrative Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day (without the payment of any fee or premium),
upon notice given to the Administrative Agent not later than 12:00 Noon (Boston,
Massachusetts time) on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.07 and 2.10, Convert all
or any portion of the Advances of one Type comprising the same Borrowing into
Advances of the other Type; provided, however, that any Conversion of Eurodollar
Rate Advances into Prime Rate Advances shall be made only on the last day of an
Interest Period for such Eurodollar Rate Advances, any Conversion of Prime Rate
Advances into Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(c), no Conversion of any Advances shall
result in more separate Borrowings than permitted under Section 2.02(c) and each
Conversion of Advances comprising part of the same Borrowing under any Facility
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments under such Facility. Each such notice of Conversion shall, within
the restrictions specified above, specify (i) the date of such Conversion, (ii)
the Advances to be Converted and (iii) if such Conversion is into Eurodollar
Rate Advances, the duration of the initial Interest Period for such Advances.
Each notice of Conversion shall be irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $1,000,000, such
Advances shall automatically Convert at the end of the existing Interest Period
into Prime Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Prime
Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default, (x) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Prime
Rate Advance and (y) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
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SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation after the date hereof or (ii) the compliance with any guideline or
request issued or promulgated after the date hereof from any central bank or
other governmental authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender Party of agreeing to make or of
making, funding or maintaining Eurodollar Rate Advances or of agreeing to issue
or of issuing or maintaining Letters of Credit or of agreeing to make or of
making or maintaining Letter of Credit Advances (excluding for purposes of this
Section 2.10 any such increased costs resulting from (i) Taxes or Other Taxes
(as to which Section 2.12 shall govern) and (ii) changes in the rate or basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender Party
is organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, on or prior to the third
Business Day following receipt by the Borrower of the certificate referred to
below from such Lender Party (with a copy of such demand to the Administrative
Agent), pay to the Administrative Agent for the account of such Lender Party
additional amounts sufficient to compensate such Lender Party for such increased
cost; provided, however, that the Borrower shall not be responsible for costs
under this Section 2.10(a) arising more than 90 days prior to receipt by the
Borrower of the certificate from the affected Lender pursuant to this Section
2.10(a) with respect to such costs; provided further that a Lender Party
claiming additional amounts under this Section 2.10(a) agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost that may thereafter accrue and would not, in the reasonable
judgment of such Lender Party, be otherwise disadvantageous to such Lender
Party. A certificate as to the amount of such increased cost (together with a
schedule setting forth in reasonable detail the calculation thereof), submitted
to the Borrower by such Lender Party, shall be conclusive and binding for all
purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any
law or regulation or any guideline or request issued or promulgated after the
date hereof from any central bank or other governmental authority (whether or
not having the force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender Party or any corporation
controlling such Lender Party and that the amount of such capital is increased
by or based upon the existence of such Lender Party's commitment to lend or to
issue Letters of Credit hereunder and other commitments of such type or the
issuance or maintenance of the Letters of Credit (or similar contingent
obligations), then, on or prior to the third Business Day following receipt by
the Borrower of the certificate referred to below from such Lender Party (with a
copy of such demand to the Administrative Agent), the Borrower shall pay to the
Administrative Agent for the account of such Lender Party, from time to time as
specified by such Lender Party, additional amounts sufficient to compensate such
Lender Party in the light of such circumstances, to the extent that such Lender
Party reasonably determines such increase in capital to be allocable to the
existence of such Lender Party's commitment to lend or to issue Letters of
Credit hereunder or to the issuance or maintenance of any Letters of Credit;
provided, however, that, the Borrower shall not be responsible for costs under
this Section 2.10(b) arising more than 90 days prior to receipt by the Borrower
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of the certificate from the affected Lender pursuant to this Section 2.10(b)
with respect to such costs. A certificate as to such amounts (together with a
schedule setting forth in reasonable detail the calculation thereof) submitted
to the Borrower by such Lender Party shall be conclusive and binding for all
purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least a majority of the then aggregate unpaid
principal amount thereof notify the Administrative Agent that the Eurodollar
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Lenders of making, funding or maintaining their Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Appropriate Lenders, whereupon (i) each such
Eurodollar Rate Advance under any Facility will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Prime Rate Advance
and (ii) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation, in each case after the date hereof, shall make it unlawful, or,
after the date hereof, any central bank or other governmental authority shall
assert that it is unlawful, for any Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate Advances or to
continue to fund or maintain Eurodollar Rate Advances hereunder, then, on notice
thereof and demand therefor by such Lender to the Borrower through the
Administrative Agent, (i) each Eurodollar Rate Advance under each Facility under
which such Lender has a Commitment will automatically, on the last day of the
then existing Interest Period therefor, if permitted by applicable law, or
otherwise upon such demand, Convert into a Prime Rate Advance and (ii) the
obligation of the Appropriate Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended until the Administrative Agent shall
notify the Borrower that such Lender has determined that the circumstances
causing such suspension no longer exist; provided, however, that, before making
any such demand, such Lender agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to designate a
different Eurodollar Lending Office if the making of such a designation would
allow such Lender or its Eurodollar Lending Office to continue to perform its
obligations to make Eurodollar Rate Advances or to continue to fund or maintain
Eurodollar Rate Advances and would not, in the judgment of such Lender, be
otherwise disadvantageous to such Lender.
SECTION 2.11. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any right
of counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 12:00 Noon (Boston, Massachusetts time) on the day when due in U.S.
dollars to the Administrative Agent at the Administrative Agent's Account in
same day funds. The Administrative Agent will promptly thereafter cause like
funds to be distributed (i) if such payment by the Borrower is in respect of
principal, interest, commitment fees or any other Obligation then payable
hereunder and under the Notes to more than one Lender Party, to such Lender
Parties for the account of their respective Applicable Lending Offices ratably
in accordance with the amounts of such respective Obligations then payable to
such Lender Parties and (ii) if such payment by the Borrower is in respect of
any Obligation then payable hereunder to one Lender Party, to such Lender Party
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for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 9.07(d), from and after the effective date of
such Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender Party assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application
to the Obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, the Administrative Agent may, but
shall not be obligated to, elect to distribute such funds to each Lender Party
ratably in accordance with such Lender Party's proportionate share of the
principal amount of all outstanding Advances and the Available Amount of all
Letters of Credit then outstanding, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
(c) The Borrower hereby authorizes each Lender Party, if and
to the extent payment owed to such Lender Party is not made when due hereunder
or, in the case of a Lender, under the Note held by such Lender, to charge from
time to time against any or all of the Borrower's accounts with such Lender
Party any amount so due.
(d) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
365 days (360 days, with respect to Eurodollar Rate Advances), in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
Party hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
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the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and the
Administrative Agent, taxes that are imposed on its overall net income by the
United States and taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction
under the laws of which such Lender Party or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof and, in the case
of each Lender Party, taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction of
such Lender Party's Applicable Lending Office or any political subdivision
thereof (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes
being hereinafter referred to as "Taxes"). If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder or under
any Note to any Lender Party or the Administrative Agent, (i) the sum payable
shall be increased as may be necessary so that after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.12) such Lender Party or the Administrative Agent (as the case
may be) receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.12, imposed on or paid by
such Lender Party or the Administrative Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender Party or the Administrative Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 9.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or by or
on behalf of the Borrower by a payor that is not a United States person, if the
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Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender or
Initial Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by the
Borrower (but only so long thereafter as such Lender Party remains lawfully able
to do so), provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service forms 1001 or 4224, or (in the case of a
Lender Party that has certified in writing to the Administrative Agent that it
is not a "bank" as defined in Section 881(c)(3)(A) of the Internal Revenue Code)
form W-8 (and, if such Lender Party delivers a form W-8, a certificate
representing that such Lender Party is not a "bank" for purposes of Section
881(c) of the Internal Revenue Code, is not a 10-percent shareholder (within the
meaning of Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrower
and is not a controlled foreign corporation related to the Borrower (within the
meaning of Section 864(d)(4) of the Internal Revenue Code)), as appropriate, or
any successor or other form prescribed by the Internal Revenue Service,
certifying that such Lender Party is exempt from or entitled to a reduced rate
of United States withholding tax on payments pursuant to this Agreement or the
Notes or, in the case of a Lender Party providing a form W-8, certifying that
such Lender Party is a foreign corporation, partnership, estate or trust. If the
forms provided by a Lender Party at the time such Lender Party first becomes a
party to this Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be considered excluded
from Taxes unless and until such Lender Party provides the appropriate form
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender Party becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender Party assignee on such date.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form described in subsection
(e) above (other than if such failure is due to a change in law occurring after
the date on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender Party shall
not be entitled to indemnification under subsection (a) or (c) with respect to
Taxes imposed by the United States by reason of such failure; provided, however,
that should a Lender Party become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender Party shall reasonably request to assist such Lender Party to recover
such Taxes.
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(g) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
(h) The Borrower shall not have an indemnification obligation
under subsection (a) or (c) with respect to Taxes imposed by the United States
as a result of a change in law occurring after the date hereof arising more than
90 days prior to receipt by the Borrower of notice from the affected Lender
Party with respect to such change in law.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party
shall obtain at any time any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) (a) on account of
Obligations due and payable to such Lender Party hereunder and under the Notes
at such time in excess of its ratable share (according to the proportion of (i)
the amount of such Obligations due and payable to such Lender Party at such time
to (ii) the aggregate amount of the Obligations due and payable to all Lender
Parties hereunder and under the Notes at such time) of payments on account of
the Obligations due and payable to all Lender Parties hereunder and under the
Notes at such time obtained by all the Lender Parties at such time or (b) on
account of Obligations owing (but not due and payable) to such Lender Party
hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations owing to such
Lender Party at such time to (ii) the aggregate amount of the Obligations owing
(but not due and payable) to all Lender Parties hereunder and under the Notes at
such time) of payments on account of the Obligations owing (but not due and
payable) to all Lender Parties hereunder and under the Notes at such time
obtained by all of the Lender Parties at such time, such Lender Party shall
forthwith purchase from the other Lender Parties such participations in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and such other Lender
Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party's ratable share (according to the proportion of (i)
the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to (ii) the total amount
so recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total amount so
recovered. The Borrower agrees that any Lender Party so purchasing a
participation from another Lender Party pursuant to this Section 2.13 may, to
the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender Party were the direct creditor of the Borrower in the amount of
such participation.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely to finance the Merger and costs associated therewith, to pay transaction
fees and expenses, to refinance certain Existing Debt, to repurchase shares of
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common stock of Holding from certain members of management (to the extent
permitted hereby) and for general corporate purposes of the Borrower and its
Subsidiaries.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrower and (iii) the
Borrower shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then the Borrower may,
so long as no Default (other than a Default which occurs directly as a result of
a Lender being a Defaulting Lender) shall occur or be continuing at such time
and to the fullest extent permitted by applicable law, set off and otherwise
apply the Obligation of the Borrower to make such payment to or for the account
of such Defaulting Lender against the obligation of such Defaulting Lender to
make such Defaulted Advance. In the event that, on any date, the Borrower shall
so set off and otherwise apply its obligation to make any such payment against
the obligation of such Defaulting Lender to make any such Defaulted Advance on
or prior to such date, the amount so set off and otherwise applied by the
Borrower shall constitute for all purposes of this Agreement and the other Loan
Documents an Advance by such Defaulting Lender made on the date under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be a Prime Rate
Advance and shall be considered, for all purposes of this Agreement, to comprise
part of the Borrowing in connection with which such Defaulted Advance was
originally required to have been made pursuant to Section 2.01, even if the
other Advances comprising such Borrowing shall be Eurodollar Rate Advances on
the date such Advance is deemed to be made pursuant to this subsection (a). The
Borrower shall notify the Administrative Agent at any time the Borrower
exercises its right of set-off pursuant to this subsection (a) and shall set
forth in such notice (A) the name of the Defaulting Lender and the Defaulted
Advance required to be made by such Defaulting Lender and (B) the amount set off
and otherwise applied in respect of such Defaulted Advance pursuant to this
subsection (a). Any portion of such payment otherwise required to be made by the
Borrower to or for the account of such Defaulting Lender which is paid by the
Borrower, after giving effect to the amount set off and otherwise applied by the
Borrower pursuant to this subsection (a), shall be applied by the Administrative
Agent as specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Administrative Agent or any of the other Lender Parties and (iii)
the Borrower shall make any payment hereunder or under any other Loan Document
to the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
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of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by the Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to the Administrative Agent and
the other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) second, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, the
Administrative Agent or any other Lender Party shall be required to pay or
distribute any amount hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then the Borrower or such other Lender Party
shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds held
by the Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with Fleet, in the name and
under the control of the Administrative Agent, but subject to the provisions of
this subsection (c). The terms applicable to such account, including the rate of
interest payable with respect to the credit balance of such account from time to
time, shall be Fleet's standard terms applicable to escrow accounts maintained
with it. Any interest credited to such account from time to time shall be held
by the Administrative Agent in escrow under, and applied by the Administrative
Agent from time to time in accordance with the provisions of, this subsection
(c). The Administrative Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to the Administrative Agent or any other Lender
Party, as and when such Advances or amounts are required to be made or paid and,
if the amount so held in escrow shall at any time be insufficient to make and
pay all such Advances and amounts required to be made or paid at such time, in
the following order of priority:
(i) first, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) second, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
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(iii) third, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.15 are in addition to other rights and remedies that the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that the Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
SECTION 2.16. Removal of Lender. In the event that any Lender
Party demands payment of costs or additional amounts pursuant to Section 2.10 or
Section 2.12 or asserts, pursuant to Section 2.10(d) that it is unlawful for
such Lender Party to make Eurodollar Rate Advances, then (subject to such Lender
Party's right to rescind such demand or assertion within 10 days after the
notice from the Borrower referred to below) the Borrower may, upon 20 days'
prior written notice to such Lender Party and the Administrative Agent, elect to
cause such Lender Party to assign its Advances and Commitments in full to an
assignee institution selected by the Borrower that meets the criteria of an
Eligible Assignee and is reasonably satisfactory to the Administrative Agent, so
long as such Lender Party receives payment in full in cash of the outstanding
principal amount of all Advances made by it and all accrued and unpaid interest
thereon and all other amounts due and payable to such Lender Party as of the
date of such assignment (including without limitation amounts owing pursuant to
Section 2.10 or 2.3), and such assignee shall agree to accept such assignment
and assume all obligations of such Lender Party hereunder, in accordance with
Section 9.07.
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Effective Date. Article
II hereof shall be effective on and as of the date (the "Effective Date"), on
which each of the following conditions precedent shall have been satisfied or
duly waived:
(a) The Merger Agreement shall be in full force and effect and
the Merger shall be consummated immediately following the funding of
the Advances in all material respects in accordance with the Merger
Agreement, without any waiver or amendment not consented to by the
Administrative Agent of any material term, provision or condition set
forth therein, and in compliance with all applicable laws.
(b) The aggregate amount of cash proceeds received by the
Company Shareholders in connection with the Merger shall not exceed
$111,600,000.
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(c) The Lender Parties shall be satisfied that all Existing
Debt, other than the Debt of the Borrower set forth on Schedule XIV
(the "Surviving Debt"), has been (or will be, immediately following the
Merger) prepaid, redeemed or defeased in full or otherwise satisfied
and extinguished; the aggregate principal amount of Revolving Credit
Advances outstanding after giving effect to all Borrowings on the
Effective Date) shall not exceed $70,000,000.
(d) Before giving effect to the Merger and the other
transactions contemplated by this Agreement, there shall have occurred
no material adverse change in the business condition (financial or
otherwise), operations, performance, properties or prospects of (x) the
Borrower and its Subsidiaries, taken as a whole, since October 31,
1998, and (y) the Company and its Subsidiaries, taken as a whole, since
January 30, 1999.
(e) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of its
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) could reasonably be expected to have a
material adverse effect on the business, condition (financial or
otherwise), operations, performance, properties or prospects of (x) the
Borrower and its Subsidiaries, taken as a whole, or (y) the Company and
its Subsidiaries, taken as a whole, other than the matters described on
Schedule II (the "Disclosed Litigation") or (ii) purports to affect the
legality, validity or enforceability of the Merger, this Agreement, any
Note, any other Loan Document, any Related Document or the consummation
of the transactions contemplated hereby, and there shall have been no
material adverse change in the status, or financial effect on the
Borrower, Company or any of their respective Subsidiaries, of the
Disclosed Litigation from that described on Schedule II.
(f) All governmental and third party consents and approvals
necessary in connection with the Transaction and the Facilities shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lender Parties) and shall remain in effect; all
applicable waiting periods shall have expired without any adverse
action being taken by any competent authority; and no law or regulation
shall be applicable in the reasonable judgment of the Lender Parties
that restrains, prevents or imposes materially adverse conditions upon
the Transaction or the Facilities.
(g) All of the information provided by or on behalf of the
Borrower or by or on behalf of the Company to the Administrative Agent
and the Lender Parties prior to their commitment in respect of the
Facilities (the "Pre-Commitment Information") shall, taken as a whole,
be true and correct in all material respects; and no additional
information shall have come to the attention of the Administrative
Agent or the Lender Parties that is inconsistent in any material
adverse respect with the Pre-Commitment Information or that could
reasonably be expected to have a Material Adverse Effect.
(h) The Borrower shall have paid all accrued fees of the
Administrative Agent.
(i) The Administrative Agent shall have received on or before
the Effective Date the following, each dated such day (unless otherwise
specified), in form and substance satisfactory to the Lender Parties
(unless otherwise specified) and (except for the Notes) in sufficient
copies for each Lender Party:
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(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower and each other Loan Party
approving the Merger, this Agreement, the Notes, each other
Loan Document and each Related Document to which it is or is
to be a party, and of all documents evidencing other necessary
corporate action and governmental and other third party
approvals and consents, if any, with respect to the Merger,
this Agreement, the Notes, each other Loan Document and each
Related Document.
(iii) A copy of the charter of the Borrower and each
other Loan Party and each amendment thereto, certified (as of
a date reasonably near the Effective Date) by the Secretary of
State of the jurisdiction of its incorporation as being a true
and correct copy thereof.
(iv) A copy of a certificate of the Secretary of
State of the jurisdiction of its incorporation, dated
reasonably near the Effective Date, listing the charter of the
Borrower and each other Loan Party and each amendment thereto
on file in his office and certifying that (A) such amendments
are the only amendments to the Borrower's or such other Loan
Party's charter on file in his office, (B) the Borrower and
each other Loan Party have paid all franchise taxes to the
date of such certificate and (C) the Borrower and each other
Loan Party are duly incorporated and in good standing under
the laws of the State of the jurisdiction of its
incorporation.
(v) A copy of a certificate of the Secretary of State
of each state where the Borrower and each other Loan Party has
a place of business, dated reasonably near the Effective Date,
stating that the Borrower is duly qualified and in good
standing as a foreign corporation in such State and has filed
all annual reports required to be filed to the date of such
certificate; and
(vi) A certificate of the Borrower and each other
Loan Party, signed on behalf of the Borrower and such other
Loan Party by its President or a Vice President and its
Secretary or any Assistant Secretary, dated the Effective Date
(the statements made in which certificate shall be true on and
as of the Effective Date), certifying as to (A) the absence of
any amendments to the charter of the Borrower or such other
Loan Party since the date of the Secretary of State's
certificate referred to in Section 3.01(j)(iii), (B) a true
and correct copy of the bylaws of the Borrower and such other
Loan Party as in effect on the Effective Date, (C) the due
incorporation and good standing of the Borrower and such other
Loan Party as a corporation organized under the laws of the
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State of Delaware, and the absence of any proceeding for the
dissolution or liquidation of the Borrower, the Company or
such other Loan Party, (D) the truth of the representations
and warranties contained in the Loan Documents as though made
on and as of the Effective Date and (E) the absence of any
event occurring and continuing, or resulting from the initial
Borrowing occurring on the Effective Date, that constitutes a
Default.
(vii) A certificate of the Secretary or an Assistant
Secretary of the Borrower and each other Loan Party certifying
the names and true signatures of the officers of the Borrower
and such other Loan Party authorized to sign this Agreement,
the Notes, each other Loan Document and each Related Document
to which they are or are to be parties and the other documents
to be delivered hereunder and thereunder.
(viii) An amended and restated security agreement in
substantially the form of Exhibit D (as amended, supplemented
or otherwise modified from time to time in accordance with its
terms, the "Security Agreement"), duly executed by the
Borrower and each Subsidiary Guarantor, together with:
(A) certificates representing the Pledged
Shares referred to therein accompanied by undated
stock powers executed in blank and instruments
evidencing the Pledged Debt referred to therein
indorsed in blank,
(B) signed originals of proper financing
statements, to be filed on or before the Effective
Date under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and
protect the first priority liens and security
interests created under the Security Agreement,
covering the Collateral described in the Security
Agreement,
(C) completed requests for information,
dated on or before the Effective Date, listing the
financing statements referred to in clause (B) above
and all other effective financing statements filed in
the jurisdictions referred to in clause (B) above
that name the Company as debtor, together with copies
of such other financing statements,
(D) evidence of the completion of all other
recordings and filings of or with respect to the
Security Agreement that the Administrative Agent may
deem necessary or desirable in order to perfect and
protect the Liens created thereby,
(E) evidence of the insurance required by
the terms of the Security Agreement,
(F) copies of the Assigned Agreements
referred to in the Security Agreement, and
(G) evidence that all other action that the
Administrative Agent may deem necessary or desirable
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in order to perfect and protect the first priority
liens and security interests created under the
Security Agreement has been taken.
(ix) An amended and restated pledge agreement in
substantially the form of Exhibit E (as amended, supplemented
or otherwise modified from time to time in accordance with its
terms, the "Pledge Agreement"), duly executed by Holding,
together with
(A) certificates representing the Pledged
Shares referred to therein accompanied by undated
stock powers executed in blank,
(B) signed originals of proper financing
statements, to be filed on or before the Effective
Date under the Uniform Commercial Code of all
jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and
protect the first priority liens and security
interest created under the Pledge Agreement, covering
the Collateral, described in the Pledge Agreement,
(C) completed requests for information,
dated on or before the Effective Date, listing the
financing statements referred to in clause (B) above
and all other effective financing statements field in
the jurisdictions referred to in clause (B) above
that name Holding as debtor, together with copies of
such other financing statements, and
(D) evidence that all other action that the
Administrative Agent may deem necessary or desirable
to perfect and protect the first priority liens and
security interests created under the Pledge Agreement
has been taken.
(x) An amended and restated subsidiary guaranty in
substantially the form of Exhibit F (as amended, supplemented
or otherwise modified from time to time in accordance with its
terms, the "Subsidiary Guaranty"), duly executed by each
Subsidiary Guarantor.
(xi) Certified copies of each of the Related
Documents in existence on such date, duly executed by the
parties thereto and in form and substance satisfactory to the
Lender Parties, together with all agreements, instruments and
other documents delivered in connection therewith, in each
case certified by a Responsible Officer.
(xii) Certificates, in substantially the form of
Exhibit G, attesting to the Solvency of each Loan Party after
giving effect to the Merger and the other transactions
contemplated hereby, from its chief financial officer.
(xiii) Evidence of insurance naming the
Administrative Agent as insured and loss payee with such
responsible and reputable insurance companies or associations,
and in such amounts and covering such risks, as is
satisfactory to the Lender Parties, including, without
limitation, business interruption insurance.
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(xiv) Certified copies of each employment agreement
and other compensation arrangement with each executive officer
of any Loan Party or any of its Subsidiaries.
(xv) Certified copies of all Material Contracts of
each Loan Party and its Subsidiaries, in each case certified
by a Responsible Officer, to the extent not previously
furnished.
(xvi) A Borrowing Base Certificate.
(xvii) A favorable opinion of Sullivan & Worcester,
counsel for the Borrower and Holding, in substantially the
form of Exhibit H hereto and as to such other matter as any
Lender Party through the Administrative Agent may reasonably
request.
(xviii) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent, in form and substance
satisfactory to the Administrative Agent.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by the Issuing Bank or a Revolving Credit
Lender pursuant to Section 2.03(c) and a Swing Line Advance made by a Revolving
Credit Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing
(including the initial Borrowing), and the obligation of the Issuing Bank to
issue a Letter of Credit (including the initial issuance) or renew a Letter of
Credit and the right of the Borrower to request a Swing Line Borrowing, shall be
subject to the further conditions precedent that on the date of such Borrowing
or issuance or renewal (a) the following statements shall be true (and each of
the giving of the applicable Notice of Borrowing, Notice of Swing Line
Borrowing, Notice of Issuance or Notice of Renewal and the acceptance by the
Borrower of the proceeds of such Borrowing or of such Letter of Credit or the
renewal of such Letter of Credit shall constitute a representation and warranty
by the Borrower that both on the date of such notice and on the date of such
Borrowing or issuance or renewal such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving
effect to such Borrowing or issuance or renewal and to the application
of the proceeds therefrom, as though made on and as of such date other
than any such representations or warranties that, by their terms, refer
to a specific date other than the date of such Borrowing or issuance or
renewal, in which case as of such specific date;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or issuance or renewal or from the application of
the proceeds therefrom, that constitutes a Default; and
(iii) for each Revolving Credit Advance or Swing Line Advance
made by the Swing Line Bank or issuance or renewal of any Letter of
Credit, the sum of the Loan Values of the Eligible Collateral exceeds
the aggregate principal amount of the Revolving Credit Advances plus
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Swing Line Advances plus Letter of Credit Advances to be outstanding
plus the aggregate Available Amount of all Letters of Credit then
outstanding after giving effect to such Advance or issuance or renewal,
respectively;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the earlier of the initial Borrowing or the initial issuance of a
Letter of Credit specifying its objection thereto and if such earlier event
consists of a Borrowing, such Lender Party shall not have made available to the
Administrative Agent such Lender Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties. Each of Holding
and the Borrower represents and warrants that, immediately following the Merger:
(a) Each Loan Party (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so
qualify or be licensed is not reasonably likely to have a Material
Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted. All of the outstanding capital stock of the Borrower has
been validly issued, is fully paid and non-assessable and is owned by
Holding, free and clear of all Liens, except those created under the
Collateral Documents.
(b) Set forth on Schedule III hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class owned (directly
or indirectly) by such Loan Party and the number of shares covered by
all outstanding options, warrants, rights of conversion or purchase and
similar rights at the date hereof. All of the outstanding capital stock
of all of such Subsidiaries has been validly issued, is fully paid and
non-assessable and is owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except those created under
the Collateral Documents. Each such Subsidiary (i) is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation, (ii) is duly qualified and in
good standing as a foreign corporation in each other jurisdiction in
which it owns or leases property or in which the conduct of its
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business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed is not reasonably likely to have a
Material Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted.
(c) The execution, delivery and performance by each Loan Party
of this Agreement, the Notes, each other Loan Document and each Related
Document to which it is or is to be a party, and the consummation of
the Merger and the other transactions contemplated hereby, are within
such Loan Party's corporate powers, have been duly authorized by all
necessary corporate action, and do not (i) contravene such Loan Party's
charter or bylaws, (ii) violate any law (including, without limitation,
the Securities Exchange Act of 1934 and the Racketeer Influenced and
Corrupt Organizations Chapter of the Organized Crime Control Act of
1970), rule, regulation (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict
with or result in the breach of, or constitute a default under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties except as identified on
Schedule IV or (iv) except for the Liens created under the Loan
Documents and other Liens permitted hereunder, result in or require the
creation or imposition of any Lien upon or with respect to any of the
properties of any Loan Party or any of its Subsidiaries. No Loan Party
or any of its Subsidiaries is in violation of any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award or in breach of any such contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument, the violation or
breach of which is reasonably likely to have a Material Adverse Effect.
(d) As of the date hereof and hereafter, no authorization or
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body or any other third party is
required for (A) the due execution, delivery, recordation, filing or
performance by any Loan Party of this Agreement, the Notes, any other
Loan Document or any Related Document to which it is or is to be a
party, or for the consummation of the Merger or the other transactions
contemplated hereby, (B) the grant by any Loan Party of the Liens
granted by it pursuant to the Collateral Documents, (C) the perfection
or maintenance of the Liens created by the Collateral Documents
(including the priority nature thereof required by the Collateral
Documents) or (D) the exercise by the Administrative Agent or any
Lender Party of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents, except
for (i) the authorizations, approvals, actions, notices and filings
listed on Schedule IV, all of which have been duly obtained, taken,
given or made and are in full force and effect, and (ii) any
authorizations, approvals, actions, notices and filings which the
failure to obtain, take, give or make would not, in the aggregate, be
reasonably likely to have a Material Adverse Effect. All applicable
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waiting periods in connection with the Merger and the other
transactions contemplated hereby have expired without any action having
been taken by any competent authority restraining, preventing or
imposing materially adverse conditions upon the Merger or the rights of
the Loan Parties or their Subsidiaries freely to transfer or otherwise
dispose of, or to create any Lien on, any properties now owned or
hereafter acquired by any of them.
(e) This Agreement has been, and each of the Notes, each other
Loan Document and each Related Document when delivered hereunder will
have been, duly executed and delivered by each Loan Party thereto. This
Agreement is, and each of the Notes, each other Loan Document and each
Related Document when delivered hereunder will be, the legal, valid and
binding obligation of each Loan Party thereto, enforceable against such
Loan Party in accordance with its terms.
(f) (i) The Consolidated balance sheet of the Borrower and its
Subsidiaries as at October 31, 1998, and the related Consolidated
statement of income and Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Ernst & Young, LLP, independent public
accountants, and the Consolidated balance sheet of the Borrower and its
Subsidiaries as at January 30, 1999 and the related Consolidated
statement of income and Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the three months then ended, duly
certified by the chief financial officer of the Borrower, copies of
which have been furnished to each Lender Party, fairly present,
subject, in the case of such balance sheet as at January 30, 1999, and
said statement of income and cash flows for the three months then
ended, to year-end audit adjustments, the Consolidated financial
condition of the Borrower and its Subsidiaries as at such date and the
Consolidated results of the operations of the Borrower and its
Subsidiaries for the period ended on such date, all in accordance with
generally accepted accounting principles applied on a consistent basis,
and since October 31, 1998, there has been no Material Adverse Change
in respect of the Borrower and its Subsidiaries, taken as a whole.
(ii) The Consolidated balance sheet of the Company and its
Subsidiaries as at January 30, 1999, and the related Consolidated
statement of income and Consolidated statement of cash flows of the
Company and its Subsidiaries for the fiscal year then ended,
accompanied by an opinion of Deloitte & Touche LLP, independent public
accountants, copies of which have been furnished to each Lender Party,
fairly present, subject, in the case of said balance sheet as at April
3, 1999, and said statement of income and cash flows for the two months
then ended, to year-end audit adjustments, the Consolidated financial
condition of the Company and its Subsidiaries as at such date and the
Consolidated results of the operations of the Company and its
Subsidiaries for the period ended on such date, all in accordance with
generally accepted accounting principles applied on a consistent basis,
and since January 30, 1999, there has been no Material Adverse Change
in respect of the Company and its Subsidiaries, taken as a whole.
(g) The Consolidated forecasted balance sheets, income
statements and cash flows statements of the Borrower and its
Subsidiaries delivered, or to be delivered, to the Lender Parties
pursuant to Section 3.01(h) or 5.03 were prepared in good faith on the
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basis of the assumptions stated therein, which assumptions were fair in
the light of conditions existing at the time of delivery of such
forecasts, and represented, at the time of delivery, the Borrower's
reasonable estimate of its future financial performance (although the
actual results during the periods covered by such forecasts may differ
materially from the forecasted results).
(h) None of the information, exhibits or reports (other than
financial projections and pro forma financial information) furnished by
any Loan Party to the Administrative Agent or any Lender Party in
connection with the negotiation of the Loan Documents or pursuant to
the terms of the Loan Documents contained any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements made therein not misleading.
(i) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any
court, governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect (other than the Disclosed
Litigation) or (ii) purports to affect the legality, validity or
enforceability of the Merger, this Agreement, any Note, any other Loan
Document or any Related Document or the consummation of the
transactions contemplated hereby, and there has been no adverse change
in the status, or financial effect on any Loan Party or any of its
Subsidiaries, of the Disclosed Litigation from that described on
Schedule II.
(j) No proceeds of any Advance or drawings under any Letter of
Credit will be used to acquire any equity security of a class that is
registered pursuant to Section 12 of the Securities Exchange Act of
1934.
(k) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance or drawings under any Letter of Credit will be
used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock.
(l) Following application of the proceeds of each Advance or
drawing under each Letter of Credit, not more than 25 percent of the
value of the assets (either of the Borrower only or of the Borrower and
its Subsidiaries on a Consolidated basis) subject to the provisions of
Section 5.02(a) or 5.02(e) or subject to any restriction contained in
any agreement or instrument between the Borrower and any Lender Party
or any Affiliate of any Lender Party relating to Debt and within the
scope of Section 6.01(e) will be Margin Stock.
(m) All Plans of the Borrower and its ERISA Affiliates are
listed on Schedule V. No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan listed on Schedule V that
has resulted in or is reasonably expected to result in a material
liability of any Loan Party or any ERISA Affiliate.
(n) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 90% and there has been no material adverse change
in the funding status of any such Plan since such date.
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(o) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan listed on Schedule V,
copies of which have been filed with the Internal Revenue Service and
furnished to the Lender Parties, is complete and accurate and fairly
presents the funding status of such Plan, and since the date of such
Schedule B there has been no material adverse change in such funding
status.
(p) Neither any Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability to
any Multiemployer Plan listed on Schedule V.
(q) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan listed on Schedule V
that such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no such
Multiemployer Plan is reasonably expected to be in reorganization or to
be terminated, within the meaning of Title IV of ERISA.
(r) Except as set forth in the financial statements referred
to in this Section 4.01 and in Section 5.03, the Loan Parties and their
respective Subsidiaries have no material liability with respect to
"expected post retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
(s) Neither the business nor the properties of any Loan Party
or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that would be reasonably
likely to have a Material Adverse Effect.
(t) Except as disclosed in the Environmental Due Diligence
Investigation, Country General Stores dated June 1997 prepared by
O'Brien & Gere Engineers, Inc., or the Environmental Due Diligence
Investigation: Quality Stores, Inc. dated April, 1999 by O'Brien & Gere
Engineers, Inc., or as otherwise disclosed on Schedule XV, the
operations and properties of each Loan Party and each of its
Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance
with such Environmental Laws and Environmental Permits has been
resolved without material ongoing obligations or costs, and no
circumstances exist that would be reasonably likely to (i) form the
basis of an Environmental Action against any Loan Party or any of its
Subsidiaries or any of their properties that could reasonably be
expected to have a Material Adverse Effect or (ii) cause any such
property to be subject to any restrictions on ownership, occupancy, use
or transferability under any Environmental Law that could reasonably be
expected to have a Material Adverse Effect.
(u) Except as disclosed in the Phase I Environmental Site
Assessment Reports prepared by Dames & Moore for the properties at 3915
Delaware Avenue, Des Moines, Iowa and 650 Meridian Road, Youngstown,
Ohio, dated November 15, 1996, in the Environmental Due Diligence
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Investigation, Country General Stores dated June 1997 prepared by
O'Brien & Gere Engineers, Inc., or as disclosed in the Environmental
Due Diligence Investigation: Quality Stores, Inc. dated April, 1999 by
O'Brien & Gere Engineers, Inc., or as otherwise disclosed on Schedule
XV, none of the properties currently or formerly owned or operated by
any Loan Party or any of its Subsidiaries is listed or proposed for
listing on the NPL or on the CERCLIS or any analogous foreign, state or
local list or is adjacent to any such property other than any such
properties that, in the aggregate, would not be reasonably likely to
have a Material Adverse Effect; there are no and never have been any
underground or aboveground storage tanks on any property currently
owned or operated by any Loan Party or any of its Subsidiaries other
than any such storage tanks that would not be reasonably likely to have
a Material Adverse Effect; there are no and never have been any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed on any
property currently or, to the best knowledge of the Loan Parties and
their Subsidiaries, formerly owned or operated by any Loan Party or any
of its Subsidiaries in a manner that would be reasonably likely to have
a Material Adverse Effect; there is no asbestos or asbestos-containing
material on any property currently owned or operated by any Loan Party
or any of its Subsidiaries in a manner that would be reasonably likely
to have a Material Adverse Effect; and Hazardous Materials have not
been released, discharged or disposed of on any property currently or,
to the best knowledge of the Loan Parties and their Subsidiaries,
formerly owned or operated by any Loan Party or any of its Subsidiaries
in a manner, quantity or concentration that would be reasonably likely
to have a Material Adverse Effect.
(v) Except for any such actions that could not, either
individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect, and except as disclosed in the Environmental
Due Diligence Investigation, Country General Stores dated June 1997
prepared by O'Brien & Gere Engineers, Inc., or the Environmental Due
Diligence Investigation: Quality Stores, Inc. dated April, 1999 by
O'Brien & Gere Engineers, Inc., or as otherwise disclosed on Schedule
XV, neither any Loan Party nor any of its Subsidiaries is undertaking,
and has not completed, either individually or together with other
potentially responsible parties, any investigation or assessment or
remedial or response action relating to any actual or threatened
release, discharge or disposal of Hazardous Materials at any site,
location or operation, either voluntarily or pursuant to the order of
any governmental or regulatory authority or the requirements of any
Environmental Law; and all Hazardous Materials generated, used,
treated, handled or stored at, or transported to or from, any property
currently or formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner not reasonably expected
to result in material liability to any Loan Party or any of its
Subsidiaries.
(w) Neither any Loan Party nor any of its Subsidiaries is a
party to any indenture, loan or credit agreement or any lease or other
agreement or instrument or subject to any charter or corporate
restriction that would be reasonably likely to have a Material Adverse
Effect.
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(x) Upon the filing of UCC-1 financing statements in the
appropriate offices and the taking of all action contemplated by the
Loan Documents, the Security Agreement will create valid and perfected
security interests in the Collateral having the priority set forth in
such Collateral Documents, securing the payment of the Secured
Obligations. The Loan Parties are the legal and beneficial owners of
the Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.
(y) The Borrower has filed, has caused to be filed or has been
included in all Federal tax returns and all material other tax returns
(state, local and foreign) required to be filed and has paid all taxes
shown thereon to be due, together with applicable interest and
penalties, except for any such taxes, assessments, levies, fees and
other charges, the amount, applicability or validity of which is being
contested in good faith and by appropriate proceedings diligently
conducted and with respect to which the Borrower has established
appropriate and adequate reserves in accordance with GAAP.
(z) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of the Borrower
proposed by the Internal Revenue Service with respect to Open Years
does not exceed $1,000,000. No issues have been raised by the Internal
Revenue Service in respect of Open Years that, in the aggregate, would
be reasonably likely to have a Material Adverse Effect.
(aa) The aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of the
Borrower proposed by all state, local and foreign taxing authorities
(other than amounts arising from adjustments to Federal income tax
returns) does not exceed $1,000,000. No issues have been raised by such
taxing authorities that, in the aggregate, would be reasonably likely
to have a Material Adverse Effect.
(bb) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the issuance of any Letters of Credit, nor
the application of the proceeds or repayment thereof by the Borrower,
nor the consummation of the other transactions contemplated hereby,
will violate any provision of such Act or any rule, regulation or order
of the Securities and Exchange Commission thereunder.
(cc) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(dd) Set forth on Schedule VI hereto is a complete and
accurate list of all Existing Debt that will be outstanding immediately
following the Merger, showing the principal amount that will be
outstanding thereunder at such time.
(ee) Set forth on Schedule VII hereto is a complete and
accurate list of all real property owned in fee by any Loan Party or
any of its Subsidiaries immediately following the Merger, showing as of
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such date the street address, county or other relevant jurisdiction,
state, record owner and book and estimated fair value thereof. Each
Loan Party or such Subsidiary has good, marketable and insurable fee
simple title to such real property, free and clear of all Liens, other
than Liens created or permitted by the Loan Documents.
(ff) Set forth on Schedule VIII hereto is a complete and
accurate list of all leases of real property under which any Loan Party
or any of its Subsidiaries is the lessee immediately following the
Merger, showing as of such date the street address, county or other
relevant jurisdiction, state, lessor, lessee, expiration date and
annual rental cost thereof. To the best of the Borrower's knowledge,
each such lease is the legal, valid and binding obligation of the
lessor thereof, enforceable in accordance with its terms.
(gg) Set forth on Schedule IX hereto is a complete and
accurate list of all Material Contracts of each Loan Party and its
Subsidiaries immediately following the Merger, showing as of such date
the parties, subject matter and term thereof. To the best of the
Borrower's knowledge (with respect to parties other than the Loan
Parties and their Subsidiaries), as of the date hereof each such
Material Contract has been duly authorized, executed and delivered by
all parties thereto, has not been amended or otherwise modified in a
manner adverse to the interests of such Loan Party, is in full force
and effect and is binding upon and enforceable against all parties
thereto in accordance with its terms, and as of the date hereof there
exists no default under any Material Contract by any party thereto.
(hh) Set forth on Schedule X hereto is a complete and accurate
list of all Investments held by any Loan Party or any of its
Subsidiaries immediately following the Merger, showing as of such date
the amount, obligor or issuer and maturity, if any, thereof.
(ii) Set forth on Schedule XI hereto is a complete and
accurate list of all patents, trademarks, trade names, service marks
and copyrights, and all applications therefor and licenses thereof, of
each Loan Party or any of its Subsidiaries immediately following the
Merger, showing the jurisdiction in which registered, the registration
number, the date of registration and the expiration date.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, each of Holding and the Borrower
will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and the Racketeer Influenced
and Corrupt Organizations Chapter of the Organized Crime Control Act of
1970.
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(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property (other
than Permitted Liens); provided, however, that neither the Borrower nor
any of its Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim that is being contested in good faith
and by proper proceedings and as to which appropriate reserves are
being maintained.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiaries and use all reasonable efforts to cause all lessees
and other Persons operating or occupying its properties to comply, in
all material respects, with all applicable Environmental Laws and
Environmental Permits; obtain and renew and cause each of its
Subsidiaries to obtain and renew all material Environmental Permits
necessary for its operations and properties; and conduct, and cause
each of its Subsidiaries to conduct, any investigation, study, sampling
and testing, and undertake any cleanup, removal, remedial or other
action necessary to remove and clean up all Hazardous Materials from
any of its properties, to the extent required by, and in accordance
with, the requirements of applicable Environmental Laws; provided,
however, that neither the Borrower nor any of its Subsidiaries shall be
required to undertake any such cleanup, removal, remedial or other
action to the extent that its obligation to do so is being contested in
good faith and by proper proceedings and appropriate reserves are being
maintained with respect to such circumstances or to the extent that its
failure to do so could not reasonably be expected to have a Material
Adverse Effect.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its existence, legal structure, legal name, rights (charter and
statutory), permits, licenses, approvals, privileges and franchises;
provided, however, that the Borrower and any Subsidiary may merge with
or into any Person to the extent permitted by Section 5.02(d), provided
further that neither the Borrower nor any of its Subsidiaries shall be
required to preserve any right, permit, license, approval, privilege or
franchise if the Board of Directors of the Borrower or such Subsidiary
shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Borrower or such Subsidiary, as the
case may be, and that the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary or the Lender
Parties.
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(f) Visitation Rights. At any reasonable time and from time to
time, permit the Administrative Agent or any of the Lender Parties or
any agents or representatives thereof, to examine and make copies of
and abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants, provided that the Borrower
shall have received prior notice of any such discussion with such
independent certified public accountants and shall have the
opportunity, at its option, to participate in such discussion.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(i) Performance of Related Documents. Perform and observe all
of the terms and provisions of each Related Document to be performed or
observed by it, maintain each such Related Document in full force and
effect, enforce such Related Document in accordance with its terms,
take all such action to such end as may be from time to time requested
by the Administrative Agent and, upon request of the Administrative
Agent, make to each other party to each such Related Document such
demands and requests for information and reports or for action as the
Borrower is entitled to make under such Related Document.
(j) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted under
the Loan Documents with any of their Affiliates on terms that are fair
and reasonable and no less favorable to the Borrower or such Subsidiary
than it would obtain in a comparable arm's-length transaction with a
Person not an Affiliate, other than the performance of its obligations
under the Management Agreement and the Fenway Management Agreement and
Stockholders Agreement.
(k) Cash Concentration Accounts. Maintain main cash
concentration accounts with Fleet or one or more banks acceptable to
the Administrative Agent that have accepted the assignment of such
accounts to the Administrative Agent pursuant to the Security
Agreement.
(l) Termination of Financing Statements. Upon the request of
the Administrative Agent, and at the expense of the Borrower, within 10
days after such request, furnish to the Administrative Agent proper
termination statements on Form UCC-3 covering such financing statements
as the Administrative Agent may reasonably request that were listed in
the completed requests for information referred to in Sections
3.01(n)(viii)(C) and 3.01(n)(ix)(C).
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(m) Deposit Accounts. Instruct each bank at which a deposit
account is maintained to transfer to a main cash concentration account
at the end of each Business Day, in same day funds, an amount equal to
the credit balance of such deposit account.
(n) Mortgages. On or prior to August 7, 1999, and at the
expense of the Borrower, deliver to the Administrative Agent deeds of
trust, trust deeds, mortgages, leasehold mortgages and leasehold deeds
of trust in form and substance reasonably satisfactory to the
Administrative Agent (as amended, supplemented or otherwise modified
from time to time in accordance with their terms, the "Mortgages") and
covering the properties that the Administrative Agent determines, in
its reasonable judgment, to be necessary or desirable in connection
with the Facilities (provided that, in no event, shall the book value
of any such property be less than $1,500,000), duly executed by the
Company, together with:
(A) evidence that counterparts of the Mortgages have
been duly recorded on or before August 7, 1999 in all filing
or recording offices that the Administrative Agent may deem
necessary or desirable in order to create a valid first and
subsisting Lien on the property described therein in favor of
the Lender Parties and that all filing and recording taxes and
fees have been paid,
(B) fully paid American Land Title Association
Lender's Extended Coverage title insurance policies (the
"Mortgage Policies") in form and substance, with endorsements
and in amounts reasonably acceptable to the Administrative
Agent, issued, coinsured and reinsured by title insurers,
reasonably acceptable to the Administrative Agent, insuring
the Mortgages to be valid first and subsisting Liens on the
property described therein, free and clear of all defects
(including, but not limited to, mechanics' and materialmen's
Liens) and encumbrances, excepting only Permitted
Encumbrances, and providing for such other affirmative
insurance (including endorsements for future advances under
the Loan Documents and for mechanics' and materialmen's Liens)
and such coinsurance and direct access reinsurance as the
Administrative Agent may reasonably deem necessary or
desirable,
(C) American Land Title Association form surveys;
certified to the Administrative Agent and the issuer of the
Mortgage Policies in a manner reasonably satisfactory to the
Administrative Agent by a land surveyor duly registered and
licensed in the States in which the property described in such
surveys in located and reasonably acceptable to the
Administrative Agent, showing all buildings and other
improvements, any off-site improvements, the location of any
easements, parking spaces, rights of way, building set-back
lines and other dimensional regulations and the absence of
encroachments, either by such improvements or on to such
property, and other defects, other than encroachments and
other defects reasonably acceptable to the Agent,
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(D) the Assignments of Leases and Rents referred to
in the Mortgages, duly executed by the Company,
(E) such consents and agreements of lessors and other
third parties, and such estoppel letters and other
confirmations, as the Administrative Agent may reasonably deem
necessary or desirable and as the Borrower shall be able to
obtain (using all reasonable efforts),
(F) evidence of the insurance required by the terms
of the Mortgages, and
(G) evidence that all other action that the
Administrative Agent may reasonably deem necessary or
desirable in order to create valid first and subsisting Liens
on the property described in the Mortgages has been taken.
(o) Landlord Consents. In the case of the Borrower and its
Subsidiaries, use their reasonable efforts to deliver, on or prior to
August 7, 1999, at the expense of the Borrower, to the Administrative
Agent consents, in form and substance reasonably satisfactory to the
Administrative Agent, from the landlord under each leasehold in respect
of which the Administrative Agent determines, in its reasonable
judgment, that such a consent is necessary or desirable in connection
with the Facilities, which consents shall provide that the
Administrative Agent has a right to repossess the Inventory located on
such leasehold upon the occurrence and during the continuance of an
Event of Default and such other rights as may be reasonably acceptable
to the Administrative Agent.
(p) Interest Rate Hedging. Enter into prior to October 30,
1999, interest rate Hedge Agreements with Persons acceptable to the
Administrative Agent, covering a notional amount of not less than
$65,000,000 and providing for such Persons to make payments thereunder
for a period of no less than 2 years to the extent that interest rates
exceed 7.0%.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, each of Holding and the Borrower will not,
at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code of any jurisdiction, a financing statement
(other than any precautionary filings filed under ss. 9-408 of the
Uniform Commercial Code of any jurisdiction) that names Holding, the
Borrower or any of its Subsidiaries as debtor, or sign or suffer to
exist, or permit any of its Subsidiaries to sign or suffer to exist,
any security agreement authorizing any secured party thereunder to file
such financing statement, or assign, or permit any of its Subsidiaries
to assign, any accounts or other right to receive income (other than
assignments for collection purposes and other assignments in the
ordinary course of business), excluding, however, from the operation of
the foregoing restrictions the following:
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(i) Liens created under the Loan Documents;
(ii) in the case of the Borrower and its
Subsidiaries, Permitted Liens;
(iii) Liens existing on the date hereof and described
on Schedule XIII hereto;
(iv) in the case of the Borrower and its
Subsidiaries, purchase money Liens upon or in real property or
equipment acquired or held by the Borrower or any of its
Subsidiaries in the ordinary course of business to secure the
purchase price of such property or equipment or to secure Debt
incurred solely for the purpose of financing the acquisition,
construction or improvement of any such property or equipment
to be subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other than
any such Liens created in contemplation of such acquisition
that do not secure the purchase price), or extensions,
renewals or replacements of any of the foregoing for the same
or a lesser amount; provided, however, that no such Lien shall
extend to or cover any property or equipment other than the
property or equipment being acquired, constructed or improved,
and no such extension, renewal or replacement shall extend to
or cover any property or equipment not theretofore subject to
the Lien being extended, renewed or replaced; and provided
further that such Debt shall not otherwise be prohibited by
the terms of the Loan Documents; and
(v) in the case of the Borrower and its Subsidiaries,
Liens arising in connection with Capitalized Leases permitted
under Section 5.02(b)(v)(C), provided that no such Lien shall
extend to or cover any Collateral or assets other than the
assets subject to such Capitalized Leases.
(b) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt other than:
(i) In the case of the Borrower, Debt in respect of
Hedge Agreements designed to hedge against fluctuations in
interest rates incurred in the ordinary course of business and
consistent with prudent business practice with the aggregate
Agreement Value thereof not to exceed $2,500,000 at any time
outstanding;
(ii) in the case of Holding, (A) Debt under the Loan
Documents, (B) Debt in an aggregate principal amount not to
exceed $10,000,000 at any time issued pursuant to the
Stockholders Agreement or an Employment Agreement provided
that (w) such Debt is evidenced by a promissory note in
substantially the form of Exhibit B to the Stockholders
Agreement or otherwise subordinated in right of payment to the
Obligations of Holding under the Loan Documents on terms and
conditions reasonably satisfactory to the Lender Parties, (x)
such Debt shall not bear interest on a cash basis prior to the
Termination Date, (y) the final maturity of such Debt is after
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the Termination Date and (z) amortization of such Debt is not
required prior to the Termination Date, and (C) Debt under the
13% Subordinated Notes due May 31, 2009 issued by Holding;
(iii) in the case of the Borrower and its
Subsidiaries, the Permanent Debt in an aggregate principal
amount not to exceed $105,000,000;
(iv) Debt owed to the Borrower by any wholly-owned
Subsidiary of the Borrower or Debt owed to a wholly-owned
Subsidiary of the Borrower by the Borrower or any other
wholly-owned Subsidiary of the Borrower; and
(v) in the case of the Borrower and any of its
Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by
Section 5.02(a)(iv) not to exceed in the aggregate
$10,000,000 at any time outstanding,
(C) Capitalized Leases not to exceed in the
aggregate $20,000,000 at any time outstanding,
(D) unsecured Debt incurred in the ordinary
course of business for the deferred purchase price of
property or services, maturing within one year from
the date created, and aggregating, on a Consolidated
basis, not more than $7,500,000 at any one time
outstanding,
(E) indorsement of negotiable instruments
for deposit or collection or similar transactions in
the ordinary course of business, and
(F) Debt (other than Debt comprised of
senior bank financing or other similar working
capital financing) of any Person that becomes a
Subsidiary of the Borrower after the date hereof in
accordance with the terms of Section 5.02(f) that is
existing at the time such Person becomes a Subsidiary
of the Borrower (other than Debt incurred solely in
contemplation of such Person becoming a Subsidiary of
the Borrower), provided that the aggregate principal
amount of any such Debt of a Person acquired in any
Fiscal Year (together with the aggregate amount of
Capital Expenditures made in such Fiscal Year) shall
not exceed the amount set forth in Section 5.02(p)
for such Fiscal Year.
(G) other Debt in an aggregate principal
amount not to exceed $7,500,000 at any time
outstanding.
(c) Lease Obligations. Create, incur, assume, extend, renew,
modify or amend, or permit any of its Subsidiaries to create, incur,
assume, extend, renew, modify or amend, any obligations as lessee (i)
for the rental or hire of real or personal property in connection with
any sale and leaseback transaction, or (ii) for the rental or hire of
other real or personal property of any kind under leases or agreements
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to lease (including Capitalized Leases) having an original term of one
year or more that would cause the direct and contingent liabilities of
the Borrower and its Subsidiaries, on a Consolidated basis, in respect
of all such obligations to exceed, in the 12 month period following
incurrence, assumption, extension, renewal, modification or amendment,
5.0% of Consolidated sales of the Borrower and its Subsidiaries for the
12 month period immediately prior thereto (giving pro forma effect to
all acquisitions during such period).
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries
to do so, except that (i) the Company may merge with and into the
Borrower, provided that the Borrower shall be the surviving
corporation, and (ii) any Subsidiary of the Borrower may merge into or
consolidate with the Borrower or any other Subsidiary of the Borrower,
provided that, in the case of any such merger or consolidation, the
Person formed by such merger or consolidation shall be the Borrower or
a wholly owned Subsidiary of the Borrower, as the case may be;
provided, however, that in each case, immediately after giving effect
thereto, no event shall occur and be continuing that constitutes a
Default.
(e) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets, except:
(i) sales of Inventory by the Borrower and its
Subsidiaries in the ordinary course of its business and sales
or other disposals of obsolete, damaged or unmarketable
inventory,
(ii) sales or other disposals of obsolete, worn-out
or surplus equipment or other assets in the ordinary course of
business,
(iii) in a transaction authorized by subsection (d)
of this Section,
(iv) sales of assets by the Borrower or any
Subsidiary of the Borrower for cash and for fair value in an
aggregate amount not to exceed $5,000,000 in any Fiscal Year,
provided that the Borrower shall, to the extent required by
Section 2.06(b)(ii), prepay the Advances pursuant to, and in
the amount and order of priority set forth in, such Section
2.06(b)(ii),
(v) sales or other transfers of assets from the
Borrower or any of the Borrower's Subsidiaries to the Borrower
or a wholly-owned domestic Subsidiary of the Borrower,
provided that such wholly-owned domestic Subsidiary shall
become an additional grantor pursuant to the terms of the
Security Agreement and shall become a Subsidiary Guarantor
pursuant to the terms of the Subsidiary Guaranty,
(vi) leases or subleases of assets in the ordinary
course of business by the Borrower or any of its Subsidiaries
as lessor or sublessor, as the case may be,
(vii) sales or other disposals of Cash Equivalents in
the ordinary course of business, and
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(viii) sales of assets by the Borrower or any
Subsidiary of the Borrower for cash and for fair value in an
aggregate amount not to exceed $10,000,000 in any Fiscal Year,
provided that, within nine months following the date of such
sale, the Borrower or such Subsidiary shall lease back such
asset.
(f) Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person other
than:
(i) Investments by the Borrower and its Subsidiaries
in their Subsidiaries outstanding on the date hereof and
additional investments in wholly owned Subsidiaries in
existence immediately after the Merger;
(ii) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(b)(i) or Section 5.02(b)(v)(A);
(iii) (A) promissory notes issued to Holding
representing the unpaid purchase price of capital stock of
Holding issued to managers of Holding or its Subsidiaries, and
secured by a perfected pledge of such capital stock, and (B)
loans and advances to employees of the Borrower and its
Subsidiaries in an aggregate principal amount not to exceed
$1,500,000 at any time outstanding;
(iv) Investments by the Borrower and its Subsidiaries
in Cash Equivalents;
(v) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(iv);
(vi) Investments existing on the date hereof and
described on Schedule X hereto;
(vii) Investments in the capital stock of a Person
that, as a result of such investment or purchase, becomes a
wholly-owned Subsidiary of the Borrower, to the extent
permitted by Section 5.02(p); provided that with respect to
Investments made under this clause (vii): (1) any newly
acquired or created Subsidiary of the Borrower or any of its
Subsidiaries shall be a wholly-owned Subsidiary thereof, shall
become an additional grantor pursuant to the terms of the
Security Agreement and shall become an additional subsidiary
guarantor pursuant to the terms of the Subsidiary Guaranty;
(2) immediately before and after giving effect thereto, no
Default shall have occurred and be continuing or would result
therefrom; and (3) any business acquired or invested in
pursuant to this clause (vii) shall be in the same line of
business as the business of the Borrower or any of its
Subsidiaries;
(viii) in the case of the Borrower and its
Subsidiaries, other Investments in an aggregate outstanding
amount not to exceed $10,000,000.
(ix) Investments by Holding in the capital stock of
the Borrower; and
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(x) in the case of Holding, Investments by Holding in
its capital stock as a result of the transactions described in
Section 5.02(b)(ii)(B).
(g) Dividends, Etc. In the case of the Borrower, declare or
pay any dividends, purchase, redeem, retire, defease or otherwise
acquire for value any of its capital stock or any warrants, rights or
options to acquire such capital stock, now or hereafter outstanding,
return any capital to its stockholders as such, make any distribution
of assets, capital stock, warrants, rights, options, obligations or
securities to its stockholders as such or issue or sell any capital
stock or any warrants, rights or options to acquire such capital stock
(other than to Holding), or permit any of its Subsidiaries to do any of
the foregoing or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any capital stock of the
Borrower or any warrants, rights or options to acquire such capital
stock or to issue or sell any capital stock or any warrants, rights or
options to acquire such capital stock (other than to the Borrower),
except that, so long as no Default shall have occurred and be
continuing at the time of any action described in clauses (A) through
(C) below or would result therefrom, (i) the Borrower may (A) declare
and pay dividends and distributions payable only in common stock of the
Borrower, (B) except to the extent the Net Cash Proceeds thereof are
required to be applied to the prepayment of the Advances pursuant to
Section 2.06(b), purchase, redeem, retire, defease or otherwise acquire
shares of its capital stock with the proceeds received from the issue
of new shares of its capital stock with equal or inferior voting
powers, designations, preferences and rights, and (C) declare and pay
cash dividends to Holding solely to make payments required to be made
by Holding under the Stockholders Agreement and the Employment
Agreements (and promissory notes issued pursuant thereto), to
repurchase shares of common stock of Holdings from certain members of
management and to permit Holding to pay its current obligations in the
ordinary course of business, provided, that the aggregate payments made
pursuant to this clause (C) shall not exceed (x) $5,000,000 in Fiscal
Year 2000 and (y) thereafter, the sum of $7,500,000 plus any amount
permitted to be paid pursuant to clause (x) and not so used and (ii)
any Subsidiary of the Borrower may (A) declare and pay cash dividends
to the Borrower and (B) declare and pay cash dividends to any other
wholly-owned Subsidiary of the Borrower of which it is a Subsidiary.
(h) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business
as carried on at the date hereof.
(i) Charter Amendments. Amend, or permit any of its
Subsidiaries to amend, its certificate of incorporation or bylaws,
unless such amendment would not have a Material Adverse Effect and does
not adversely affect the rights and remedies of the Administrative
Agent or any Lender Party under any Loan Document or any Related
Document.
(j) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies
or reporting practices, except as required or permitted by generally
accepted accounting principles or (ii) Fiscal Year.
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(k) Prepayments, Etc. of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner, or make any payment in violation of any subordination terms
of, any Debt, other than the prepayment of (i) the Advances in
accordance with the terms of this Agreement or (ii) any Capitalized
Leases or Debt of the type described in Section 5.02(b)(v)(B), or
amend, modify or change in any manner any term or condition of the
Permanent Debt Documents that would impair the value of the interest or
rights of the Loan Parties thereunder or that would impair the rights
or interests of the Administrative Agent or any Lender Party, or permit
any of its Subsidiaries to do any of the foregoing other than to prepay
any Debt payable to the Borrower.
(l) Amendment, Etc. of Related Documents. Cancel or terminate
any Related Document or consent to or accept any cancellation or
termination thereof, amend, modify or change in any manner any term or
condition of any such Related Document or give any consent, waiver or
approval thereunder, waive any default under or any breach of any term
or condition of any such Related Document, agree in any manner to any
other amendment, modification or change of any term or condition of any
such Related Document or take any other action in connection with any
such Related Document that could, in any such case, reasonably be
expected to have a Material Adverse Effect or that would materially
adverse effect the rights or interests of the Administrative Agent or
any Lender Party, or permit any of its Subsidiaries to do any of the
foregoing.
(m) Negative Pledge. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets other than (i) in favor of the Secured
Parties or (ii) any prohibition or condition contained in the Permanent
Debt Documents or (iii) any Debt that is permitted to be secured
hereunder (including Capital Leases).
(n) Partnerships, Etc. Become a general partner in any general
or limited partnership, or permit any of its Subsidiaries to do so,
other than any Subsidiary the sole assets of which consist of its
interest in such partnership.
(o) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions
(including, without limitation, take-or-pay contracts), except for
Hedge Agreements required under Section 5.01(p).
(p) Capital Expenditures. In the case of the Borrower, make,
or permit any of its Subsidiaries to make, any Capital Expenditures
(excluding the lease of any asset sold in accordance with Section
5.02(e)(viii)) that would cause the aggregate of all such Capital
Expenditures made by the Borrower and its Subsidiaries in any period
set forth below (together with the aggregate amount of Debt incurred
during such period pursuant to Section 5.02(b)(v)(F)) to exceed the
amount set forth below for such period:
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Fiscal Year Ending In Amount
--------------------- ------
2000 $30,000,000
2001 $30,000,000
2002 $35,000,000
2003 $35,000,000
2004 $38,000,000
2005 $40,000,000
2006 $41,000,000
; provided, however, that if, in any Fiscal Year specified above, the
amount of Capital Expenditures set forth above for such period exceeds
the amount of Capital Expenditures actually made by the Borrower and
its Subsidiaries in such Fiscal Year, the Borrower and its Subsidiaries
shall be entitled to make additional Capital Expenditures in the next
Fiscal Year up to the amount of such excess.
SECTION 5.03. Reporting Requirements. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will furnish to the
Lender Parties:
(a) Default Notice. As soon as possible and in any event
within two Business Days after a Responsible Officer of a Loan Party
knows, or has reason to know, of the occurrence of a Default or any
event, development or occurrence reasonably likely to have a Material
Adverse Effect continuing on the date of such statement, a statement of
the chief financial officer of the Borrower setting forth details of
such Default and the action that the Borrower has taken and proposes to
take with respect thereto.
(b) Monthly Financials. As soon as available and in any event
within 30 days after the end of each month (other than any month which
is the last month of a fiscal quarter), a Consolidated balance sheet of
the Borrower and its Subsidiaries as of the end of such month and a
Consolidated statement of income and a Consolidated statement of cash
flows of the Borrower and its Subsidiaries for the period commencing at
the end of the previous month and ending with the end of such month and
a Consolidated statements of income and a Consolidated statement of
cash flows of the Borrower and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such month, setting forth in each case in comparative form the
corresponding figures for the corresponding month of the preceding
Fiscal Year, all in reasonable detail and duly certified by the chief
financial officer of the Borrower.
(c) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, a Consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such quarter and Consolidated
statement of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for the period commencing at the end of
the previous fiscal quarter and ending with the end of such fiscal
quarter and a Consolidated statement of income and a Consolidated
statement of cash flows of the Borrower and its Subsidiaries for the
period commencing at the end of the previous Fiscal Year and ending
with the end of such quarter, setting forth in each case in comparative
form the corresponding figures for the corresponding period of the
preceding Fiscal Year, all in reasonable detail and duly certified
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(subject to year-end audit adjustments) by the chief financial officer
of the Borrower as having been prepared in accordance with GAAP,
together with (i) a certificate of said officer stating that no Default
has occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that
the Borrower has taken and proposes to take with respect thereto and
(ii) a schedule in form satisfactory to the Administrative Agent of the
computations used by the Borrower in determining compliance with the
covenants contained in Sections 5.04(a) through (d), provided that in
the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP.
(d) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiaries,
including therein a Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and a Consolidated
statement of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiaries for such Fiscal Year, in each case
accompanied by an unqualified opinion of Ernst & Young, LLP or Deloitte
Touche LLP or other independent public accountants of nationally
recognized standing, together with (i) a certificate of such accounting
firm to the Lender Parties stating that in the course of the regular
audit of the business of the Borrower and its Subsidiaries, which audit
was conducted by such accounting firm in accordance with generally
accepted auditing standards, such accounting firm has obtained no
knowledge that a Default has occurred and is continuing under Section
5.02(p) or Section 5.04, or if, in the opinion of such accounting firm,
such a Default has occurred and is continuing, a statement as to the
nature thereof, (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by the Borrower in
determining, as of the end of such Fiscal Year, compliance with the
covenants contained in Sections 5.04(a) through (d), provided that in
the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP and (iii) a
certificate of the chief financial officer of the Borrower stating that
no Default has occurred and is continuing or, if a default has occurred
and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto.
(e) Annual Forecasts. As soon as available and in any event no
later than 30 days after the end of each Fiscal Year, forecasts
prepared by management of the Borrower, in form reasonably satisfactory
to the Administrative Agent, of balance sheets, income statements and
cash flow statements on a monthly basis for the Fiscal Year following
such Fiscal Year then ended.
(f) ERISA Events and ERISA Reports. Promptly and in any event
within 10 days after any Loan Party or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred that has resulted or
is reasonably expected to result in a Material Adverse Effect, a
statement of the chief financial officer of the Borrower describing
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such ERISA Event and the action, if any, that such Loan Party or such
ERISA Affiliate has taken and proposes to take with respect thereto and
on the date any records, documents or other information must be
furnished to the PBGC with respect to any Plan pursuant to Section 4010
of ERISA, a copy of such records, documents and information.
(g) Plan Terminations. Promptly and in any event within two
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any
Plan.
(h) Actuarial Reports. Promptly upon the request therefor by
any Lender Party, a copy of the annual actuarial valuation report for
any Plan.
(i) Multiemployer Plan Notices. Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (i) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (ii) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer Plan
or (iii) the amount of liability incurred, or that may be incurred, by
such Loan Party or any ERISA Affiliate in connection with any event
described in clause (i) or (ii); provided, however, that such copies
must be provided only if such imposition of Withdrawal Liability,
reorganization or termination has resulted or is reasonably expected to
result in a Material Adverse Affect, or otherwise upon the request of
any Lender Party (through the Administrative Agent).
(j) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Loan Party or any of its Subsidiaries of the type
described in Section 4.01(i), and promptly after the occurrence
thereof, notice of any adverse change in the status or the financial
effect on any Loan Party or any of its Subsidiaries of the Disclosed
Litigation from that described on Schedule II which could reasonably be
expected to have a Material Adverse Effect.
(k) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that Holding sends to its stockholders generally, and copies of
all regular, periodic and special reports, and all registration
statements, that any Loan Party or any of its Subsidiaries files with
the Securities and Exchange Commission or any governmental authority
that may be substituted therefor, or with any national securities
exchange.
(l) Agreement Notices. Promptly upon receipt thereof, copies
of all notices, requests and other documents received by any Loan Party
or any of its Subsidiaries under or pursuant to any Related Document or
indenture, loan or credit or similar agreement relating to Debt in an
aggregate principal amount in excess of $2,500,000 regarding or related
to any breach or default by any party thereto or any other event that
could materially impair the value of the interests or the rights of any
Loan Party or otherwise have a Material Adverse Effect and copies of
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any amendment, modification or waiver of any provision of any Related
Agreement or Material Contract or indenture, loan or credit or similar
agreement and, from time to time upon request by the Administrative
Agent, such information and reports regarding the Related Documents and
the Material Contracts as the Administrative Agent may reasonably
request.
(m) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of
any noncompliance by any Loan Party or any of its Subsidiaries with any
Environmental Law or Environmental Permit that (i) could reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental
Law that could reasonably be expected to have a Material Adverse
Effect.
(n) Real Property. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a report
supplementing Schedules 4.01(gg) and 4.01(hh) hereto, including an
identification of all real and leased property (with a fair market
value of at least $1,500,000) disposed of by the Borrower or any of its
Subsidiaries during such Fiscal Year, a list and description (including
the street address, county or other relevant jurisdiction, state,
record owner, book value thereof, and in the case of leases of
property, lessor, lessee, expiration date and annual rental cost
thereof) of all real property (with a fair market value of at least
$1,500,000) acquired or leased during such Fiscal Year and a
description of such other changes in the information included in such
Schedules as may be necessary for such Schedules to be accurate and
complete.
(o) Insurance. As soon as available and in any event within 90
days after the end of each Fiscal Year, a report summarizing the
insurance coverage (specifying type, amount and carrier) in effect for
the Borrower and its Subsidiaries and containing such additional
information as the Administrative Agent may reasonably specify.
(p) Borrowing Base Certificate. As soon as available and in
any event within 15 days after the end of each month, a Borrowing Base
Certificate, as at the end of the previous month, certified by the
chief financial officer of the Borrower.
(q) Plan Schedule. As soon as practicable and in any event
within 10 days after the Borrower or one of its ERISA Affiliates
becomes a party to a Plan, an updated Schedule V listing all Plans of
the Borrower and its ERISA Affiliates.
(r) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
the Administrative Agent may from time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, Holding will:
(a) Fixed Charge Coverage Ratio. Maintain at the end of each
fiscal quarter of Holding a Fixed Charge Coverage Ratio for the most
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recently completed four fiscal quarters of Holding and its Subsidiaries
of not less than the amount set forth below for such period.
Four Fiscal Quarters Ending Closest To Ratio
-------------------------------------- -----
July 31, 1999 1.05
October 31, 1999 1.05
January 31, 2000 1.05
April 30, 2000 1.05
July 31, 2000 1.05
October 31, 2000 1.05
January 31, 2001 1.05
April 30, 2001 1.05
July 31, 2001 1.05
October 31, 2001 1.05
January 31, 2002 1.10
April 30, 2002 1.10
July 31, 2002 1.10
October 31, 2002 1.10
January 31, 2003 1.10
April 30, 2003 1.10
July 31, 2003 1.10
October 31, 2003 1.10
January 31, 2004 1.10
April 30, 2004 1.10
July 31, 2004 1.10
October 31, 2004 1.10
January 31, 2005 1.00
April 30, 2005 1.00
July 31, 2005 1.00
October 31, 2005 1.00
January 31, 2006 1.00
April 30, 2006 1.00
(b) Interest Coverage Ratio. Maintain at the end of each
fiscal quarter of Holding a ratio of Consolidated EBITDA for the most
recently completed four fiscal quarters of Holding and its Subsidiaries
to cash interest payable on all Debt of the Borrower and its
Subsidiaries during such four fiscal quarter period of not less than
the ratio set forth below for such fiscal quarter:
Four Fiscal Quarters Ending Closest To Ratio
-------------------------------------- -----
July 31, 1999 2.00
October 31, 1999 2.00
January 31, 2000 2.00
April 30, 2000 2.00
July 31, 2000 2.25
October 31, 2000 2.50
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January 31, 2001 2.50
April 30, 2001 2.50
July 31, 2001 2.50
October 31, 2001 2.75
January 31, 2002 2.75
April 30, 2002 2.75
July 31, 2002 2.75
October 31, 2002 3.00
January 31, 2003 3.00
April 30, 2003 3.00
July 31, 2003 3.00
October 31, 2003 3.25
January 31, 2004 3.25
April 30, 2004 3.25
July 31, 2004 3.25
October 31, 2004 3.25
January 31, 2005 3.25
April 30, 2005 3.25
July 31, 2005 3.25
October 31, 2005 3.25
January 31, 2006 3.25
April 30, 2006 3.25
; provided, however, that for each fiscal quarter of Holding ending
closest to July 31, 1999, October 31, 1999, January 31, 2000 and April
30, 2000, cash interest payable for such four fiscal quarter period
shall be the actual cash interest payable during such period since the
date of the consummation of the Merger multiplied by a fraction the
numerator of which is twelve and the denominator of which is the number
of fiscal months that have elapsed since such date.
(c) Debt to EBITDA Ratio. Maintain at the end of each fiscal
quarter of Holding a Debt to EBITDA Ratio of Holding and its
Subsidiaries of not more than the ratio set forth below for each period
set forth below.
Four Fiscal Quarters Ending Closest To Ratio
-------------------------------------- -----
July 31, 1999 5.00
October 31, 1999 4.75
January 31, 2000 4.75
April 30, 2000 4.75
July 31, 2000 4.25
October 31, 2000 4.00
January 31, 2001 4.00
April 30, 2001 4.00
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July 31, 2001 3.75
October 31, 2001 3.50
January 31, 2002 3.50
April 30, 2002 3.50
July 31, 2002 3.50
October 31, 2002 3.00
January 31, 2003 3.00
April 30, 2003 3.00
July 31, 2003 3.00
October 31, 2003 3.00
January 31, 2004 3.00
April 30, 2004 3.00
July 31, 2004 3.00
October 31, 2004 3.00
January 31, 2005 3.00
April 30, 2005 3.00
July 31, 2005 3.00
October 31, 2005 3.00
January 31, 2006 3.00
April 30, 2006 3.00
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or any Loan Party shall
fail to make any other payment under any Loan Document, in each case
under this clause (ii) within three Business Days after the same
becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) (i) any Loan Party shall fail to perform or observe any
term, covenant or agreement contained in Section 2.14, 5.01(f), 5.02 or
5.04 or (ii) any Loan Party shall fail to maintain its corporate
existence or to perform or observe any term, covenant or agreement
contained in Section 5.03(a), (b), (c) or (d) if such failure shall
remain unremedied for 10 days; or
(d) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30
days after the earlier of the date on which (A) a Responsible Officer
of the Borrower becomes aware of such failure or (B) written notice
thereof shall have been given to the Borrower by the Administrative
Agent or the Required Lenders; or
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(e) any Loan Party or any of its Subsidiaries shall fail to
pay any principal of, premium or interest on or any other amount
payable in respect of any Debt that is outstanding in a principal or
notional amount of at least $5,000,000 either individually or in the
aggregate (but excluding Debt outstanding hereunder) of such Loan Party
or such Subsidiary (as the case may be), when the same becomes due and
payable (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be
declared to be due and payable or required to be prepaid or redeemed
(other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against any Loan Party or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, or other similar official for it or for any
substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of
the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any
of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess
of $5,000,000 shall be rendered against any Loan Party or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 30 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that any such
judgment, order or payment shall be disregarded for the purposes of
this paragraph (g) to the extent that (A) the amount of such judgment,
order or payment is covered by a valid and binding policy of insurance
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between the defendant and the insurer covering payment thereof and (B)
such insurer has been notified, and, in the case of such judgment,
order or payment, has not disputed the claim made for payment, or the
amount of such judgment or order or payment; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that can be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 30 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(i) any Loan Document, or any material provision thereof,
after delivery thereof pursuant to Section 3.01 or 5.01(l), shall for
any reason (other than pursuant to the provisions thereof) cease to be
valid and binding on or enforceable against any Loan Party party to it,
or any such Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to
Section 3.01 or 5.01(p) shall for any reason (other than pursuant to
the terms thereof) cease to create a valid and perfected lien on and
security interest in the Collateral purported to be covered thereby
with the priority required thereunder; or
(k) J.W. Childs and its Affiliates and co-investors shall
cease to have beneficial ownership (within the meaning of Rule 13d-3 of
the Securities and Exchange Commission under the Securities Exchange
Act of 1934), directly or indirectly, of Voting Stock of Holding
representing 25% or more of the combined voting power of all Voting
Stock of Holding so long as J.W. Childs and its Affiliates and
co-investors shall have voting control of the Board of Directors of
Holding; or
(l) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates related to such ERISA Event) exceeds $5,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$5,000,000 or requires payments exceeding $1,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and
the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$5,000,000; or
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(o) any Borrowing Base Deficiency shall occur and be
continuing for more than five Business Days;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each Appropriate Lender to make Advances (other than
Letter of Credit Advances by the Issuing Bank or a Revolving Credit Lender
pursuant to Section 2.03(c) and Swing Line Advances by a Revolving Credit Lender
pursuant to Section 2.02(b)) and of the Issuing Bank to issue Letters of Credit
to be terminated, whereupon the same shall forthwith terminate, and (ii) shall
at the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Notes, all interest thereon and all other amounts
payable under this Agreement and the other Loan Documents to be forthwith due
and payable, whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to the Borrower under the Federal Bankruptcy
Code, (x) the obligation of each Lender to make Advances (other than Letter of
Credit Advances by the Issuing Bank or a Lender pursuant to Section 2.03(c) and
Swing Line Advances by a Revolving Credit Lender pursuant to Section 2.02(b))
and of the Issuing Bank to issue Letters of Credits shall automatically be
terminated and (y) the Notes, all such interest and all such amounts shall
automatically become and be due and payable, without presentment, demand,
protest or any notice of any kind, all of which are hereby expressly waived by
the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding. If
at any time the Administrative Agent determines that any funds held in the L/C
Cash Collateral Account are subject to any right or claim of any Person other
than the Administrative Agent and the Lender Parties or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit,
the Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be free
and clear of any such right and claim.
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ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01. Authorization and Action. Each Lender Party (in
its capacities as a Lender, the Swing Line Bank (if applicable) and the Issuing
Bank (if applicable) hereby appoints and authorizes the Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as are delegated to
the Administrative Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto. As to any matters
not expressly provided for by the Loan Documents (including, without limitation,
enforcement or collection of the Notes), the Administrative Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders, and such
instructions shall be binding upon all Lender Parties and all holders of Notes;
provided, however, that the Administrative Agent shall not be required to take
any action that exposes the Administrative Agent to personal liability or that
is contrary to this Agreement or applicable law. The Administrative Agent agrees
to give to each Lender Party prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Administrative Agent's Reliance, Etc. Neither
the Administrative Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, the Administrative Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an Assignment
and Acceptance entered into by the Lender that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in Section 8.07;
(b) may consult with legal counsel (including counsel for any Loan Party),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (c) makes no
warranty or representation to any Lender Party and shall not be responsible to
any Lender Party for any statements, warranties or representations (whether
written or oral) made in or in connection with the Loan Documents; (d) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of any Loan Document on the part of
any Loan Party or to inspect the property (including the books and records) of
any Loan Party; (e) shall not be responsible to any Lender Party for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of, or the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram or
telecopy) believed by it to be genuine and signed or sent by the proper party or
parties.
SECTION 7.03. Fleet and Affiliates. With respect to its
Commitments, the Advances made by it and the Notes issued to it, Fleet shall
have the same rights and powers under the Loan Documents as any other Lender
Party and may exercise the same as though it were not the Administrative Agent;
and the term "Lender Party" or "Lenders Parties" shall, unless otherwise
expressly indicated, include Fleet in its individual capacity. Fleet and its
affiliates may accept deposits from, lend money to, act as trustee under
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indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person who may do business with or own securities of any Loan Party or any such
Subsidiary, all as if Fleet were not the Administrative Agent and without any
duty to account therefor to the Lender Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender Party and based on the financial
statements referred to in Section 4.01 and such other documents and information
as it has deemed appropriate, made its own credit analysis and decision to enter
into this Agreement. Each Lender Party also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender Party and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally
agrees to indemnify the Administrative Agent (to the extent not promptly
reimbursed by the Borrower) from and against such Lender Party's ratable share
(determined as provided below) of any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind or nature whatsoever that may be imposed on, incurred by, or
asserted against the Administrative Agent in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Administrative Agent
under the Loan Documents; provided, however, that no Lender Party shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Administrative Agent's gross negligence or willful misconduct. Without
limitation of the foregoing, each Lender Party agrees to reimburse the
Administrative Agent promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 9.04, to the extent that the Administrative Agent
is not promptly reimbursed for such costs and expenses by the Borrower. For
purposes of this Section 7.05(a), the Lender Parties' respective ratable shares
of any amount shall be determined, at any time, according to the sum of (a) the
aggregate principal amount of the Advances outstanding at such time and owing to
the respective Lender Parties, (b) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding at such time,
(c) the aggregate unused portion of their respective Term Commitments at such
time and (d) their respective Unused Revolving Credit Commitments at such time;
provided, that the aggregate principal amount of Swing Line Advances owing to
the Swing Line Bank and of Letter of Credit Advances owing to the Issuing Bank
shall be considered to be owed to the Revolving Credit Lenders ratably in
accordance with their respective Revolving Credit Commitments. In the event that
any Defaulted Advance shall be owing by any Defaulting Lender at any time, such
Lender Party's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 7.05(a) to the extent of the amount of such
Defaulted Advance. The failure of any Lender Party to reimburse the
Administrative Agent promptly upon demand for its ratable share of any amount
required to be paid by the Lender Party to the Administrative Agent as provided
herein shall not relieve any other Lender Party of its obligation hereunder to
reimburse the Administrative Agent for its ratable share of such amount, but no
Lender Party shall be responsible for the failure of any other Lender Party to
reimburse the Administrative Agent for such other Lender Party's ratable share
of such amount. Without prejudice to the survival of any other agreement of any
Lender Party hereunder, the agreement and obligations of each Lender Party
contained in this Section 7.05(a) shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
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(b) Each Lender Party severally agrees to indemnify the
Issuing Bank (to the extent not promptly reimbursed by the Borrower) from and
against such Lender Party's ratable share (determined as provided below) of any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever that may be imposed on, incurred by, or asserted against the Issuing
Bank in any way relating to or arising out of the Loan Documents or any action
taken or omitted by the Issuing Bank under the Loan Documents; provided,
however, that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Issuing Bank's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender Party agrees to reimburse the Issuing Bank promptly upon demand for its
ratable share of any costs and expenses (including, without limitation, fees and
expenses of counsel) payable by the Borrower under Section 9.04, to the extent
that the Issuing Bank is not promptly reimbursed for such costs and expenses by
the Borrower. For purposes of this Section 7.05(b), the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (b) their
respective Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time, (c) the aggregate unused portion of their
respective Term Commitments at such time plus (d) their respective Unused
Working Revolving Credit Commitments at such time; provided that the aggregate
principal amount of Swing Line Advances owing to the Swing Line Bank and of
Letter of Credit Advances owing to the Issuing Bank shall be considered to be
owed to the Revolving Credit Lenders ratably in accordance with their respective
Revolving Credit Commitments. In the event that any Defaulted Advance shall be
owing by any Defaulting Lender at any time, such Lender Party's Commitment with
respect to the Facility under which such Defaulted Advance was required to have
been made shall be considered to be unused for purposes of this Section 7.05(b)
to the extent of the amount of such Defaulted Advance. The failure of any Lender
Party to reimburse the Issuing Bank promptly upon demand for its ratable share
of any amount required to be paid by the Lender Parties to the Issuing Bank as
provided herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse the Issuing Bank for its ratable share of such amount,
but no Lender Party shall be responsible for the failure of any other Lender
Party to reimburse the Issuing Bank for such other Lender Party's ratable share
of such amount. Without prejudice to the survival of any other agreement of any
Lender Party hereunder, the agreement and obligations of each Lender Party
contained in this Section 7.05(b) shall survive the payment in full of
principal, interest and all other amounts payable hereunder and under the other
Loan Documents.
SECTION 7.06. Successor Administrative Agents. The
Administrative Agent may resign as to any or all of the Facilities at any time
by giving written notice thereof to the Lender Parties and the Borrower and may
be removed as to all of the Facilities at any time with or without cause by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent as to such of
the Facilities as to which the Administrative Agent has resigned or been
removed. If no successor Administrative Agent shall have been so appointed by
the Required Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of resignation or the
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Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lender Parties, appoint a
successor Administrative Agent, which shall be a commercial bank organized under
the laws of the United States or of any State thereof and having a combined
capital and surplus of at least $250,000,000. Upon the acceptance of any
appointment as Administrative Agent hereunder by a successor Administrative
Agent as to all of the Facilities and upon the execution and filing or recording
of such financing statements, or amendments thereto, and such amendments or
supplements to the Mortgages, and such other instruments or notices, as may be
necessary or desirable, or as the Required Lenders may request, in order to
continue the perfection of the Liens granted or purported to be granted by the
Collateral Documents, such successor Administrative Agent shall succeed to and
become vested with all the rights, powers, discretion, privileges and duties of
the retiring Administrative Agent, and the retiring Administrative Agent shall
be discharged from its duties and obligations under the Loan Documents. Upon the
acceptance of any appointment as Administrative Agent hereunder by a successor
Administrative Agent as to less than all of the Facilities and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, and such other
instruments or notices, as may be necessary or desirable, or as the Required
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent
as to such Facilities, other than with respect to funds transfers and other
similar aspects of the administration of Borrowings under such Facilities,
issuances of Letters of Credit (notwithstanding any resignation as
Administrative Agent with respect to the Letter of Credit Facility) and payments
by the Borrower in respect of such Facilities, and the retiring Administrative
Agent shall be discharged from its duties and obligations under this Agreement
as to such Facilities, other than as aforesaid. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent
as to all of the Facilities, the provisions of this Article VII shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent as to any Facilities under this Agreement.
ARTICLE VIII
GUARANTY
SECTION 8.01. Guaranty. Holding unconditionally and
irrevocably guarantees (the undertaking by Holding under this Article VIII being
the "Guaranty") the punctual payment when due, whether at stated maturity, by
acceleration or otherwise, of all Obligations of each other Loan Party now or
hereafter existing under the Loan Documents, whether for principal, interest,
fees, commissions, expenses or otherwise (such Obligations being the "Guaranteed
Obligations"), and agrees to pay any and all expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the
Administrative Agent or any other Lender Party in enforcing any rights under
this Guaranty. Without limiting the generality of the foregoing, Holding's
liability shall extend to all amounts that constitute part of the Guaranteed
Obligations and would be owed by any other Loan Party to the Administrative
Agent or any other Lender Party under the Loan Documents but for the fact that
they are unenforceable or not allowable due to the existence of a bankruptcy,
reorganization or similar proceeding involving such other Loan Party.
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SECTION 8.02. Guaranty Absolute. Holding guarantees that the
Guaranteed Obligations will be paid strictly in accordance with the terms of the
Loan Documents, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of the
Administrative Agent or any other Secured Party with respect thereto. The
Obligations of Holding under this Guaranty are independent of the Guaranteed
Obligations or any other Obligations of any Loan Party under the Loan Documents,
and a separate action or actions may be brought and prosecuted against Holding
to enforce this Guaranty, irrespective of whether any action is brought against
any other Loan Party or whether any other Loan Party is joined in any such
action or actions. The liability of Holding under this Guaranty shall be
absolute, unconditional and irrevocable irrespective of, and Holding hereby
irrevocably waives any defenses it may now or hereafter have in any way relating
to, any and all of the following:
(a) any lack of validity or enforceability of any Loan
Document or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other Obligations of any Loan Party under the Loan Documents, or any
other amendment or waiver of or any consent to departure from any Loan
Document (including, without limitation, any increase in the Guaranteed
Obligations resulting from the extension of additional credit to any
Loan Party or any of its Subsidiaries or otherwise);
(c) any taking, exchange, release or nonperfection of any
Collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guarantee, for all or any of the Guaranteed
Obligations;
(d) any manner of application of Collateral, or proceeds
thereof, to all or any of the Guaranteed Obligations, or any manner of
sale or other disposition of any Collateral for all or any of the
Guaranteed Obligations or any other Obligations of any Loan Party under
the Loan Documents, or any other property and assets of any other Loan
Party or any of its Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any other Loan Party or any of its
Subsidiaries;
(f) any failure of the Administrative Agent or any Lender
Party to disclose to any Loan Party any information relating to the
financial condition, operations, properties or prospects of any other
Loan Party now or hereafter known to the Administrative Agent or such
Lender Party, as the case may be; or
(g) any other circumstance (including, without limitation, any
statute of limitations or any existence of or reliance on any
representation by the Administrative Agent or any Lender Party) that
might otherwise constitute a defense available to, or a discharge of,
Holding, any other Loan Party or any other guarantor or surety.
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This Guaranty shall continue to be effective or be reinstated, as the case may
be, if at any time any payment of any of the Guaranteed Obligations is rescinded
or must otherwise be returned by the Administrative Agent or any Lender Party or
by any other Person upon the insolvency, bankruptcy or reorganization of any
other Loan Party or otherwise, all as though such payment had not been made.
SECTION 8.03. Waivers and Acknowledgments. (a) Holding hereby
unconditionally and irrevocably waives promptness, diligence, notice of
acceptance and any other notice with respect to any of the Guaranteed
Obligations and this Guaranty, and any requirement that the Administrative Agent
or any Lender Party protect, secure, perfect or insure any Lien or any property
or assets subject thereto or exhaust any right or take any action against any
other Loan Party or any other Person or any Collateral.
(b) Holding hereby unconditionally and irrevocably waives any
duty on the part of the Administrative Agent or any other Lender Party to
disclose to Holding any matter, fact or thing relating to the business,
operation or condition of any other Loan Party or any of its Subsidiaries or its
property and assets now or hereafter known by the Administrative Agent or such
Lender Party.
(c) Holding hereby unconditionally waives any right to revoke
this Guaranty, and acknowledges that this Guaranty is continuing in nature and
applies to all Guaranteed Obligations, whether existing now or in the future.
(d) Holding acknowledges that it will receive substantial
direct and indirect benefits from the financing arrangements contemplated by the
Loan Documents and that the waivers set forth in this Section 8.03 are knowingly
made in contemplation of such benefits.
SECTION 8.04. Subrogation. Holding hereby unconditionally and
irrevocably agrees not to exercise any rights that it may now have or may
hereafter acquire against any other Loan Party or any other insider guarantor
that arise from the existence, payment, performance or enforcement of its
Obligations under this Guaranty or under any other Loan Document, including,
without limitation, any right of subrogation, reimbursement, exoneration,
contribution or indemnification and any right to participate in any claim or
remedy of the Administrative Agent or any Lender against such other Loan Party
or any other insider guarantor or any Collateral, whether or not such claim,
remedy or right arises in equity or under contract, statute or common law,
including, without limitation, the right to take or receive from such other Loan
Party or any other insider guarantor, directly or indirectly, in cash or other
property or by setoff or in any other manner, payment or security on account of
such claim, remedy or right, until such time as all of the Guaranteed
Obligations and all other amounts payable under this Guaranty shall have been
paid in full in cash, all of the Letters of Credit shall have expired,
terminated or been cancelled and the Commitments shall have expired or
terminated. If any amount shall be paid to Holding in violation of the
immediately preceding sentence at any time prior to the latest of (a) the
payment in full in cash of all of the Guaranteed Obligations and all other
amounts payable under this Guaranty, (b) the full drawing, termination,
expiration or cancellation of all Letters of Credit and, (c) the Termination
Date, such amount shall be held in trust for the benefit of the Administrative
Agent and the other Lender Parties and shall forthwith be paid to the
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Administrative Agent to be credited and applied to the Guaranteed Obligations
and all other amounts payable under this Guaranty, whether matured or unmatured,
in accordance with the terms of the Loan Documents, or to be held as Collateral
for any Guaranteed Obligations or other amounts payable under this Guaranty
thereafter arising. If (i) Holding shall pay to the Administrative Agent all or
any part of the Guaranteed Obligations, (ii) all of the Guaranteed Obligations
and all other amounts payable under this Guaranty shall have been paid in full
in cash, (iii) all of the Letters of Credit shall have expired, terminated or
been cancelled, and (iv) the Termination Date shall have occurred, the
Administrative Agent and the Lender Parties will, at Holding's request and
expense, execute and deliver to Holding appropriate documents, without recourse
and without representation or warranty, necessary to evidence the transfer of
subrogation to Holding of an interest in the Guaranteed Obligations resulting
from the payment made by Holding.
SECTION 8.05. Continuing Guarantee; Assignments. This Guaranty
is a continuing guaranty and shall (a) remain in full force and effect until the
latest of (i) the payment in full in cash of all of the Guaranteed Obligations
and all other amounts payable under this Guaranty, (ii) the full drawing,
termination, expiration or cancellation of all Letters of Credit, and (iii) the
Termination Date, (b) be binding upon Holding and its successors and assigns and
(c) inure to the benefit of, and be enforceable by, the Administrative Agent and
the Lender Parties and their respective successors, transferees and assigns.
Without limiting the generality of clause (c) of the immediately preceding
sentence, any Lender Party may assign or otherwise transfer all or any portion
of its rights and obligations under this Agreement (including, without
limitation, all or any portion of its Commitment or Commitments, the Advances
owing to it and the Notes held by it) to any other Person, and such other Person
shall thereupon become vested with all the benefits in respect thereof granted
to such Lender Party under this Article VIII or otherwise, in each case as
provided in Section 9.07.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by the Borrower therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders
(other than any Lender Party that is, at such time, a Defaulting Lender), do any
of the following at any time: (i) change the number of Lenders or the percentage
of (x) the Commitments, (y) the aggregate unpaid principal amount of the
Advances or (z) the aggregate Available Amount of outstanding Letters of Credit
that, in each case, shall be required for the Lenders or any of them to take any
action hereunder, (ii) reduce or limit the obligations of Holding under Section
8.01 or otherwise limit Holding's liability with respect to the Obligations
owing to the Administrative Agent and the Lender Parties, (iii) release all or
substantially all of the Collateral in any transaction or series of related
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transactions, and (iv) amend this Section 9.01 and (b) no amendment, waiver or
consent shall, unless in writing and signed by the Required Lenders and each
Lender that has a Commitment under the Term Facilities or Revolving Credit
Facility if directly affected by such amendment, waiver or consent, (i) increase
the Commitments of such Lender or subject such Lender to any additional
obligations, (ii) reduce the principal of, or interest on, the Notes held by
such Lender or any fees or other amounts payable hereunder to such Lender, (iii)
postpone any date fixed for any payment of principal of, or interest on, the
Notes held by such Lender or any fees or other amounts payable hereunder to such
Lender or (iv) change the order of application of any prepayment set forth in
Section 2.06 in any manner that materially affects such Lender; provided further
that no amendment, waiver or consent shall, unless in writing and signed by the
Swing Line Bank or the Issuing Bank, as the case may be, in addition to the
Lenders required above to take such action, affect the rights or obligations of
the Swing Line Bank or of the Issuing Bank, as the case may be, under this
Agreement; and provided further that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the
Lenders required above to take such action, affect the rights or duties of the
Administrative Agent under this Agreement.
SECTION 9.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including telecopy
communication) and mailed, telecopied or delivered, if to the Borrower, at its
address at 3915 Delaware Avenue, Des Moines, Iowa 50313, Attention: Dean
Longnecker; if to any Initial Lender or the Initial Issuing Bank, at its
Domestic Lending Office specified opposite its name on Schedule I hereto; if to
any other Lender Party, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; and if to
the Administrative Agent, at its address at One Federal Street, Boston, MA
02110, Attention: Steve Curran; or, as to each party, at such other address as
shall be designated by such party in a written notice to the other parties. All
such notices and communications shall, when mailed or telecopied, be effective
when deposited in the mails or transmitted by telecopier, respectively, except
that notices and communications to the Administrative Agent pursuant to Article
II, III or VII shall not be effective until received by the Administrative
Agent. Delivery by telecopier of an executed counterpart of any amendment or
waiver of any provision of this Agreement or the Notes or of any Exhibit hereto
to be executed and delivered hereunder shall be effective as delivery of a
manually executed counterpart thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand (i) all reasonable costs and expenses of the Administrative Agent
in connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents (including, without limitation,
(A) all due diligence, collateral review, syndication, transportation,
duplication, appraisal, search, filing and recording fees and expenses and (B)
the reasonable fees and expenses of counsel for the Administrative Agent with
respect thereto, with respect to advising the Administrative Agent as to its
rights and responsibilities, or the perfection, protection or preservation of
rights or interests, under the Loan Documents, with respect to negotiations with
any Loan Party or with other creditors of any Loan Party or any of its
Subsidiaries arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar
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proceeding involving creditors' rights generally and any proceeding ancillary
thereto) and (ii) all costs and expenses of the Administrative Agent and the
Lender Parties in connection with the enforcement of the Loan Documents, whether
in any action, suit or litigation, any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally (including, without limitation,
the reasonable fees and expenses of counsel for the Administrative Agent and
each Lender Party with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, the Syndication Agent, the Documentation Agent, each
Lender Party and each of their Affiliates and their officers, directors,
employees, agents and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities and expenses (including,
without limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation or proceeding or
preparation of a defense in connection therewith) (i) the Facilities, the actual
or proposed use of the proceeds of the Advances or the Letters of Credit, the
Loan Documents or any of the transactions contemplated thereby, including,
without limitation, any acquisition or proposed acquisition (including, without
limitation, the Merger and any of the other transactions contemplated hereby) by
Holding, the Equity Investors or any of their respective Subsidiaries or
Affiliates of all or any portion of the stock or substantially all the assets of
the Company or any of its Subsidiaries or (ii) the actual or alleged presence of
Hazardous Materials on any property of any Loan Party or any of its Subsidiaries
or any Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, except to the extent such claim, damage, loss, liability or
expense results from such Indemnified Party's gross negligence or willful
misconduct. In the case of an investigation, litigation or other proceeding to
which the indemnity in this Section 9.04(b) applies, such indemnity shall be
effective whether or not such investigation, litigation or proceeding is brought
by any Loan Party, its directors, shareholders or creditors or an Indemnified
Party or any Indemnified Party is otherwise a party thereto and whether or not
the transactions contemplated hereby are consummated. The Borrower also agrees
not to assert any claim against the Administrative Agent, the Syndication Agent,
the Documentation Agent, any Lender Party or any of their Affiliates, or any of
their respective officers, directors, employees, attorneys and agents, on any
theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Facilities, the actual or proposed
use of the proceeds of the Advances or the Letters of Credit, the Loan Documents
or any of the transactions contemplated thereby.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.09(b)(i) or
2.10(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, the Borrower shall pay to the Administrative Agent for
each Appropriate Lender an amount equal to the present value (calculated in
accordance with this Section 9.04(c)) of interest for the remaining portion of
the relevant Interest Period on the amount of such Advance, at a rate per annum
equal to the excess of (a) the existing Eurodollar Rate applicable to such
Advance over (b) the Eurodollar Rate then applicable to a deemed Interest Period
ending on the last day of such Interest Period. The present value of such
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additional interest shall be calculated by discounting the amount of such
interest for each day in the remaining portion of such Interest Period from such
date of payment or Conversion at a rate per annum equal to the interest rate
determined pursuant to the preceding sentence, and by adding all such amounts
for all such days during such period. The determination by the Administrative
Agent of such amount of interest shall, in the absence of manifest error, be
conclusive.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
9.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the request
or the granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the Obligations of the Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such obligations may be unmatured. Each Lender
Party agrees promptly to notify the Borrower after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
SECTION 9.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower, the Administrative
Agent, the Syndication Agent and the Documentation Agent and when the
Administrative Agent shall have been notified by each Initial Lender and the
Initial Issuing Bank that such Initial Lender and the Initial Issuing Bank has
executed it and thereafter shall be binding upon and inure to the benefit of the
Borrower, the Administrative Agent and each Lender Party and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights hereunder or any interest herein without the prior written
consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may and, if demanded by the Borrower (following a demand to such Lender pursuant
to Section 2.16), will, assign to one or more Eligible Assignees all or a
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portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or Commitments, the Advances
owing to it and the Note or Notes held by it); provided, however, that (i) each
such assignment shall be of a uniform, and not a varying, percentage of all
rights and obligations under and in respect of one or more Facilities, (ii)
except in the case of an assignment to a Person that, immediately prior to such
assignment, was a Lender or an Affiliate of a Lender or an assignment of all of
a Lender's rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $5,000,000, (iii)
each such assignment shall be to an Eligible Assignee, (iv) each such assignment
made as a result of a demand by the Borrower pursuant to this Section 9.07(a)
shall be arranged by the Borrower after consultation with the Administrative
Agent and shall be either an assignment of all of the rights and obligations of
the assigning Lender under this Agreement or an assignment of a portion of such
rights and obligations made concurrently with another such assignment or other
such assignments that together cover all of the rights and obligations of the
assigning Lender under this Agreement, (v) no Lender shall be obligated to make
any such assignment as a result of a demand by the Borrower pursuant to this
Section 9.07(a) unless and until such Lender shall have received one or more
payments from either the Borrower or one or more Eligible Assignees in an
aggregate amount at least equal to the aggregate outstanding principal amount of
the Advances owing to such Lender, together with accrued interest thereon to the
date of payment of such principal amount and all other amounts payable to such
Lender under this Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with any Note
or Notes subject to such assignment and a processing and recordation fee of
$3500.00.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (y) the Lender or Issuing Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance,
the Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
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assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee (or the Agent and Borrower shall have consented
to such assignment); (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) The Administrative Agent, acting for this purpose (but
only for this purpose) as the agent of the Borrower, shall maintain at its
address referred to in Section 9.02 a copy of each Assignment and Acceptance
delivered to and accepted by it and a register for the recordation of the names
and addresses of the Lender Parties and the Commitment under each Facility of,
and principal amount of the Advances owing under each Facility to, each Lender
Party from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lender Parties shall treat each
Person whose name is recorded in the Register as a Lender Party hereunder for
all purposes of this Agreement. The Register shall be available for inspection
by the Borrower or any Lender Party at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee, together with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. In the case of any assignment by a Lender, within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note or Notes a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it under a Facility pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder under such Facility, a new Note to the order of the assigning Lender
in an amount equal to the Commitment retained by it hereunder. Such new Note or
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1, A-2 or A-3 hereto, as the case may be.
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(f) The Issuing Bank may assign to an Eligible Assignee all
of its rights and obligations under the undrawn portion of its Letter of Credit
Commitment at any time; provided, however, that (i) each such assignment shall
be to an Eligible Assignee and (ii) the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3500.00.
(g) Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the
other Lender Parties shall continue to deal solely and directly with such Lender
Party in connection with such Lender Party's rights and obligations under this
Agreement and (v) no participant under any such participation shall have any
right to approve any amendment or waiver of any provision of any Loan Document,
or any consent to any departure by any Loan Party therefrom, except to the
extent that such amendment, waiver or consent would reduce the principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, postpone any date fixed for
any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time pledge or create a security interest
in all or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Note or Notes held by it), but no
such pledge or grant of a security interest shall relieve a Lender of its
Obligations hereunder.
SECTION 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
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SECTION 9.09. No Liability of the Issuing Bank. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against the Issuing Bank, and the Issuing Bank shall
be liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower to the extent caused by (i) the Issuing Bank's
willful misconduct or gross negligence in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank's willful failure to make lawful payment under a
Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, the Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
SECTION 9.10. Confidentiality. Neither the Administrative
Agent nor any Lender Party shall disclose any Confidential Information to any
Person without the consent of the Borrower, other than (a) to the Administrative
Agent's or such Lender Party's Affiliates and their officers, directors,
employees, investors, agents and advisors and to actual or prospective Eligible
Assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process and (c) as requested
or required by any state, federal or foreign authority or examiner regulating
any Lender.
SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any such
New York State court or, to the extent permitted by law, in such federal court.
Each of the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
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other Loan Documents to which it is a party in any New York State or federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 9.12. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 9.13. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent, the Syndication Agent, the Documentation Agent and the
Lender Parties irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to any of the Loan Documents, the Advances or the
actions of the Administrative Agent, the Syndication Agent, the Documentation
Agent or any Lender Party in the negotiation, administration, performance or
enforcement thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
CENTRAL TRACTOR FARM & COUNTRY, INC.
By: /s/ Adam Suttin
Title: Vice President
CT HOLDING, INC.
By: /s/ Adam Suttin
Title: Vice President
FLEET NATIONAL BANK, as
Administrative Agent
By: /s/ John A. Skrobe
Title: Vice President
NATIONSBANK, N.A., as
Syndication Agent
By: /s/ Johns Ellington
Title: Vice President
DLJ CAPITAL FUNDING, INC., as
Documentation Agent
By: /s/ Dana F. Klein
Title: Vice President
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FIRST UNION NATIONAL BANK, as
Co-Agent
By: /s/ Jorge A. Gonzalez
Title: Senior Vice President
THE HUNTINGTON NATIONAL BANK, as
Co-Agent
By: /s/ John Norkus
Title: Asst. Vice President
U.S. BANK NATIONAL ASSOCIATION, as
Co-Agent
By: /s/ Elliot Jaffee
Title: Vice President
-101-
<PAGE>
Initial Issuing Bank
FLEET NATIONAL BANK
By: /s/ John A. Skrobe
Title: Vice President
Initial Lenders
FLEET NATIONAL BANK
By: /s/ John A. Skrobe
Title: Vice President
NATIONSBANK, N.A.
By: /s/ Johns Ellington
Title: Vice President
DLJ CAPITAL FUNDING, INC.
By: /s/ Dana F. Klein
Title: Vice President
-102-
<PAGE>
FIRST UNION NATIONAL BANK
By: /s/ Jorge A. Gonzalez
Title: Senior Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/ John Norkus
Title: Asst. Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Elliot Jaffee
Title: Vice President
HELLER FINANCIAL, INC.
By: /s/ Sheila C. Weimer
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: /s/ Christopher Fisher
Title: Vice President
COMERICA BANK
By: /s/ Robert Porterfield
Title: Vice President
-103-
<PAGE>
NATIONAL CITY BANK
By: /s/ Wilmer J. Jacobs
Title: Officer
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ Brian W. Good
Title: Vice President and Portfolio Manager
Stein Roe & Farnham Incorporated, as
Advisor to the Stein Roe Floating Rate
Limited Liability Company
KEY CORPORATE CAPITAL INC.
By: /s/ Alexander Strazella
Title: Vice president
UNION BANK OF CALIFORNIA, N.A.
By: /s/ J. William Bloore
Title: Vice President
FIRSTAR BANK, NATIONAL ASSOCIATION
By: /s/ Thomas Gibbons
Title: Vice President
-104-
<PAGE>
EXECUTION COPY
AMENDMENT NO. 1 TO THE
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
As of March 31, 2000
AMENDMENT NO. 1 (this "Amendment") to the Credit Agreement (as defined
herein) among Quality Stores, Inc., a Delaware corporation (formerly known as
"Central Tractor Farm & Country, Inc.") (the "Borrower"), QSI Holdings, Inc., a
Delaware corporation (formerly known as "CT Holding, Inc.") ("Holding"), certain
of the banks, financial institutions and other institutional lenders listed on
the signature pages hereof, and Fleet National Bank ("Fleet"), as administrative
agent (the "Administrative Agent") for the Lender Parties (as defined in the
Credit Agreement).
PRELIMINARY STATEMENTS
(1) The Borrower, Holding, the Initial Lenders, the Initial Issuing
Bank, the Swing Line Bank and the Agents have entered into a Second Amended and
Restated Credit Agreement dated as of May 7, 1999 (the "Credit Agreement").
Capitalized terms defined in the Credit Agreement and not otherwise defined in
this Amendment are used herein as therein defined.
(2) The Borrower has requested that the Revolving Credit Facility be
increased by $60,000,000 (the "Increase Amount") from $100,000,000.00 to
$160,000,000.00.
(3) The Lenders set forth on Schedule I hereto (the "Amendment
Lenders") are willing, on the terms and conditions stated below, to commit to
make, or increase their commitment to make (as applicable), Revolving Credit
Advances in the aggregate amount of the Increase Amount.
(4) The Borrower and the Lenders have agreed to amend the Credit
Agreement as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
SECTION 1. Amendments of Certain Provisions of the Credit Agreement.
The Credit Agreement is, upon the Amendment Effective Date (as hereinafter
defined), hereby amended as follows:
<PAGE>
-2-
(a) Section 1.01 of the Credit Agreement is hereby amended as follows:
(i) The definition of "Applicable Margin" set forth therein is
hereby amended by amending the table therein in full to read as
follows:
<TABLE>
<CAPTION>
Tranche A Term Facility/ Tranche B Term Facility
Revolving Credit Facility
----------------------------------- ------------------------------------
Prime Rate Eurodollar Rate Prime Rate Eurodollar Rate
Advances Advances Advances Advances
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Level I .625% 1.875% 2.0% 3.25%
less than 2.5:1
Level II .875% 2.125% 2.0% 3.25%
2.5:1 or greater,
but less than 3.0:1
Level III 1.125% 2.375% 2.25% 3.50%
3.0:1 or greater,
but less than 3.5:1
Level IV 1.50% 2.75% 2.25% 3.50%
3.5:1 or greater,
but less than 4.0:1
Level V 1.75% 3.0% 2.25% 3.50%
4.0:1 or greater
</TABLE>
(ii) The definition of "Fixed Charge Coverage Ratio" set forth
therein is hereby amended by inserting, before the period at the end
thereof, the following proviso:
"provided, further, however, that for purposes of determining
the amount referred to in clause (a)(ii) herein, Capital Expenditures
made by Holding and its Subsidiaries during each four-quarter period
ending at the end of each fiscal quarter, beginning with the fiscal
quarter period ending on April 30, 2000 and ending with the fiscal
quarter period ending on July 31, 2002, shall be deemed to be
$18,000,000".
<PAGE>
-3-
(iii) The definition of "Lenders" set forth therein is hereby
amended in full to read as follows:
" Lenders" means the Initial Lenders and each Person that
shall become a Lender hereunder pursuant to Section 9.07, or any
amendment hereto.
(b) The table set forth in Section 5.02(p) of the Credit Agreement is
hereby amended by deleting the second line thereof and substituting therefor the
following:
"2001 $43,500,000".
(c) Section 5.04 of the Credit Agreement is hereby amended as follows:
(i) The table set forth in Section 5.04(b) is amended in full
to read as follows:
Four Fiscal Quarters Ending Closest To Ratio
-------------------------------------- ----------
July 31, 1999 2.00
October 31, 1999 2.00
January 31, 2000 2.00
April 30, 2000 2.00
July 31, 2000 2.20
October 31, 2000 2.25
January 31, 2001 2.25
April 30, 2001 2.25
July 31, 2001 2.50
October 31, 2001 2.50
January 31, 2002 2.75
April 30, 2002 2.75
July 31, 2002 2.75
October 31, 2002 3.00
January 31, 2003 3.00
April 30, 2003 3.00
July 31, 2003 3.00
October 31, 2003 3.25
January 31, 2004 3.25
April 30, 2004 3.25
July 31, 2004 3.25
<PAGE>
-4-
October 31, 2004 3.25
January 31, 2005 3.25
April 30, 2005 3.25
July 31, 2005 3.25
October 31, 2005 3.25
January 31, 2006 3.25
April 30, 2006 3.25
(ii) The table set forth in Section 5.04(c) is amended in full
to read as follows:
Four Fiscal Quarters Ending Closest To Ratio
-------------------------------------- ----------
July 31, 1999 5.00
October 31, 1999 4.75
January 31, 2000 4.75
April 30, 2000 5.25
July 31, 2000 4.75
October 31, 2000 4.50
January 31, 2001 4.35
April 30, 2001 4.25
July 31, 2001 4.15
October 31, 2001 4.00
January 31, 2002 3.75
April 30, 2002 3.75
July 31, 2002 3.50
October 31, 2002 3.00
January 31, 2003 3.00
April 30, 2003 3.00
July 31, 2003 3.00
October 31, 2003 3.00
January 31, 2004 3.00
April 30, 2004 3.00
July 31, 2004 3.00
October 31, 2004 3.00
January 31, 2005 3.00
April 30, 2005 3.00
July 31, 2005 3.00
October 31, 2005 3.00
January 31, 2006 3.00
<PAGE>
-5-
April 30, 2006 3.00
(c) Section 5.04 of the Credit Agreement is hereby amended to add after
subsection (c) thereof the following new subsection (d):
"(d) Revolver Paydown. Maintain outstanding, for any period of
30 consecutive calendar days, Revolving Credit Advances of not more
than the amount set forth below for each corresponding period set forth
below:
Period Amount
------- ----------
June 15, 2000 - August 15, 2000 $125,000,000
December 15, 2000 - February 15, 2001 $105,000,000
June 15, 2001 - August 15, 2001 $115,000,000
December 15, 2001 - February 15, 2002 $95,000,000
June 15, 2002 - August 15, 2002 $105,000,000
December 15, 2002 - February 15, 2003 $85,000,000
June 15, 2003 - August 15, 2003 $100,000,000
December 15, 2003 - February 15, 2004 $80,000,000
June 15, 2004 - August 15, 2004 $100,000,000".
(d) Schedule I to the Credit Agreement is hereby amended in full to
read as set forth on Exhibit A hereto.
SECTION 3. Conditions of Effectiveness of this Amendment. This
Amendment shall become effective as of the date first above written on the
Business Day when, and only when, the following conditions shall have been
satisfied (such date being the "Amendment Effective Date").
(a) The Administrative Agent shall have received Revolving
Credit Notes payable to the order of the Amendment Lenders (the
"Additional Revolving Credit Notes") in an amount equal to each such
Amendment Lender's Revolving Credit Commitment (after giving effect to
this Amendment), (ii) counterparts of this Amendment executed by the
Borrower, Holding, the Required Lenders and each of the Amendment
Lenders or, as to any of the Lender Parties, advice satisfactory to the
Administrative Agent that such Lender Party has executed this Amendment
and (iii) the Consent dated as of the date hereof (a copy of which is
attached hereto), executed by each of the Loan Parties.
(b) All of the consents, approvals and authorizations of, and
notices and filings to or with, and other actions by, any governmental
or regulatory authority or any other Person necessary in connection
with any aspect of the Transactions, the Related
<PAGE>
-6-
Documents, any of the Loan Documents or any of the other transactions
contemplated thereby shall have been obtained (without the imposition
of any conditions that are not reasonably acceptable to the Lenders
party hereto) and shall remain in full force and effect; all applicable
waiting periods shall have expired without any action being taken by
any competent authority; and no law, rule or regulation shall be
applicable in the reasonable judgment of any of the Lenders party
hereto that restrains, prevents or imposes materially adverse
conditions upon any aspect of the Transactions, the Related Documents,
or any of the Loan Documents or any of the other transactions
contemplated thereby.
(c) Before giving effect to this Amendment, there shall have
occurred no Material Adverse Change since January 31, 2000.
(d) The representations and warranties contained in each of
the Loan Documents (including, without limitation, in Section 4 of this
Amendment) shall be correct in all material respects on and as of the
Amendment Effective Date, before and after giving effect to the
additional Revolving Credit Borrowing contemplated hereby and the
application of proceeds therefrom, as though made on and as of such
date (other than any such representations or warranties that, by their
terms, refer to a specific date other than the Amendment Effective
Date, in which case as of such specific date).
(e) No event shall have occurred and be continuing, or shall
result from any Revolving Credit Borrowing or the application of the
proceeds therefrom, that would constitute a Default.
(f) All of the accrued fees and expenses of the Administrative
Agent and the Lender Parties (including, without limitation, all such
fees described in Section 3(h) hereto, and the accrued fees and
expenses of counsel for the Administrative Agent) shall have been paid
in full.
(g) The Administrative Agent shall have received on or before
the Amendment Effective Date the following, each dated such date
(unless otherwise specified), in form and substance satisfactory to the
Lenders party hereto (unless otherwise specified) and in sufficient
copies for each Lender Party:
(i) Certified copies of the resolutions of the Board
of Directors of the Borrower and each other Loan Party
approving this Amendment, and of all documents evidencing
other necessary corporate action and governmental and other
third party approvals and consents, if any, with respect to
this Amendment.
(ii) A certificate of each of the Borrower and
Holding, signed on behalf of the Borrower and Holding (as
guarantor under the Credit Agreement), respectively, by its
President or a Vice President and its Secretary or any
Assistant
<PAGE>
-7-
Secretary, dated the Amendment Effective Date (the statements
made in which certificate shall be true on and as of the
Amendment Effective Date), certifying as to (A) the absence of
any amendments to the charter of such Person since the date of
the Secretary of State's certificate referred to in Section
3.01(i)(iv) of the Credit Agreement, or any steps taken by the
board of directors or the shareholders of such Person to
effect or authorize any further amendment, supplement or other
modification thereto; (B) the accuracy and completeness of the
bylaws of such Person as in effect on the date on which the
resolutions of the board of directors (or persons performing
similar functions) of such Person referred to in clause (ii)
of this Section 3(g) were adopted and on the Amendment
Effective Date (a copy of which, if different from the bylaws
of such Person delivered to the Lender Parties on the
Effective Date of the Credit Agreement, shall be attached to
such certificate); (C) the due incorporation and good standing
of such Person as a corporation organized under the laws of
the jurisdiction of its incorporation, and each other
jurisdiction where such Person has a place of business, and
the absence of any proceeding (either pending or contemplated)
for the dissolution, liquidation or other termination of the
existence of such Person or any of its Subsidiaries; (D) the
accuracy in all material respects of the representations and
warranties made by such Person in the Loan Documents
(including, without limitation, Section 4 of this Amendment)
to which it is or is to be a party as though made on and as of
the Amendment Effective Date, before and after giving effect
to this Amendment and to the application of proceeds from the
Revolving Credit Facility, as though made on and as of such
date (other than any such representations or warranties that,
by their terms, refer to a specific date other than the
Amendment Effective Date, in which case as of such specific
date); and (E) the absence of any event occurring and
continuing, or resulting from the Revolving Credit Borrowing
contemplated hereby or the application of proceeds therefrom,
that would constitute a Default.
(iii) A certificate of the Secretary or an Assistant
Secretary of each of the Borrower and Holding certifying the
names and true signatures of the officers of the Borrower or
Holding authorized to sign this Amendment, the Additional
Revolving Credit Notes and the other documents to be delivered
hereunder and thereunder.
(iv) Such financial, business and other information
regarding the Borrower and Holding and their respective
property, assets and businesses as the Administrative Agent or
the Lender Parties shall have requested, including, without
limitation, (A) information as to possible contingent
liabilities, tax matters, environmental matters, obligations
under Plans, Multiemployer Plans and Welfare Plans, collective
bargaining agreements and other arrangements with employees
<PAGE>
-8-
and (B) a pro forma Consolidated financial statements of
Holding and its Subsidiaries.
(v) Certificates, in form and substance reasonably
satisfactory to the Lenders party hereto, attesting to the
Solvency of Holding and the Borrower, in each case
individually and together with its Subsidiaries, taken as a
whole, from the chief financial officer (or person performing
similar functions) of each of Holding and the Borrower.
(vi) A duly executed Notice of Borrowing.
(vii) A favorable opinion of Sullivan & Worcester,
counsel for the Borrower and Holding, in form and substance
reasonably satisfactory to the Administrative Agent.
(viii) Such other opinions, certificates, documents
and information as the Administrative Agent or any of the
Lenders party hereto through the Administrative Agent may
reasonably request.
(h) The Administrative Agent shall have received from the Borrower, on
or before the Amendment Effective Date, the following:
(i) an amendment fee equal to 0.25% of the Commitment
of each Lender party hereto; and
(ii) payment in full of all amounts outstanding under
the Credit Agreement dated as of March 6, 2000 between the
Borrower and Fleet National Bank, as lender thereunder.
(i) The Administrative Agent shall have received evidence that neither
the Credit Agreement (as amended hereby), nor the Advances contemplated therein
will contravene any provision of any of the Permanent Debt Documents, including
without limitation Section 4.14 of the Indenture dated as of March 27, 1997 (the
"Indenture").
The effectiveness of this Amendment is further conditioned upon the accuracy of
all of the factual matters described herein. This Amendment is further subject
to the provisions of Section 9.01 of the Credit Agreement.
SECTION 4. Representations and Warranties. Each of Holding and the
Borrower hereby represents and warrants as follows:
<PAGE>
-9-
(a) The execution, delivery and performance by each Loan Party
of any of this Amendment, the Additional Revolving Credit Notes and the
Consent, in each case to which it is or is to be a party, and the
consummation of the transactions contemplated hereby and thereby, are
within such Loan Party's corporate powers, have been duly authorized by
all necessary corporate action, and do not (i) contravene such Loan
Party's charter or bylaws, (ii) violate any law (including, without
limitation, the Securities Exchange Act of 1934), rule, regulation
(including, without limitation, Regulation X of the Board of Governors
of the Federal Reserve System), order, writ, judgment, injunction,
decree, determination or award applicable to such Loan Party, (iii)
conflict with or result in the breach of, or constitute a default
under, any contract, loan agreement, indenture (including without
limitation the Indenture), mortgage, deed of trust, lease or other
instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties other than as specified in the
Credit Agreement, or (iv) except for the Liens created under the Loan
Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Loan Party or any
of its Subsidiaries. No Loan Party or any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which is reasonably
expected to have a Material Adverse Effect.
(b) Other than those that have already been obtained and as
set forth in Schedule IV to the Credit Agreement and are in full force
and effect, or as would not reasonably be expected to have a Material
Adverse Effect, no authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required to be obtained by the Loan Parties
for (i) the due execution, delivery, recordation, filing or performance
by any Loan Party of any of this Amendment, the Additional Revolving
Credit Notes and the Consent to which it is or is to be a party, (ii)
the grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (iii) the perfection or maintenance of the Liens
created by the Collateral Documents (including the first priority
nature thereof subject only to the Liens and security interests
permitted in the Loan Documents) or (iv) the exercise by the Agent or
any Lender Party of its rights under this Amendment, the Additional
Revolving Credit Notes, the Consent or the remedies in respect of the
Collateral pursuant to the Collateral Documents.
(c) This Amendment has been, and the Additional Revolving
Credit Notes and the Consent, when delivered hereunder will have been,
duly executed and delivered by each Loan Party thereto. This Amendment
is, and the Additional Revolving Credit Notes and the Consent, when
delivered hereunder will be, the legal, valid and binding obligation of
each Loan Party thereto, enforceable against such Loan Party in
accordance with its
<PAGE>
-10-
terms except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or limiting
creditors' rights or by equitable principles generally.
(d) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending
or threatened before any court, governmental agency or arbitrator that
(i) is reasonably expected to have a Material Adverse Effect or (ii)
purports to affect the legality, validity or enforceability of this
Amendment, the Additional Revolving Credit Notes or the Consent or the
consummation of the transactions contemplated hereby.
SECTION 5. Reference to and Effect on the Loan Documents. (a) On and
after the Amendment Effective Date, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import referring to the
Credit Agreement, and each reference in the Notes and the other Loan Documents
to "the Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement, shall mean and be a reference to the Credit
Agreement, as amended and otherwise modified hereby.
(b) The Credit Agreement, the Notes and each of the other Loan
Documents, except to the extent of the amendments and other modifications
specifically provided above, are and shall continue to be in full force and
effect and are hereby in all respects ratified and confirmed. Without limiting
the generality of the foregoing, the Collateral Documents and all of the
Collateral described therein do and shall continue to secure the payment of all
Obligations of the Loan Parties under and in respect of the Loan Documents, as
amended and otherwise modified by this Amendment.
(c) Each of the Amendment Lenders (if any) which was not a Lender prior
to the effectiveness of this Amendment, shall be deemed to be a Lender and a
Revolving Credit Lender under the Credit Agreement.
(d) Each of the Revolving Credit Advances outstanding at the time of
the effectiveness of this Amendment (the "Existing Advances") shall be
re-distributed among the Revolving Credit Lenders subsequent to the
effectiveness of this Amendment (the "Post-Amendment Revolving Credit Lenders"),
ratably according to each such Post-Amendment Revolving Credit Lender's
Revolving Credit Commitment (after giving effect to this Amendment).
(e) The execution, delivery and effectiveness of this Amendment shall
not, except as expressly provided herein, operate as a waiver of any right,
power or remedy of any Lender Party or any Agent under any of the Loan
Documents, nor constitute a waiver of any provision of any of the Loan
Documents.
<PAGE>
-11-
SECTION 6. Costs and Expenses. The Borrower hereby agrees to pay, upon
demand, all costs and expenses of the Administrative Agent (including, without
limitation, the reasonable fees and expenses of counsel for the Administrative
Agent) in connection with the preparation, execution, delivery, administration,
syndication, modification and amendment of this Amendment and the other
documents, instruments and agreements to be delivered hereunder, all in
accordance with the terms of Section 9.04 of the Credit Agreement.
SECTION 7. Execution in Counterparts. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this Amendment by
telecopier shall be effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 8. Governing Law. This Amendment shall be governed by, and
construed in accordance with, the laws of the State of New York.
<PAGE>
-12-
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
QUALITY STORES, INC. (FORMERLY KNOWN AS
CENTRAL TRACTOR FARM & COUNTRY, INC.)
By: /s/ Denny L. Starr
Title: Senior Vice President and CFO
QSI HOLDINGS, INC. (FORMERLY KNOWN AS CT
HOLDING, INC.)
By: /s/ Denny L. Starr
Title: Senior Vice President and CFO
FLEET NATIONAL BANK, as
Administrative Agent
By: /s/ Stephen M. Curran
Title: Vice President
BANK OF AMERICA, N.A., as
Syndication Agent
By: /s/ David H. Strickland
Title: Principal
Initial Issuing Bank
FLEET NATIONAL BANK
By: /s/ Stephen M. Curran
Title: Vice President
Initial Lenders
FLEET NATIONAL BANK
By: /s/ Stephen M. Curran
Title: Vice President
BANK OF AMERICAN, N.A.
By: /s/ David H. Strickland
Title: Principal
LENDERS
FLEET NATIONAL BANK
By: /s/ Stephen M. Curran
Title: Vice President
<PAGE>
-13-
BANK OF AMERICA, N.A.
By: /s/ David H. Strickland
Title: Principal
FIRST UNION NATIONAL BANK
By: /s/ Susan T. Vitale
Title: Assistant Vice President
THE HUNTINGTON NATIONAL BANK
By: /s/ M. W. De Loeb
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Elliot Jaffee
Title: Senior Vice President
HELLER FINANCIAL, INC.
By: /s/ Sheila C. Weimer
Title: Vice President
HARRIS TRUST AND SAVINGS BANK
By: /s/ Christopher Fisher
Title: Vice President
COMERICA BANK
By: /s/ Robert Porterfield
Vice President
STEIN ROE FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ James R. Fellows
Title: Vice President
Stein Roe & Farnham Incorporated, as
Advisor to the Stein Roe Floating Rate
Limited Liability Company
KEY CORPORATE CAPITAL INC.
By: /s/ Alexander Strazella
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ J. William Bloore
Title: Vice President
<PAGE>
-14-
NATIONAL CITY BANK
By: /s/ Wilmer J. Jacobs
Title: Assistant Vice President
FIRSTAR BANK, NATIONAL ASSOCIATION
By: /s/ Thomas D. Gibbons
Title: Senior Vice President
STEIN ROE & FARNHAM CLO 1 LIMITED
by Stein Roe & Farnham Incorporated,
as Portfolio Manager
By: /s/ James R. Fellows
Title: Vice President
BHP (USA) CAPITAL CORPORATION
By: /s/ Dana L. McDougall
Title: Vice President
By: /s/ Richard Cameron
Title: Associate
THE FUJI BANK, LIMITED
By: /s/ James Fayan
Title: Senior Vice President and
Senior Team Leader
STATE STREET BANK AND TRUST COMPANY,
as Trustee for GNERAL MOTORS EMPLOYEES
GLOBAL GROUP PENSION TRUST
By: /s/ Adam Antonik
Title: Assistant Secretary
STATE STREET BANK AND TRUST COMPANY,
as Trustee for GNERAL MOTORS WELFARE
BENEFIT TRUST
By: /s/ Adam Antonik
Title: Assistant Secretary
SEQUILS - PILGRIM I, LTD.
By: Pilgrim Investment, Inc.
as its investment manager
By: /s/ Elizabeth O. MacLean
Title: Vice President
<PAGE>
-15-
PERSEUS CDO I, LIMITED
By: Massachusetts Mutual Life Insurance
as Collateral Manager
By: /s/ Steven J. Katz
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
as Investment Advisor
By: /s/ Payson F. Swaffield
Title: Vice President
SAAR HOLDING CDO, LIMITED
By: Massachusetts Mutual Life Insurance
as Collateral Manager
By: /s/ Steven J. Katz
Title:
KZH CYPRESSTREE - 1 LLC
By: /s/ Virginia Conway
Title: Authorized Agent
ML CBO IV (CAYMAN) LIMITED
By: /s/ Mark K. Okeda, CFA
Title: Executive Vice President
Highland Capital Management L.P.
BALANCE HIGH YIELD FUND II, LTD.
By: BHF (USA) Capital Corporation, as its
attorney-in-fact
By: /s/ Dana L. McDougall
Title: Vice President
By: /s/ Richard Cameron
Title: Associate
CYPRESSTREE INSTITUTIONAL FUND, LLC
By: CypressTree Investment Management
Company, as Portfolio Manager
By: /s/ Jeffery W. Heuer
Title: Principal
NORTH AMERICAN SENIOR FLOATING RATE
FUND
By: CypressTree Investment Management
Company, as Portfolio Manager
By: /s/ Jeffery W. Heuer
Title: Principal
<PAGE>
-16-
Sankaty Advisors, Inc. as Collateral
Manager for
GREAT POINT CLO 1999-1 LTD.
By: /s/ Diane J. Exter
Title: Executive Vice President
Portfolio Manager
Sankaty Advisors, Inc. as Collateral
Manager for
BRANT POINT CLO 1999-1 LTD.
By: /s/ Diane J. Exter
Title: Executive Vice President
Portfolio Manager
MONUMENT CAPITAL LTD., as Assignee
By: Alliance Capital Management L.P., as
Investment Manager
By: Alliance Capital Management
Corporation, as General Partner
By: /s/ Svenker M. M. Johannson
Title: Vice President
KZH WATERSIDE LLC
By: /s/ Virginia Conway
Title: Authorized Agent
ELC CAYMAN LTD. 1999 - III
By: /s/ Joseph H. Tower
Title: Senior Vice President
PILGRIM CLO 1999-1, LTD.
By: Pilgrim Investment, Inc.
as its investment manager
By: /s/ Elizabeth O. MacLean
Title: Vice President
GLENEAGLES TRADING LLC
By: /s/ Kelly C. Walker
Title: Vice President
<PAGE>
CONSENT
Reference is made to (a) Amendment No. 1 to the Credit Agreement dated
as of May 7, 1999 (the "Credit Agreement") among Quality Stores, Inc., a
Delaware corporation (formerly known as "Central Tractor Farm & Country, Inc.")
(the "Borrower"), QSI Holdings, Inc., a Delaware corporation (formerly known as
"CT Holding, Inc.") ("Holding"), the banks, financial institutions and other
institutional lenders listed on the signature pages thereof, and Fleet National
Bank ("Fleet"), as administrative agent (the "Administrative Agent") for the
Lender Parties (as defined in the Credit Agreement) and (b) the other Loan
Documents referred to therein. Capitalized terms defined in the Credit Agreement
and not otherwise defined in this Consent are used herein as therein defined.
Each of the undersigned, in its capacity as (a) a Grantor under the
Security Agreement, (b) a Pledgor under the Pledge Agreement, and/or (c) a
Subsidiary Guarantor under the Subsidiary Guaranty, as the case may be, hereby
consents to the execution and delivery of the Amendment and the performance of
the Amendment and agrees that:
(A) each of the Security Agreement, the Pledge Agreement and
the Subsidiary Guaranty to which it is a party is, and shall continue
to be, in full force and effect and is hereby in all respects ratified
and confirmed on the Amendment Effective Date, except that, on and
after the Amendment Effective Date, each reference to "the Credit
Agreement", "thereunder", "thereof", "therein" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Credit Agreement, as amended and otherwise modified by the Amendment;
and
(B) as of the Amendment Effective Date, the Security Agreement
and the Pledge Agreement to which it is a party and all of the
Collateral of such Person described therein, and the Subsidiary
Guaranty and the guaranty provided thereunder, do, and shall continue
to, secure the payment of all of the Secured Obligations.
This Consent shall be governed by, and construed in accordance with,
the laws of the State of New York.
Delivery of an executed counterpart of a signature page of this Consent
by telecopier shall be effective as the delivery of a manually executed
counterpart of this Consent.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
QUALITY STORES, INC. (FORMERLY KNOWN AS
CENTRAL TRACTOR FARM & COUNTRY, INC.)
By: /s/ James McKitrick
Title:
QSI HOLDINGS, INC. (FORMERLY KNOWN AS CT
HOLDING, INC.)
By: /s/ James McKitrick
Title:
COUNTRY GENERAL, INC.
By: /s/ James McKitrick
Title:
QUALITY FARM & FLEET, INC.
By: /s/ James McKitrick
Title:
QUALITY INVESTMENTS, INC.
By: /s/ James McKitrick
Title:
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QSI TRANSPORTATION, INC.
By: /s/ James McKitrick
Title:
VISION TRANSPORTATION, INC.
By: /s/ James McKitrick
Title:
