\n 0.00% 1.00%
\n<\/c><\/s><\/caption>\n<\/table>\n provided that the Applicable Margin for all Types of Revolving Credit
\n Loans will be adjusted, on each Adjustment Date (commencing with the
\n first Adjustment Date occurring after October 31, 2000), to the
\n Applicable Margin set forth on Annex A opposite the Margin Level Status
\n of the Borrower in effect on such Adjustment Date, and provided,
\n further, that, in the event that the financial statements (other than
\n the copies of the Form 10-K or 10-Q for the relevant fiscal period)
\n required to be delivered pursuant to subsection 6.1(a) or 6.1(b), as
\n applicable, and the related certificate required pursuant to subsection
\n 6.2(b), are not delivered when due, then, during the period from the
\n date upon which such financial statements were required to be delivered
\n until two Business Days following the date upon which they actually are
\n delivered, the Applicable Margin for ABR Loans shall be .25% and the
\n Applicable Margin for Eurodollar Loans will be 1.25%.<\/p>\n
“Applicant”: with respect to any Letter of Credit, the
\n Borrower or any of its Subsidiaries.<\/p>\n
“Application”: an application or request, in such form as an
\n Issuing Bank may specify from time to time, requesting such Issuing
\n Bank to open a Letter of Credit.<\/p>\n
“Asset Sale”: any sale, transfer or other disposition
\n (including any sales, transfers or other dispositions in connection
\n with Sale-Leasebacks or Securitization Transactions) by the Borrower or
\n any of its Restricted Subsidiaries of any property of the Borrower or
\n any such Restricted Subsidiary.<\/p>\n
“Assignee”: as defined in subsection 10.6(c).<\/p>\n
“Available Revolving Credit Commitment Available Revolving
\n Credit Commitment”: as to any Lender, at any time, an amount equal to
\n the excess, if any, of (a) such Lender’s Revolving Credit Commitment
\n over (b) such Lender’s Committed Revolving Credit Extensions of Credit
\n at such time; collectively, as to all the Lenders, the “Available
\n Revolving Credit Commitments”.<\/p>\n
“Board of Governors”: the Board of Governors of the Federal
\n Reserve System and any Governmental Authority which succeeds to the
\n powers and functions thereof.<\/p>\n
“Borrowing Date”: any Business Day specified in a notice
\n pursuant to subsection 2.2, 2.15(a) or 2.19 as a date on which the
\n Borrower requests the Lenders to make Loans hereunder.<\/p>\n
9
\n 4<\/p>\n
“Business”: as defined in subsection 4.14(b).<\/p>\n
“Business Day”: a day other than a Saturday, Sunday or other
\n day on which commercial banks in New York City are authorized or
\n required by law to close; provided, that when such term is used to
\n describe a day on which a borrowing, payment or interest rate
\n determination is to be made in respect of a Eurodollar Loan or a LIBO
\n Rate CAF Advance, such day shall also be a day on which dealings in
\n foreign currencies and exchange between banks may be carried on in
\n London, England.<\/p>\n
“CAF Advance”: as defined in subsection 2.14.<\/p>\n
“CAF Advance Availability Period”: the period from and
\n including the Effective Date to and including the date which is seven
\n days prior to the Revolving Credit Termination Date.<\/p>\n
“CAF Advance Confirmation”: each confirmation by the Borrower
\n of its acceptance of CAF Advance Offers, which confirmation shall be
\n substantially in the form of Exhibit B and shall be delivered to the
\n Administrative Agent by facsimile transmission.<\/p>\n
“CAF Advance Interest Payment Date”: as to each CAF Advance,
\n each interest payment date specified by the Borrower for such CAF
\n Advance in the related CAF Advance Request.<\/p>\n
“CAF Advance Maturity Date”: as to any CAF Advance, the date
\n specified by the Borrower in the related CAF Advance Request and
\n confirmed pursuant to subsection 2.15(d)(ii) in its acceptance of the
\n related CAF Advance Offer.<\/p>\n
“CAF Advance Note”: as defined in subsection 3.13(f).<\/p>\n
“CAF Advance Offer”: each offer by a Lender to make CAF
\n Advances pursuant to a CAF Advance Request, which offer shall contain
\n the information specified in Exhibit C and shall be delivered to the
\n Administrative Agent by telephone, immediately confirmed by facsimile
\n transmission.<\/p>\n
“CAF Advance Request”: each request by the Borrower for
\n Lenders to submit bids to make CAF Advances, which request shall
\n contain the information in respect of such requested CAF Advances
\n specified in Exhibit D and shall be delivered to the Administrative
\n Agent in writing, by facsimile transmission, or by telephone,
\n immediately confirmed by facsimile transmission.<\/p>\n
“Capital Funds”: of any Person, as of the date of
\n determination thereof, the sum of Consolidated Net Worth of such Person
\n at such date of determination and Consolidated Total Debt of such
\n Person at such date of determination.<\/p>\n
“Capital Stock”: any and all shares, interests, participations
\n or other equivalents (however designated) of capital stock of a
\n corporation, any and all equivalent ownership interests in a Person
\n (other than a corporation) and any and all warrants or options to
\n purchase any of the foregoing, provided that the Convertible Debentures
\n shall not constitute Capital Stock of the Borrower.<\/p>\n
“Cash Equivalents”: (a) marketable direct obligations issued
\n by, or unconditionally guaranteed by, the United States Government or
\n issued by any agency thereof and backed by the <\/p>\n
10
\n 5<\/p>\n
full faith and credit of the United States, in each case maturing
\n within one year from the date of acquisition; (b) certificates of
\n deposit, time deposits, eurodollar time deposits or overnight bank
\n deposits having maturities of six months or less from the date of
\n acquisition issued by any Lender or by any commercial bank organized
\n under the laws of the United States or any state thereof having
\n combined capital and surplus of not less than $500,000,000; (c)
\n commercial paper of an issuer rated at least A-1 by S&P or P-1 by
\n Moody’s, or carrying an equivalent rating by a nationally recognized
\n rating agency, if both of the two named rating agencies cease
\n publishing ratings of commercial paper issuers generally, and maturing
\n within six months from the date of acquisition; (d) repurchase
\n obligations of any Lender or of any commercial bank satisfying the
\n requirements of clause (b) of this definition, having a term of not
\n more than 30 days, with respect to securities issued or fully
\n guaranteed or insured by the United States government; (e) securities
\n with maturities of one year or less from the date of acquisition issued
\n or fully guaranteed by any state, commonwealth or territory of the
\n United States, by any political subdivision or taxing authority of any
\n such state, commonwealth or territory or by any foreign government, the
\n securities of which state, commonwealth, territory, political
\n subdivision, taxing authority or foreign government (as the case may
\n be) are rated at least A by S&P or A by Moody’s; (f) securities with
\n maturities of six months or less from the date of acquisition backed by
\n standby letters of credit issued by any Lender or any commercial bank
\n satisfying the requirements of clause (b) of this definition; or (g)
\n shares of money market mutual or similar funds which invest exclusively
\n in assets satisfying the requirements of clauses (a) through (f) of
\n this definition.<\/p>\n
“Cash Interest Expense”: of any Person for any period,
\n Consolidated Interest Expense of such Person for such period (a) minus,
\n in each case to the extent included in determining such Consolidated
\n Interest Expense for such period, the sum of the following: (i)
\n non-cash expenses for interest payable in kind and non-cash interest
\n expense related to closed stores and (ii) amortization of debt discount
\n and fees and (b) plus the sum of the following in each case to the
\n extent previously subtracted pursuant to clause (a) of this definition:
\n cash payments made by such Person or any Consolidated Subsidiary of
\n such Person during such period in respect of the items referred to in
\n such clause (a), provided that Cash Interest Expense shall in no event
\n include any fees or amortization of debt discount associated with the
\n transactions contemplated hereby or the Convertible Preferred
\n Securities.<\/p>\n
“Chase”: The Chase Manhattan Bank, a New York banking
\n corporation, and its successors.<\/p>\n
“Code”: the Internal Revenue Code of 1986, as amended from
\n time to time.<\/p>\n
“Commercial L\/C Fee Rate”: at any time, the rate per annum
\n equal to 50% of the Applicable Margin then in effect for Eurodollar
\n Loans.<\/p>\n
“Commercial Letter of Credit”: as defined in subsection
\n 2.6(b)(i).<\/p>\n
“Committed Loan”: any Revolving Credit Loan or Swing Line
\n Loan, as the case may be.<\/p>\n
“Committed Revolving Credit Extensions of Credit”: as to any
\n Lender at any time, an amount equal to the sum of (a) the aggregate
\n principal amount of all Revolving Credit Loans made by such Lender then
\n outstanding and (b) such Lender’s Revolving Credit Commitment
\n Percentage of the sum of (i) the aggregate principal amount of Swing
\n Line Loans then outstanding and (ii) the L\/C Obligations then
\n outstanding.<\/p>\n
11
\n 6<\/p>\n
“Commonly Controlled Entity”: an entity, whether or not
\n incorporated, which is under common control with the Borrower within
\n the meaning of Section 4001 of ERISA or is part of a group which
\n includes the Borrower and which is treated as a single employer under
\n Section 414 of the Code.<\/p>\n
“Confidential Information”: as defined in subsection 10.17.<\/p>\n
“Consolidated”: when used in connection with any defined term,
\n and not otherwise defined, means such term as it applies to any Person
\n and its Subsidiaries on a consolidated basis, after eliminating all
\n intercompany items.<\/p>\n
“Continuing Directors”: as defined in Section 8(j).<\/p>\n
“Continuing Letter of Credit”: each letter of credit
\n outstanding on the date hereof that was issued pursuant to the Existing
\n Credit Agreement by an Issuing Bank which is a Lender.<\/p>\n
“Contractual Obligation”: as to any Person, any provision of
\n any security issued by such Person or of any agreement, instrument or
\n other undertaking to which such Person is a party or by which it or any
\n of its property is bound.<\/p>\n
“Convertible Debentures”: the Convertible Junior Subordinated
\n Debentures issued by the Borrower to the Convertible Trust pursuant to
\n the Convertible Debenture Indenture, including any Convertible Junior
\n Subordinated Debentures issued in connection with the exercise of the
\n underwriters’ over-allotment option, and any debentures (with the same
\n terms) issued in exchange therefor pursuant to the Convertible
\n Debenture Indenture as in effect on June 17, 1996.<\/p>\n
“Convertible Debenture Indenture”: the Indenture, dated as of
\n June 6, 1996, between the Borrower and The Bank of New York, as
\n Trustee, as amended, supplemented or otherwise modified from time to
\n time in accordance with this Agreement.<\/p>\n
“Convertible Preferred Securities”: the Trust Convertible
\n Preferred Securities issued by the Convertible Trust on June 17, 1996
\n and any Trust Convertible Preferred Securities issued by the
\n Convertible Trust in connection with the exercise of the underwriters’
\n over-allotment option.<\/p>\n
“Convertible Trust”: Kmart Financing I, a Delaware statutory
\n business trust.<\/p>\n
“Debt”: as to any Person at the date of any determination
\n thereof, the sum of the following to the extent such items should be
\n reflected on the consolidated balance sheet of such Person (excluding
\n any such items which appear only in the notes to such consolidated
\n balance sheet) at such date (without duplication): (a) all indebtedness
\n for borrowed money or for the deferred purchase price of property or
\n services (other than current trade liabilities incurred in the ordinary
\n course of business and payable in accordance with customary practices),
\n (b) any other indebtedness which is evidenced by a note, bond,
\n debenture or similar instrument, (c) all obligations under Financing
\n Leases, (d) all obligations in respect of acceptances issued or created
\n for the account of such Person, and (e) all liabilities of a kind
\n described above secured by any Lien on any property owned by such
\n Person even though such Person has not assumed or otherwise become
\n liable for the payment thereof, provided that the item which in
\n conformity with GAAP would reflect the amount of Convertible Preferred
\n Securities and\/or the Convertible Debentures (and the obligations of
\n such Person with respect thereto) on the consolidated balance <\/p>\n
12
\n 7<\/p>\n
sheet of such Person at such date of determination shall in no event
\n constitute Debt of such Person.<\/p>\n
“Default”: any of the events specified in Section 8, whether
\n or not any requirement for the giving of notice, the lapse of time, or
\n both, or any other condition, has been satisfied.<\/p>\n
“Designated Lenders”: as defined in subsection 5.1(a).<\/p>\n
“Dollar Equivalent”: at any date of determination thereof with
\n respect to the face amount of any Letter of Credit issued in any
\n currency other than Dollars or any Reimbursement Obligations in respect
\n of any such Letter of Credit, an amount in Dollars equivalent to such
\n face amount calculated at the rate of exchange quoted by the
\n Administrative Agent on such date of determination (at the hour on such
\n date of determination at which it customarily makes such determination)
\n to prime banks in the interbank market where its foreign currency
\n exchange operations in respect of the currency in which such Letter of
\n Credit is issued are then being conducted for the spot purchase of such
\n currency with Dollars.<\/p>\n
“Dollars” and “$”: dollars in lawful currency of the United
\n States of America.<\/p>\n
“Domestic Subsidiary”: any Subsidiary of the Borrower
\n organized under the laws of any jurisdiction (including territories)
\n within the United States of America, excluding the Convertible Trust,
\n Securitization Entities, Inactive Subsidiaries, Special Purpose
\n Subsidiaries and Foreign Holding Companies.<\/p>\n
“EBITDA”: with respect to any period, EBITDAR for such period
\n minus, to the extent included in EBITDAR for such period, the
\n Consolidated Rental Expense of the Borrower for such period.<\/p>\n
“EBITDAR”: with respect to any period, Consolidated Net Income
\n of the Borrower for such period (a) plus, in each case (other than
\n clause (vi) below) to the extent deducted in determining such
\n Consolidated Net Income for such period, the sum of the following: (i)
\n Consolidated Interest Expense of the Borrower, (ii) consolidated income
\n tax expense of the Borrower and its Consolidated Subsidiaries, (iii)
\n consolidated depreciation and amortization expense of the Borrower and
\n its Consolidated Subsidiaries, (iv) Consolidated Rental Expense of the
\n Borrower, (v) other consolidated non-recurring non-cash charges of the
\n Borrower and its Consolidated Subsidiaries and non-cash losses realized
\n by the Borrower and its Consolidated Subsidiaries upon the sale,
\n disposition or refinancing of real property owned by the Borrower or
\n its Consolidated Subsidiaries as of the Effective Date and (vi) cash
\n payments received by the Borrower or any Consolidated Subsidiary during
\n such period in respect of non-recurring non-cash gains of the Borrower
\n taken subsequent to October 28, 1999, and (b) minus the sum of the
\n following: (i) cash payments made by the Borrower or any Consolidated
\n Subsidiary during such period in respect of non-recurring non-cash
\n charges taken subsequent to October 28, 1999 and (ii) to the extent
\n included in determining such Consolidated Net Income for such period,
\n consolidated non-recurring non-cash gains of the Borrower and its
\n Consolidated Subsidiaries during such period.<\/p>\n
“Effective Date”: the date on which the conditions set forth
\n in subsection 5.1 are satisfied.<\/p>\n
13
\n 8<\/p>\n
“Environmental Laws”: any and all foreign, federal, state,
\n local or municipal laws, rules, orders, regulations, statutes,
\n ordinances, codes, decrees, requirements of any Governmental Authority
\n or other Requirements of Law (including common law) regulating,
\n relating to or imposing liability or standards of conduct concerning
\n protection of human health or the environment, as are now or may at any
\n time hereafter be in effect.<\/p>\n
“ERISA”: the Employee Retirement Income Security Act of 1974,
\n as amended from time to time.<\/p>\n
“Eurocurrency Reserve Requirements”: for any day as applied to
\n a Eurodollar Loan, the aggregate (without duplication) of the rates
\n (expressed as a decimal) of reserve requirements in effect on such day
\n (including, without limitation, basic, supplemental, marginal and
\n emergency reserves under any regulations of the Board of Governors or
\n other Governmental Authority having jurisdiction with respect thereto)
\n prescribed for eurocurrency funding (currently referred to as
\n “Eurocurrency Liabilities” in Regulation D of the Board of Governors)
\n maintained by a member bank of the Federal Reserve System.<\/p>\n
“Eurodollar Base Rate”: with respect to each day during each
\n Interest Period pertaining to a Eurodollar Loan, the rate per annum
\n equal to the rate for deposits in Dollars for the period commencing on
\n the first day of such Interest Period and ending on the last day of
\n such Interest Period which appears on Telerate Page 3750 as of 10:00
\n A.M., New York City time, two Business Days prior to the beginning of
\n such Interest Period. If at least two rates appear on such Telerate
\n Page for such Interest Period, the “Eurodollar Base Rate” shall be the
\n arithmetic mean of such rates. If the “Eurodollar Base Rate” cannot be
\n determined in accordance with the immediately preceding sentences with
\n respect to any Interest Period, the “Eurodollar Base Rate” with respect
\n to each day during such Interest Period shall be the rate per annum
\n equal to the average (rounded upward to the nearest 1\/100th of 1%) of
\n the respective rates notified to the Administrative Agent by each of
\n the Reference Lenders as the rate at which such Reference Lender is
\n offered Dollar deposits at or about 10:00 A.M., New York City time, two
\n Business Days prior to the beginning of such Interest Period in the
\n interbank eurodollar market where the eurodollar and foreign currency
\n and exchange operations in respect of its Eurodollar Loans are then
\n being conducted for delivery on the first day of such Interest Period
\n for the number of days comprised therein and in an amount comparable to
\n the amount of its Eurodollar Loan to be outstanding during such
\n Interest Period.<\/p>\n
“Eurodollar Loans”: Revolving Credit Loans the rate of
\n interest applicable to which is based upon the Eurodollar Rate.<\/p>\n
“Eurodollar Rate”: with respect to each day during each
\n Interest Period pertaining to a Eurodollar Loan, a rate per annum
\n determined for such day in accordance with the following formula
\n (rounded upward to the nearest 1\/100th of 1%):<\/p>\n
Eurodollar Base Rate
\n ———————————-
\n 1.00 – Eurocurrency Reserve Requirements<\/p>\n
“Event of Default”: any of the events specified in Section 8,
\n provided that any requirement for the giving of notice, the lapse of
\n time, or both, or any other condition, has been satisfied.<\/p>\n
14
\n 9<\/p>\n
“Existing Credit Agreement”: the Amended and Restated Credit
\n Agreement, dated as of May 6, 1997, among the Borrower, the several
\n banks, financial institutions and other entities from time to time
\n parties thereto and Chase, as administrative agent for the lenders
\n thereunder, as amended.<\/p>\n
“Existing Issuing Bank”: each Person that has issued one or
\n more Continuing Letters of Credit.<\/p>\n
“Existing Receivables Transactions”: collectively, the
\n transactions contemplated under various store programs pursuant to
\n which receivables generated in connection with the sale of inventory
\n are sold to various financing companies, in each case as such
\n agreements and programs may be amended, replaced, supplemented or
\n otherwise modified from time to time.<\/p>\n
“Extension of Credit”: with respect to any Lender, (a) the
\n making of a Loan by such Lender and (b) the issuance or extension of a
\n Letter of Credit; collectively, as to all the Lenders, the “Extensions
\n of Credit”.<\/p>\n
“FDIC”: the Federal Deposit Insurance Corporation and any
\n Governmental Authority which succeeds to the powers and functions
\n thereof.<\/p>\n
“Federal Funds Effective Rate”: as defined in the definition
\n of “ABR” contained in this subsection 1.1.<\/p>\n
“Financing Lease”: any lease of property, real or personal,
\n the obligations of the lessee in respect of which are required in
\n accordance with GAAP to be capitalized on a balance sheet of such
\n lessee.<\/p>\n
“Fiscal Year”: each fiscal year of the Borrower. Fiscal Years
\n are referred to herein by reference to the calendar year in which the
\n first day of such Fiscal Year falls.<\/p>\n
“Fixed Charge Coverage Ratio”: as of the last day of any
\n fiscal quarter of the Borrower, the ratio of (A) EBITDAR for the period
\n of four fiscal quarters ending on the last day of such quarter to (B)
\n the sum of (i) Consolidated Cash Interest Expense of the Borrower plus
\n (ii) Consolidated Rental Expense of the Borrower, in each case for such
\n period.<\/p>\n
“Fixed Rate CAF Advance”: any CAF Advance made pursuant to a
\n Fixed Rate CAF Advance Request.<\/p>\n
“Fixed Rate CAF Advance Request”: any CAF Advance Request
\n requesting the Lenders to offer to make CAF Advances at an absolute
\n rate which is not determined by reference to an external source.<\/p>\n
“Foreign Holding Company”: any Subsidiary organized under the
\n laws of any jurisdiction (including territories) within the United
\n States of America whose sole assets (exclusive of assets with an
\n aggregate book value not exceeding $10,000,000 and assets consisting of
\n advances or loans to the Borrower or any of its Subsidiaries) consist
\n of the Capital Stock of one or more Foreign Subsidiaries or other
\n Foreign Holding Companies.<\/p>\n
“Foreign L\/C Commitment Sublimit”: $200,000,000.<\/p>\n
15
\n 10<\/p>\n
“Foreign Subsidiary”: any Subsidiary of the Borrower organized
\n under the laws of any jurisdiction outside the United States of
\n America, excluding Securitization Entities, Inactive Subsidiaries and
\n Special Purpose Subsidiaries, but including in any event Foreign
\n Holding Companies.<\/p>\n
“GAAP”: generally accepted accounting principles in the United
\n States of America in effect from time to time, provided that, solely
\n for purposes of determining compliance with subsection 7.1, “GAAP”
\n shall mean generally accepted accounting principles in the United
\n States of America as in effect on the date hereof.<\/p>\n
“GNB Credit Agreement”: the Credit Agreement among the
\n Borrower, the several banks, financial institutions and other entities
\n from time to time parties thereto, Gateway National Bank, as
\n Administrative Agent and First Independence National Bank of Detroit,
\n as Documentation Agent (such Credit Agreement shall only be treated as
\n the “AGNB Credit Agreement” for purposes of Section 7.9 so long as
\n loans and extensions of credit thereunder and commitments in respect
\n thereof do not, without duplication, exceed $125,000,000).<\/p>\n
“Governmental Authority”: any nation or government, any state
\n or other political subdivision thereof and any entity exercising
\n executive, legislative, judicial, regulatory or administrative
\n functions of or pertaining to government.<\/p>\n
“Granting Lender”: as defined in subsection 10.6(c).<\/p>\n
“Guarantee Obligation”: as to any Person (the “guaranteeing
\n person”), any obligation of (a) the guaranteeing person or (b) another
\n Person (including, without limitation, any bank under any letter of
\n credit) to induce the creation of which the guaranteeing person has
\n issued a guarantee, reimbursement, counterindemnity or similar
\n obligation, in either case guaranteeing or in effect guaranteeing any
\n Indebtedness (collectively, the “primary obligations”) of any other
\n third Person (the “primary obligor”), in any manner, whether directly
\n or indirectly, or which guarantee, reimbursement, counterindemnity or
\n similar obligation should be reflected in a consolidated balance sheet
\n of the guaranteeing person (or in the notes thereto); provided,
\n however, that the term Guarantee Obligation shall not include
\n endorsements of instruments for deposit or collection in the ordinary
\n course of business. The amount of any Guarantee Obligation of any
\n guaranteeing person shall be deemed to be the lower of (a) an amount
\n equal to the stated or determinable amount of the primary obligation in
\n respect of which such Guarantee Obligation is made and (b) the maximum
\n amount for which such guaranteeing person may be liable pursuant to the
\n terms of the instrument embodying such Guarantee Obligation, unless
\n such primary obligation and the maximum amount for which such
\n guaranteeing person may be liable are not stated or determinable, in
\n which case the amount of such Guarantee Obligation shall be such
\n guaranteeing person’s maximum reasonably anticipated liability in
\n respect thereof as determined by the Borrower in good faith.<\/p>\n
“Inactive Subsidiary”: any Subsidiary of the Borrower which
\n (and only for so long as such Subsidiary) (a) does not own assets with
\n an aggregate book value in excess of $10,000,000 and (b) is not then
\n engaged in any business.<\/p>\n
“Indebtedness”: of any Person at any date, (a) all
\n indebtedness of such Person for borrowed money or for the deferred
\n purchase price of property or services (other than current trade
\n liabilities and current accounts payable incurred in the ordinary
\n course of business and payable in accordance with customary practices),
\n (b) any other indebtedness of such Person <\/p>\n
16
\n 11<\/p>\n
which is evidenced by a note, bond, debenture or similar instrument,
\n (c) all obligations (to the extent capitalized for accounting purposes)
\n of such Person under Financing Leases, (d) all obligations of such
\n Person in respect of acceptances issued or created for the account of
\n such Person, (e) all obligations of the types described in the other
\n clauses of this definition secured by any Lien on any property owned by
\n such Person even though such Person has not assumed or otherwise become
\n liable for the payment thereof and (f) all obligations of such Person
\n in respect of interest rate and currency hedging agreements. For
\n purposes of this Agreement, the amount of any Indebtedness referred to
\n in clause (f) of the preceding sentence shall be the net amounts,
\n including any net termination payments, required to be paid to a
\n counterparty rather than any notional amount with regard to which
\n payments may be calculated.<\/p>\n
“Indemnified Liabilities”: as defined in subsection 10.5.<\/p>\n
“Insolvency”: with respect to any Multiemployer Plan, the
\n condition that such Plan is insolvent within the meaning of Section
\n 4245 of ERISA.<\/p>\n
“Intellectual Property”: as defined in subsection 4.16.<\/p>\n
“Interest Coverage Ratio”: as of the last day of any fiscal
\n quarter of the Borrower, the ratio of (A) EBITDA for the period of four
\n fiscal quarters ending on the last day of such period to (B)
\n Consolidated Cash Interest Expense for such period.<\/p>\n
“Interest Expense”: of any Person for any period, (a) the
\n amount of interest expense, both expensed and capitalized, of such
\n Person and its Consolidated Subsidiaries determined on a consolidated
\n basis in accordance with GAAP for such period minus (b) the amount of
\n interest income of such Person and its Consolidated Subsidiaries
\n determined on a consolidated basis in accordance with GAAP for such
\n period provided that in no event shall Interest Expense include any
\n distributions in respect of the Convertible Preferred Securities or
\n interest payments on the Convertible Debentures or any fees or
\n amortization of debt discount associated with the transactions
\n contemplated hereby, by the Existing Credit Agreement or by the
\n Convertible Preferred Securities.<\/p>\n
“Interest Payment Date”: (a) as to any ABR Loan, the last day
\n of each April, July, October and January, (b) as to any Eurodollar Loan
\n having an Interest Period of three months or less, the last day of such
\n Interest Period, (c) as to any Eurodollar Loan having an Interest
\n Period longer than three months, each day which is three months, or a
\n whole multiple thereof, after the first day of such Interest Period and
\n the last day of such Interest Period and (d) as to any Swing Line Loan,
\n the fifth Business Day following the day on which such Swing Line Loan
\n is made.<\/p>\n
“Interest Period”: with respect to any Eurodollar Loan:<\/p>\n
(a) initially, the period commencing on the borrowing
\n or conversion date, as the case may be, with respect to such
\n Eurodollar Loan and ending one week (if, at the time of the
\n relevant borrowing, all Lenders participating therein agree to
\n make an interest period of such duration available) or one,
\n two, three or six months thereafter, as selected by the
\n Borrower in its notice of borrowing or notice of conversion,
\n as the case may be, given with respect thereto; and<\/p>\n
(b) thereafter, each period commencing on the last
\n day of the next preceding Interest Period applicable to such
\n Eurodollar Loan and ending one week (if, at the time <\/p>\n
17
\n 12<\/p>\n
of the relevant borrowing, all Lenders participating therein
\n agree to make an interest period of such duration available)
\n or one, two, three or six months thereafter, as selected by
\n the Borrower by irrevocable notice to the Administrative Agent
\n not less than three Business Days prior to the last day of the
\n then current Interest Period with respect thereto;<\/p>\n
provided that, all of the foregoing provisions relating to
\n Interest Periods are subject to the following:<\/p>\n
(1) if any Interest Period would otherwise
\n end on a day that is not a Business Day, such
\n Interest Period shall be extended to the next
\n succeeding Business Day unless the result of such
\n extension would be to carry such Interest Period into
\n another calendar month in which event such Interest
\n Period shall end on the immediately preceding
\n Business Day;<\/p>\n
(2) any Interest Period that would otherwise
\n extend beyond the Revolving Credit Termination Date
\n shall end on the Revolving Credit Termination Date;
\n and<\/p>\n
(3) any Interest Period that begins on the
\n last Business Day of a calendar month (or on a day
\n for which there is no numerically corresponding day
\n in the calendar month at the end of such Interest
\n Period) shall end on the last Business Day of a
\n calendar month.<\/p>\n
“Issuing Banks”: initially, (a) each Lender specified on
\n Schedule 1.1(a) as an Issuing Bank and (b) each Existing Issuing Bank
\n listed on Schedule 4.17, in each case in its capacity as issuer of a
\n Letter of Credit. Additional Lenders may from time to time be
\n designated as “Issuing Banks” by the Borrower (with the consent of such
\n Lender and with the consent (which shall not be unreasonably withheld)
\n of the Administrative Agent) by written notice to such effect from the
\n Borrower to the Administrative Agent.<\/p>\n
“Judgment Currency”: as defined in subsection 10.18.<\/p>\n
“L\/C Commitment”: at any time, the lesser of (a)
\n $1,000,000,000, and (b) the Revolving Credit Commitments then in
\n effect.<\/p>\n
“L\/C Fee Payment Date”: the last day of each April, July,
\n October and January and the Revolving Credit Termination Date.<\/p>\n
“L\/C Obligations”: at any time, an amount equal to the sum of
\n (a) the aggregate then undrawn and unexpired amount of the then
\n outstanding Letters of Credit issued in Dollars, (b) the Dollar
\n Equivalent of the aggregate then undrawn and unexpired amount of the
\n then outstanding Letters of Credit issued in currencies other than
\n Dollars (such Dollar Equivalent to be calculated as of the date of
\n issuance of such Letters of Credit), (c) the aggregate amount of
\n Reimbursement Obligations in respect of Letters of Credit issued in
\n Dollars which have not then been paid pursuant to subsection 2.10(a)
\n and (d) the Dollar Equivalent of the aggregate amount of Reimbursement
\n Obligations in respect of Letters of Credit issued in currencies other
\n than Dollars which have not then been paid pursuant to subsection
\n 2.10(a) (such Dollar Equivalent to be calculated as of the date such
\n Reimbursement Obligation becomes due and payable).<\/p>\n
18
\n 13<\/p>\n
“L\/C Participants”: the collective reference to all the
\n Lenders.<\/p>\n
“Lenders”: as defined in the preamble to this Agreement.<\/p>\n
“Letters of Credit”: as defined in subsection 2.6(a).<\/p>\n
“Leverage Ratio”: as of any date of determination thereof, the
\n quotient of (a) Consolidated Total Debt of the Borrower as of such date
\n of determination divided by (b) Consolidated Capital Funds of the
\n Borrower as of such date of determination.<\/p>\n
“LIBO Rate”: in respect of any LIBO Rate CAF Advance, the
\n London interbank offered rate for deposits in Dollars for the period
\n commencing on the date of such CAF Advance and ending on the CAF
\n Advance Maturity Date with respect thereto which appears on Telerate
\n Page 3750 as of 11:00 A.M., London time, two Business Days prior to the
\n beginning of such period.<\/p>\n
“LIBO Rate CAF Advance”: any CAF Advance made pursuant to a
\n LIBO Rate CAF Advance Request.<\/p>\n
“LIBO Rate CAF Advance Request”: any CAF Advance Request
\n requesting the Lenders to offer to make CAF Advances at an interest
\n rate equal to the LIBO Rate plus (or minus) a margin.<\/p>\n
“Lien”: any mortgage, pledge, hypothecation, assignment,
\n deposit arrangement, encumbrance, lien (statutory or other), charge or
\n other security interest or any preference, priority or other security
\n agreement or preferential arrangement of any kind or nature whatsoever
\n (including, without limitation, any conditional sale or other title
\n retention agreement and any Financing Lease having substantially the
\n same economic effect as any of the foregoing).<\/p>\n
“Loan”: any Revolving Credit Loan, Swing Line Loan or CAF
\n Advance, as the case may be.<\/p>\n
“Loan Documents”: this Agreement, any Notes, the Subsidiaries
\n Guarantee and any Applications.<\/p>\n
“Loan Parties”: the collective reference to the Borrower, the
\n Subsidiary Guarantors and any other Subsidiary from time to time party
\n to any Loan Document.<\/p>\n
“Majority Lenders”: at any time, Lenders the Voting
\n Percentages of which aggregate more than 50%.<\/p>\n
“Margin Level Status”: as to the Borrower, the existence of
\n Margin Level I Status, Margin Level II Status, Margin Level III Status
\n or Margin Level IV Status, as the case may be.<\/p>\n
“Margin Level I Status”: as to the Borrower, shall exist on an
\n Adjustment Date if the Interest Coverage Ratio as of the last day of
\n the period covered by the financial statements relating to such
\n Adjustment Date is less than or equal to 7.00 to 1.00.<\/p>\n
“Margin Level II Status”: as to the Borrower, shall exist on
\n an Adjustment Date if the Interest Coverage Ratio as of the last day of
\n the period covered by the financial statements <\/p>\n
19
\n 14<\/p>\n
relating to such Adjustment Date is greater than 7.00 to 1.00 but less
\n than or equal to 8.00 to 1.00.<\/p>\n
“Margin Level III Status”: as to the Borrower, shall exist on
\n an Adjustment Date if the Interest Coverage Ratio as of the last day of
\n the period covered by the financial statements relating to such
\n Adjustment Date is greater than 8.00 to 1.00 but less than or equal to
\n 9.50 to 1.00.<\/p>\n
“Margin Level IV Status”: as to the Borrower, shall exist on
\n an Adjustment Date if the Interest Coverage Ratio as of the last day of
\n the period covered by the financial statements relating to such
\n Adjustment Date is greater than 9.50 to 1.00.<\/p>\n
“Material Adverse Effect”: a material adverse effect on (a)
\n the business, operations, property, condition (financial or otherwise)
\n or prospects of the Borrower and its Subsidiaries taken as a whole or
\n (b) the validity or enforceability of this Agreement or any of the
\n other Loan Documents or the material rights or remedies of the
\n Administrative Agent or the Lenders hereunder or thereunder; it being
\n understood that any past or future reduction in the Borrower’s or any
\n Subsidiary’s credit rating or decline in the market price of the
\n Borrower’s or any Subsidiary’s equity securities shall not in and of
\n themselves be deemed to constitute a Material Adverse Effect.<\/p>\n
“Materials of Environmental Concern”: any gasoline or
\n petroleum (including crude oil or any fraction thereof) or petroleum
\n products or any hazardous or toxic substances, materials or wastes,
\n defined or regulated as such in or under any Environmental Law,
\n including, without limitation, asbestos, polychlorinated biphenyls and
\n urea-formaldehyde insulation.<\/p>\n
“Moody’s”: Moody’s Investors Service, Inc.<\/p>\n
“Multiemployer Plan”: a Plan which is a multiemployer plan as
\n defined in Section 4001(a)(3) of ERISA.<\/p>\n
“Net Income”: of any Person for any period, net income of such
\n Person and its Consolidated Subsidiaries, determined on a consolidated
\n basis in accordance with GAAP for such period.<\/p>\n
“Net Revenue”: of any Person for any period, net revenue of
\n such Person and its Consolidated Subsidiaries, determined on a
\n consolidated basis in accordance with GAAP for such period.<\/p>\n
“Net Worth”: of any Person, as of the date of determination
\n thereof, the sum of (without duplication) (a) Shareholders’ Equity of
\n such Person as of such date of determination, and (b) the excess, if
\n any, of (i) the aggregate amount of net after-tax, non-recurring,
\n non-cash charges that have the effect of reducing the amount set forth
\n in clause (a) above, taken after the fiscal quarter ended October 27,
\n 1999 over (ii) any reversal of any of the foregoing charges.<\/p>\n
“Non-Excluded Taxes”: as defined in subsection 3.10.<\/p>\n
“Non-Executing Persons”: as defined in subsection 5.1(a).<\/p>\n
20
\n 15<\/p>\n
“Notes”: the collective reference to any Revolving Credit
\n Notes, any Swing Line Notes and any CAF Advance Notes.<\/p>\n
“Participant”: as defined in subsection 10.6(b).<\/p>\n
“PBGC”: the Pension Benefit Guaranty Corporation established
\n pursuant to Subtitle A of Title IV of ERISA, or any Governmental
\n Authority which succeeds to the powers and functions thereof.<\/p>\n
“Permitted Sale-Leaseback”: as defined in subsection 7.8.<\/p>\n
“Person”: an individual, partnership, corporation, business
\n trust, joint stock company, trust, unincorporated association, joint
\n venture, limited liability company, Governmental Authority or other
\n entity of whatever nature.<\/p>\n
“Plan”: at a particular time, any employee benefit plan which
\n is covered by ERISA and in respect of which the Borrower or a Commonly
\n Controlled Entity is (or, if such plan were terminated at such time,
\n would under Section 4069 of ERISA be deemed to be) an “employer” as
\n defined in Section 3(5) of ERISA.<\/p>\n
“Reference Lenders”: Chase, Bank of America, National
\n Association, The Bank of New York and BankBoston, N.A.<\/p>\n
“Register”: as defined in subsection 10.6(d).<\/p>\n
“Regulation U”: Regulation U of the Board of Governors as in
\n effect from time to time.<\/p>\n
“Reimbursement Obligation”: the obligation of the Borrower
\n pursuant to subsection 2.10(a) to reimburse each Issuing Bank for
\n amounts drawn under any Letter of Credit issued by such Issuing Bank.<\/p>\n
“Rental Expense”: of any Person for any period, the aggregate
\n amount of fixed and contingent rentals payable by such Person for such
\n period in accordance with GAAP with respect to leases of real property
\n minus the aggregate amount of rental income (including licensee related
\n income from licensees operating on the store premises of the Borrower
\n and its Subsidiaries) payable to such Person for such period in
\n accordance with GAAP with respect to leases of real and personal
\n property.<\/p>\n
“Reorganization”: with respect to any Multiemployer Plan, the
\n condition that such plan is in reorganization within the meaning of
\n Section 4241 of ERISA.<\/p>\n
“Reportable Event”: any of the events set forth in Section
\n 4043(b) of ERISA, other than those events as to which the thirty day
\n notice period is waived under subsections .13, .14, .16, .18, .19 or
\n .20 of PBGC Reg. ss 2615.<\/p>\n
“Required Lenders”: at any time, Lenders the Voting
\n Percentages of which aggregate more than 50%.<\/p>\n
“Requirement of Law”: as to any Person, the Certificate of
\n Incorporation and By-Laws or other organizational or governing
\n documents of such Person, and any law, statute, ordinance, <\/p>\n
21
\n 16<\/p>\n
code, decree, treaty, rule or regulation or determination of an
\n arbitrator or a court or other Governmental Authority, in each case
\n applicable to or binding upon such Person or any of its property or to
\n which such Person or any of its property is subject (including, without
\n limitation, laws, ordinances and regulations pertaining to the zoning,
\n occupancy and subdivision of real property).<\/p>\n
“Responsible Officer”: the chief executive officer, the
\n president, any executive vice president, the chief financial officer or
\n the treasurer of the Borrower or, with respect to financial matters,
\n the chief executive officer, the president, the executive vice
\n president-finance, the chief financial officer or treasurer of the
\n Borrower, provided that, for purposes of Section 8(d) only, a
\n “Responsible Officer” shall also include any other senior executive
\n officer of the Borrower, as well as the general counsel, vice president
\n – real estate finance, vice president – real estate and any assistant
\n treasurer of the Borrower.<\/p>\n
“Restricted Payments”: as defined in subsection 7.5.<\/p>\n
“Restricted Subsidiaries”: collectively, the Domestic
\n Subsidiaries and Significant Foreign Subsidiaries.<\/p>\n
“Revolving Credit Commitment”: as to any Lender, the
\n obligation of such Lender to make Revolving Credit Loans to and\/or
\n participate in Swing Line Loans to and\/or issue or participate in
\n Letters of Credit issued on behalf of the Borrower hereunder in an
\n aggregate principal and\/or face amount at any one time outstanding not
\n to exceed the amount set forth opposite such Lender’s name on Schedule
\n 1.1(a) under the heading “Revolving Credit Commitment”, as such amount
\n may be reduced from time to time pursuant to this Agreement or as such
\n amount may be adjusted from time to time pursuant to subsection 10.6;
\n collectively, as to all such Lenders, the “Revolving Credit
\n Commitments”.<\/p>\n
“Revolving Credit Commitment Percentage”: as to any Lender (a)
\n at any time prior to the termination of the Revolving Credit
\n Commitments, the percentage of the Revolving Credit Commitments then
\n constituted by such Lender’s Revolving Credit Commitment and (b) at any
\n time after the termination of the Revolving Credit Commitments, the
\n percentage which (i) the sum of (x) such Lender’s Revolving Credit
\n Loans then outstanding plus (y) the product of such Lender’s Revolving
\n Credit Commitment Percentage immediately prior to the termination of
\n the Revolving Credit Commitments (after giving effect to any permitted
\n assignment pursuant to subsection 10.6) times the sum of (1) the
\n aggregate principal amount of Swing Line Loans then outstanding plus
\n (2) the L\/C Obligations then outstanding then constitutes of (ii) the
\n sum of (x) the aggregate principal amount of Revolving Credit Loans of
\n all the Lenders then outstanding plus (y) the aggregate principal
\n amount of all Swing Line Loans then outstanding plus (z) the aggregate
\n L\/C Obligations then outstanding.<\/p>\n
“Revolving Credit Commitment Period”: the period from and
\n including the Effective Date to but not including the Revolving Credit
\n Termination Date or such earlier date on which the Revolving Credit
\n Commitments shall terminate as provided herein.<\/p>\n
“Revolving Credit Loans”: as defined in subsection 2.1.<\/p>\n
“Revolving Credit Note”: as defined in subsection 3.13(d).<\/p>\n
“Revolving Credit Termination Date”: December 6, 2002.<\/p>\n
22
\n 17<\/p>\n
“Sale-Leaseback”: as defined in subsection 7.8.<\/p>\n
“S&P”: Standard & Poor’s Ratings Services, a division of The
\n McGraw Hill Companies, Inc.<\/p>\n
“Scheduled Asset Sales”: as defined in subsection 7.4(f).<\/p>\n
“SEC”: the Securities and Exchange Commission and any
\n Governmental Authority which succeeds to the powers and functions
\n thereof.<\/p>\n
“Securitization Entity”: with respect to the Borrower or any
\n Subsidiary, a corporation, partnership, trust, limited liability
\n company or other entity that is formed by the Borrower or such
\n Subsidiary for the purpose of effecting or facilitating a
\n Securitization Transaction and which engages in no business and incurs
\n no Indebtedness or other liabilities other than those related to or
\n incidental to a Securitization Transaction.<\/p>\n
“Securitization Transactions”: a transaction or series of
\n related transactions pursuant to which a corporation, partnership,
\n trust, limited liability company or other entity incurs obligations or
\n issues interests, the proceeds of which are used to finance a discrete
\n pool (which may be fixed or revolving) of receivables, leases or other
\n financial assets, or a discrete portfolio of real property or
\n equipment.<\/p>\n
“Shareholders’ Equity”: of any Person, as of the date of
\n determination thereof, the sum of (a) all items which in conformity
\n with GAAP would be included under shareholders’ equity on a
\n consolidated balance sheet of such Person and its Consolidated
\n Subsidiaries at such date of determination and (b) the item which in
\n conformity with GAAP would reflect the amount of Convertible Preferred
\n Securities and\/or the Convertible Debentures (and the obligations of
\n such Person with respect thereto) on the consolidated balance sheet of
\n such Person and its Consolidated Subsidiaries at such date of
\n determination.<\/p>\n
“Significant Foreign Subsidiary”: any Foreign Subsidiary which
\n is a Significant Subsidiary.<\/p>\n
“Significant Subsidiary”: any Subsidiary (a) the Total Assets
\n of which exceed 10% of the Total Assets of the Borrower and its
\n Consolidated Subsidiaries as of the end of the most recently completed
\n Fiscal Year or (b) the Net Revenue of which exceeds 10% of the Net
\n Revenue of the Borrower and its Consolidated Subsidiaries as of the end
\n of the most recently completed Fiscal Year.<\/p>\n
“Single Employer Plan”: any Plan which is covered by Title IV
\n of ERISA, but which is not a Multiemployer Plan.<\/p>\n
“Solvent”: when used with respect to any Person, means that,
\n as of any date of determination, (a) the amount of the “present fair
\n saleable value” of the assets of such Person and its Subsidiaries,
\n taken as a whole, will, as of such date, exceed the amount that will be
\n required to pay all “liabilities of such Person and its Subsidiaries,
\n taken as a whole, contingent or otherwise”, as of such date (as such
\n quoted terms are determined in accordance with applicable federal and
\n state laws governing determinations of the insolvency of debtors) as
\n such debts become absolute and matured, (b) such Person and its
\n Subsidiaries, taken as a whole, will not have, as of such date, an
\n unreasonably small amount of capital with which to conduct their<\/p>\n
23
\n 18<\/p>\n
businesses, and (c) such Person and its Subsidiaries, taken as a whole,
\n will be able to pay their debts as they mature, taking into account the
\n timing of and amounts of cash to be received by such Person and its
\n Subsidiaries, taken as a whole, and the timing of and amounts of cash
\n to be payable on or in respect of indebtedness of such Person and its
\n Subsidiaries, taken as a whole; in each case after giving effect to (A)
\n as of the Effective Date the making of the extensions of credit to be
\n made on the Effective Date and to the application of the proceeds of
\n such extensions of credit and (B) on any date after the Effective Date,
\n the making of any extension of credit to be made on such date, and to
\n the application of the proceeds of such extension of credit. For
\n purposes of this definition, (i) “debt” means liability on a “claim”,
\n and (ii) “claim” means any (x) right to payment, whether or not such a
\n right is reduced to judgment, liquidated, unliquidated, fixed,
\n contingent, matured, unmatured, disputed, undisputed, legal or
\n equitable, secured or unsecured or (y) right to an equitable remedy for
\n breach of performance if such breach gives rise to a right to payment,
\n whether or not such right to an equitable remedy is reduced to
\n judgment, fixed, contingent, matured or unmatured, disputed,
\n undisputed, secured or unsecured. For purposes of representations and
\n warranties made pursuant to subsection 4.18 on any date after the
\n Effective Date on which an Extension of Credit is made hereunder, the
\n Borrower may, in making such representation, assume that the Aggregate
\n Revolving Credit Outstandings will be refinanced at the maturity
\n thereof.<\/p>\n
“SPC”: as defined in subsection 10.6(c).<\/p>\n
“Special Purpose Subsidiary”: any Subsidiary of the Borrower
\n organized solely for the purpose of (a) holding a license or permit
\n issued by any Governmental Authority and used in connection with the
\n business of the Borrower and\/or its Subsidiaries or (b) providing
\n employee services for use in the foreign operations of the Borrower or
\n any of its Subsidiaries, provided that such Subsidiary shall only be a
\n “Special Purpose Subsidiary” for so long as such Subsidiary does not
\n own any assets (other than any such license or permit and other than
\n other assets with a book value not exceeding $10,000,000 in the
\n aggregate) and does not engage in any business (other than holding such
\n license or permit and activities directly related thereto).<\/p>\n
“Standby L\/C Fee Rate”: at any time, the rate per annum equal
\n to the Applicable Margin then in effect for Eurodollar Loans.<\/p>\n
“Standby Letter of Credit”: as defined in subsection
\n 2.6(b)(i).<\/p>\n
“Subsidiaries Guarantee”: the Guarantee, dated as of December
\n 6, 1999, executed and delivered by each Subsidiary Guarantor,
\n substantially in the form of Exhibit E, as the same may be amended,
\n supplemented or otherwise modified from time to time.<\/p>\n
“Subsidiary”: as to any Person, a corporation, partnership or
\n other entity of which shares of stock or other ownership interests
\n having ordinary voting power (other than stock or such other ownership
\n interests having such power only by reason of the happening of a
\n contingency) to elect a majority of the board of directors or other
\n managers of such corporation, partnership or other entity are at the
\n time owned, or the management of which is otherwise controlled,
\n directly or indirectly through one or more intermediaries, or both, by
\n such Person. Unless otherwise qualified, all references to a
\n “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a
\n Subsidiary or Subsidiaries of the Borrower.<\/p>\n
24
\n 19<\/p>\n
“Subsidiary Guarantor”: each Subsidiary set forth on Schedule
\n 4.13 under the heading “Initial Subsidiary Guarantors”, together with
\n each other Subsidiary that becomes a party to the Subsidiaries
\n Guarantee in compliance with subsection 6.9.<\/p>\n
“Swing Line Commitment”: the lesser of (a) $100,000,000 and
\n (b) the Revolving Credit Commitments then in effect.<\/p>\n
“Swing Line Lender”: Chase, in its capacity as provider of the
\n Swing Line Loans.<\/p>\n
“Swing Line Loans”: as defined in subsection 2.18.<\/p>\n
“Swing Line Loan Participation Certificate”: a certificate,
\n substantially the form of Exhibit K.<\/p>\n
“Swing Line Note”: as defined in subsection 3.13(e).<\/p>\n
“Swing Line Rate”: with respect to any Swing Line Loan, an
\n interest rate equal to the sum of (a) the rate of interest determined
\n by the Swing Line Lender in respect thereof (which determination shall
\n be conclusive absent manifest error) to be the cost to the Swing Line
\n Lender of funding such Swing Line Loan, (b) the Applicable Margin then
\n in effect for Eurodollar Loans and (c) 0.75%.<\/p>\n
“Telerate Page 3750”: the display page currently so designated
\n on the Dow Jones Telerate Service (or such other page as may replace
\n that service for the purpose of displaying comparable rates or prices).<\/p>\n
“364-Day Credit Facility”: the 364-Day Credit Agreement, dated
\n as of December 6, 1999, among the Borrower, the several banks,
\n financial institutions and other entities from time to time parties
\n thereto and the Administrative Agent, as the same may be amended,
\n supplemented or otherwise modified from time to time.<\/p>\n
“Total Assets”: of any Person for any period, the total assets
\n of such Person and its Consolidated Subsidiaries, determined on a
\n consolidated basis in accordance with GAAP for such period.<\/p>\n
“Total Debt”: as to any Person at the date of any
\n determination thereof, all Debt of such Person; provided, however, that
\n for the purposes of any determination of the Leverage Ratio hereunder
\n the amount of Total Debt attributable to the Revolving Credit Loans,
\n the Swing Line Loans, the CAF Advances and Debt outstanding under the
\n Existing Credit Agreement, the 364-Day Credit Agreement and the GNB
\n Credit Agreement shall be the average daily outstanding amounts thereof
\n for the period of four fiscal quarters ending on or immediately
\n preceding such date of determination.<\/p>\n
“Tranche”: the collective reference to Eurodollar Loans the
\n then current Interest Periods with respect to all of which begin on the
\n same date and end on the same later date (whether or not such
\n Eurodollar Loans shall originally have been made on the same day).<\/p>\n
“Transferee”: as defined in subsection 10.6(f).<\/p>\n
25
\n 20<\/p>\n
“Type”: as to any Revolving Credit Loan, its nature as an ABR
\n Loan or a Eurodollar Loan.<\/p>\n
“UCC”: the Uniform Commercial Code as in effect in the State
\n of New York from time to time.<\/p>\n
“Uniform Customs”: the Uniform Customs and Practice for
\n Documentary Credits (1993 Revision), International Chamber of Commerce
\n Publication No. 500, as the same may be amended or revised from time to
\n time.<\/p>\n
“Voting Percentage”: as to any Lender (a) at any time prior to
\n the termination of the Revolving Credit Commitments, the percentage
\n which such Lender’s Revolving Credit Commitment then constitutes of the
\n Revolving Credit Commitments of all the Lenders, and (b) at any time
\n after the termination of the Revolving Credit Commitments, the
\n percentage which (i) the sum of (x) the principal amount of such
\n Lender’s Revolving Credit Loans then outstanding plus (y) the product
\n of such Lender’s Revolving Credit Commitment Percentage times the sum
\n of (A) the aggregate principal amount of Swing Line Loans then
\n outstanding plus (B) the L\/C Obligations then outstanding then
\n constitutes of (ii) the sum of (x) the aggregate principal amount of
\n Committed Loans of all the Lenders then outstanding plus (y) the
\n aggregate L\/C Obligations of all the Lenders then outstanding.<\/p>\n
1.2 Other Definitional Provisions. <\/p>\n
(a) Unless otherwise specified therein, all terms defined in
\nthis Agreement shall have the defined meanings when used in any Loan Document or
\nany certificate or other document made or delivered pursuant hereto or thereto.<\/p>\n
(b) As used herein and in any other Loan Document, and any
\ncertificate or other document made or delivered pursuant hereto or thereto,
\naccounting terms relating to the Borrower and its Subsidiaries not defined in
\nsubsection 1.1 and accounting terms partly defined in subsection 1.1, to the
\nextent not defined, shall have the respective meanings given to them under GAAP.<\/p>\n
(c) The words “hereof”, “herein” and “hereunder” and words of
\nsimilar import when used in this Agreement shall refer to this Agreement as a
\nwhole and not to any particular provision of this Agreement, and Section,
\nsubsection, Schedule and Exhibit references are to this Agreement unless
\notherwise specified.<\/p>\n
(d) The meanings given to terms defined herein shall be
\nequally applicable to both the singular and plural forms of such terms.<\/p>\n
(e) The definitions of “Debt” and “Indebtedness” in subsection
\n1.1 shall be independent in construction, interpretation and application.<\/p>\n
SECTION 2. AMOUNT AND TERMS OF REVOLVING CREDIT COMMITMENTS<\/p>\n
2.1 Revolving Credit Commitments. (a) Subject to the terms
\nand conditions hereof, each Lender severally agrees to make revolving credit
\nloans (“Revolving Credit Loans”) to the Borrower from time to time during the
\nRevolving Credit Commitment Period in an aggregate principal amount at any one
\ntime outstanding which, when added to such Lender’s Revolving Credit Commitment
\nPercentage of an amount equal to the sum of (i) the aggregate principal amount
\nof Swing Line Loans then outstanding plus (ii) the then outstanding L\/C
\nObligations plus (iii) the aggregate principal amount of all
\n 26<\/p>\n
21<\/p>\n
CAF Advances then outstanding (after giving effect to the use of proceeds of
\nsuch Revolving Credit Loans), does not exceed the amount of such Lender’s
\nRevolving Credit Commitment. During the Revolving Credit Commitment Period, the
\nBorrower may use the Revolving Credit Commitments by borrowing, prepaying and
\nreborrowing the Revolving Credit Loans in whole or in part, all in accordance
\nwith the terms and conditions hereof.<\/p>\n
(b) The Revolving Credit Loans may from time to time be (i)
\nEurodollar Loans, (ii) ABR Loans or (iii) a combination thereof, as determined
\nby the Borrower and notified to the Administrative Agent in accordance with
\nsubsections 2.2 and 3.2, provided that no Revolving Credit Loan shall be made as
\na Eurodollar Loan after the day that is one month prior to the Revolving Credit
\nTermination Date.<\/p>\n
2.2 Procedure for Revolving Credit Borrowing. The Borrower may
\nborrow under the Revolving Credit Commitments during the Revolving Credit
\nCommitment Period on any Business Day, provided that the Borrower shall give the
\nAdministrative Agent irrevocable notice (which notice must be received by the
\nAdministrative Agent prior to 12:00 Noon, New York City time, (a) three Business
\nDays prior to the requested Borrowing Date, if all or any part of the requested
\nRevolving Credit Loans are to be initially Eurodollar Loans or (b) on the
\nrequested Borrowing Date, otherwise), specifying (i) the amount to be borrowed,
\n(ii) the requested Borrowing Date, (iii) whether the borrowing is to be of
\nEurodollar Loans, ABR Loans or a combination thereof and (iv) if the borrowing
\nis to be entirely or partly of Eurodollar Loans, the respective amounts of each
\nsuch Type of Loan and the respective lengths of the initial Interest Periods
\ntherefor. Each borrowing under the Revolving Credit Commitments shall be in an
\namount equal to (x) in the case of ABR Loans, $5,000,000 or a whole multiple of
\n$1,000,000 in excess thereof (or, if the excess of the then Available Revolving
\nCredit Commitments over the aggregate principal amount of all CAF Advances then
\noutstanding is less than $5,000,000, such lesser amount) and (y) in the case of
\nEurodollar Loans, $10,000,000 or a whole multiple of $1,000,000 in excess
\nthereof. Upon receipt of any such notice from the Borrower, the Administrative
\nAgent shall promptly notify each Lender thereof. Each Lender will make the
\namount of its pro rata share of each borrowing available to the Administrative
\nAgent for the account of the Borrower at the office of the Administrative Agent
\nspecified in subsection 10.2 prior to 1:00 P.M., New York City time, on the
\nBorrowing Date requested by the Borrower in Dollars and in funds immediately
\navailable to the Administrative Agent. Such borrowing will be made available to
\nthe Borrower on or prior to 2:00 P.M., New York City time, by the Administrative
\nAgent crediting the account of the Borrower on the books of such office of the
\nAdministrative Agent with the aggregate of the amounts made available to the
\nAdministrative Agent by the Lenders and in like funds as received by the
\nAdministrative Agent.<\/p>\n
2.3 Commitment Fee. The Borrower agrees to pay to the
\nAdministrative Agent for the account of each Lender a commitment fee for the
\nperiod from and including the first day of the Revolving Credit Commitment
\nPeriod to but not including the Revolving Credit Termination Date, computed at a
\nrate per annum equal to the Applicable Commitment Fee Rate then in effect on the
\naverage daily amount of the Available Revolving Credit Commitment of such Lender
\nduring the period (calculated as if no Swing Line Loans were outstanding during
\nsuch period) for which payment is made, payable quarterly in arrears on the last
\nday of each April, July, October and January and on the Revolving Credit
\nTermination Date or such earlier date as the Revolving Credit Commitments shall
\nterminate as provided herein, commencing on the first of such dates to occur
\nafter the date hereof.<\/p>\n
2.4 Termination or Reduction of Commitments. The Borrower
\nshall have the right, upon not less than two Business Days’ notice to the
\nAdministrative Agent, to terminate the Revolving Credit Commitments or, from
\ntime to time, to reduce the amount of the Revolving Credit Commitments, provided
\nthat no such termination or reduction shall be permitted if, after giving effect
\nthereto and to any<\/p>\n
27<\/p>\n
22<\/p>\n
prepayments of the Revolving Credit Loans made on the effective date thereof,
\nthe aggregate principal amount of the Revolving Credit Loans then outstanding,
\nwhen added to the then outstanding L\/C Obligations, Swing Line Loans and CAF
\nAdvances, would exceed the Revolving Credit Commitments then in effect. Any such
\nreduction shall be in an amount equal to $10,000,000 or a whole multiple of
\n$1,000,000 in excess thereof and shall reduce permanently the Revolving Credit
\nCommitments then in effect. Upon receipt of any notice pursuant to this
\nsubsection 2.4, the Administrative Agent shall promptly notify each Lender
\nthereof.<\/p>\n
2.5 Repayment of Revolving Credit Loans. The Borrower hereby
\nunconditionally promises to pay to the Administrative Agent for the account of
\neach Lender the then unpaid principal amount of each Revolving Credit Loan of
\nsuch Lender on the Revolving Credit Termination Date (or such earlier date on
\nwhich the Revolving Credit Loans become due and payable pursuant to Section 8).
\nThe Borrower hereby further agrees to pay interest on the unpaid principal
\namount of the Revolving Credit Loans from time to time outstanding from the date
\nhereof until payment in full thereof at the rates per annum, and on the dates,
\nset forth in subsection 3.4.<\/p>\n
2.6 L\/C Commitment. (a) Subject to the terms and conditions
\nhereof, each Issuing Bank, in reliance on the agreements of the other Lenders
\nset forth in subsection 2.9(a), agrees to issue letters of credit (“Letters of
\nCredit”) for the account of the Borrower on any Business Day during the
\nRevolving Credit Commitment Period in such form as may be approved from time to
\ntime by such Issuing Bank; provided that no Issuing Bank shall have any
\nobligation to issue any Letter of Credit if, after giving effect to such
\nissuance, (i) the L\/C Obligations at such time would exceed the L\/C Commitment,
\n(ii) the Aggregate Revolving Credit Outstandings at such time would exceed the
\naggregate amount of the Revolving Credit Commitments at such time or (iii) in
\nthe case of Letters of Credit issued in currencies other than Dollars only, the
\nL\/C Obligations in respect of Letters of Credit issued in currencies other than
\nDollars would exceed the Foreign L\/C Commitment Sublimit at such time. Each
\nContinuing Letter of Credit shall be deemed to be issued under this Agreement on
\nthe Effective Date (to the extent such Continuing Letter of Credit has not been
\nfully drawn or has not expired or been terminated as of the Effective Date) and
\nshall be (x) a Letter of Credit for all purposes hereof (other than subsection
\n2.7) and the other Loan Documents and (y) a Commercial Letter of Credit or a
\nStandby Letter of Credit, as applicable, for purposes of subsections 2.8(b) and
\n2.8(c), respectively.<\/p>\n
(b) Each Letter of Credit shall:<\/p>\n
(i) be denominated in Dollars or such other currency that
\n as of the date of issuance thereof is in the reasonable judgment of the
\n relevant Issuing Bank (which shall be binding on the L\/C Participants)
\n freely convertible or exchangeable into Dollars as the Borrower, the
\n relevant Issuing Bank and the Administrative Agent may from time to
\n time agree, and shall be either (A) a standby letter of credit issued
\n to support obligations of the Borrower or a Subsidiary, contingent or
\n otherwise (a “Standby Letter of Credit”), or (B) a commercial letter of
\n credit issued in respect of the purchase of inventory or other goods or
\n services by the Borrower and its Subsidiaries in the ordinary course of
\n business (a “Commercial Letter of Credit”), and<\/p>\n
(ii) expire no later than the earlier of (A) five Business
\n Days prior to the Revolving Credit Termination Date and (B) one year
\n after the date of issuance thereof, provided that, subject to clause
\n (A) above, any Letter of Credit may, at the request of the Applicant as
\n set forth in the applicable Application, be automatically renewed on
\n each anniversary of the issuance thereof for an additional period of
\n one year unless the Issuing Bank which issued such Letter of Credit
\n shall have given prior written notice to the Borrower and the
\n beneficiary of such Letter of Credit that such Letter of Credit will
\n not be renewed.<\/p>\n
28<\/p>\n
23<\/p>\n
(c) Each Letter of Credit shall be subject to the Uniform
\nCustoms (except to the extent that any Continuing Letter of Credit continues to
\nbe subject to the Uniform Customs and Practice for Documentary Credits (1993
\nRevision), International Chamber of Commerce Publication No. 500, in accordance
\nwith its terms), and, to the extent not inconsistent therewith, the laws of the
\nState of New York.<\/p>\n
(d) No Issuing Bank shall at any time be obligated to issue
\nany Letter of Credit hereunder if such issuance would conflict with, or cause
\nsuch Issuing Bank or any L\/C Participant to exceed any limits imposed by, any
\napplicable Requirement of Law.<\/p>\n
2.7 Procedure for Issuance of Letters of Credit. An Applicant
\nmay from time to time request that an Issuing Bank issue a Letter of Credit by
\ndelivering (a) to such Issuing Bank at its address for notices specified herein
\nin such manner as may be agreed by or be acceptable to such Issuing Bank
\n(including by electronic transmission) an Application therefor, completed to the
\nsatisfaction of such Issuing Bank, and such other certificates, documents and
\nother papers and information as such Issuing Bank may request and (b) a notice
\nto the Administrative Agent that such Letter of Credit has been requested. Upon
\nreceipt of any Application, each Issuing Bank agrees to process such Application
\nand the certificates, documents and other papers and information delivered to it
\nin connection therewith in accordance with its customary procedures and shall
\npromptly issue the Letter of Credit requested thereby (but in no event shall
\nsuch Issuing Bank be required to issue any Letter of Credit earlier than two
\nBusiness Days after its receipt of the Application therefor and all such other
\ncertificates, documents and other papers and information relating thereto) by
\nissuing the original of such Letter of Credit to the beneficiary thereof or as
\notherwise may be agreed by such Issuing Bank and the Borrower. Each Issuing Bank
\nshall furnish a copy of each Letter of Credit issued by such Issuing Bank to the
\nBorrower and the Administrative Agent promptly following the issuance thereof.<\/p>\n
2.8 Letter of Credit Fees, Commissions and Other Charges. (a)
\nThe Borrower shall pay to the relevant Issuing Bank with respect to each Letter
\nof Credit issued by such Issuing Bank under this Agreement, for the account of
\nsuch Issuing Bank, a fronting fee with respect to the period from the date of
\nissuance of such Letter of Credit to the expiration or termination date of such
\nLetter of Credit, computed at a rate per annum to be agreed upon by the Borrower
\nand such Issuing Bank on the average aggregate amount available to be drawn
\nunder such Letter of Credit during the period for which such fee is calculated.
\nSuch fronting fee shall be payable in arrears on each L\/C Fee Payment Date to
\noccur after the issuance of such Letter of Credit and on the Revolving Credit
\nTermination Date (or on such earlier date as the Revolving Credit Commitments
\nshall terminate as provided herein) and shall be nonrefundable.<\/p>\n
(b) The Borrower shall pay to the Administrative Agent, for
\nthe account of the L\/C Participants, a letter of credit commission with respect
\nto each Commercial Letter of Credit issued under this Agreement with respect to
\nthe period from the date of issuance of such Commercial Letter of Credit to the
\nexpiration or termination date of such Letter of Credit, computed at a rate per
\nannum equal to the Commercial L\/C Fee Rate on the average aggregate amount
\navailable to be drawn under such Commercial Letter of Credit during the period
\nfor which such fee is calculated. Such commission shall be shared ratably among
\nthe L\/C Participants in accordance with their respective Revolving Credit
\nCommitment Percentages. Such commission shall be payable in arrears on each L\/C
\nFee Payment Date to occur after the issuance of such Letter of Credit and on the
\nRevolving Credit Termination Date (or on such earlier date as the Revolving
\nCredit Commitments shall terminate as provided herein) and shall be
\nnonrefundable.<\/p>\n
29<\/p>\n
24<\/p>\n
(c) The Borrower shall pay to the Administrative Agent, for
\nthe account of the L\/C Participants, a letter of credit commission with respect
\nto each Standby Letter of Credit with respect to the period from the date of
\nissuance of such Standby Letter of Credit to the expiration or termination date
\nof such Letter of Credit, computed at a rate per annum equal to the Standby L\/C
\nFee Rate of the average aggregate amount available to be drawn under such
\nStandby Letter of Credit during the period for which such fee is calculated.
\nSuch commission shall be shared ratably among the L\/C Participants in accordance
\nwith their respective Revolving Credit Commitment Percentages. Such commission
\nshall be payable in arrears on each L\/C Fee Payment Date to occur after the
\nissuance of such Letter of Credit and on the Revolving Credit Termination Date
\n(or on such earlier date as the Revolving Credit Commitments shall terminate as
\nprovided herein) and shall be nonrefundable.<\/p>\n
(d) In addition to the foregoing fees and commissions, the
\nBorrower shall pay or reimburse each Issuing Bank for such normal and customary
\ncosts and expenses as may be agreed upon by the Borrower and such Issuing Bank
\nin connection with issuing, effecting payment under, amending or otherwise
\nadministering any Letter of Credit issued by such Issuing Bank.<\/p>\n
(e) The Administrative Agent shall, promptly following its
\nreceipt thereof, distribute to each Issuing Bank and the L\/C Participants all
\nfees and commissions received by the Administrative Agent for their respective
\naccounts pursuant to this subsection.<\/p>\n
2.9 L\/C Participations. (a) Each Issuing Bank irrevocably
\nagrees to grant and hereby grants to each L\/C Participant (other than such
\nIssuing Bank), and, to induce such Issuing Bank to issue Letters of Credit
\nhereunder, each such L\/C Participant irrevocably agrees to accept and purchase
\nand hereby accepts and purchases from such Issuing Bank, on the terms and
\nconditions hereinafter stated, for such L\/C Participant’s own account and risk
\nan undivided interest equal to such L\/C Participant’s Revolving Credit
\nCommitment Percentage in such Issuing Bank’s obligations and rights under each
\nLetter of Credit issued by such Issuing Bank hereunder and the amount of each
\ndraft paid by such Issuing Bank thereunder. Each such L\/C Participant
\nunconditionally and irrevocably agrees with each Issuing Bank that, if a draft
\nis paid under any Letter of Credit issued by such Issuing Bank for which such
\nIssuing Bank is not reimbursed in full by the Borrower in accordance with the
\nterms of this Agreement, such L\/C Participant shall pay to the Administrative
\nAgent for the account of such Issuing Bank upon demand an amount equal to such
\nL\/C Participant’s Revolving Credit Commitment Percentage of the amount of such
\ndraft, or any part thereof, which is not so reimbursed.<\/p>\n
(b) If any amount required to be paid by any L\/C Participant
\nto any Issuing Bank pursuant to subsection 2.9(a) in respect of any unreimbursed
\nportion of any payment made by such Issuing Bank under any Letter of Credit
\nissued by such Issuing Bank is paid to such Issuing Bank within three Business
\nDays after the date such payment is due, such L\/C Participant shall pay to such
\nIssuing Bank on demand an amount equal to the product of (i) such amount, times
\n(ii) the daily average Federal Funds Effective Rate, during the period from and
\nincluding the date such payment is required to the date on which such payment is
\nimmediately available to such Issuing Bank, times (iii) a fraction the numerator
\nof which is the number of days that elapse during such period and the
\ndenominator of which is 360. If any such amount required to be paid by any L\/C
\nParticipant pursuant to subsection 2.9(a) is not in fact made available to any
\nIssuing Bank by such L\/C Participant within three Business Days after the date
\nsuch payment is due, such Issuing Bank shall be entitled to recover from such
\nL\/C Participant, on demand, such amount with interest thereon calculated from
\nsuch due date at the rate per annum applicable to ABR Loans hereunder. A
\ncertificate of any Issuing Bank submitted to any L\/C Participant with respect to
\nany amounts owing under this subsection shall be conclusive in the absence of
\nmanifest error.<\/p>\n
30<\/p>\n
25<\/p>\n
(c) Whenever, at any time after any Issuing Bank has made
\npayment under any Letter of Credit issued by such Issuing Bank and has received
\nfrom any L\/C Participant its pro rata share of such payment in accordance with
\nsubsection 2.9(a), such Issuing Bank receives any payment related to such Letter
\nof Credit (whether directly from the Borrower or otherwise, including proceeds
\nof collateral applied thereto by such Issuing Bank), or any payment of interest
\non account thereof, such Issuing Bank will distribute to such L\/C Participant
\nits pro rata share thereof.<\/p>\n
(d) If any payment received by any Issuing Bank pursuant to
\nsubsection 2.10 with respect to any Letter of Credit issued by it shall be
\nrequired to be returned by such Issuing Bank, each L\/C Participant shall pay to
\nsuch Issuing Bank its pro rata share thereof.<\/p>\n
2.10 Letter of Credit Reimbursement Obligations. (a) The
\nBorrower agrees to reimburse each Issuing Bank for the amount of (i) any draft
\npaid by such Issuing Bank under any Letter of Credit issued by such Issuing Bank
\nand (ii) any taxes, fees, charges or other costs or expenses incurred by such
\nIssuing Bank in connection with such payment. Each such payment shall be made to
\nthe relevant Issuing Bank at its address for notices specified herein in the
\ncurrency in which the relevant Letter of Credit was issued and in immediately
\navailable funds in such currency.<\/p>\n
(b) If any draft shall be presented for payment under any
\nLetter of Credit issued by any Issuing Bank, such Issuing Bank shall promptly
\nnotify the Borrower of the date and amount thereof. The Borrower shall reimburse
\neach Issuing Bank pursuant to subsection 2.10(a) with respect to any drawing
\nunder any Letter of Credit issued by such Issuing Bank on the next Business Day
\nfollowing the date of such drawing and interest shall be payable on the amount
\nof such drawing for such period at the rate then applicable to ABR Loans
\nhereunder. If any amount payable under this subsection is not paid when due,
\ninterest shall be payable on such amount from the date such amount becomes
\npayable under this subsection until payment in full thereof at the rate which
\nwould be payable on any outstanding ABR Loans which were then overdue.<\/p>\n
2.11 Obligations Absolute. (a) The Borrower’s obligations
\nunder this Section 2 in respect of Letters of Credit shall be absolute and
\nunconditional under any and all circumstances and irrespective of any set-off,
\ncounterclaim or defense to payment which the Borrower or any Applicant may have
\nor have had against any Issuing Bank or any beneficiary of any Letter of Credit.<\/p>\n
(b) The Borrower also agrees with each Issuing Bank that such
\nIssuing Bank shall not be responsible for, and the Borrower’s Reimbursement
\nObligations shall not be affected by, among other things, (i) the validity or
\ngenuineness of documents or of any endorsements thereon, even though such
\ndocuments shall in fact prove to be invalid, fraudulent or forged, or (ii) any
\ndispute between or among the Borrower, any Applicant and any beneficiary of any
\nLetter of Credit or any other party to which such Letter of Credit may be
\ntransferred or (iii) any claims whatsoever of the Borrower or any Applicant
\nagainst any beneficiary of such Letter of Credit or any such transferee.<\/p>\n
(c) No Issuing Bank shall be liable for any error, omission,
\ninterruption or delay in transmission, dispatch or delivery of any message or
\nadvice, however transmitted, in connection with any Letter of Credit issued by
\nsuch Issuing Bank, except for errors or omissions caused by such Issuing Bank’s
\ngross negligence or willful misconduct.<\/p>\n
(d) The Borrower agrees that any action taken or omitted by
\nany Issuing Bank under or in connection with any Letter of Credit issued by such
\nIssuing Bank or the related drafts or documents, if done in the absence of gross
\nnegligence or willful misconduct and in accordance with the standards of<\/p>\n
31<\/p>\n
26<\/p>\n
care specified in the UCC, shall be binding on the Borrower and shall not result
\nin any liability of such Issuing Bank to the Borrower.<\/p>\n
2.12 Letter of Credit Payments. The responsibility of each
\nIssuing Bank to the Borrower in connection with any draft presented for payment
\nunder any Letter of Credit issued by such Issuing Bank shall, in addition to any
\npayment obligation expressly provided for in such Letter of Credit, be limited
\nto determining that the documents (including each draft) delivered under such
\nLetter of Credit in connection with such presentment are in conformity with such
\nLetter of Credit.<\/p>\n
2.13 Letter of Credit Applications. To the extent that any
\nprovision of any Application related to any Letter of Credit is inconsistent
\nwith the provisions of this Section 2 or any other terms of this Agreement or
\nany other Loan Document, the provisions of this Section 2 shall apply.<\/p>\n
2.14 CAF Advances. Subject to the terms and conditions of this
\nAgreement, the Borrower may request advances (“CAF Advances”) from time to time
\non any Business Day during the CAF Advance Availability Period. CAF Advances may
\nbe requested and made in amounts such that, after giving effect to the making of
\nsuch CAF Advance and the application of proceeds thereof, the Aggregate
\nRevolving Credit Outstandings at any time do not exceed the aggregate amount of
\nthe Revolving Credit Commitments at such time. Within the limits and on the
\nconditions hereinafter set forth with respect to CAF Advances, the Borrower from
\ntime to time may borrow, repay and reborrow CAF Advances.<\/p>\n
2.15 Procedure for CAF Advance Borrowing. (a) The Borrower
\nshall request CAF Advances by delivering a CAF Advance Request to the
\nAdministrative Agent, not later than 12:00 Noon (New York City time) four
\nBusiness Days prior to the proposed Borrowing Date (in the case of a LIBO Rate
\nCAF Advance Request), and not later than 11:00 A.M. (New York City time) one
\nBusiness Day prior to the proposed Borrowing Date (in the case of a Fixed Rate
\nCAF Advance Request). The Borrower shall pay to the Administrative Agent a fee
\nof $2,000 in connection with each CAF Advance Request delivered by the Borrower
\nto the Administrative Agent. Each CAF Advance Request in respect of any
\nBorrowing Date may solicit bids for CAF Advances on such Borrowing Date in an
\naggregate principal amount of $10,000,000 or an integral multiple of $1,000,000
\nin excess thereof and having not more than three alternative CAF Advance
\nMaturity Dates. The CAF Advance Maturity Date for each CAF Advance shall be the
\ndate set forth therefor in the relevant CAF Advance Request, which date shall be
\n(i) not less than seven days nor more than 180 days after the Borrowing Date
\ntherefor, in the case of a Fixed Rate CAF Advance, (ii) one, two, three or six
\nmonths after the Borrowing Date therefor, in the case of a LIBO Rate CAF Advance
\nand (iii) not later than the Revolving Credit Termination Date, in the case of
\nany CAF Advance. The Administrative Agent shall notify each Lender promptly by
\nfacsimile transmission of the contents of each CAF Advance Request received by
\nthe Administrative Agent.<\/p>\n
(b) In the case of a LIBO Rate CAF Advance Request, upon
\nreceipt of notice from the Administrative Agent of the contents of such CAF
\nAdvance Request, each Lender may elect, in its sole discretion, to offer
\nirrevocably to make one or more CAF Advances at the applicable LIBO Rate plus
\n(or minus) a margin determined by such Lender in its sole discretion for each
\nsuch CAF Advance. Any such irrevocable offer shall be made by delivering a CAF
\nAdvance Offer to the Administrative Agent, before 10:30 A.M. (New York City
\ntime) on the day that is three Business Days before the proposed Borrowing Date,
\nsetting forth:<\/p>\n
(i) the maximum amount of CAF Advances for each CAF
\n Advance Maturity Date and the aggregate maximum amount of CAF Advances
\n for all CAF Advance Maturity Dates<\/p>\n
32<\/p>\n
27<\/p>\n
which such Lender would be willing to make (which amounts may, subject
\n to subsection 3.14, exceed such Lender’s Revolving Credit Commitments);
\n and<\/p>\n
(ii) the margin above or below the applicable LIBO Rate at
\n which such Lender is willing to make each such CAF Advance.<\/p>\n
The Administrative Agent shall advise the Borrower before 11:00 A.M. (New York
\nCity time) on the date which is three Business Days before the proposed
\nBorrowing Date of the contents of each such CAF Advance Offer received by it. If
\nthe Administrative Agent, in its capacity as a Lender, shall elect, in its sole
\ndiscretion, to make any such CAF Advance Offer, it shall advise the Borrower of
\nthe contents of its CAF Advance Offer before 10:15 A.M. (New York City time) on
\nthe date which is three Business Days before the proposed Borrowing Date.<\/p>\n
(c) In the case of a Fixed Rate CAF Advance Request, upon
\nreceipt of notice from the Administrative Agent of the contents of such CAF
\nAdvance Request, each Lender may elect, in its sole discretion, to offer
\nirrevocably to make one or more CAF Advances at a rate of interest determined by
\nsuch Lender in its sole discretion for each such CAF Advance. Any such
\nirrevocable offer shall be made by delivering a CAF Advance Offer to the
\nAdministrative Agent before 9:30 A.M. (New York City time) on the proposed
\nBorrowing Date, setting forth:<\/p>\n
(i) the maximum amount of CAF Advances for each CAF
\n Advance Maturity Date, and the aggregate maximum amount for all CAF
\n Advance Maturity Dates, which such Lender would be willing to make
\n (which amounts may, subject to subsection 3.14, exceed such Lender’s
\n Revolving Credit Commitments); and<\/p>\n
(ii) the rate of interest at which such Lender is willing
\n to make each such CAF Advance.<\/p>\n
The Administrative Agent shall advise the Borrower before 10:00 A.M. (New York
\nCity time) on the proposed Borrowing Date of the contents of each such CAF
\nAdvance Offer received by it. If the Administrative Agent, in its capacity as a
\nLender, shall elect, in its sole discretion, to make any such CAF Advance Offer,
\nit shall advise the Borrower of the contents of its CAF Advance Offer before
\n9:15 A.M. (New York City time) on the proposed Borrowing Date.<\/p>\n
(d) Before 11:30 A.M. (New York City time) three Business Days
\nbefore the proposed Borrowing Date (in the case of CAF Advances requested by a
\nLIBO Rate CAF Advance Request) and before 10:30 A.M. (New York City time) on the
\nproposed Borrowing Date (in the case of CAF Advances requested by a Fixed Rate
\nCAF Advance Request), the Borrower, in its absolute discretion, shall:<\/p>\n
(i) cancel the relevant CAF Advance Request by giving the
\n Administrative Agent telephonic notice to that effect, or<\/p>\n
(ii) by giving telephonic notice to the Administrative
\n Agent (immediately confirmed by delivery to the Administrative Agent of
\n a CAF Advance Confirmation by facsimile transmission) (A) subject to
\n the provisions of subsection 2.15(e), accept one or more of the offers
\n made by any Lender or Lenders pursuant to subsection 2.15(b) or
\n subsection 2.15(c), as the case may be, and (B) reject any remaining
\n offers made by Lenders pursuant to subsection 2.15(b) or subsection
\n 2.15(c), as the case may be.<\/p>\n
33<\/p>\n
28<\/p>\n
(e) The Borrower’s acceptance of CAF Advances in response to
\nany CAF Advance Offers shall be subject to the following limitations:<\/p>\n
(i) the amount of CAF Advances accepted for each CAF
\n Advance Maturity Date specified by any Lender in its CAF Advance Offer
\n shall not exceed the maximum amount for such CAF Advance Maturity Date
\n specified in such CAF Advance Offer;<\/p>\n
(ii) the aggregate amount of CAF Advances accepted for all
\n CAF Advance Maturity Dates specified by any Lender in its CAF Advance
\n Offer shall not exceed the aggregate maximum amount specified in such
\n CAF Advance Offer for all such CAF Advance Maturity Dates;<\/p>\n
(iii) the Borrower may not accept offers for CAF Advances
\n for any CAF Advance Maturity Date in an aggregate principal amount in
\n excess of the maximum principal amount of CAF Advances requested for
\n such CAF Advance Maturity Date in the related CAF Advance Request; and<\/p>\n
(iv) if the Borrower accepts any of such CAF Advance
\n Offers, it must accept offers based solely upon pricing for each
\n relevant CAF Advance Maturity Date and upon no other criteria
\n whatsoever, and if two or more Lenders submit CAF Advance Offers for
\n any CAF Advance Maturity Date at identical pricing and the Borrower
\n accepts any of such CAF Advance Offers but does not wish to (or, by
\n reason of the limitations set forth in subsection 2.14 or this
\n subsection 2.15, cannot) borrow the total amount offered by such
\n Lenders with such identical pricing, the Borrower shall accept CAF
\n Advance Offers from all of such Lenders in amounts allocated among them
\n pro rata according to the amounts offered by such Lenders (with
\n appropriate rounding, in the sole discretion of the Borrower, to assure
\n that each accepted CAF Advance is an integral multiple of $1,000,000);
\n provided that if the number of Lenders that submit CAF Advance Offers
\n for any CAF Advance Maturity Date with identical pricing is such that,
\n after the Borrower accepts such offers pro rata in accordance with the
\n foregoing provisions of this paragraph, the CAF Advance to be made by
\n any such Lender would be less than $5,000,000 principal amount, the
\n number of such Lenders shall be reduced by the Administrative Agent by
\n lot until the CAF Advances to be made by each such remaining Lender
\n would be in a principal amount of $5,000,000 or an integral multiple of
\n $1,000,000 in excess thereof.<\/p>\n
(f) If the Borrower notifies the Administrative Agent that a
\nCAF Advance Request is cancelled pursuant to subsection 2.15(d)(i), the
\nAdministrative Agent shall give prompt telephonic notice thereof to the Lenders.<\/p>\n
(g) If the Borrower accepts pursuant to subsection 2.15(d)(ii)
\none or more of the CAF Advance Offers made by any Lender or Lenders, the
\nAdministrative Agent promptly shall notify each Lender which has made such a CAF
\nAdvance Offer of (i) the aggregate amount of such CAF Advances to be made on the
\nrelevant Borrowing Date and the CAF Advance Maturity Date for each such CAF
\nAdvance and (ii) the acceptance or rejection of any CAF Advance Offers to make
\nsuch CAF Advances made by such Lender. Before 12:00 Noon (New York City time) on
\nthe Borrowing Date specified in the applicable CAF Advance Request, each Lender
\nwhose CAF Advance Offer has been accepted shall make available to the
\nAdministrative Agent at its office set forth in subsection 10.2 the amount of
\nCAF Advances to be made by such Lender, in Dollars and in immediately available
\nfunds. The Administrative Agent will make such funds available to the Borrower
\nas soon as practicable on such date at such office of the Administrative Agent
\nin like funds. As soon as practicable after each Borrowing Date, the<\/p>\n
34<\/p>\n
29<\/p>\n
Administrative Agent shall notify each Lender of the aggregate amount of CAF
\nAdvances advanced on such Borrowing Date and the respective CAF Advance Maturity
\nDates thereof.<\/p>\n
2.16 CAF Advance Payments. (a) The Borrower shall pay to the
\nAdministrative Agent, for the account of each Lender which has made a CAF
\nAdvance, on the CAF Advance Maturity Date of such CAF Advance (or on such
\nearlier date on which such CAF Advance becomes due and payable pursuant to
\nSection 8) the principal amount of such CAF Advance. The Borrower shall not have
\nthe right to prepay any principal amount of any CAF Advance without the consent
\nof the Lender to which such CAF Advance is owed.<\/p>\n
(b) The Borrower shall pay to the Administrative Agent for the
\naccount of each Lender which has made a CAF Advance interest on the unpaid
\nprincipal amount of such CAF Advance from the Borrowing Date with respect
\nthereto to the CAF Advance Maturity Date of such CAF Advance at the rate of
\ninterest specified in the CAF Advance Offer accepted by the Borrower in
\nconnection with such CAF Advance (calculated on the basis of a 360-day year for
\nactual days elapsed), payable on each applicable CAF Advance Interest Payment
\nDate.<\/p>\n
(c) If any principal of, or interest on, any CAF Advance shall
\nnot be paid when due (whether at the stated maturity, by acceleration or
\notherwise), such CAF Advance shall, without limiting any rights of any Lender
\nunder this Agreement, bear interest from the date on which such payment was due
\nat a rate per annum which is 2% above the rate which would otherwise be
\napplicable to such CAF Advance until the stated CAF Advance Maturity Date of
\nsuch CAF Advance, and for each day after such stated CAF Advance Maturity Date
\nat a rate per annum which is 2% above the ABR, in each case until paid in full
\n(as well after as before judgment). Interest accruing pursuant to this
\nsubsection 2.16(c) shall be payable from time to time on demand.<\/p>\n
2.17 Certain Restrictions With Respect to CAF Advances. A CAF
\nAdvance Request may request CAF Advance Offers for CAF Advances to be made on
\nnot more than one Borrowing Date and to mature on not more than three CAF
\nAdvance Maturity Dates. No CAF Advance Request may be submitted earlier than
\nfive Business Days after submission of any other CAF Advance Request.<\/p>\n
2.18 Swing Line Commitment. Subject to the terms and
\nconditions hereof, the Swing Line Lender agrees to make swing line loans (“Swing
\nLine Loans”) to the Borrower from time to time during the Revolving Credit
\nCommitment Period in an aggregate principal amount at any one time outstanding
\nnot to exceed the Swing Line Commitment, provided that, after giving effect to
\nany such Swing Line Loans, the Aggregate Revolving Credit Outstandings at such
\ntime would not exceed the Revolving Credit Commitments in effect at such time.
\nDuring the Revolving Credit Commitment Period, the Borrower may use the Swing
\nLine Commitment by borrowing, prepaying the Swing Line Loans in whole or in
\npart, and reborrowing, all in accordance with the terms and conditions hereof.<\/p>\n
2.19 Procedure for Swing Line Borrowing. (a) The Borrower may
\nborrow under the Swing Line Commitment during the Revolving Credit Commitment
\nPeriod on any Business Day, provided that the Borrower shall give the Swing Line
\nLender and the Administrative Agent irrevocable notice (which notice must be
\nreceived by the Swing Line Lender prior to 12:00 Noon, New York City time) on
\nthe requested Borrowing Date specifying the amount of the requested Swing Line
\nLoan which shall be in an aggregate minimum amount of $5,000,000 or a whole
\nmultiple of $1,000,000 in excess thereof. The proceeds of the Swing Line Loan
\nwill be made available by the Swing Line Lender to the Borrower at the office of
\nthe Swing Line Lender by 1:00 P.M., New York City time, on the Borrowing Date by
\ncrediting the account of the Borrower at such office with such proceeds. The
\nBorrower may at any time and from time to time prepay the Swing Line Loans, in
\nwhole or in part, without premium or <\/p>\n
35<\/p>\n
30<\/p>\n
penalty, by notifying the Swing Line Lender prior to 12:00 Noon, New York City
\ntime, on any Business Day of the date and amount of prepayment. If any such
\nnotice is given, the amount specified in such notice shall be due and payable on
\nthe date specified therein. Partial prepayments shall be in an aggregate
\nprincipal amount of $5,000,000 or a whole multiple of $1,000,000 in excess
\nthereof.<\/p>\n
(b) The Swing Line Lender shall, on behalf of the Borrower
\n(which hereby irrevocably directs the Swing Line Lender to act on its behalf)
\nand on the earlier of (i) the fifth Business Day following the Borrowing Date
\nwith respect to any Swing Line Loan or (ii) on the date on which the Revolving
\nCredit Commitments shall terminate pursuant to Section 8, request each Lender
\n(including the Swing Line Lender) to make a Revolving Credit Loan (which shall
\nbe an ABR Loan, unless the Borrower notified the Administrative Agent pursuant
\nto subsection 2.2 that such Revolving Credit Loans shall be Eurodollar Loans) in
\nan amount equal to such Lender’s Revolving Credit Commitment Percentage of the
\nprincipal amount of such Swing Line Loan. Unless any of the events described in
\nparagraph (f) of Section 8 shall have occurred with respect to the Borrower (in
\nwhich event the procedures of paragraph (d) of this subsection 2.19 shall apply)
\neach Lender shall make the proceeds of its Revolving Credit Loan available to
\nthe Administrative Agent for the account of the Swing Line Lender at the
\nAdministrative Agent’s office specified in or pursuant to subsection 11.2 prior
\nto 11:00 A.M., New York City time, in funds immediately available in Dollars on
\nthe Business Day next succeeding the date such notice is given. The proceeds of
\nsuch Revolving Credit Loans shall be immediately applied to repay the relevant
\nSwing Line Loan. Effective on the day such Revolving Credit Loans are made, the
\nrelevant Swing Line Loan so paid shall no longer be outstanding as a Swing Line
\nLoan and shall no longer be due under the Swing Line Note. The Borrower
\nauthorizes the Swing Line Lender to charge the Borrower’s accounts with the
\nSwing Line Lender (up to the amount available in each such account) in order to
\nimmediately pay the amount of its outstanding Swing Line Loans to the extent
\namounts received from the Lenders are not sufficient to repay in full such
\noutstanding Swing Line Loans.<\/p>\n
(c) Notwithstanding anything herein to the contrary, the Swing
\nLine Lender shall not make any Swing Line Loans if the Swing Line Lender has
\nreceived written notice that the conditions set forth in subsection 5.2 have not
\nbeen satisfied in connection with the making of such Swing Line Loans.<\/p>\n
(d) If prior to the making of a Revolving Credit Loan pursuant
\nto paragraph (b) of subsection 2.19 one of the events described in paragraph (f)
\nof Section 8 shall have occurred and be continuing with respect to the Borrower,
\neach Lender will, on the date such Revolving Credit Loan was to have been made
\npursuant to the notice in subsection 2.19, purchase an undivided participating
\ninterest in the outstanding Swing Line Loans in an amount equal to (i) its
\nRevolving Credit Commitment Percentage times (ii) the aggregate principal amount
\nof Swing Line Loans then outstanding. Each Lender will immediately transfer to
\nthe Swing Line Lender, in immediately available funds, the amount of its
\nparticipation, and upon receipt thereof the Swing Line Lender will deliver to
\nsuch Lender a Swing Line Loan Participation Certificate dated the date of
\nreceipt of such funds and in such amount.<\/p>\n
(e) Whenever, at any time after any Lender has purchased a
\nparticipating interest in a Swing Line Loan, the Swing Line Lender receives any
\npayment on account thereof, the Swing Line Lender will distribute to such Lender
\nits participating interest in such amount (appropriately adjusted, in the case
\nof interest payments, to reflect the period of time during which such Lender’s
\nparticipating interest was outstanding and funded); provided, however, that in
\nthe event that such payment received by the Swing Line Lender is required to be
\nreturned, such Lender will return to the Swing Line Lender any portion thereof
\npreviously distributed by the Swing Line Lender to it.<\/p>\n
(f) Each Lender’s obligation to make the Revolving Credit
\nLoans referred to in subsection 2.19(b) and to purchase participating interests
\npursuant to subsection 2.19(d) shall be absolute<\/p>\n
36<\/p>\n
31<\/p>\n
and unconditional and shall not be affected by any circumstance, including,
\nwithout limitation, (i) any set-off, counterclaim, recoupment, defense or other
\nright which such Lender or the Borrower may have against the Swing Line Lender,
\nthe Borrower or any other Person for any reason whatsoever, (ii) the occurrence
\nor continuance of a Default or an Event of Default, (iii) any adverse change in
\nthe condition (financial or otherwise) of the Borrower, (iv) any breach of this
\nAgreement or any other Loan Document by the Borrower, any Subsidiary or any
\nother Lender, or (v) any other circumstance, happening or event whatsoever,
\nwhether or not similar to any of the foregoing.<\/p>\n
2.20 Quarterly Swing Line Loans Clean-Down. The Borrower shall
\npay all outstanding Swing Line Loans on the last Business Day of each calendar
\nquarter.<\/p>\n
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT<\/p>\n
3.1 Optional Prepayments. The Borrower may, at any time and
\nfrom time to time, prepay the Revolving Credit Loans, in whole or in part,
\nwithout premium or penalty (except, with respect to Eurodollar Loans that are
\nprepaid on a date other than the last day of the Interest Period with respect
\nthereto, as provided under subsection 3.11), upon (in the case of prepayments of
\nEurodollar Loans) at least two Business Days’ irrevocable notice to the
\nAdministrative Agent and upon (in the case of prepayments of ABR Loans)
\nirrevocable notice to the Administrative Agent prior to 11:00 A.M., New York
\nCity time, on the date of such prepayment, specifying the date and amount of
\nprepayment and whether the prepayment is of Eurodollar Loans, ABR Loans or a
\ncombination thereof, and, if of a combination thereof, the amount allocable to
\neach. Upon receipt of any such notice the Administrative Agent shall promptly
\nnotify each affected Lender thereof. If any such notice is given, the amount
\nspecified in such notice shall be due and payable on the date specified therein,
\ntogether with any amounts payable pursuant to subsection 3.11 in connection
\ntherewith. Partial prepayments under this section 3.1 shall be in an aggregate
\nprincipal amount of $10,000,000 or a whole multiple of $1,000,000 in excess
\nthereof.<\/p>\n
3.2 Conversion and Continuation Options. (a) The Borrower may,
\nsubject to paragraph (b) below, elect from time to time to convert Eurodollar
\nLoans to ABR Loans by giving the Administrative Agent irrevocable notice of such
\nelection prior to 12:00 Noon on the date of conversion, provided that any such
\nconversion of Eurodollar Loans may only be made on the last day of an Interest
\nPeriod with respect thereto. The Borrower may elect from time to time to convert
\nABR Loans to Eurodollar Loans by giving the Administrative Agent at least three
\nBusiness Days’ prior irrevocable notice of such election. Any such notice of
\nconversion to Eurodollar Loans shall specify the length of the initial Interest
\nPeriod or Interest Periods therefor. Upon receipt of any such notice the
\nAdministrative Agent shall promptly notify each affected Lender thereof. All or
\nany part of outstanding Eurodollar Loans and ABR Loans may be converted as
\nprovided herein, provided that (i) no ABR Loan may be converted into a
\nEurodollar Loan when any Event of Default has occurred and is continuing and the
\nAdministrative Agent has notified the Borrower that it has determined that such
\na conversion is not appropriate and (ii) no ABR Loan may be converted into a
\nEurodollar Loan after the date that is one month prior to the Revolving Credit
\nTermination Date.<\/p>\n
(b) Any Eurodollar Loans may be continued as such upon the
\nexpiration of the then current Interest Period with respect thereto by the
\nBorrower giving notice to the Administrative Agent, in accordance with the
\napplicable provisions of the term “Interest Period” set forth in subsection 1.1,
\nof the length of the next Interest Period to be applicable to such Eurodollar
\nLoans, provided that no Eurodollar Loan may be continued as such (i) when any
\nEvent of Default has occurred and is continuing and the Administrative Agent has
\nnotified the Borrower that it has determined that such a continuation is not
\nappropriate or (ii) after the date that is one month prior to the Revolving
\nCredit Termination Date, and <\/p>\n
37<\/p>\n
32<\/p>\n
provided, further, that if the Borrower shall fail to give such notice or if
\nsuch continuation is not permitted such Eurodollar Loans shall be automatically
\nconverted to ABR Loans on the last day of such then expiring Interest Period.
\nUpon receipt of any notice pursuant to this subsection 3.2(b), the
\nAdministrative Agent shall notify each affected Lender thereof.<\/p>\n
3.3 Minimum Amounts and Maximum Number of Tranches. All
\nborrowings, conversions and continuations of Revolving Credit Loans hereunder
\nand all selections of Interest Periods hereunder shall be in such amounts and be
\nmade pursuant to such elections so that, after giving effect thereto, the
\naggregate principal amount of Eurodollar Loans comprising each Tranche shall be
\nequal to $10,000,000 or a whole multiple of $1,000,000 in excess thereof. In no
\nevent shall there be more than 30 Tranches outstanding at any time.<\/p>\n
3.4 Interest Rates and Payment Dates. (a) Each Eurodollar Loan
\nshall bear interest for each day during each Interest Period with respect
\nthereto at a rate per annum equal to the Eurodollar Rate determined for such day
\nplus the Applicable Margin.<\/p>\n
(b) Each ABR Loan shall bear interest at a rate per annum
\nequal to the ABR plus the Applicable Margin.<\/p>\n
(c) Each Swing Line Loan shall bear interest at a rate per
\nannum equal to the Swing Line Rate.<\/p>\n
(d) If all or a portion of (i) any principal of or interest
\npayable on any Loan, (ii) any commitment fee or (iii) any other amount payable
\nhereunder shall not be paid when due (whether at the stated maturity, by
\nacceleration or otherwise), any such overdue principal, interest, commitment fee
\nor other amount shall bear interest at a rate per annum which is the rate
\ndescribed in paragraph (b) of this subsection (or, in the case of overdue
\nprincipal, the rate otherwise applicable thereto) plus 2%, in each case from the
\ndate of such non-payment until such overdue interest, commitment fee or other
\namount is paid in full (as well after as before judgment).<\/p>\n
(e) Interest shall be payable in arrears on each Interest
\nPayment Date, provided that (i) interest accruing pursuant to subsection 3.4(d)
\nshall be payable from time to time on demand, and (ii) interest on the Revolving
\nCredit Loans shall also be due and payable on the Revolving Credit Termination
\nDate (or such earlier date on which the Revolving Credit Loans become due and
\npayable pursuant to Section 8).<\/p>\n
3.5 Computation of Interest and Fees. (a) Whenever it is
\ncalculated on the basis of the Prime Rate, interest shall be calculated on the
\nbasis of a 365- (or 366-, as the case may be) day year for the actual days
\nelapsed; and, otherwise, interest, commitment fees and fees and commissions in
\nrespect of Letters of Credit shall be calculated on the basis of a 360-day year
\nfor the actual days elapsed. The Administrative Agent shall as soon as
\npracticable notify the Borrower and the affected Lenders of each determination
\nof a Eurodollar Rate. Any change in the interest rate on a Revolving Credit Loan
\nresulting from a change in the ABR or the Eurocurrency Reserve Requirements
\nshall become effective as of the opening of business on the day on which such
\nchange becomes effective. The Administrative Agent shall as soon as practicable
\nnotify the Borrower and the affected Lenders of the effective date and the
\namount of each such change in interest rate.<\/p>\n
(b) Each determination of an interest rate by the
\nAdministrative Agent pursuant to any provision of this Agreement shall be
\nconclusive and binding on the Borrower and the affected Lenders in the absence
\nof manifest error.<\/p>\n
38<\/p>\n
33<\/p>\n
(c) If any Reference Lender shall for any reason no longer
\nhave a Revolving Credit Commitment or any Loans, such Reference Lender shall
\nthereupon cease to be a Reference Lender, and if, as a result, there shall only
\nbe one Reference Lender remaining, the Administrative Agent (after consultation
\nwith the Lenders and with the consent of the Borrower (which shall not be
\nunreasonably withheld)) shall, by notice to the Borrower and the Lenders,
\ndesignate another Lender that is a commercial bank as a Reference Lender so that
\nthere shall at all times be at least two Reference Lenders.<\/p>\n
(d) Each Reference Lender shall use its best efforts to
\nfurnish quotations of rates to the Administrative Agent as contemplated hereby.
\nIf any of the Reference Lenders shall be unable or shall otherwise fail to
\nsupply such rates to the Administrative Agent upon its request, the rate of
\ninterest shall, subject to the provisions of this subsection 3.5, be determined
\non the basis of the quotations of the remaining Reference Lenders or Reference
\nLender.<\/p>\n
3.6 Inability to Determine Interest Rate. If prior to the
\nfirst day of any Interest Period:<\/p>\n
(a) the Administrative Agent shall have determined (which
\n determination shall be conclusive and binding upon the Borrower) that,
\n by reason of circumstances affecting the relevant market, adequate and
\n reasonable means do not exist for ascertaining the Eurodollar Rate for
\n such Interest Period, or<\/p>\n
(b) the Administrative Agent shall have received notice from
\n the Majority Lenders that the Eurodollar Rate determined or to be
\n determined for such Interest Period will not adequately and fairly
\n reflect the cost to the Majority Lenders (as conclusively certified by
\n such Lenders) of making or maintaining their affected Revolving Credit
\n Loans during such Interest Period,<\/p>\n
the Administrative Agent shall give facsimile or telephonic notice thereof to
\nthe Borrower and the affected Lenders as soon as practicable thereafter. If such
\nnotice is given (x) any Eurodollar Loans requested to be made on the first day
\nof such Interest Period shall be made as ABR Loans, (y) any ABR Loans that were
\nto have been converted on the first day of such Interest Period to Eurodollar
\nLoans shall be continued as ABR Loans and (z) any outstanding Eurodollar Loans
\nwhich the Borrower has requested to continue as such pursuant to subsection
\n3.2(b) shall be converted, on the first day of such Interest Period, to ABR
\nLoans. Until such notice has been withdrawn by the Administrative Agent, no
\nfurther Eurodollar Loans shall be made or continued as such, nor shall the
\nBorrower have the right to convert ABR Loans to Eurodollar Loans.<\/p>\n
3.7 Pro Rata Treatment and Payments. (a) Except as otherwise
\nprovided in subsections 2.14 through 2.19, all payments (including prepayments)
\nto be made by the Borrower hereunder, whether on account of principal, interest,
\nfees or otherwise, shall be made without set off or counterclaim and shall be
\nmade prior to 12:00 Noon, New York City time, on the due date thereof to the
\nAdministrative Agent, for the account of the Lenders at the Administrative
\nAgent’s office specified in or pursuant to subsection 10.2 (except as otherwise
\nprovided herein) in Dollars and in immediately available funds. The
\nAdministrative Agent shall distribute such payments to the Lenders entitled to
\nreceive the same promptly upon receipt in like funds as received. If any payment
\nhereunder (other than payments on Eurodollar Loans or LIBO Rate CAF Advances)
\nbecomes due and payable on a day other than a Business Day, such payment shall
\nbe extended to the next succeeding Business Day, and, with respect to payments
\nof principal, interest thereon shall be payable at the then applicable rate
\nduring such extension. If any payment on a Eurodollar Loan or a LIBO Rate CAF
\nAdvance becomes due and payable on a day other than a Business Day, the maturity
\nthereof shall be extended to the next succeeding Business Day (and, with respect
\nto payments of principal, interest thereon shall be payable at the then
\napplicable rate during <\/p>\n
39<\/p>\n
34<\/p>\n
such extension) unless the result of such extension would be to extend such
\npayment into another calendar month, in which event such payment shall be made
\non the immediately preceding Business Day.<\/p>\n
(b) Unless the Administrative Agent shall have been notified
\nin writing by any Lender prior to a borrowing that such Lender will not make the
\namount that would constitute its portion of such borrowing available to the
\nAdministrative Agent, the Administrative Agent may assume that such Lender is
\nmaking such amount available to the Administrative Agent, and the Administrative
\nAgent may, in reliance upon such assumption, make available to the Borrower a
\ncorresponding amount. If such amount is not made available to the Administrative
\nAgent by the required time on the Borrowing Date therefor, such Lender shall pay
\nto the Administrative Agent, on demand, such amount with interest thereon at a
\nrate equal to the daily average Federal Funds Effective Rate for the period
\nuntil such Lender makes such amount immediately available to the Administrative
\nAgent. A certificate of the Administrative Agent submitted to any Lender with
\nrespect to any amounts owing under this subsection shall be conclusive in the
\nabsence of manifest error. If such Lender’s portion of such borrowing is not
\nmade available to the Administrative Agent by such Lender within three Business
\nDays of such Borrowing Date, the Administrative Agent shall also be entitled to
\nrecover such amount with interest thereon at the rate per annum applicable to
\nABR Loans hereunder, on demand, from the Borrower.<\/p>\n
(c) Each borrowing by the Borrower of Revolving Credit Loans
\nshall be made ratably from the Lenders in accordance with their respective
\nRevolving Credit Commitment Percentages. Any reduction of the Revolving Credit
\nCommitments shall be made ratably among the Lenders, in accordance with their
\nrespective Revolving Credit Commitment Percentages. Each payment (including each
\nprepayment) by the Borrower on account of principal of and interest on the
\nRevolving Credit Loans shall be made pro rata according to the respective
\noutstanding principal amounts of the Revolving Credit Loans then held by the
\nLenders.<\/p>\n
3.8 Illegality. Notwithstanding any other provision herein, if
\nthe adoption of or any change in any Requirement of Law or in the interpretation
\nor application thereof shall make it unlawful for any Lender to make or maintain
\nEurodollar Loans or LIBO Rate CAF Advances as contemplated by this Agreement,
\n(a) the commitment of such Lender hereunder to make Eurodollar Loans, continue
\nEurodollar Loans as such and convert ABR Loans to Eurodollar Loans shall
\nforthwith be suspended during the period of illegality, (b) such Lender’s Loans
\nthen outstanding as Eurodollar Loans, if any, shall be converted automatically
\nto ABR Loans on the respective last days of the then current Interest Periods
\nwith respect to such Loans or within such earlier period as required by law and
\n(c) the Borrower shall, with respect to any LIBO Rate CAF Advance of such
\nLender, take such action as such Lender may reasonably request. If any such
\nconversion of a Eurodollar Loan occurs on a day which is not the last day of the
\nthen current Interest Period with respect thereto, the Borrower shall pay to
\nsuch Lender such amounts, if any, as may be required pursuant to subsection
\n3.11.<\/p>\n
3.9 Requirements of Law. (a) If the adoption of or any change
\nin any Requirement of Law or in the interpretation or application thereof or
\ncompliance by any Lender with any request or directive (whether or not having
\nthe force of law) from any central bank or other Governmental Authority made
\nsubsequent to the date hereof (or, in the case of LIBO Rate CAF Advances, made
\nsubsequent to acceptance by the Borrower of the CAF Advance Offer relating to
\nsuch LIBO Rate CAF Advance):<\/p>\n
(i) shall subject any Lender to any tax of any kind
\n whatsoever with respect to this Agreement, any Note, any Eurodollar
\n Loan, any Swing Line Loan or any LIBO Rate CAF Advance made by it, any
\n Letter of Credit issued or participated in by it or any Application, or
\n change the basis of taxation of payments to such Lender in respect
\n thereof (except for Non-<\/p>\n
40<\/p>\n
35<\/p>\n
Excluded Taxes covered by subsection 3.10 and changes in the rate of
\n tax on the overall net income of such Lender);<\/p>\n
(ii) shall impose, modify or hold applicable any reserve,
\n special deposit, compulsory loan or similar requirement against assets
\n held by, deposits or other liabilities in or for the account of,
\n advances, loans or other extensions of credit by, or any other
\n acquisition of funds by, any office of such Lender which is not
\n otherwise included in the determination of the Eurodollar Rate or the
\n Swing Line Rate hereunder; or<\/p>\n
(iii) shall impose on such Lender any other condition;<\/p>\n
and the result of any of the foregoing is to increase the cost to such Lender,
\nby an amount which such Lender deems to be material, of making, converting into,
\ncontinuing or maintaining Eurodollar Loans, Swing Line Loans or LIBO Rate CAF
\nAdvances or issuing or participating in Letters of Credit or to reduce any
\namount receivable hereunder in respect thereof, then, in any such case, within
\n15 days after demand therefor (accompanied by the certificate contemplated by
\nsubsection 3.9(c) with respect thereto) the Borrower shall pay such Lender such
\nadditional amount or amounts as will compensate such Lender for such increased
\ncost or reduced amount receivable.<\/p>\n
(b) If any Lender shall have determined that the adoption of
\nor any change in any Requirement of Law regarding capital adequacy or in the
\ninterpretation or application thereof or compliance by such Lender or any
\ncorporation controlling such Lender with any request or directive regarding
\ncapital adequacy (whether or not having the force of law) from any Governmental
\nAuthority made subsequent to the date hereof shall have the effect of reducing
\nthe rate of return on such Lender’s or such corporation’s capital as a
\nconsequence of its obligations hereunder or under or in respect of any Letter of
\nCredit to a level below that which such Lender or such corporation could have
\nachieved but for such adoption, change or compliance (taking into consideration
\nsuch Lender’s or such corporation’s policies with respect to capital adequacy)
\nby an amount deemed by such Lender to be material, then from time to time,
\nwithin 15 days after demand therefor (accompanied by the certificate
\ncontemplated by subsection 3.9(c) with respect thereto), the Borrower shall pay
\nto such Lender such additional amount or amounts as will compensate such Lender
\nfor such reduction.<\/p>\n
(c) If any Lender becomes entitled to claim any additional
\namounts pursuant to this subsection 3.9, it shall promptly notify the Borrower
\n(with a copy to the Administrative Agent) of the event by reason of which it has
\nbecome so entitled. A certificate as to any additional amounts payable pursuant
\nto this subsection 3.9 submitted by such Lender to the Borrower (with a copy to
\nthe Administrative Agent) setting forth in reasonable detail the calculation of
\nsuch amounts and the basis therefor shall be conclusive in the absence of
\nmanifest error. The agreements in this subsection shall survive the termination
\nof this Agreement and the payment of the Loans and all other amounts payable
\nhereunder.<\/p>\n
3.10 Indemnification for Taxes. (a) All payments made by the
\nBorrower under this Agreement and any Notes shall be made free and clear of, and
\nwithout deduction or withholding for or on account of, any present or future
\nincome, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
\nor withholdings, now or hereafter imposed, levied, collected, withheld or
\nassessed by any Governmental Authority, excluding net income taxes and franchise
\nand excise taxes (imposed in lieu of net income taxes) imposed on the
\nAdministrative Agent or any Lender as a result of a present or former connection
\nbetween the Administrative Agent or such Lender and the jurisdiction of the
\nGovernmental Authority imposing such tax or any political subdivision or taxing
\nauthority thereof or therein (other than any such connection arising solely from
\nthe Administrative Agent or such Lender having executed,<\/p>\n
41<\/p>\n
36<\/p>\n
delivered or performed its obligations or received a payment under, or enforced,
\nthis Agreement or any Note). If any such non-excluded taxes, levies, imposts,
\nduties, charges, fees deductions or withholdings (“Non-Excluded Taxes”) are
\nrequired to be withheld from any amounts payable to the Administrative Agent or
\nany Lender hereunder or under any Note, the amounts so payable to the
\nAdministrative Agent or such Lender shall be increased to the extent necessary
\nto yield to the Administrative Agent or such Lender (after payment of all
\nNon-Excluded Taxes) interest or any such other amounts payable hereunder at the
\nrates or in the amounts specified in this Agreement, provided, however, that the
\nBorrower shall not be required to increase any such amounts payable to any
\nLender that is not organized under the laws of the United States of America or a
\nstate thereof if such Lender fails to comply with the requirements of paragraph
\n(b) of this subsection 3.10. Whenever any Non-Excluded Taxes are payable by the
\nBorrower, as promptly as possible thereafter the Borrower shall send to the
\nAdministrative Agent for its own account or for the account of such Lender, as
\nthe case may be, a certified copy of an original official receipt received by
\nthe Borrower showing payment thereof. If the Borrower fails to pay any
\nNon-Excluded Taxes when due to the appropriate taxing authority or fails to
\nremit to the Administrative Agent the required receipts or other required
\ndocumentary evidence, the Borrower shall indemnify the Administrative Agent and
\nthe Lenders for any incremental taxes, interest or penalties that may become
\npayable by the Administrative Agent or any Lender as a result of any such
\nfailure. The agreements in this subsection shall survive the termination of this
\nAgreement and the payment of the Loans and all other amounts payable hereunder.<\/p>\n
(b) Each Lender that is not incorporated under the laws of the
\nUnited States of America or a state thereof shall:<\/p>\n
(i) in the case of a Lender or a Transferee that is a
\n “bank” under Section 881(c)(3)(A) of the Code:<\/p>\n
(A) on or before the date it becomes a party to this
\n Agreement (or, in the case of a Participant, on or before the
\n date such Participant becomes a Participant hereunder),
\n deliver to the Borrower and the Administrative Agent (I) two
\n duly completed copies of United States Internal Revenue
\n Service Form 1001 or 4224, or successor applicable form, as
\n the case may be, and (II) an Internal Revenue Service Form W-8
\n or W-9, or successor applicable form, as the case may be;<\/p>\n
(B) deliver to the Borrower and the Administrative
\n Agent two further copies of any such form or certification on
\n or before the date that any such form or certification expires
\n or becomes obsolete and after the occurrence of any event
\n requiring a change in the most recent form previously
\n delivered by it to the Borrower; and<\/p>\n
(C) obtain such extensions of time for filing and
\n complete such forms or certifications as may reasonably be
\n requested by the Borrower or the Administrative Agent; and<\/p>\n
(ii) in the case of a Lender or a Transferee that is not a
\n “bank” under Section 881(c)(3)(A) of the Code:<\/p>\n
(A) on or before the date it becomes a party to this
\n Agreement (or, in the case of a Participant, on or before the
\n date such Participant becomes a Participant hereunder),
\n deliver to the Borrower and the Administrative Agent (I) a
\n statement under penalties of perjury that such Lender or
\n Transferee (x) is not a “bank” under Section 881(c)(3)(A) of
\n the Code, is not subject to regulatory or other legal
\n requirements as a bank in any <\/p>\n
42<\/p>\n
37<\/p>\n
jurisdiction, and has not been treated as a bank for purposes
\n of any tax, securities law or other filing or submission made
\n to any Governmental Authority, any application made to a
\n rating agency or qualification for any exemption from tax,
\n securities law or other legal requirements, (y) is not a
\n 10-percent shareholder within the meaning of Section
\n 881(c)(3)(B) of the Code and (z) is not a controlled foreign
\n corporation receiving interest from a related person within
\n the meaning of Section 881(c)(3)(C) of the Code and (II) a
\n properly completed and duly executed Internal Revenue Service
\n Form W-8 or applicable successor form;<\/p>\n
(B) deliver to the Borrower and the Administrative
\n Agent two further properly completed and duly executed copies
\n of such Form W-8, or any successor applicable form, on or
\n before the date that any such Form W-8 expires or becomes
\n obsolete or after the occurrence of any event requiring a
\n change in the most recent form previously delivered by it to
\n the Borrower or upon the request of the Borrower; and<\/p>\n
(C) obtain such extensions of time for filing and
\n completing such forms or certifications as may be reasonably
\n requested by the Borrower or the Administrative Agent;<\/p>\n
unless in any such case an event (including, without limitation, any change in
\ntreaty, law or regulation) has occurred prior to the date on which any such
\ndelivery would otherwise be required which renders all such forms inapplicable
\nor which would prevent such Lender from duly completing and delivering any such
\nform with respect to it and such Lender so advises the Borrower and the
\nAdministrative Agent. Each Lender that is not incorporated under the laws of the
\nUnited States of America or a state thereof shall certify (i) in the case of a
\nForm 1001 or 4224, that it is entitled to receive payments under this Agreement
\nwithout deduction or withholding of any United States federal income taxes and
\n(ii) in the case of a Form W-8 or W-9 provided pursuant to subsection
\n4.10(b)(i)(A)(II), that it is entitled to an exemption from United States backup
\nwithholding tax. Each Person that shall become a Lender or a Participant
\npursuant to subsection 10.6 shall, upon the effectiveness of the related
\ntransfer, be required to provide all of the forms and statements required
\npursuant to this subsection, provided that in the case of a Participant such
\nParticipant shall furnish all such required forms and statements to the Lender
\nfrom which the related participation shall have been purchased.<\/p>\n
3.11 Indemnity. The Borrower agrees to indemnify each Lender
\nand to hold each Lender harmless from any loss or reasonable expense which such
\nLender may sustain or incur as a consequence of (a) default by the Borrower in
\nmaking a borrowing of, conversion into or continuation of Eurodollar Loans,
\nSwing Line Loans or CAF Advances after the Borrower has given a notice
\nrequesting the same in accordance with the provisions of this Agreement, (b)
\ndefault by the Borrower in making any prepayment of a Eurodollar Loan, Swing
\nLine Loan or CAF Advance after the Borrower has given a notice thereof in
\naccordance with the provisions of this Agreement or (c) the making of a
\nprepayment or conversion of Eurodollar Loans, Swing Line Loans or CAF Advances
\non a day which is not the last day of an Interest Period, the date such Swing
\nLine Loans are due (which, in the case of any Swing Line Loan, shall be the
\nfifth Business Day following the Borrowing Date with respect thereto) or the
\napplicable CAF Advance Maturity Date, as the case may be, with respect thereto,
\nwhich loss shall be equal to, in the case of Eurodollar Loans or CAF Advances,
\nthe excess, if any, of (i) the amount of interest which would have accrued on
\nthe amount so prepaid or converted, or not so borrowed, converted or continued,
\nfor the period from the date of such prepayment or conversion or of such failure
\nto borrow, convert or continue to the last day of such Interest Period (or
\nproposed Interest Period) or, in the case of CAF Advances, the CAF Advance
\nMaturity Date (or proposed CAF Advance Maturity Date), respectively, in each
\ncase at the applicable rate of interest for such Eurodollar Loans or CAF
\nAdvances <\/p>\n
43<\/p>\n
38<\/p>\n
provided for herein (excluding, however, the Applicable Margin or any
\npositive margin applicable to CAF Advances included therein, if any) over (ii)
\nthe amount of interest (as reasonably determined by such Lender) which would
\nhave accrued to such Lender on such amount by placing such amount on deposit for
\na comparable period with leading banks in the interbank eurodollar market. A
\ncertificate as to any amounts payable pursuant to this subsection 3.11 submitted
\nby any Lender to the Borrower (with a copy to the Administrative Agent) shall be
\nconclusive in the absence of manifest error. This covenant shall survive the
\ntermination of this Agreement and the payment of the Loans and all other amounts
\npayable hereunder.<\/p>\n
3.12 Change of Lending Office. Each Lender agrees that if it
\nmakes any demand for payment under subsection 3.9 or 3.10(a), or if any adoption
\nor change of the type described in subsection 3.8 shall occur with respect to
\nit, it will use reasonable efforts (consistent with its internal policy and
\nlegal and regulatory restrictions and so long as such efforts would not be
\ndisadvantageous to it, as determined in its sole discretion) to designate a
\ndifferent lending office if the making of such a designation would reduce or
\nobviate the need for the Borrower to make payments under subsection 3.9 or
\n3.10(a), or would eliminate or reduce the effect of any adoption or change
\ndescribed in subsection 3.8.<\/p>\n
3.13 Evidence of Debt. (a) Each Lender shall maintain in
\naccordance with its usual practice an account or accounts evidencing
\nindebtedness of the Borrower to such Lender resulting from the Loans of such
\nLender, including the amounts of principal and interest payable and paid to such
\nLender from time to time under this Agreement.<\/p>\n
(b) The Administrative Agent shall maintain the Register
\npursuant to subsection 10.6(d), and a subaccount therein for each Lender, in
\nwhich shall be recorded (i) in the case of Committed Loans, the amount of each
\nCommitted Loan made hereunder, the Type thereof and each Interest Period (if
\nany) applicable thereto, (ii) in the case of CAF Advances, the amount of each
\nCAF Advance made hereunder, the CAF Advance Maturity Date thereof, the interest
\nrate applicable thereto and each CAF Advance Interest Payment Date applicable
\nthereto, (iii) the amount of any principal or interest due and payable or to
\nbecome due and payable from the Borrower to each Lender hereunder and (iv) both
\nthe amount of any sum received by the Administrative Agent hereunder from the
\nBorrower and each Lender’s share thereof.<\/p>\n
(c) The entries made in the Register and the accounts of each
\nLender maintained pursuant to subsection 3.13(a) shall, to the extent permitted
\nby applicable law, be prima facie evidence of the existence and amounts of the
\nobligations of the Borrower therein recorded; provided, however, that the
\nfailure of any Lender or the Administrative Agent to maintain the Register or
\nany such account, or any error therein, shall not in any manner affect the
\nobligation of the Borrower to repay (with applicable interest) the Loans in
\naccordance with the terms of this Agreement.<\/p>\n
(d) The Borrower agrees that, upon the request to the
\nAdministrative Agent by any Lender, the Borrower will execute and deliver to
\nsuch Lender a promissory note of the Borrower evidencing the Revolving Credit
\nLoans of such Lender, substantially in the form of Exhibit F (a “Revolving
\nCredit Note”), payable to the order of such Lender and in a principal amount
\nequal to the Revolving Credit Commitment of such Lender on the date of issuance
\nof such Revolving Credit Note. Each Lender is hereby authorized to record the
\ndate, Type and amount of each Revolving Credit Loan of such Lender, the date and
\namount of each payment or prepayment of principal thereof, each continuation of
\nall or a portion thereof as the same Type, each conversion of all or a portion
\nthereof to another Type and, in the case of Eurodollar Loans, the length of each
\nInterest Period and Eurodollar Rate with respect thereto, on the schedule (or
\nany continuation of the schedule) annexed to and constituting a part of its
\nRevolving Credit Note, as the case may be, and any such recordation shall, to
\nthe extent permitted by applicable law, constitute prima facie evidence of the
\naccuracy of the information so recorded, provided<\/p>\n
44<\/p>\n
39<\/p>\n
that the failure to make any such recordation (or any error therein) shall not
\naffect the obligation of the Borrower to repay (with applicable interest) the
\nRevolving Credit Loans in accordance with the terms of this Agreement.<\/p>\n
(e) The Borrower agrees that, upon the request to the
\nAdministrative Agent by the Swing Line Lender, the Borrower will execute and
\ndeliver to the Swing Line Lender a promissory note of the Borrower evidencing
\nthe Swing Line Loans of the Swing Line Lender, in a form reasonably satisfactory
\nto the Borrower and the Swing Line Lender (a “Swing Line Note”), payable to the
\norder of the Swing Line Lender and in a principal amount equal to the Swing Line
\nCommitment. The Swing Line Lender is hereby authorized to record the date and
\namount of each Swing Line Loan and the date and amount of each payment or
\nprepayment of principal thereof on the schedule (or any continuation of the
\nschedule) annexed to and constituting a part of its Swing Line Note, as the case
\nmay be, and any such recordation shall, to the extent permitted by applicable
\nlaw, constitute prima facie evidence of the accuracy of the information so
\nrecorded, provided that the failure to make any such recordation (or any error
\ntherein) shall not affect the obligation of the Borrower to repay (with
\napplicable interest) the Swing Line Loans in accordance with the terms of this
\nAgreement.<\/p>\n
(f) The Borrower agrees that, upon the request to the
\nAdministrative Agent by any Lender, the Borrower will execute and deliver to
\nsuch Lender a promissory note of the Borrower evidencing the CAF Advances of
\nsuch Lender, substantially in the form of Exhibit G (a “CAF Advance Note”),
\npayable to the order of such Lender and representing the obligation of the
\nBorrower to pay the lesser of (a) the aggregate amount of the Revolving Credit
\nCommitments and (b) the unpaid principal amount of all CAF Advances made by such
\nLender, with interest on the unpaid principal amount from time to time
\noutstanding of each CAF Advance evidenced thereby as prescribed in subsection
\n2.16(b). Each Lender is hereby authorized to record the date and amount of each
\nCAF Advance made by such Lender, the CAF Advance Maturity Date thereof, the date
\nand amount of each payment of principal thereof and the interest rate with
\nrespect thereto on the schedule (or any continuation of the schedule) annexed to
\nand constituting a part of its CAF Advance Note and any such recordation shall,
\nto the extent permitted by applicable law, constitute prima facie evidence of
\nthe accuracy of the information so recorded, provided that the failure to make
\nany such recordation (or any error therein) shall not affect the obligation of
\nthe Borrower to repay (with applicable interest) the CAF Advances in accordance
\nwith the terms of this Agreement. Each CAF Advance Note shall be dated the
\nEffective Date, and each CAF Advance evidenced thereby shall bear interest for
\nthe period from and including the Borrowing Date of such CAF Advance on the
\nunpaid principal amount thereof from time to time outstanding at the applicable
\nrate per annum determined as provided in, and such interest shall be payable as
\nspecified in, subsection 2.16(b).<\/p>\n
SECTION 4. REPRESENTATIONS AND WARRANTIES<\/p>\n
To induce the Administrative Agent and the Lenders to enter
\ninto this Agreement and to make the Extensions of Credit, the Borrower hereby
\nrepresents and warrants to the Administrative Agent and each Lender that:<\/p>\n
4.1 Financial Condition. The consolidated balance sheet of the
\nBorrower and its Consolidated Subsidiaries as at January 27, 1999 and the
\nrelated consolidated statements of income and of cash flows for the Fiscal Year
\nended on such date, reported on by PriceWaterhouseCoopers LLP, copies of which
\nhave heretofore been furnished to each Lender, are complete and correct in all
\nmaterial respects and present fairly the consolidated financial condition of the
\nBorrower and its Consolidated Subsidiaries as at such date, and the consolidated
\nresults of their operations and their consolidated cash <\/p>\n
45<\/p>\n
40<\/p>\n
flows for the Fiscal Year then ended. All such financial statements, including
\nthe related schedules and notes thereto, have been prepared in accordance with
\nGAAP applied consistently throughout the periods involved (except as approved by
\nsuch accountants or Responsible Officer, as the case may be, and as disclosed
\ntherein). Except as set forth on Schedule 4.1 or as disclosed in the most recent
\nForm 10-K or subsequent Form 10-Q filed by the Borrower with the SEC prior to
\nthe date hereof, neither the Borrower nor any of its Consolidated Subsidiaries
\nhad, at the date of the most recent balance sheet referred to above, any
\nmaterial Guarantee Obligation, material contingent liability or liability for
\ntaxes, or any material long-term lease or unusual forward or long-term
\ncommitment, including, without limitation, any interest rate or foreign currency
\nswap or exchange transaction, which is not reflected in the foregoing statements
\nor in the notes thereto. Except as set forth on Schedule 4.1 or as disclosed in
\nthe most recent Form 10-K or subsequent Form 10-Q filed by the Borrower with the
\nSEC prior to the date hereof, during the period from January 27, 1999 to and
\nincluding the date hereof there has been no sale, transfer or other disposition
\nby the Borrower or any of its Consolidated Subsidiaries of any material part of
\nits business or property and no purchase or other acquisition of any business or
\nproperty (including any capital stock of any other Person) material in relation
\nto the consolidated financial condition of the Borrower and its Consolidated
\nSubsidiaries at January 27, 1999.<\/p>\n
4.2 No Change. Since January 27, 1999, there has been no
\ndevelopment or event which has had or could reasonably be expected to have a
\nMaterial Adverse Effect.<\/p>\n
4.3 Corporate Existence; Compliance with Law. Each of the
\nBorrower and its Restricted Subsidiaries (a) is duly organized, validly existing
\nand in good standing under the laws of the jurisdiction of its organization, (b)
\nhas the corporate power and authority, and the legal right, to own and operate
\nits property, to lease the property it operates as lessee and to conduct the
\nbusiness in which it is currently engaged, (c) is duly qualified as a foreign
\ncorporation and in good standing under the laws of each jurisdiction where its
\nownership, lease or operation of property or the conduct of its business
\nrequires such qualification and (d) is in compliance with all Requirements of
\nLaw except, in each case, where the failure to be so organized, existing, in
\ngood standing or qualified, or the failure to have such power or authority or to
\nso comply, could not, individually or in the aggregate, reasonably be expected
\nto have a Material Adverse Effect.<\/p>\n
4.4 Corporate Power; Authorization; Enforceable Obligations.
\nEach of the Borrower and its Restricted Subsidiaries has the corporate power and
\nauthority, and the legal right, to make, deliver and perform the Loan Documents
\nto which it is a party and (in the case of the Borrower) to borrow and obtain
\nthe other Extensions of Credit hereunder and has taken all necessary corporate
\naction to authorize the Extensions of Credit on the terms and conditions of this
\nAgreement and any Notes and to authorize the execution, delivery and performance
\nof the Loan Documents to which it is a party. No consent or authorization of,
\nfiling with, notice to, or other act by or in respect of, any Governmental
\nAuthority or any other Person is required in connection with the Extensions of
\nCredit hereunder or with the execution, delivery, performance, validity or
\nenforceability of the Loan Documents to which the Borrower or any of its
\nRestricted Subsidiaries is a party except those described on Schedule 4.4, all
\nof which have been obtained, made or waived. This Agreement has been, and each
\nother Loan Document will be, duly executed and delivered on behalf of the
\nBorrower and each of its Restricted Subsidiaries that is a party thereto. This
\nAgreement constitutes, and each other Loan Document when executed and delivered
\nwill constitute, a legal, valid and binding obligation of the Borrower and each
\nof its Restricted Subsidiaries that is a party thereto enforceable against the
\nBorrower and each such Restricted Subsidiary in accordance with its terms,
\nsubject to the effects of bankruptcy, insolvency, fraudulent conveyance,
\nreorganization, moratorium and other similar laws relating to or affecting
\ncreditors’ rights generally, general equitable principles (whether considered in
\na proceeding in equity or at law) and an implied covenant of good faith and fair
\ndealing.<\/p>\n
46<\/p>\n
41<\/p>\n
4.5 No Legal Bar. The execution, delivery and performance of
\nthe Loan Documents to which the Borrower or any of its Restricted Subsidiaries
\nis a party, the Extensions of Credit hereunder and the use of the proceeds
\nthereof will not violate any Requirement of Law or Contractual Obligation of the
\nBorrower or of any of its Restricted Subsidiaries and will not result in, or
\nrequire, the creation or imposition of any Lien on any of its or their
\nrespective properties or revenues pursuant to any such Requirement of Law or
\nContractual Obligation (other than pursuant to the Loan Documents), except to
\nthe extent that any such violations (individually or in the aggregate) could not
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n
4.6 No Material Litigation. No litigation, investigation or
\nproceeding of or before any arbitrator or Governmental Authority is pending or,
\nto the knowledge of the Borrower, threatened by or against the Borrower or any
\nof its Restricted Subsidiaries or against any of its or their respective
\nproperties or revenues (a) with respect to any of the Loan Documents or any of
\nthe transactions contemplated hereby or thereby or (b) which could reasonably be
\nexpected to have a Material Adverse Effect.<\/p>\n
4.7 No Default. Neither the Borrower nor any of its Restricted
\nSubsidiaries is in default under or with respect to any of its Contractual
\nObligations in any respect which could reasonably be expected to have a Material
\nAdverse Effect. After giving effect to the initial Extensions of Credit and the
\napplication of the proceeds thereof, no Default or Event of Default has occurred
\nand is continuing.<\/p>\n
4.8 No Burdensome Restrictions. No Requirement of Law or
\nContractual Obligation of the Borrower or any of its Restricted Subsidiaries
\ncould reasonably be expected to have a Material Adverse Effect.<\/p>\n
4.9 Taxes. Each of the Borrower and its Restricted
\nSubsidiaries has filed or caused to be filed all tax returns which, to the
\nknowledge of the Borrower, are required to be filed and has paid all taxes shown
\nto be due and payable on said returns or on any assessments made against it or
\nany of its property and all other taxes, fees or other charges imposed on it or
\nany of its property by any Governmental Authority (other than any such taxes,
\nfees or other charges (i) the amount or validity of which are then being
\ncontested in good faith by appropriate proceedings and with respect to which
\nreserves in conformity with GAAP have been provided on the books of the Borrower
\nor its Subsidiaries, as the case may be, or (ii) which, if not paid, could
\nreasonably be expected to have a Material Adverse Effect); no tax Lien has been
\nfiled, and, to the knowledge of the Borrower, no claim is being asserted, with
\nrespect to any such tax, fee or other charge (other than with respect to any
\nsuch tax, fee or other charge the amount or validity of which is then being
\ncontested in good faith by appropriate proceedings and with respect to which
\nreserves in conformity with GAAP have been provided on the books of the Borrower
\nor its Subsidiaries, as the case may be) which could reasonably be expected to
\nhave a Material Adverse Effect.<\/p>\n
4.10 Federal Regulations. No part of the proceeds of any
\nExtension of Credit will be used for “purchasing” or “carrying” any “margin
\nstock” within the respective meanings of each of the quoted terms under
\nRegulation U of the Board of Governors as now and from time to time hereafter in
\neffect. If requested by any Lender or the Administrative Agent, the Borrower
\nwill furnish to the Administrative Agent and each Lender a statement to the
\nforegoing effect in conformity with the requirements of FR Form G-1 or FR Form
\nU-1 referred to in said Regulation U.<\/p>\n
4.11 ERISA. Neither a Reportable Event nor an “accumulated
\nfunding deficiency” (within the meaning of Section 412 of the Code or Section
\n302 of ERISA) which could reasonably be expected to have a Material Adverse
\nEffect has occurred during the five-year period prior to the date on <\/p>\n
47<\/p>\n
42<\/p>\n
which this representation is made or deemed made with respect to any Plan. Each
\nPlan has complied in all material respects with the applicable provisions of
\nERISA and the Code, except where the failure to so comply could not reasonably
\nbe expected to have a Material Adverse Effect. No termination of a Single
\nEmployer Plan has occurred, except where such a termination could not reasonably
\nbe expected to have a Material Adverse Effect, and no Lien in favor of the PBGC
\nor a Plan has arisen, during such five-year period. The present value of all
\naccrued benefits under each Single Employer Plan (based on those assumptions
\nused to fund such Plan) did not, as of the last annual valuation date prior to
\nthe date on which this representation is made or deemed made, exceed the value
\nof the assets of such Plan allocable to such accrued benefits, except to the
\nextent any such excess (individually or in the aggregate) could not reasonably
\nbe expected to have a Material Adverse Effect. Neither the Borrower nor any
\nCommonly Controlled Entity has had a complete or partial withdrawal from any
\nMultiemployer Plan, except where such withdrawal could not reasonably be
\nexpected to have a Material Adverse Effect, and neither the Borrower nor any
\nCommonly Controlled Entity would become subject to any liability under ERISA if
\nthe Borrower or any such Commonly Controlled Entity were to withdraw completely
\nfrom all Multiemployer Plans as of the valuation date most closely preceding the
\ndate on which this representation is made or deemed made, except where such
\nliability could not reasonably be expected to have a Material Adverse Effect. No
\nsuch Multiemployer Plan is in a Reorganization or Insolvency which could
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n
4.12 Investment Company Act; Other Regulations. The Borrower
\nis not an “investment company”, or a company “controlled” by an “investment
\ncompany”, within the meaning of the Investment Company Act of 1940, as amended.
\nTo the best knowledge of the Borrower, the Borrower is not subject to regulation
\nunder any federal or state statute or regulation (other than Regulation X of the
\nBoard of Governors) which limits its ability to incur Indebtedness.<\/p>\n
4.13 Subsidiaries. Schedule 4.13 sets forth all the
\nSubsidiaries of the Borrower at the date hereof.<\/p>\n
4.14 Environmental Matters. To the best knowledge of the
\nBorrower:<\/p>\n
(a) The facilities and properties owned or operated by the
\n Borrower or any of its Restricted Subsidiaries (the “Properties”) do
\n not contain, and have not previously contained, any Materials of
\n Environmental Concern in amounts or concentrations or under such
\n conditions which (i) constitute or constituted a violation of, or (ii)
\n could reasonably be expected to give rise to liability under, any
\n Environmental Law, except in either case insofar as such violation or
\n liability, or any aggregation thereof, could not reasonably be expected
\n to have a Material Adverse Effect.<\/p>\n
(b) The Properties and all operations at the Properties are in
\n compliance, and have within the periods covered by the applicable
\n statute of limitations been in compliance, in all material respects
\n with all applicable Environmental Laws, and there is no contamination
\n at, under or about the Properties or violation of any Environmental Law
\n with respect to the Properties or the business operated by the Borrower
\n or any of its Restricted Subsidiaries (the “Business”) which could
\n reasonably be expected to have a Material Adverse Effect.<\/p>\n
(c) Neither the Borrower nor any of its Subsidiaries has
\n received any notice of violation, alleged violation, non-compliance,
\n liability or potential liability regarding environmental matters or
\n compliance with Environmental Laws with regard to any of the Properties
\n or the Business, nor does the Borrower have knowledge or reason to
\n believe that any such notice will be received or is being threatened,
\n except insofar as such notice or threatened notice, or any aggregation<\/p>\n
48<\/p>\n
43<\/p>\n
thereof, does not involve a matter or matters that could reasonably be
\n expected to have a Material Adverse Effect.<\/p>\n
(d) Materials of Environmental Concern have not been
\n transported or disposed of from the Properties in violation of, or in a
\n manner or to a location which could reasonably be expected to give rise
\n to liability under, any Environmental Law, nor have any Materials of
\n Environmental Concern been generated, treated, stored or disposed of
\n at, on or under any of the Properties in violation of, or in a manner
\n that could reasonably be expected to give rise to liability under, any
\n applicable Environmental Law except insofar as any such violation or
\n liability referred to in this paragraph, or any aggregation thereof,
\n could not reasonably be expected to have a Material Adverse Effect.<\/p>\n
(e) No judicial proceeding or governmental or administrative
\n action is pending or threatened under any Environmental Law to which
\n the Borrower or any Restricted Subsidiary is or will be named as a
\n party with respect to the Properties or the Business, nor are there any
\n consent decrees or other decrees, consent orders, administrative orders
\n or other orders, or other administrative or judicial requirements
\n outstanding under any Environmental Law with respect to the Properties
\n or the Business except insofar as such proceeding, action, decree,
\n order or other requirement, or any aggregation thereof, could not
\n reasonably be expected to have a Material Adverse Effect.<\/p>\n
(f) There has been no release or threat of release of
\n Materials of Environmental Concern at or from the Properties, or
\n arising from or related to the operations of the Borrower or any
\n Restricted Subsidiary in connection with the Properties or otherwise in
\n connection with the Business, in violation of or in amounts or in a
\n manner that could reasonably give rise to liability under Environmental
\n Laws except insofar as any such violation or liability referred to in
\n this paragraph, or any aggregation thereof, could not reasonably be
\n expected to have a Material Adverse Effect.<\/p>\n
4.15 Ownership of Property; Liens. Each of the Borrower and
\neach Restricted Subsidiary has good title in fee simple to, or valid ground
\nleasehold interests in, their respective material real properties and has good
\ntitle in fee simple to their other owned real property that is material to the
\noperation of their respective businesses, subject to defects in title and
\nleasehold and other interests which would not have a Material Adverse Effect,
\nand none of such property is subject to any Lien other than Liens permitted
\nunder subsection 7.4.<\/p>\n
4.16 Intellectual Property. The Borrower and each of its
\nRestricted Subsidiaries owns, or is licensed to use, all trademarks, tradenames,
\ncopyrights, technology, know-how and processes necessary for the conduct of its
\nbusiness as currently conducted except for those the failure to own or license
\nwhich could not reasonably be expected to have a Material Adverse Effect (the
\n“Intellectual Property”). Except as set forth on Schedule 4.16, no claim has
\nbeen asserted and is pending by any Person challenging or questioning the use of
\nany such Intellectual Property or the validity or effectiveness of any such
\nIntellectual Property, which could reasonably be expected to have a Material
\nAdverse Effect, nor does the Borrower know of any valid basis for any such
\nclaim. Except as set forth on Schedule 4.16, the use of such Intellectual
\nProperty by the Borrower and its Restricted Subsidiaries does not infringe on
\nthe rights of any Person, except for such claims and infringements that, in the
\naggregate, could not reasonably be expected to have a Material Adverse Effect.<\/p>\n
4.17 Continuing Letters of Credit. Schedule 4.17 is a true and
\ncomplete list, by reference to the aggregate face amounts of letters of credit
\nissued by the Persons listed thereon that are <\/p>\n
49<\/p>\n
44<\/p>\n
also Lenders (but which are not designated as Issuing Banks pursuant to clause
\n(a) or the last sentence of the definition of Issuing Bank) of letters of credit
\nissued by such Persons outstanding as of the dates set forth in such Schedule.<\/p>\n
4.18 Solvency. As of the Effective Date and each date on which
\nan Extension of Credit is made hereunder, after giving effect to the
\ntransactions contemplated to occur on the Effective Date or on such other date,
\nthe Borrower is Solvent.<\/p>\n
4.19 Purpose of Loans. The proceeds of the Revolving Credit
\nLoans, Swing Line Loans and CAF Advances, if any, shall be used to refinance
\ncertain existing indebtedness of the Borrower and for general corporate
\npurposes.<\/p>\n
4.20 Accuracy of Information. All statements and other
\ninformation (other than statements and information constituting projections)
\ncontained in any written documents or other materials provided to the
\nAdministrative Agent and the Lenders by the Borrower, including all such
\nstatements and other information contained in the Preliminary Confidential
\nInformation Memorandum dated October 1999 (as supplemented through the date
\nhereof, the “Information Memorandum”), are, when taken as a whole, correct in
\nall material respects and do not contain any untrue statements of a material
\nfact or omit to state a material fact necessary in order to make the statements
\ncontained therein not materially misleading in light of the circumstances under
\nwhich such statements were made. All statements and other information
\nconstituting projections which are contained in any written documents or other
\nmaterials provided to the Administrative Agent and the Lenders by the Borrower,
\nincluding the Information Memorandum, were prepared based on good faith
\nestimates and assumptions of the Borrower believed to be reasonable at the time
\nsuch projections were prepared.<\/p>\n
4.21 Year 2000 Matters. Any material reprogramming required to
\npermit the proper functioning (but only to the extent that such proper
\nfunctioning would otherwise be impaired by the occurrence of the year 2000) with
\nthe advent of the year 2000 of material computer systems and other material
\nequipment containing embedded microchips, in either case owned or operated by
\nthe Borrower or any of its Subsidiaries (including any such systems and other
\nequipment supplied by others, but not including such systems or other equipment
\nused by others, with which the computer systems of the Borrower or any of its
\nSubsidiaries interface), and the testing of all such systems and other equipment
\nas so reprogrammed, could not reasonably be expected to have a Material Adverse
\nEffect. The costs to the Borrower and its Subsidiaries that have not been
\nincurred as of the date hereof for such reprogramming and testing could not
\nreasonably be expected to result in a Default or Event of Default or to have a
\nMaterial Adverse Effect.<\/p>\n
SECTION 5. CONDITIONS<\/p>\n
5.1 Conditions to Effectiveness. This agreement shall become
\neffective upon the satisfaction or waiver of the following conditions:<\/p>\n
(a) Execution of Loan Documents and Addenda. The
\n Administrative Agent shall have received (i) this Agreement, executed
\n and delivered by a duly authorized officer of the Borrower, with a
\n counterpart for the Administrative Agent and each Lender, (ii) an
\n executed Addendum (or a copy thereof by facsimile transmission) from
\n each Person listed on Schedule 1.1(a), provided, that, notwithstanding
\n the foregoing, in the event that an Addendum has not been duly executed
\n and delivered by each Person listed on Schedule 1.1(a) on the date
\n (which shall be no earlier than the date hereof) on which this
\n Agreement shall have been executed and delivered by each of the<\/p>\n
50<\/p>\n
45<\/p>\n
Borrower and the Administrative Agent, the condition set forth in this
\n subsection 5.1(a)(ii) shall, subject to satisfaction of the other
\n conditions precedent set forth in this subsection 5.1, nevertheless be
\n satisfied on such date with respect to those Persons which have
\n executed and delivered an Addendum on or before such date if on such
\n date the Borrower and the Administrative Agent shall have designated
\n one or more banks, financial institutions or other entities
\n (“Designated Lenders”) to assume, in the aggregate, all of the
\n Revolving Credit Commitments which would have been held by the Persons
\n listed on Schedule 1.1(a) (the “Non-Executing Persons”) which have not
\n so executed an Addendum (subject to each such Designated Lender’s prior
\n written consent in its sole discretion and its execution of an
\n Addendum) (Schedule 1.1(a) shall automatically be deemed to be amended
\n to reflect the respective Revolving Credit Commitments of the
\n Designated Lenders and the omission of the Non-Executing Persons as
\n Lenders hereunder) and (iii) the Subsidiaries Guarantee, executed and
\n delivered by a duly authorized officer of each Subsidiary Guarantor.<\/p>\n
(b) Closing Certificate. The Administrative Agent shall have
\n received, with a copy for each Lender, a certificate of the Borrower,
\n dated the Effective Date, substantially in the form of Exhibit H, with
\n appropriate insertions and attachments, satisfactory in form and
\n substance to the Administrative Agent, executed by the President or any
\n Vice President and the Secretary or any Assistant Secretary of the
\n Borrower.<\/p>\n
(c) Borrower Incumbency Certificate. The Administrative Agent
\n shall have received, with a copy for each Lender, a certificate of the
\n Borrower, dated the Effective Date, as to the incumbency and signature
\n of the officers of the Borrower executing any Loan Document
\n satisfactory in form and substance to the Administrative Agent,
\n executed by the President or any Vice President and the Secretary or
\n any Assistant Secretary of the Borrower.<\/p>\n
(d) Subsidiary Incumbency Certificates. The Administrative
\n Agent shall have received, with a copy for each Lender, a certificate
\n of each Restricted Subsidiary of the Borrower which is a party to a
\n Loan Document, dated the Effective Date, as to the incumbency and
\n signature of the officers of such Subsidiary acknowledging and
\n consenting to the execution and delivery of this Agreement by the
\n Borrower, satisfactory in form and substance to the Administrative
\n Agent, executed by the President or any Vice President and the
\n Secretary or any Assistant Secretary of such Subsidiary.<\/p>\n
(e) Legal Opinions. The Administrative Agent shall have
\n received, with a copy for each Lender, the following executed legal
\n opinions:<\/p>\n
(i) the executed legal opinion of Skadden,
\n Arps, Slate, Meagher & Flom LLP, counsel to the Borrower and
\n the other Loan Parties, substantially in the form of Exhibit
\n I-1; and<\/p>\n
(ii) the executed legal opinion of Anthony N.
\n Palizzi, general counsel of the Borrower, substantially in the
\n form of Exhibit I-2; and<\/p>\n
(iii) the executed legal opinion of Simpson
\n Thacher & Bartlett, counsel to the Administrative Agent and
\n the Lenders, substantially in the form of Exhibit I-3.<\/p>\n
Each such legal opinion shall cover such matters incident to the
\n transactions contemplated by this Agreement as the Administrative Agent
\n may reasonably require.
\n 51
\n 46<\/p>\n
(f) Termination of Existing Credit Agreement. The
\n Administrative Agent shall have received evidence satisfactory to it
\n that the Existing Credit Agreement has been terminated and all loans
\n outstanding, interest thereon and other amounts due and payable
\n thereunder shall have been repaid in full.<\/p>\n
(g) Additional Matters. All corporate and other proceedings,
\n and all documents, instruments and other legal matters in connection
\n with the transactions contemplated by this Agreement and the other Loan
\n Documents shall be reasonably satisfactory in form and substance to the
\n Administrative Agent, and the Administrative Agent shall have received
\n such other documents and legal opinions in respect of any aspect or
\n consequence of the transactions contemplated hereby or thereby as it
\n shall reasonably request.<\/p>\n
5.2 Conditions to Each Extension of Credit. The agreement of
\neach Lender to make any Extension of Credit requested to be made by it on any
\ndate (including, without limitation, its initial Extension of Credit) is subject
\nto the satisfaction of the following conditions precedent:<\/p>\n
(a) Representations and Warranties. Each of the
\n representations and warranties made by the Loan Parties in or pursuant
\n to the Loan Documents shall be true and correct in all material
\n respects on and as of such date as if made on and as of such date.<\/p>\n
(b) No Default. No Default or Event of Default shall have
\n occurred and be continuing on such date or after giving effect to the
\n Extension of Credit requested to be made on such date.<\/p>\n
Each Extension of Credit to the Borrower hereunder shall constitute a
\nrepresentation and warranty by the Borrower as of the date thereof that the
\nconditions contained in this subsection have been satisfied.<\/p>\n
SECTION 6. AFFIRMATIVE COVENANTS<\/p>\n
The Borrower hereby agrees that, so long as the Revolving
\nCredit Commitments remain in effect or any Letter of Credit remains outstanding
\nor any amount is owing to any Lender or the Administrative Agent hereunder or
\nunder any other Loan Document, the Borrower shall and (except in the case of
\ndelivery of financial information, reports and notices) shall cause each of its
\nRestricted Subsidiaries to:<\/p>\n
6.1 Financial Statements. Furnish to the Administrative Agent
\nwith a copy for each Lender:<\/p>\n
(a) as soon as available, but in any event within 95 days
\n after the end of each Fiscal Year of the Borrower, a copy of the
\n consolidated balance sheet of the Borrower and its Consolidated
\n Subsidiaries as at the end of such year and the related consolidated
\n statements of income and retained earnings and of cash flows for such
\n year, setting forth in each case in comparative form the figures as of
\n the end of and for the previous Fiscal Year, reported on without a
\n qualification arising out of the scope of the audit, by
\n PriceWaterhouseCoopers LLP or other independent certified public
\n accountants of nationally recognized standing, together with a copy of
\n the Borrower’s Form 10-K filed with the SEC for such Fiscal Year; and<\/p>\n
(b) as soon as available, but in any event not later than 50
\n days after the end of each of the first three quarterly periods of each
\n Fiscal Year of the Borrower, the unaudited consolidated balance sheet
\n of the Borrower and its Consolidated Subsidiaries as at the end of such
\n quarter and <\/p>\n
52
\n 47<\/p>\n
the related unaudited consolidated statements of income and retained
\n earnings and of cash flows of the Borrower and its Consolidated
\n Subsidiaries for such quarter and the portion of the Fiscal Year
\n through the end of such quarter, setting forth in each case in
\n comparative form the figures for the previous Fiscal Year as set forth
\n in the Borrower’s Form 10-Q filed with the SEC for such quarterly
\n period, certified by a Responsible Officer as being fairly stated in
\n all material respects (subject to normal year-end audit adjustments).<\/p>\n
All such financial statements shall be complete and correct in all material
\nrespects (subject to, in the case of the financial statements referred to in
\nparagraph (b) above, normal year-end adjustments) and shall be prepared in
\nreasonable detail and in accordance with GAAP applied consistently throughout
\nthe periods reflected therein and with prior periods (except as approved by such
\naccountants or officer, as the case may be, and disclosed therein).<\/p>\n
6.2 Certificates; Other Information. Furnish to the
\nAdministrative Agent with a copy for each Lender:<\/p>\n
(a) concurrently with the delivery of the financial statements
\n referred to in subsection 6.1(a), a certificate of the independent
\n certified public accountants reporting on such financial statements
\n stating that in making the examination necessary therefor no knowledge
\n was obtained of any Default or Event of Default, except as specified in
\n such certificate;<\/p>\n
(b) concurrently with the delivery of the financial statements
\n referred to in subsections 6.1(a) and (b), a certificate of a
\n Responsible Officer (i) stating that such Responsible Officer has
\n obtained no knowledge of any Default or Event of Default with respect
\n to the period covered by such financial statements except as specified
\n in such certificate and (ii) setting forth, in reasonable detail, a
\n calculation of the financial covenants set forth in subsection 7.1 for
\n the period corresponding to such financial statements;<\/p>\n
(c) not later than 90 days after the beginning of each Fiscal
\n Year of the Borrower, a copy of the projections by the Borrower of the
\n operating budget and cash flow budget of the Borrower and its
\n Subsidiaries for such Fiscal Year, such projections to be accompanied
\n by a certificate of a Responsible Officer to the effect that such
\n projections have been prepared on the basis of assumptions believed to
\n have been reasonable when made;<\/p>\n
(d) promptly after the same are sent, copies of all financial
\n statements and reports which the Borrower sends to its stockholders,
\n and promptly after the same are filed, copies of all reports on Form
\n 8-K which the Borrower may make to, or file with, the SEC; and<\/p>\n
(e) promptly, such additional financial and other information
\n as the Administrative Agent (on behalf of itself or any Lender) may
\n from time to time reasonably request.<\/p>\n
6.3 Payment of Obligations. Pay, discharge or otherwise
\nsatisfy at or before maturity or before they become delinquent, as the case may
\nbe, all its obligations of whatever nature, except where the amount or validity
\nthereof is currently being contested in good faith by appropriate proceedings
\nand reserves in conformity with GAAP with respect thereto have been provided on
\nthe books of the Borrower or its Subsidiaries, as the case may be, and except
\nwhere the failure to so pay, discharge or otherwise satisfy such obligation
\ncould not, individually or in the aggregate, reasonably be expected to have a
\nMaterial Adverse Effect.<\/p>\n
53
\n 48<\/p>\n
6.4 Conduct of Business and Maintenance of Existence. Continue
\nto engage in business of the same general type as now conducted by the Borrower
\nand its Restricted Subsidiaries and preserve, renew and keep in full force and
\neffect its corporate existence and take all reasonable action to maintain all
\nrights, privileges and franchises necessary or desirable in the normal conduct
\nof its business except as otherwise permitted pursuant to subsection 7.5 and
\nexcept where the failure to maintain such rights, privileges and franchises
\ncould not, individually or in the aggregate, reasonably be expected to have a
\nMaterial Adverse Effect; comply with all Contractual Obligations and
\nRequirements of Law except to the extent that failure to comply therewith could
\nnot, individually or in the aggregate, be reasonably expected to have a Material
\nAdverse Effect.<\/p>\n
6.5 Maintenance of Property; Insurance. Keep its property
\nnecessary in its business in good working order and condition, ordinary wear and
\ntear excepted, if the failure to do so could reasonably be expected to have a
\nMaterial Adverse Effect; maintain with financially sound and reputable insurance
\ncompanies insurance on all its property in at least such amounts and against at
\nleast such risks as are usually insured against in the same general area by
\nsimilar companies of comparable size engaged in the same or a similar business
\nand owning or operating similar properties in localities where the Borrower and
\nits Restricted Subsidiaries operate and furnish upon the written request of the
\nAdministrative Agent information as to the insurance carried.<\/p>\n
6.6 Inspection of Property; Books and Records; Discussions.
\nKeep proper books of records and account in which full, true and correct entries
\nin conformity with GAAP and all Requirements of Law shall be made of all
\ndealings and transactions in relation to its business and activities; and permit
\nrepresentatives of the Administrative Agent, at the request of any Lender, to
\nvisit and inspect any of its properties and examine and make abstracts from any
\nof its books and records at any reasonable time and as often as may reasonably
\nbe desired and to discuss the business, operations, properties and financial and
\nother condition of the Borrower and its Restricted Subsidiaries with officers
\nand employees of the Borrower and its Restricted Subsidiaries and in the
\npresence of a Responsible Officer with its independent certified public
\naccountants.<\/p>\n
6.7 Notices. Promptly give notice to the Administrative Agent
\n(which shall promptly give notice thereof to each Lender) of:<\/p>\n
(a) the occurrence of any Default or Event of Default;<\/p>\n
(b) any (i) default or event of default under any Contractual
\n Obligation of the Borrower or any of its Restricted Subsidiaries which
\n could reasonably be expected to have a Material Adverse Effect or (ii)
\n litigation, investigation or proceeding which may exist at any time
\n between the Borrower or any of its Subsidiaries and any Governmental
\n Authority, which (A) in the case of any such litigation, investigation
\n or proceeding in the ordinary course of business, could reasonably be
\n expected to have a Material Adverse Effect and (B) in the case of any
\n other litigation, investigation or proceeding, if adversely determined,
\n could reasonably be expected to have a Material Adverse Effect;<\/p>\n
(c) any litigation or proceeding affecting the Borrower or any
\n of its Subsidiaries in which the amount involved is $50,000,000 or more
\n to the extent not covered by insurance or in which injunctive or
\n similar relief is sought which (A) in the case of any such litigation,
\n or proceeding in the ordinary course of business, could reasonably be
\n expected to have a Material Adverse Effect and (B) in the case of any
\n other litigation or proceeding, if adversely determined, could
\n reasonably be expected to have a Material Adverse Effect; and<\/p>\n
54
\n 49<\/p>\n
(d) the following events, as soon as possible and in any event
\n within 30 days after the Borrower knows or has reason to know thereof:
\n (i) the occurrence or expected occurrence of any Reportable Event with
\n respect to any Plan, a failure to make any required contribution to a
\n Plan, the creation of any Lien in favor of the PBGC or a Plan or any
\n withdrawal from, or the termination, Reorganization or Insolvency of,
\n any Multiemployer Plan which, in any case, could reasonably be expected
\n to have a Material Adverse Effect or (ii) the institution of
\n proceedings or the taking of any other action by the PBGC or the
\n Borrower or any Commonly Controlled Entity or any Multiemployer Plan
\n with respect to the withdrawal from, or the termination, Reorganization
\n or Insolvency of, any Plan which, in any case, could reasonably be
\n expected to have a Material Adverse Effect.<\/p>\n
Each notice pursuant to this subsection shall be accompanied by a statement of a
\nResponsible Officer setting forth details of the occurrence referred to therein
\nand stating what action the Borrower proposes to take with respect thereto.<\/p>\n
6.8 Environmental Laws. (a) Comply with all applicable
\nEnvironmental Laws and obtain and comply in all material respects with and
\nmaintain any and all licenses, approvals, notifications, registrations or
\npermits required by applicable Environmental Laws except in any such case to the
\nextent that failure to do so could not be reasonably expected to have a Material
\nAdverse Effect.<\/p>\n
(b) Conduct and complete all investigations, studies, sampling
\nand testing, and all remedial, removal and other actions required under
\nEnvironmental Laws, except where the failure to do so could not reasonably be
\nexpected to have a Material Adverse Effect, and promptly comply in all material
\nrespects with all lawful orders and directives of all Governmental Authorities
\nregarding Environmental Laws except to the extent that the same are being
\ncontested in good faith by appropriate proceedings and the pendency of such
\nproceedings could not be reasonably expected to have a Material Adverse Effect.<\/p>\n
6.9 Additional Subsidiaries. With respect to any Person that,
\nsubsequent to the Effective Date, becomes a Domestic Subsidiary, promptly cause
\nsuch new Domestic Subsidiary to become a party to the Subsidiaries Guarantee
\npursuant to documentation which is in form and substance satisfactory to the
\nAdministrative Agent.<\/p>\n
SECTION 7. NEGATIVE COVENANTS<\/p>\n
The Borrower hereby agrees that, so long as the Revolving
\nCredit Commitments remain in effect or any Letter of Credit remains outstanding
\nor any amount is owing to any Lender or the Administrative Agent hereunder or
\nunder any other Loan Document, the Borrower shall not, and (except in the case
\nof subsection 7.1) shall not permit any of its Restricted Subsidiaries to,
\ndirectly or indirectly:<\/p>\n
7.1 Financial Condition Covenants.<\/p>\n
(a) Fixed Charge Coverage Ratio. Permit the Fixed Charge
\n Coverage Ratio as of the last day of any fiscal quarter to be less than
\n 2.00 to 1.00.<\/p>\n
(b) Leverage Ratio. Permit at any time the Leverage Ratio to
\nexceed 0.45 to 1.00.<\/p>\n
7.2 Limitation on Liens. Create, incur, assume or suffer to
\nexist any Lien upon any of its property, assets or revenues, whether now owned
\nor hereafter acquired, except for:<\/p>\n
55
\n 50<\/p>\n
(a) Liens for taxes not yet due or which are being contested
\n in good faith by appropriate proceedings, provided that adequate
\n reserves with respect thereto are maintained on the books of the
\n Borrower or its Subsidiaries, as the case may be, in conformity with
\n GAAP (or, in the case of Significant Foreign Subsidiaries, generally
\n accepted accounting principles in effect from time to time in their
\n respective jurisdictions of incorporation);<\/p>\n
(b) carriers’, warehousemen’s, mechanics’, landlord’s,
\n materialmen’s, repairmen’s or other like Liens arising in the ordinary
\n course of business securing amounts which are not overdue for a period
\n of more than 60 days or which are being contested in good faith by
\n appropriate proceedings;<\/p>\n
(c) (i) pledges or deposits in connection with workers’
\n compensation, unemployment insurance and other social security
\n legislation and deposits securing liability to insurance carriers under
\n insurance or self-insurance arrangements and (ii) Liens granted to
\n banks in the ordinary course of business in connection with deposit,
\n disbursement or concentration accounts (other than in connection with
\n borrowed money) maintained with such banks on funds and other items in
\n such accounts;<\/p>\n
(d) Liens granted and deposits made to secure the performance
\n of bids, trade contracts and real estate related contracts entered into
\n in the ordinary course of business (in each case, other than for
\n borrowed money), utilities, leases, statutory obligations, surety and
\n appeal bonds, performance bonds and other obligations of a like nature
\n incurred in the ordinary course of business;<\/p>\n
(e) easements, rights-of-way, restrictions, subdivisions,
\n parcelizations and other similar encumbrances incurred in the ordinary
\n course of business which do not in any case materially detract from the
\n value of the property subject thereto or materially interfere with the
\n ordinary conduct of the business of the Borrower or such Restricted
\n Subsidiary;<\/p>\n
(f) Liens in existence on the date hereof (or arising at any
\n time during the period from the date hereof through the Effective Date)
\n and (i) listed on Schedule 7.2(f) securing Indebtedness or other
\n obligations described on such Schedule or (ii) otherwise securing
\n Indebtedness or other obligations not exceeding $10,000,000 in the
\n aggregate;<\/p>\n
(g) Liens securing Indebtedness of the Borrower and its
\n Restricted Subsidiaries, provided that (i) such Liens do not at any
\n time encumber any property other than the property financed by such
\n Indebtedness, it being understood that Indebtedness will be considered
\n to have financed property as long as such Indebtedness is incurred
\n within 360 days of the acquisition or completion of construction of
\n such property and does not exceed the purchase price thereof and (ii)
\n the amount of Indebtedness secured thereby is not increased;<\/p>\n
(h) Liens on assets of any Significant Foreign Subsidiary
\n securing Indebtedness and other obligations of such Significant Foreign
\n Subsidiary;<\/p>\n
(i) Liens on the property or assets of a corporation which
\n becomes a Restricted Subsidiary after the Effective Date and Liens
\n existing on assets acquired, constructed or completed by the Borrower
\n or a Restricted Subsidiary after the Effective Date, provided that (i)
\n such Liens existed at the time such corporation became a Restricted
\n Subsidiary or such asset was acquired, constructed or completed and
\n were not created in anticipation thereof, (ii) any such Lien cover only
\n the property or assets of such corporation or the assets being
\n acquired, <\/p>\n
56
\n 51<\/p>\n
constructed or completed, as the case may be, and, in any case, is not
\n spread to cover any property or assets of such corporation after the
\n time such corporation becomes a Restricted Subsidiary or such asset is
\n acquired, constructed or completed, and (iii) the amount of
\n Indebtedness secured thereby is not increased;<\/p>\n
(j) Liens securing Indebtedness which refunds, replaces or
\n refinances Indebtedness secured by a Lien as of the date hereof or
\n permitted under subsection 7.2(g) or 7.2(i); provided that no such Lien
\n is spread to cover additional property;<\/p>\n
(k) Liens (not otherwise permitted hereunder) which secure
\n obligations not exceeding (as to the Borrower and all its Restricted
\n Subsidiaries) $500,000,000 in aggregate principal or face amount at any
\n time outstanding;<\/p>\n
(l) Liens created in favor of any Person who delivers goods
\n under a consignment to the Borrower or a Restricted Subsidiary; and<\/p>\n
(m) Liens on accounts receivable or credit card receivables of
\n the Borrower and its Restricted Subsidiaries which secure Indebtedness
\n to finance the acquisition thereof.<\/p>\n
7.3 Limitation on Fundamental Changes. Enter into any merger,
\nconsolidation or amalgamation, or liquidate, wind up or dissolve itself (or
\nsuffer any liquidation or dissolution), or convey, sell, lease, assign, transfer
\nor otherwise dispose of, all or substantially all of its property, business or
\nassets except:<\/p>\n
(a) any Restricted Subsidiary of the Borrower may be merged or
\n consolidated with or into the Borrower (provided that the Borrower
\n shall be the continuing or surviving corporation) or with or into any
\n one or more wholly owned Restricted Subsidiaries of the Borrower
\n (provided that the wholly owned Restricted Subsidiary or Restricted
\n Subsidiaries shall be the continuing or surviving corporation and
\n provided that if one of the parties to such transaction is a Subsidiary
\n Guarantor then the continuing or surviving corporation shall be a
\n Subsidiary Guarantor);<\/p>\n
(b) any Restricted Subsidiary may convey, sell, lease,
\n transfer, assign or otherwise dispose of any or all of its assets (upon
\n voluntary liquidation or otherwise) to the Borrower or any other wholly
\n owned Restricted Subsidiary of the Borrower (provided that if such
\n selling Restricted Subsidiary is a Subsidiary Guarantor then the
\n acquiring Restricted Subsidiary shall be a Subsidiary Guarantor); and<\/p>\n
(c) any Restricted Subsidiary may be merged or consolidated
\n with or into, or convey, sell, lease, transfer, assign or otherwise
\n dispose of any or all of its assets to, any Person to the extent that
\n the sale or other disposition of the assets of such Restricted
\n Subsidiary would be permitted under subsection 7.4.<\/p>\n
7.4 Limitation on Sale of Assets. Convey, sell, lease, assign,
\ntransfer or otherwise dispose of any of its property, business or assets
\n(including, without limitation, receivables and leasehold interests), whether
\nnow owned or hereafter acquired, or, in the case of any Restricted Subsidiary,
\nissue or sell any shares of such Restricted Subsidiary’s Capital Stock to any
\nPerson (other than the Borrower or any wholly owned Subsidiary Guarantor or, if
\nsuch Restricted Subsidiary is not a wholly-owned Restricted Subsidiary, pro rata
\nto the owners of the equity securities of such Restricted Subsidiary), except:<\/p>\n
57
\n 52<\/p>\n
(a) the sale or other disposition of obsolete, surplus or worn
\n out property in the ordinary course of business or in connection with
\n real estate development activities;<\/p>\n
(b) the sale of inventory in the ordinary course of business
\n (including sales of inventory in connection with closed stores and
\n sales of discontinued inventory) and transfers of inventory and
\n equipment among the Borrower and the Subsidiary Guarantors pursuant to
\n reasonable business requirements;<\/p>\n
(c) (i) the sale or discount of accounts receivable or credit
\n card receivables in connection with the compromise or collection
\n thereof or pursuant to the Existing Receivables Transactions or any
\n other Securitization Transactions and (ii) sales or other dispositions
\n of Cash Equivalents in the ordinary course of business;<\/p>\n
(d) as permitted by subsection 7.3(b);<\/p>\n
(e) sales and dispositions of real property and related assets
\n in connection with (i) Permitted Sale-Leasebacks or (ii) Securitization
\n Transactions; provided that, in the opinion of a Responsible Officer,
\n the purchase price with respect to each such sale or disposition
\n represents the fair value of the assets so sold;<\/p>\n
(f) the transactions described on Schedule 7.4(f) or any sale
\n or other disposition of any asset received in exchange for any asset
\n described on such Schedule in connection with any transaction described
\n on such Schedule (the “Scheduled Asset Sales”), provided that, in the
\n opinion of a Responsible Officer the purchase price with respect to
\n each such sale represents the fair value of the assets so sold;<\/p>\n
(g) the sale or other disposition of any property (other than
\n any sale or other disposition which is otherwise permitted under this
\n subsection 7.4), provided that (i) at the time of and after giving
\n effect to such sale or disposition, the aggregate book value of all
\n assets so sold or disposed of in any Fiscal Year shall not exceed an
\n amount equal to 10% of Shareholders’ Equity at the beginning of such
\n Fiscal Year and (ii) in the opinion of a Responsible Officer the
\n purchase price with respect to such sale or other disposition (except
\n with respect to sales or other dispositions the aggregate purchase
\n price with respect to which does not exceed $10,000,000) represents the
\n fair value of the assets so sold or disposed of; and<\/p>\n
(h) subject to the other terms and provisions hereof, leases
\n or subleases (or assignment of leases) of real property in the ordinary
\n course of business.<\/p>\n
7.5 Limitation on Dividends. Declare or pay any dividend
\n(other than dividends payable solely in common stock of the Borrower) on, or
\nmake any payment on account of, or set apart assets for a sinking or other
\nanalogous fund for, the purchase, redemption, defeasance, retirement or other
\nacquisition of, any shares of any class of Capital Stock of the Borrower or any
\nwarrants or options to purchase any such Capital Stock, whether now or hereafter
\noutstanding, or make any other distribution in respect thereof, either directly
\nor indirectly, whether in cash or property or in obligations of the Borrower or
\nany Restricted Subsidiary or engage in any transaction that has a substantially
\nsimilar effect (such declarations, payments, setting apart, purchases,
\nredemptions, defeasances, retirements, acquisitions and distributions and
\nsimilar transactions being herein called “Restricted Payments”), except that:<\/p>\n
(a) the Borrower may purchase options or exchange
\n then-existing employee stock options for options to acquire the same
\n from directors, officers and employees of the Borrower <\/p>\n
58
\n 53<\/p>\n
and its Restricted Subsidiaries and may purchase Capital Stock in
\n connection with any employment or severance arrangements;<\/p>\n
(b) so long as after giving effect thereto no Default or Event
\n of Default has occurred and is continuing, the Borrower may make
\n Restricted Payments with respect to its Capital Stock, provided that no
\n Restricted Payment may be made pursuant to this paragraph if, after
\n giving effect thereto, the aggregate amount of all Restricted Payments
\n made pursuant to this paragraph would exceed 50% of the Consolidated
\n Net Income of the Borrower for the period (taken as one accounting
\n period) from the first day of the fiscal quarter in which the Effective
\n Date occurs through the last day of the most recent fiscal quarter
\n ended prior to the date such Restricted Payment is made;<\/p>\n
(c) so long as after giving effect thereto no Default or Event
\n of Default has occurred and is continuing, the Borrower may repurchase
\n up to $1,500,000,000 of Capital Stock of the Borrower pursuant to stock
\n repurchase programs;<\/p>\n
(d) so long as after giving effect thereto no Default or Event
\n of Default has occurred and is continuing, the Borrower may redeem the
\n Convertible Preferred Securities for cash or common stock of the
\n Borrower; and<\/p>\n
(e) so long as after giving effect thereto no Default or Event
\n of Default has occurred and is continuing, the Borrower may purchase
\n the Capital Stock of the Borrower with proceeds from the sale or
\n issuance of its Capital Stock.<\/p>\n
7.6 Limitation on Capital Expenditures and “Property held for
\nResale”. Make (by way of the acquisition of securities of a Person or otherwise)
\nany expenditure in respect of the purchase or other acquisition of fixed or
\ncapital assets (excluding (i) any such asset acquired in connection with normal
\nreplacement and maintenance programs properly charged to current operations but
\nincluding (ii) expenditures in respect of the construction or development of
\n“property held for resale”) except for expenditures not exceeding
\n$1,800,000,000, in the aggregate for the Borrower and its Restricted
\nSubsidiaries during any Fiscal Year of the Borrower, provided that, (a) with
\nrespect to any Fiscal Year, the Borrower and its Restricted Subsidiaries shall
\nbe permitted to make additional capital expenditures in an amount not to exceed
\nthe Additional Permitted Capital Expenditure Amount for such Fiscal Year and (b)
\nup to 100% of any amount permitted to be expended in any Fiscal Year (after
\ngiving effect to this proviso) if not so expended in the Fiscal Year for which
\nit is permitted above, may be carried over for expenditure in the next following
\nFiscal Year.<\/p>\n
7.7 Limitation on Transactions with Affiliates. Except as set
\nforth on Schedule 7.7, enter into any transaction, including, without
\nlimitation, any purchase, sale, lease or exchange of property or the rendering
\nof any service, with any Affiliate unless such transaction is (a) otherwise
\npermitted under this Agreement and (b) upon fair and reasonable terms no less
\nfavorable to the Borrower or such Restricted Subsidiary, as the case may be,
\nthan it would obtain in a comparable arm’s length transaction with a Person
\nwhich is not an Affiliate.<\/p>\n
7.8 Limitation on Sales and Leasebacks. Enter into any
\narrangement with any Person providing for the leasing by the Borrower or any
\nRestricted Subsidiary of real or personal property which has been or is to be
\nsold or transferred by the Borrower or such Restricted Subsidiary to such Person
\nor to any other Person to whom funds have been or are to be advanced by such
\nPerson on the security of such property or rental obligations of the Borrower or
\nsuch Restricted Subsidiary (such arrangement, a “Sale-Leaseback”) except at
\nmarket rates (“Permitted Sale-Leasebacks”). For the avoidance of doubt, Sale-<\/p>\n
59
\n 54<\/p>\n
Leasebacks that result in a Financing Lease shall be treated as Indebtedness for
\nall purposes of this Agreement.<\/p>\n
7.9 Negative Pledge Clauses. Enter into or suffer to exist or
\nbecome effective any agreement that prohibits or limits the ability of the
\nBorrower or any of its Restricted Subsidiaries to create, incur, assume or
\nsuffer to exist as security for the obligations hereunder any Lien upon any of
\nits inventory, whether now owned or hereafter acquired, other than (a) this
\nAgreement and the other Loan Documents, (b) the 364-Day Credit Agreement, (c)
\nthe GNB Credit Agreement (which shall permit the obligations hereunder to be
\nsecured so long as the obligations thereunder are secured on an equal and
\nratable basis to the extent such equal and ratable treatment is required by the
\nterms thereof) and (d) any agreements governing any purchase money Liens or
\nLiens permitted under Section 7.2(d) (in which case, any prohibition or
\nlimitation shall only be effective against the assets financed thereby).<\/p>\n
SECTION 8. EVENTS OF DEFAULT<\/p>\n
If any of the following events shall occur and be continuing:<\/p>\n
(a) The Borrower shall fail to pay any principal of any Loan
\n when due in accordance with the terms hereof; or the Borrower shall
\n fail to pay any Reimbursement Obligation within two Business Days after
\n such Reimbursement Obligation becomes due in accordance with the terms
\n hereof; or the Borrower shall fail to pay any interest on any Loan, or
\n any other amount payable hereunder, within five days after any such
\n interest or other amount becomes due in accordance with the terms
\n hereof; or<\/p>\n
(b) Any representation or warranty made or deemed made by the
\n Borrower or any other Loan Party herein or in any other Loan Document
\n or which is contained in any certificate, document or financial or
\n other statement furnished by it at any time under or in connection with
\n this Agreement or any such other Loan Document shall prove to have been
\n incorrect in any material respect on or as of the date made or deemed
\n made; or<\/p>\n
(c) The Borrower shall default in the observance or
\n performance of any agreement contained in Section 7; or<\/p>\n
(d) The Borrower or any other Loan Party shall default in the
\n observance or performance of any other agreement contained in this
\n Agreement or any other Loan Document (other than as provided in
\n paragraphs (a) through (c) of this Section), and such default shall
\n continue unremedied for a period of 30 days after the earlier of (i)
\n the date upon which written notice thereof is given to the Borrower by
\n the Administrative Agent or the Majority Lenders or (ii) the date upon
\n which a Responsible Officer becomes aware of such default; or<\/p>\n
(e) The Borrower or any of its Restricted Subsidiaries shall
\n (i) default in any payment of principal of or interest on any
\n Indebtedness (other than the Loans) or in the payment of any Guarantee
\n Obligation, beyond the period of grace, if any, provided in the
\n instrument or agreement under which such Indebtedness or Guarantee
\n Obligation was created; or (ii) default in the observance or
\n performance of any other agreement or condition relating to any such
\n Indebtedness or Guarantee Obligation or contained in any instrument or
\n agreement evidencing, securing or relating thereto, or any other event
\n shall occur or condition exist, the effect of which default or other
\n event or condition is to cause, or to permit the holder or holders of
\n such Indebtedness or beneficiary or beneficiaries of such Guarantee
\n Obligation (or a trustee or agent on behalf of such holder or holders
\n or beneficiary or beneficiaries) to cause, with the giving of <\/p>\n
60
\n 55<\/p>\n
notice if required (but after the expiration of all grace periods
\n applicable thereto), such Indebtedness to become due prior to its
\n stated maturity or such Guarantee Obligation to become payable;
\n provided, however, that no Default or Event of Default shall exist
\n under this paragraph unless the aggregate amount of Indebtedness and\/or
\n Guarantee Obligations in respect of which any default or other event or
\n condition referred to in this paragraph shall have occurred shall be
\n equal to at least $100,000,000; or<\/p>\n
(f) (i) The Borrower or any of its Significant Subsidiaries
\n shall commence any case, proceeding or other action (A) under any
\n existing or future law of any jurisdiction, domestic or foreign,
\n relating to bankruptcy, insolvency, reorganization or relief of
\n debtors, seeking to have an order for relief entered with respect to
\n it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
\n reorganization, arrangement, adjustment, winding-up, liquidation,
\n dissolution, composition or other relief with respect to it or its
\n debts, or (B) seeking appointment of a receiver, trustee, custodian,
\n conservator or other similar official for it or for all or any
\n substantial part of its assets, or the Borrower or any of its
\n Significant Subsidiaries shall make a general assignment for the
\n benefit of its creditors; or (ii) there shall be commenced against the
\n Borrower or any of its Significant Subsidiaries any case, proceeding or
\n other action of a nature referred to in clause (i) above which (A)
\n results in the entry of an order for relief or any such adjudication or
\n appointment or (B) remains undismissed, undischarged or unbonded for a
\n period of 60 days; or (iii) there shall be commenced against the
\n Borrower or any of its Significant Subsidiaries any case, proceeding or
\n other action seeking issuance of a warrant of attachment, execution,
\n distraint or similar process against all or any substantial part of its
\n assets which results in the entry of an order for any such relief which
\n shall not have been vacated, discharged, or stayed or bonded pending
\n appeal within 60 days from the entry thereof; or (iv) the Borrower or
\n any of its Significant Subsidiaries shall take any action in
\n furtherance of, or indicating its consent to, approval of, or
\n acquiescence in, any of the acts set forth in clause (i), (ii), or
\n (iii) above; or (v) the Borrower or any of its Significant Subsidiaries
\n shall generally not, or shall be unable to, or shall admit in writing
\n its inability to, pay its debts as they become due; or<\/p>\n
(g) (i) Any Person shall engage in any “prohibited
\n transaction” (as defined in Section 406 of ERISA or Section 4975 of the
\n Code) involving any Plan, (ii) any “accumulated funding deficiency” (as
\n defined in Section 302 of ERISA), whether or not waived, shall exist
\n with respect to any Plan or any Lien in favor of the PBGC or a Plan
\n shall arise on the assets of the Borrower or any Commonly Controlled
\n Entity, (iii) a Reportable Event shall occur with respect to, or
\n proceedings shall commence to have a trustee appointed, or a trustee
\n shall be appointed, to administer or to terminate, any Single Employer
\n Plan, which Reportable Event or commencement of proceedings or
\n appointment of a trustee is, in the reasonable opinion of the Majority
\n Lenders, likely to result in the termination of such Plan for purposes
\n of Title IV of ERISA, (iv) any Single Employer Plan shall terminate for
\n purposes of Title IV of ERISA, (v) the Borrower or any Commonly
\n Controlled Entity shall, or in the reasonable opinion of the Majority
\n Lenders is likely to, incur any liability in connection with a
\n withdrawal from, or the Insolvency or Reorganization of, a
\n Multiemployer Plan or (vi) any other event or condition shall occur or
\n exist with respect to a Plan; and in each case in clauses (i) through
\n (vi) above, such event or condition, together with all other such
\n events or conditions, if any, could reasonably be expected to have a
\n Material Adverse Effect; or<\/p>\n
(h) One or more judgments or decrees shall be entered against
\n the Borrower or any of its Restricted Subsidiaries involving in the
\n aggregate a liability (to the extent not paid or covered by insurance)
\n of $100,000,000 or more, and such judgments or decrees shall not have
\n been vacated, discharged, stayed or bonded pending appeal within 60
\n days from the entry thereof; or<\/p>\n
61
\n 56<\/p>\n
(i) (i) For any reason (other than any act on the part of the
\n Administrative Agent or any Lender) the Subsidiaries Guarantee ceases
\n to be or is not in full force and effect in any material respect and
\n such default shall continue unremedied for 30 days after the earlier of
\n receipt by the Borrower of notice of such default from the
\n Administrative Agent or actual knowledge of such default by a
\n Responsible Officer or (ii) the Borrower or any of its Restricted
\n Subsidiaries shall assert in writing that the Subsidiaries Guarantee
\n has ceased to be or is not in full force and effect; or<\/p>\n
(j) (i) Any Person or “group” (within the meaning of Section
\n 13(d) or 14(d) of the Securities Exchange Act of 1934, as amended) (A)
\n shall have acquired beneficial ownership of 33% or more of any
\n outstanding class of Capital Stock having ordinary voting power in the
\n election of directors of the Borrower or (B) shall obtain the power
\n (whether or not exercised) to elect a majority of the Borrower’s
\n directors or (ii) the Board of Directors of the Borrower shall not
\n consist of a majority of Continuing Directors; “Continuing Directors”
\n shall mean the directors of the Borrower on the Effective Date and each
\n other director, if such other director’s nomination for election to the
\n Board of Directors of the Borrower is recommended by a majority of the
\n then Continuing Directors;<\/p>\n
then, and in any such event, (A) if such event is an Event of Default specified
\nin clause (i) or (ii) of paragraph (f) of this Section with respect to the
\nBorrower, automatically the Revolving Credit Commitments shall immediately
\nterminate and the Loans hereunder (with accrued interest thereon) and all other
\namounts owing under this Agreement (including, without limitation, all amounts
\nof L\/C Obligations, whether or not the beneficiaries of the then outstanding
\nLetters of Credit shall have presented the documents required thereunder) shall
\nimmediately become due and payable, and (B) if such event is any other Event of
\nDefault, either or both of the following actions may be taken: (i) with the
\nconsent of the Majority Lenders, the Administrative Agent may, or upon the
\nrequest of the Majority Lenders, the Administrative Agent shall, by notice to
\nthe Borrower declare the Revolving Credit Commitments to be terminated
\nforthwith, whereupon the Revolving Credit Commitments shall immediately
\nterminate; and (ii) with the consent of the Majority Lenders, the Administrative
\nAgent may, or upon the request of the Majority Lenders, the Administrative Agent
\nshall, by notice to the Borrower, declare the Loans hereunder (with accrued
\ninterest thereon) and all other amounts owing under this Agreement (including,
\nwithout limitation, all amounts of L\/C Obligations, whether or not the
\nbeneficiaries of the then outstanding Letters of Credit shall have presented the
\ndocuments required thereunder) to be due and payable forthwith, whereupon the
\nsame shall immediately become due and payable. Except as expressly provided
\nabove in this Section, presentment, demand, protest and all other notices of any
\nkind are hereby expressly waived.<\/p>\n
With respect to all Letters of Credit with respect to which
\npresentment for honor shall not have occurred at the time of an acceleration
\npursuant to this paragraph, the Borrower shall at such time deposit in a cash
\ncollateral account opened by the Administrative Agent an amount equal to the
\naggregate then undrawn and unexpired amount of such Letters of Credit. The
\nBorrower hereby grants to the Administrative Agent, for the benefit of each
\nIssuing Bank and the L\/C Participants, a security interest in such cash
\ncollateral to secure all obligations of the Borrower under this Agreement and
\nthe other Loan Documents. Amounts held in such cash collateral account shall be
\napplied by the Administrative Agent to the payment of drafts drawn under such
\nLetters of Credit, and the unused portion thereof after all such Letters of
\nCredit shall have expired or been fully drawn upon, if any, shall be applied to
\nrepay other obligations of the Borrower hereunder and under the other Loan
\nDocuments. After all such Letters of Credit shall have expired or been fully
\ndrawn upon, all Reimbursement Obligations shall have been satisfied and all
\nother obligations of the Borrower hereunder and under the other Loan Documents
\nshall have been paid in full, the balance, if any, in such cash collateral
\naccount <\/p>\n
62
\n 57<\/p>\n
shall be returned to the Borrower. The Borrower shall execute and deliver to the
\nAdministrative Agent, for the account of each Issuing Bank and the L\/C
\nParticipants, such further documents and instruments as the Administrative Agent
\nmay reasonably request to evidence the creation and perfection of the security
\ninterest in such cash collateral account.<\/p>\n
SECTION 9. THE ADMINISTRATIVE AGENT<\/p>\n
9.1 Appointment. Each Lender hereby irrevocably designates and
\nappoints the Administrative Agent as the agent of such Lender under this
\nAgreement and the other Loan Documents, and each Lender irrevocably authorizes
\nthe Administrative Agent, in such capacity, to take such action on its behalf
\nunder the provisions of this Agreement and the other Loan Documents and to
\nexercise such powers and perform such duties as are expressly delegated to the
\nAdministrative Agent by the terms of this Agreement and the other Loan
\nDocuments, together with such other powers as are reasonably incidental thereto.
\nNotwithstanding any provision to the contrary elsewhere in this Agreement, the
\nAdministrative Agent shall not have any duties or responsibilities, except those
\nexpressly set forth herein, or any fiduciary relationship with any Lender, and
\nno implied covenants, functions, responsibilities, duties, obligations or
\nliabilities shall be read into this Agreement or any other Loan Document or
\notherwise exist against the Administrative Agent.<\/p>\n
9.2 Delegation of Duties. The Administrative Agent may
\nexecute any of its duties under this Agreement and the other Loan Documents by
\nor through agents or attorneys-in-fact and shall be entitled to advice of
\ncounsel concerning all matters pertaining to such duties. The Administrative
\nAgent shall not be responsible for the negligence or misconduct of any agents or
\nattorneys in-fact selected by it with reasonable care.<\/p>\n
9.3 Exculpatory Provisions. Neither the Administrative Agent
\nnor any of its officers, directors, employees, agents, attorneys-in-fact or
\nAffiliates shall be (i) liable for any action lawfully taken or omitted to be
\ntaken by it or such Person under or in connection with this Agreement or any
\nother Loan Document (except for its or such Person’s own gross negligence or
\nwillful misconduct) or (ii) responsible in any manner to any of the Lenders for
\nany recitals, statements, representations or warranties made by the Borrower or
\nany officer thereof contained in this Agreement or any other Loan Document or in
\nany certificate, report, statement or other document referred to or provided for
\nin, or received by the Administrative Agent under or in connection with, this
\nAgreement or any other Loan Document or for the value, validity, effectiveness,
\ngenuineness, enforceability or sufficiency of this Agreement or any other Loan
\nDocument or for any failure of the Borrower to perform its obligations hereunder
\nor thereunder. The Administrative Agent shall not be under any obligation to any
\nLender to ascertain or to inquire as to the observance or performance of any of
\nthe agreements contained in, or conditions of, this Agreement or any other Loan
\nDocument, or to inspect the properties, books or records of the Borrower.<\/p>\n
9.4 Reliance by Administrative Agent. The Administrative Agent
\nshall be entitled to rely, and shall be fully protected in relying, upon any
\nNote, writing, resolution, notice, consent, certificate, affidavit, letter,
\nfacsimile, telex or teletype message, statement, order or other document or
\nconversation believed by it to be genuine and correct and to have been signed,
\nsent or made by the proper Person or Persons and upon advice and statements of
\nlegal counsel (including, without limitation, counsel to the Borrower),
\nindependent accountants and other experts selected by the Administrative Agent.
\nThe Administrative Agent may deem and treat the payee of any Note as the owner
\nthereof for all purposes unless a written notice of assignment, negotiation or
\ntransfer thereof shall have been filed with the Administrative Agent. The
\nAdministrative Agent shall be fully justified in failing or refusing to take<\/p>\n
63
\n 58<\/p>\n
any action under this Agreement or any other Loan Document unless it shall first
\nreceive such advice or concurrence of Lenders entitled to so act in accordance
\nwith the terms of this Agreement as it deems appropriate or it shall first be
\nindemnified to its satisfaction by the Lenders against any and all liability and
\nexpense which may be incurred by it by reason of taking or continuing to take
\nany such action. The Administrative Agent shall in all cases be fully protected
\nin acting, or in refraining from acting, under this Agreement and the other Loan
\nDocuments in accordance with a request of Lenders entitled to so act in
\naccordance with the terms of this Agreement, and such request and any action
\ntaken or failure to act pursuant thereto shall be binding upon all the Lenders
\nand all future holders of the Loans.<\/p>\n
9.5 Notice of Default. The Administrative Agent shall not be
\ndeemed to have knowledge or notice of the occurrence of any Default or Event of
\nDefault hereunder unless the Administrative Agent has received notice from a
\nLender or the Borrower referring to this Agreement, describing such Default or
\nEvent of Default and stating that such notice is a “notice of default”. In the
\nevent that the Administrative Agent receives such a notice, the Administrative
\nAgent shall promptly give notice thereof to the Lenders. The Administrative
\nAgent shall take such action with respect to such Default or Event of Default as
\nshall be reasonably directed by Lenders entitled to so act in accordance with
\nthe terms of this Agreement; provided that unless and until the Administrative
\nAgent shall have received such directions, the Administrative Agent may (but
\nshall not be obligated to) take such action, or refrain from taking such action,
\nwith respect to such Default or Event of Default as it shall deem advisable in
\nthe best interests of the Lenders.<\/p>\n
9.6 Non-Reliance on Administrative Agent and Other Lenders.
\nEach Lender expressly acknowledges that neither the Administrative Agent nor any
\nof its officers, directors, employees, agents, attorneys-in-fact or Affiliates
\nhas made any representations or warranties to it and that no act by the
\nAdministrative Agent hereafter taken, including any review of the affairs of the
\nBorrower, shall be deemed to constitute any representation or warranty by the
\nAdministrative Agent to any Lender. Each Lender represents to the Administrative
\nAgent that it has, independently and without reliance upon the Administrative
\nAgent or any other Lender, and based on such documents and information as it has
\ndeemed appropriate, made its own appraisal of and investigation into the
\nbusiness, operations, property, financial and other condition and
\ncreditworthiness of the Borrower and made its own decision to make its Loans
\nhereunder and enter into this Agreement. Each Lender also represents that it
\nwill, independently and without reliance upon the Administrative Agent or any
\nother Lender, and based on such documents and information as it shall deem
\nappropriate at the time, continue to make its own credit analysis, appraisals
\nand decisions in taking or not taking action under this Agreement and the other
\nLoan Documents, and to make such investigation as it deems necessary to inform
\nitself as to the business, operations, property, financial and other condition
\nand creditworthiness of the Borrower. Except for notices, reports and other
\ndocuments expressly required to be furnished to the Lenders by the
\nAdministrative Agent hereunder, the Administrative Agent shall not have any duty
\nor responsibility to provide any Lender with any credit or other information
\nconcerning the business, operations, property, condition (financial or
\notherwise), prospects or creditworthiness of the Borrower which may come into
\nthe possession of the Administrative Agent or any of its officers, directors,
\nemployees, agents, attorneys-in-fact or Affiliates.<\/p>\n
9.7 Indemnification. The Lenders agree to indemnify the
\nAdministrative Agent in its capacity as such (to the extent not reimbursed by
\nthe Borrower and without limiting the obligation of the Borrower to do so),
\nratably according to their respective Voting Percentages in effect on the date
\non which indemnification is sought, from and against any and all liabilities,
\nobligations, losses, damages, penalties, actions, judgments, suits, costs,
\nexpenses or disbursements of any kind whatsoever which may at any time
\n(including, without limitation, at any time following the payment of the Loans)
\nbe imposed on, incurred by or asserted against the Administrative Agent in any
\nway relating to or arising out of, the<\/p>\n
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\n 59<\/p>\n
Revolving Credit Commitments, this Agreement, any of the other Loan Documents or
\nany documents contemplated by or referred to herein or therein or the
\ntransactions contemplated hereby or thereby or any action taken or omitted by
\nthe Administrative Agent under or in connection with any of the foregoing;
\nprovided that no Lender shall be liable for the payment of any portion of such
\nliabilities, obligations, losses, damages, penalties, actions, judgments, suits,
\ncosts, expenses or disbursements resulting from the Administrative Agent’s gross
\nnegligence or willful misconduct. The agreements in this subsection shall
\nsurvive the payment of the Loans and all other amounts payable hereunder.<\/p>\n
9.8 Administrative Agent in Its Individual Capacity. The
\nAdministrative Agent and its Affiliates may make loans to, accept deposits from
\nand generally engage in any kind of business with the Borrower as though the
\nAdministrative Agent were not the Administrative Agent hereunder and under the
\nother Loan Documents. With respect to the Loans made by it or any Letter of
\nCredit issued or participated in by it, the Administrative Agent shall have the
\nsame rights and powers under this Agreement and the other Loan Documents as any
\nLender and may exercise the same as though it were not the Administrative Agent,
\nand the terms “Lender” and “Lenders” shall include the Administrative Agent in
\nits individual capacity.<\/p>\n
9.9 Successor Administrative Agent. The Administrative Agent
\nmay resign as Administrative Agent upon 10 days’ notice to the Borrower and the
\nLenders. If the Administrative Agent shall resign as Administrative Agent under
\nthis Agreement and the other Loan Documents, then the Majority Lenders shall
\nappoint from among the Lenders a successor agent for the Lenders, which
\nsuccessor agent (provided that it shall have been approved by the Borrower),
\nshall succeed to the rights, powers and duties of the Administrative Agent
\nhereunder, provided, however, that no Lender shall be so appointed without the
\nconsent thereto of such Lender. Effective upon such appointment and approval,
\nthe term “Administrative Agent” shall mean such successor agent, and the former
\nAdministrative Agent’s rights, powers and duties as Administrative Agent shall
\nbe terminated, without any other or further act or deed on the part of such
\nformer Administrative Agent or any of the parties to this Agreement or any
\nholders of the Loans. After any retiring Administrative Agent’s resignation as
\nAdministrative Agent, the provisions of this Section 9 shall inure to its
\nbenefit as to any actions taken or omitted to be taken by it while it was
\nAdministrative Agent under this Agreement and the other Loan Documents.<\/p>\n
SECTION 10. MISCELLANEOUS<\/p>\n
10.1 Amendments and Waivers. Neither this Agreement nor any
\nother Loan Document, nor any terms hereof or thereof may be amended,
\nsupplemented or modified except in accordance with the provisions of this
\nsubsection. The Majority Lenders may, or, with the written consent of the
\nMajority Lenders, the Administrative Agent may, from time to time, (a) enter
\ninto with the applicable Loan Party or Parties written amendments, supplements
\nor modifications hereto and to the other Loan Documents for the purpose of
\nadding, deleting or revising any provisions to this Agreement or the other Loan
\nDocuments or changing in any manner the rights of the Lenders or of the Borrower
\nhereunder or thereunder or (b) waive, on such terms and conditions as the
\nMajority Lenders or the Administrative Agent, as the case may be, may specify in
\nsuch instrument, any of the requirements of this Agreement or the other Loan
\nDocuments or any Default or Event of Default and its consequences; provided,
\nhowever, that no such waiver and no such amendment, supplement or modification
\nshall (i) reduce the amount or extend the scheduled date of maturity of any Loan
\nor of any installment thereof, or reduce the stated rate of any interest or fee
\npayable hereunder or extend the scheduled date of any payment thereof or
\nincrease the amount or extend the expiration date of any Lender’s Revolving
\nCredit Commitments, in each case without the consent of each Lender adversely
\naffected thereby, (ii) (A) amend, modify or waive any provision of this
\nsubsection, release all or substantially all of the Subsidiary Guarantors from
\ntheir<\/p>\n
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\n 60<\/p>\n
obligations under the Subsidiaries Guarantee or consent to the assignment or
\ntransfer by the Borrower of any of its rights and obligations under this
\nAgreement and the other Loan Documents without the written consent of all the
\nLenders, or (B) reduce the percentage specified in the definition of Majority
\nLenders or Required Lenders without the written consent of all the Lenders,
\n(iii) amend, modify or waive any provision of subsections 2.6 through 2.13
\nwithout the consent of each Issuing Bank adversely affected in any material
\nrespect thereby, (iv) amend, modify or waive any provision of subsections 2.18
\nor 2.19 without the consent of the Swing Line Lender or (v) amend, modify or
\nwaive any provision of Section 9 without the written consent of the then
\nAdministrative Agent. Any such waiver and any such amendment, supplement or
\nmodification shall apply equally to each of the Lenders and shall be binding
\nupon the Borrower, the Lenders, the Administrative Agent and all future holders
\nof the Loans. In the case of any waiver, the Borrower, the Lenders, and the
\nAdministrative Agent shall be restored to their former positions and rights
\nhereunder and under the other Loan Documents, and any Default or Event of
\nDefault waived shall be deemed to be cured and not continuing; no such waiver
\nshall extend to any subsequent or other Default or Event of Default or impair
\nany right consequent thereon.<\/p>\n
10.2 Notices. All notices, requests and demands to or upon the
\nrespective parties hereto to be effective shall be in writing (including by
\nfacsimile transmission) and, unless otherwise expressly provided herein, shall
\nbe deemed to have been duly given or made (a) in the case of delivery by hand
\n(including by overnight courier), when delivered, (b) in the case of delivery by
\nmail, three days after being deposited in the mails, postage prepaid, or (c) in
\nthe case of delivery by facsimile transmission, when sent and receipt has been
\nconfirmed, addressed as follows in the case of the Borrower and the
\nAdministrative Agent, and as set forth in Schedule 10.2 in the case of the other
\nparties hereto, or to such other address as may be hereafter notified by the
\nrespective parties hereto:<\/p>\n
The Borrower: Kmart Corporation
\n 3100 West Big Beaver Road
\n Troy, Michigan 48084<\/p>\n
(a) For all notices:<\/p>\n
Attention: Treasurer
\n Fax: (248) 643-5398<\/p>\n
(b) For notices other than pursuant to Section 2
\n Attention: Chief Financial Officer
\n Fax: (248) 643-5787<\/p>\n
and<\/p>\n
Attention: General Counsel
\n Fax: (248) 643-1054<\/p>\n
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\n 61<\/p>\n
The Administrative
\n Agent: The Chase Manhattan Bank
\n 270 Park Avenue
\n New York, New York 10017
\n Attention: Barry Bergman
\n Fax: (212) 270-5646<\/p>\n
With a copy to:<\/p>\n
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\n 62<\/p>\n
Chase Agent Bank Services
\n 140 East 45th Street, 29th Floor
\n New York, New York 10017
\n Attention: Janet Belden
\n Fax: (212) 622-0854 <\/p>\n
provided that any notice, request or demand to or upon the Administrative Agent
\nor the Lenders pursuant to subsection 2.2, 2.4, 2.6, 2.15, 2.19, 3.1, 3.2 or 3.7
\nshall not be effective until received. Whenever the Administrative Agent sends a
\nnotice by mail, the Administrative Agent will use reasonable efforts to also
\nsend such notice by one of the other means of notice permitted hereunder,
\nprovided that the failure to do so shall not affect in any way the validity of
\nany delivery by mail pursuant to this subsection or otherwise result in any
\nliability to the Administrative Agent or the Lenders.<\/p>\n
10.3 No Waiver; Cumulative Remedies. No failure to exercise
\nand no delay in exercising, on the part of the Administrative Agent or any
\nLender, any right, remedy, power or privilege hereunder or under the other Loan
\nDocuments shall operate as a waiver thereof; nor shall any single or partial
\nexercise of any right, remedy, power or privilege hereunder preclude any other
\nor further exercise thereof or the exercise of any other right, remedy, power or
\nprivilege. The rights, remedies, powers and privileges herein provided are
\ncumulative and not exclusive of any rights, remedies, powers and privileges
\nprovided by law.<\/p>\n
10.4 Survival of Representations and Warranties. All
\nrepresentations and warranties made hereunder, in the other Loan Documents and
\nin any document, certificate or statement delivered pursuant hereto or in
\nconnection herewith shall survive the execution and delivery of this Agreement
\nand the making of the Loans hereunder.<\/p>\n
10.5 Payment of Expenses and Taxes; Indemnity. The Borrower
\nagrees (a) to pay or reimburse the Administrative Agent for all its reasonable
\nout-of-pocket costs and expenses incurred in connection with the development,
\npreparation and execution of, and any amendment, supplement or modification to,
\nthis Agreement and the other Loan Documents and any other documents prepared in
\nconnection herewith or therewith, and the consummation and administration of the
\ntransactions contemplated hereby and thereby, including, without limitation, the
\nreasonable fees and disbursements of counsel to the Administrative Agent, (b)
\n(i) to pay or reimburse the Administrative Agent for all its reasonable
\nout-of-pocket costs and expenses incurred in connection with the enforcement or
\npreservation of any rights under this Agreement, the other Loan Documents and
\nany such other documents, including, without limitation, the fees and
\ndisbursements of counsel (including the allocated fees and expenses of in-house
\ncounsel) to the Administrative Agent, and (ii) to pay or reimburse each Lender
\nfor all its reasonable out-of-pocket costs and expenses incurred in connection
\nwith the enforcement or preservation of any rights under this Agreement, the
\nother Loan Documents and any such other documents following the occurrence and
\nduring the continuation of a Default or an Event of Default, including, without
\nlimitation, the fees and disbursements of outside counsel or, in lieu thereof,
\nthe allocated fees and expenses of, in-house counsel to each Lender, (c) to pay,
\nindemnify, and hold each Lender and the Administrative Agent (and their
\nrespective directors, officers, employees and agents) harmless from, any and all
\nrecording and filing fees and any and all liabilities with respect to, or
\nresulting from any delay in paying, stamp, excise (other than excise taxes
\nimposed in lieu of net income taxes) and other similar taxes, if any, which may
\nbe payable or determined to be payable in connection with the execution and
\ndelivery of, or consummation or administration of any of the transactions
\ncontemplated by, or any amendment, supplement or modification of, or any waiver
\nor consent under or in respect of, this Agreement, the other Loan Documents and
\nany such other documents, and (d) to pay, indemnify, and hold each Lender and
\nthe Administrative Agent (and their respective directors, officers, employees
\nand<\/p>\n
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\n 63<\/p>\n
agents) harmless from and against any and all other liabilities, obligations,
\nlosses, damages, penalties, actions, judgments, suits and reasonable
\nout-of-pocket costs, expenses or disbursements of any kind or nature whatsoever
\nwith respect to any claim, litigation, investigation or proceeding relating to
\nthe execution, delivery, enforcement, performance and administration of this
\nAgreement and the other Loan Documents and any such other documents or any use
\nof any of the Extensions of Credit, including, without limitation, any of the
\nforegoing relating to the violation of, noncompliance with or liability under,
\nany Environmental Law applicable to the operations of the Borrower, any of its
\nSubsidiaries or any of the Properties (all the foregoing in this clause (d),
\ncollectively, the “Indemnified Liabilities”), provided that the Borrower shall
\nhave no obligation hereunder to the Administrative Agent or any Lender (or their
\nrespective directors, officers, employees or agents) with respect to Indemnified
\nLiabilities arising from the gross negligence or willful misconduct of the
\nAdministrative Agent or any such Lender (or their respective directors,
\nofficers, employees or agents, as the case may be). The agreements in this
\nsubsection shall survive the termination of this Agreement and the repayment of
\nthe Loans and all other amounts payable hereunder.<\/p>\n
10.6 Successors and Assigns; Participations and Assignments.
\n(a) This Agreement shall be binding upon and inure to the benefit of the
\nBorrower, the Lenders, the Administrative Agent and their respective successors
\nand assigns, except that the Borrower may not assign or transfer any of its
\nrights or obligations under this Agreement without the prior written consent of
\neach Lender.<\/p>\n
(b) Any Lender may, in the ordinary course of its commercial
\nbanking business and in accordance with applicable law, at any time sell to one
\nor more banks or other entities (“Participants”) participating interests in any
\nLoan owing to such Lender, any interest of such Lender in any Letter of Credit,
\nthe Revolving Credit Commitment of such Lender or any other interest of such
\nLender hereunder and under the other Loan Documents. In the event of any such
\nsale by a Lender of a participating interest to a Participant, such Lender’s
\nobligations under this Agreement to the other parties to this Agreement shall
\nremain unchanged, such Lender shall remain solely responsible for the
\nperformance thereof, such Lender shall remain the holder of any such Loan for
\nall purposes under this Agreement and the other Loan Documents, and the Borrower
\nand the Administrative Agent shall continue to deal solely and directly with
\nsuch Lender in connection with such Lender’s rights and obligations under this
\nAgreement and the other Loan Documents. No Lender shall be entitled to create in
\nfavor of any Participant, in the participation agreement pursuant to which such
\nParticipant’s participating interest shall be created or otherwise, any right to
\nvote on, consent to or approve any matter relating to this Agreement or any
\nother Loan Document except for those specified in clauses (i) and (ii) of the
\nproviso to subsection 10.1. The Borrower agrees that if amounts outstanding
\nunder this Agreement are due or unpaid, or shall have been declared or shall
\nhave become due and payable upon the occurrence of an Event of Default, each
\nParticipant shall, to the maximum extent permitted by applicable law, be deemed
\nto have the right of setoff in respect of its participating interest in amounts
\nowing under this Agreement to the same extent as if the amount of its
\nparticipating interest were owing directly to it as a Lender under this
\nAgreement, provided that, in purchasing such participating interest, such
\nParticipant shall be deemed to have agreed to share with the Lenders the
\nproceeds thereof as provided in subsection 10.8(a) as fully as if it were a
\nLender hereunder. The Borrower also agrees that each Participant shall be
\nentitled to the benefits of subsections 3.9, 3.10 and 3.11 with respect to its
\nparticipation in the Revolving Credit Commitments and the Loans outstanding from
\ntime to time as if it were a Lender; provided that, in the case of subsection
\n3.10, such Participant shall have complied with the requirements of said
\nsubsection and provided, further, that no Participant shall be entitled to
\nreceive any greater amount pursuant to any such subsection than the transferor
\nLender would have been entitled to receive in respect of the amount of the
\nparticipation transferred by such transferor Lender to such Participant had no
\nsuch transfer occurred.<\/p>\n
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\n 64<\/p>\n
(c) (i) Any Lender may, in the ordinary course of its business
\nof making or investing in loans and in accordance with applicable law, at any
\ntime and from time to time assign to any Lender or any affiliate thereof or,
\nwith the consent of the Borrower and the Administrative Agent (which in each
\ncase shall not be unreasonably withheld), to an additional bank, financial
\ninstitution or other entity that is then engaged in the business of lending
\nmoney on a revolving basis (an “Assignee”) all or any part of its rights and
\nobligations under this Agreement and the other Loan Documents pursuant to an
\nAssignment and Acceptance, substantially in the form of Exhibit J, executed by
\nsuch Assignee and such assigning Lender (and, in the case of an Assignee that is
\nnot then a Lender or an affiliate thereof, by the Borrower and the
\nAdministrative Agent) and delivered to the Administrative Agent for its
\nacceptance and recording in the Register, with a copy thereof to the Borrower,
\nprovided that (a) in the case of any such assignment to an additional bank or
\nfinancial institution, the sum of the aggregate principal amount of the
\nCommitted Loans, the aggregate amount of the L\/C Obligations and the aggregate
\namount of the unused Revolving Credit Commitments being assigned and, if such
\nassignment is of less than all of the rights and obligations of the assigning
\nLender, the sum of the aggregate principal amount of the Committed Loans, the
\naggregate amount of the L\/C Obligations and the aggregate amount of the unused
\nRevolving Credit Commitments remaining with the assigning Lender are each not
\nless than $10,000,000 (or such lesser amount as may be agreed to by the Borrower
\nand the Administrative Agent) and (b) assignments shall not be required to be
\nmade on a ratable basis between the Revolving Credit Commitments and\/or
\nCommitted Loans held by any Lender. Upon such execution, delivery, acceptance
\nand recording, from and after the effective date determined pursuant to such
\nAssignment and Acceptance, (x) the Assignee thereunder shall be a party hereto
\nand, to the extent provided in such Assignment and Acceptance, have the rights
\nand obligations of a Lender hereunder with a Revolving Credit Commitment as set
\nforth therein, and (y) the assigning Lender thereunder shall, to the extent
\nprovided in such Assignment and Acceptance, be released from its obligations
\nunder this Agreement (and, in the case of an Assignment and Acceptance covering
\nall or the remaining portion of an assigning Lender’s rights and obligations
\nunder this Agreement, such assigning Lender shall cease to be a party hereto).
\nNotwithstanding any provision of this paragraph (c) and paragraph (e) of this
\nsubsection, the consent of the Borrower shall not be required, and, unless
\nrequested by the Assignee and\/or the assigning Lender, new Notes shall not be
\nrequired to be executed and delivered by the Borrower, for any assignment which
\noccurs at any time when any of the events described in Section 8(f) shall have
\noccurred and be continuing.<\/p>\n
(ii) Notwithstanding anything to the contrary contained
\n herein, any Lender (a “Granting Lender”) may grant to a special purpose
\n funding vehicle (a “SPC”), identified as such in writing from time to
\n time by the Granting Lender to the Administrative Agent and the
\n Borrower, the option to provide to the Borrower all or any part of any
\n Loan that such Granting Lender would otherwise be obligated to make to
\n the Borrower pursuant to this Agreement; provided that (i) nothing
\n herein shall constitute a commitment by any SPC to make any Loan, (ii)
\n if an SPC elects not to exercise such option or otherwise fails to
\n provide all or any part of such Loan, the Granting Lender shall be
\n obligated to make such Loan pursuant to the terms hereof. The making of
\n a Loan by an SPC hereunder shall utilize the Commitment of the Granting
\n Lender to the same extent, and as if, such Loan were made by such
\n Granting Lender. Each party hereto hereby agrees that no SPC shall be
\n liable for any indemnity or similar payment obligation under this
\n Agreement (all liability for which shall remain with the Granting
\n Lender). In furtherance of the foregoing, each party hereto hereby
\n agrees (which agreement shall survive the termination of the Agreement)
\n that, prior to the date that is one year and one day after the payment
\n in full of all outstanding commercial paper or other senior
\n indebtedness of any SPC, it will not institute against, or join any
\n other person or liquidation proceedings under the laws of the United
\n States or any State thereof. In addition, notwithstanding anything to
\n the contrary contained in this subsection 10.6(c), any SPC may (i) with
\n notice to, but without the prior written consent of, the Borrower and
\n the Administrative Agent and without paying any processing fee
\n therefor, assign <\/p>\n
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\n 65<\/p>\n
all or a portion of its interests in any Loans to the Granting Lender
\n or to any financial institutions (consented to by the Borrower and
\n Administrative Agent) providing liquidity and\/or credit support to or
\n for the account of such SPC to support the funding or maintenance of
\n Loans and (ii) disclose on a confidential basis any non-public
\n information relating to its Loans to any rating agency, commercial
\n paper dealer or provider of any surety, guarantee or credit or
\n liquidity enhancement to such SPC. This subsection 10.6(c)(ii) may not
\n be amended without the written consent of the SPC.<\/p>\n
(d) The Administrative Agent, on behalf of the Borrower, shall
\nmaintain at the address of the Administrative Agent referred to in subsection
\n10.2 a copy of each Assignment and Acceptance delivered to it and a register
\n(the “Register”) for the recordation of the names and addresses of the Lenders
\nand the Revolving Credit Commitments of, and principal amounts of the Loans
\nowing to, each Lender from time to time. The entries in the Register shall be
\nconclusive, in the absence of manifest error, and the Borrower, the
\nAdministrative Agent and the Lenders may (and, in the case of any Loan or other
\nobligation hereunder not evidenced by a Note, shall) treat each Person whose
\nname is recorded in the Register as the owner of a Loan or other obligation
\nhereunder as the owner thereof for all purposes of this Agreement and the other
\nLoan Documents, notwithstanding any notice to the contrary. Any assignment of
\nany Loan or other obligation hereunder shall be effective only upon appropriate
\nentries with respect thereto being made in the Register. The Register shall be
\navailable for inspection by the Borrower or any Lender at any reasonable time
\nand from time to time upon reasonable prior notice.<\/p>\n
(e) Upon its receipt of an Assignment and Acceptance executed
\nby an assigning Lender and an Assignee (and, in the case of an Assignee that is
\nnot then a Lender or an affiliate thereof, by the Borrower and the
\nAdministrative Agent) together with payment to the Administrative Agent of a
\nregistration and processing fee of $3,500, the Administrative Agent shall (i)
\npromptly accept such Assignment and Acceptance and (ii) on the effective date
\ndetermined pursuant thereto record the information contained therein in the
\nRegister and give notice of such acceptance and recordation to the Lenders and
\nthe Borrower.<\/p>\n
(f) The Borrower authorizes each Lender to disclose to any
\nParticipant or Assignee (each, a “Transferee”) and any prospective Transferee,
\nsubject to the provisions of subsection 10.17, any and all financial information
\nin such Lender’s possession concerning the Borrower and its Affiliates which has
\nbeen delivered to such Lender by or on behalf of the Borrower pursuant to this
\nAgreement or which has been delivered to such Lender by or on behalf of the
\nBorrower in connection with such Lender’s credit evaluation of the Borrower and
\nits Affiliates prior to becoming a party to this Agreement.<\/p>\n
(g) For avoidance of doubt, the parties to this Agreement
\nacknowledge that the provisions of this subsection concerning assignments of
\nLoans and Notes relate only to absolute assignments and that such provisions do
\nnot prohibit assignments creating security interests, including, without
\nlimitation, any pledge or assignment by a Lender of any Loan or Note to any
\nFederal Reserve Bank in accordance with applicable law.<\/p>\n
10.7 Replacement of Lenders under Certain Circumstances. The
\nBorrower shall be permitted to replace any Lender which (a) requests
\nreimbursement for amounts owing pursuant to subsection 3.9 or 3.10 (other than
\nwith respect to LIBO Rate CAF Advances) or (b) is affected in the manner
\ndescribed in subsection 3.8 (other than with respect to LIBO Rate CAF Advances)
\nand as a result thereof any of the actions described in said subsection are
\nrequired to be taken; provided that (i) such replacement does not conflict with
\nany Requirement of Law, (ii) no Event of Default shall have occurred and be
\ncontinuing at the time of such replacement, (iii) the Borrower shall repay (or
\nthe replacement bank or institution shall purchase, at par) all Loans and other
\namounts owing to such replaced Lender<\/p>\n
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\n 66<\/p>\n
prior to the date of replacement, (iv) the Borrower shall be liable to such
\nreplaced Lender under subsection 3.11 if any Eurodollar Loan owing to such
\nreplaced Lender shall be prepaid (or purchased) other than on the last day of
\nthe Interest Period relating thereto, or any CAF Advance owing to such replaced
\nLender shall be paid other than on the relevant CAF Advance Maturity Date, (v)
\nthe replacement bank or institution, if not already a Lender, and the terms and
\nconditions of such replacement, shall be reasonably satisfactory to the
\nAdministrative Agent, (vi) the replaced Lender shall be obligated to make such
\nreplacement in accordance with the provisions of subsection 10.6 (provided that
\nthe Borrower shall be obligated to pay the registration and processing fee
\nreferred to therein), (vii) until such time as such replacement shall be
\nconsummated, the Borrower shall pay all additional amounts (if any) required
\npursuant to subsection 3.9 or 3.10, as the case may be, and (viii) any such
\nreplacement shall not be deemed to be a waiver of any rights which the Borrower,
\nthe Administrative Agent or any other Lender shall have against the replaced
\nLender.<\/p>\n
10.8 Adjustments; Set-off. (a) If any Lender (a “benefitted
\nLender”) shall at any time receive any payment of all or part of its Loans or
\nthe Reimbursement Obligations owing to it, or interest thereon, or receive any
\ncollateral in respect thereof (whether voluntarily or involuntarily, by set-off,
\npursuant to events or proceedings of the nature referred to in Section 8(f), or
\notherwise), and, after giving effect to any such payment or the receipt of any
\nsuch collateral, such benefitted Lender shall have received a greater
\nproportionate payment (determined in accordance with subsection 3.7) or interest
\nin collateral than that received by any other Lender, if any, in respect of such
\nother Lender’s Loans or the Reimbursement Obligations owing to it, or interest
\nthereon, such benefitted Lender shall purchase for cash from the other Lenders a
\nparticipating or other similar interest in such portion of each such other
\nLender’s Loans or the Reimbursement Obligations owing to it, or shall provide
\nsuch other Lenders with the benefits of any such collateral, or the proceeds
\nthereof, as shall be necessary to cause such benefitted Lender to share the
\nexcess payment or benefits of such collateral or proceeds ratably with each of
\nthe Lenders entitled to the same under this subsection; provided, however, that
\nif all or any portion of such excess payment or benefits is thereafter recovered
\nfrom such benefitted Lender, such purchase shall be rescinded, and the purchase
\nprice and benefits returned, to the extent of such recovery, but without
\ninterest.<\/p>\n
(b) In addition to any rights and remedies of the Lenders
\nprovided by law, if an Event of Default shall have occurred and be continuing,
\neach Lender shall have the right, without prior notice to the Borrower, any such
\nnotice being expressly waived by the Borrower to the extent permitted by
\napplicable law, upon any amount becoming due and payable by the Borrower
\nhereunder (whether at the stated maturity, by acceleration or otherwise) which
\nis not paid when due to set-off and appropriate and apply against such amount
\nany and all deposits (general or special, time or demand, provisional or final),
\nin any currency, and any other credits, indebtedness or claims, in any currency,
\nin each case whether direct or indirect, absolute or contingent, matured or
\nunmatured, at any time held or owing by such Lender or any branch or agency
\nthereof to or for the credit or the account of the Borrower. Each Lender agrees
\npromptly to notify the Borrower and the Administrative Agent after any such
\nset-off and application made by such Lender, provided that the failure to give
\nsuch notice shall not affect the validity of such set-off and application.<\/p>\n
10.9 Counterparts. This Agreement may be executed by one or
\nmore of the parties to this Agreement on any number of separate counterparts
\n(including by facsimile transmission), and all of said counterparts taken
\ntogether shall be deemed to constitute one and the same instrument. A set of the
\ncopies of this Agreement signed by all the parties shall be lodged with the
\nBorrower and the Administrative Agent.<\/p>\n
72
\n 67<\/p>\n
10.10 Severability. Any provision of this Agreement which is
\nprohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
\nbe ineffective to the extent of such prohibition or unenforceability without
\ninvalidating the remaining provisions hereof, and any such prohibition or
\nunenforceability in any jurisdiction shall not invalidate or render
\nunenforceable such provision in any other jurisdiction.<\/p>\n
10.11 Integration. This Agreement and the other Loan Documents
\nrepresent the entire agreement of the Borrower, the Administrative Agent and the
\nLenders with respect to the subject matter hereof and thereof, and there are no
\npromises, undertakings, representations or warranties by the Administrative
\nAgent or any Lender relative to subject matter hereof or thereof not expressly
\nset forth or referred to herein or in the other Loan Documents.<\/p>\n
10.12 Termination. This Agreement shall terminate when the
\nCommitments have terminated or expired, no Letter of Credit is outstanding
\n(other than Letters of Credit which have been cash collateralized in the manner
\ncontemplated pursuant to the last paragraph of Section 8) and all obligations of
\nthe Borrower hereunder have been paid in full.<\/p>\n
13 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
\nOBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND
\nINTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.<\/p>\n
10.14 Submission To Jurisdiction; Waivers. The Borrower hereby
\nirrevocably and unconditionally:<\/p>\n
(a) submits for itself and its property in any legal action or
\n proceeding relating to this Agreement and the other Loan Documents to
\n which it is a party, or for recognition and enforcement of any judgment
\n in respect thereof, to the non-exclusive general jurisdiction of the
\n Courts of the State of New York, the courts of the United States of
\n America for the Southern District of New York, and appellate courts
\n from any thereof;<\/p>\n
(b) to the extent permitted by applicable law, consents that
\n any such action or proceeding may be brought in such courts and waives
\n any objection that it may now or hereafter have to the venue of any
\n such action or proceeding in any such court or that such action or
\n proceeding was brought in an inconvenient court and agrees not to plead
\n or claim the same;<\/p>\n
(c) agrees that service of process in any such action or
\n proceeding may be effected by mailing a copy thereof by registered or
\n certified mail (or any substantially similar form of mail), postage
\n prepaid, to the Borrower at its address set forth in subsection 10.2 or
\n at such other address of which the Administrative Agent shall have been
\n notified pursuant thereto;<\/p>\n
(d) agrees that nothing herein shall affect the right to
\n effect service of process in any other manner permitted by law or shall
\n limit the right to sue in any other jurisdiction; and<\/p>\n
(e) waives, to the maximum extent not prohibited by law, any
\n right it may have to claim or recover in any legal action or proceeding
\n referred to in this subsection any special, exemplary, punitive or
\n consequential damages.<\/p>\n
10.15 Acknowledgements. The Borrower hereby acknowledges that:<\/p>\n
73
\n 68<\/p>\n
(a) it has been advised by counsel in the negotiation,
\n execution and delivery of this Agreement and the other Loan Documents;<\/p>\n
(b) neither the Administrative Agent nor any Lender has any
\n fiduciary relationship with or fiduciary duty to the Borrower arising
\n out of or in connection with this Agreement or any of the other Loan
\n Documents, and the relationship between the Administrative Agent and
\n the Lenders, on the one hand, and the Borrower, on the other hand, in
\n connection herewith or therewith is solely that of debtor and creditor;
\n and<\/p>\n
(c) no joint venture is created hereby or by the other Loan
\n Documents or otherwise exists by virtue of the transactions
\n contemplated hereby among the Lenders or among the Borrower and the
\n Lenders or among the Borrower and the Administrative Agent.<\/p>\n
10.16 WAIVERS OF JURY TRIAL. THE BORROWER, THE ADMINISTRATIVE
\nAGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
\nIN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
\nDOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.<\/p>\n
10.17 Confidentiality. Each Lender agrees to keep confidential
\nall information provided to it by the Borrower or the Administrative Agent
\npursuant to or in connection with this Agreement that is designated by the
\nBorrower in writing as confidential (the “Confidential Information”); provided
\nthat nothing herein shall prevent any Lender from disclosing any such
\nConfidential Information (i) to the Administrative Agent or any other Lender,
\n(ii) to any Transferee or prospective Transferee which receives such
\nConfidential Information having been made aware of the confidential nature
\nthereof and which has agreed in writing to be bound by the terms of this
\nsubsection 10.17, (iii) to its directors, officers, employees, employees of
\naffiliates, examiners and professional advisers who have a need to know such
\nConfidential Information in accordance with customary banking practices and who
\nreceive such Confidential Information having been made aware of the restrictions
\nof this subsection and, in the case of professional advisers, having agreed to
\nbe bound thereby, (iv) upon the request or demand of any Governmental Authority
\nhaving jurisdiction over such Lender, (v) in response to any order of any court
\nor other Governmental Authority or as may otherwise be required pursuant to any
\nRequirement of Law, (vi) in connection with the exercise of any remedy
\nhereunder, (vii) which is now or hereafter becomes generally available to the
\npublic other than as a result of a disclosure by such Lender or a disclosure
\nknown to such Lender to have been made by any person or entity to which such
\nLender has delivered such Confidential Information, (viii) which was available
\nto such Lender prior to its disclosure to such Lender by the Borrower, or (ix)
\nwhich becomes available to such Lender from a source other than the Borrower,
\nprovided that such source is not (1) known to such Lender to be bound by a
\nconfidentiality agreement with the Borrower or (2) known to such Lender to be
\notherwise prohibited from transmitting the information to such Lender by a
\ncontractual, legal or fiduciary obligation.<\/p>\n
10.18 Judgment Currency. The obligation of the Borrower under
\nthis Agreement to make payments in respect of each Reimbursement Obligation in
\nthe currency in which it is outstanding (the “Agreement Currency”) shall not be
\ndischarged or satisfied by any tender or recovery pursuant to any judgment
\nexpressed in or converted into any other currency (the “Judgment Currency”)
\nexcept to the extent that such tender or recovery of the Judgment Currency
\nresults in the effective receipt by the Lenders or the relevant Issuing Banks,
\nas the case may be, of the full amount of the Agreement Currency payable under
\nthis Agreement and the Borrower agrees to indemnify the Lenders or the relevant
\nIssuing Banks, as the case may be (and the Lenders or the relevant Issuing
\nBanks, as the case may be, shall have an additional legal claim) for any
\ndifference between such full amount and the amount effectively<\/p>\n
74
\n 69<\/p>\n
received by such Lenders or such Issuing Banks, as the case may be, pursuant to
\nany such tender or recovery. Each Lender’s or Issuing Bank’s determination of
\namounts effectively received by such Lender or Issuing Bank shall be conclusive
\nabsent manifest error. If a judgment in respect of the obligations of the
\nBorrower hereunder is rendered in a currency other than the Agreement Currency
\nand if, upon receipt of the full amount of such judgment in such currency and
\nthe conversion into, and receipt of such amount in the Agreement Currency, such
\namount of the Agreement Currency exceeds the obligations of the Borrower
\nhereunder, such excess amount shall be remitted to the Borrower by the Lenders
\nor the relevant Issuing Banks, as the case may be. The obligations of the
\nBorrower under this subsection shall survive the termination of this Agreement
\nand the repayment of the Loans and all other amounts payable hereunder.<\/p>\n
10.19 Section Headings. The Section and subsection headings in
\nthis Agreement are for convenience in reference only and shall not deemed to
\nalter or affect the interpretation of any provisions hereof.<\/p>\n
75<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this
\nAgreement to be duly executed and delivered by their proper and duly authorized
\nofficers as of the day and year first above written.<\/p>\n
KMART CORPORATION<\/p>\n
By: Michael J. Viola
\n ——————————
\n Name: Michael J. Viola
\n Title: Vice President and Treasurer<\/p>\n
THE CHASE MANHATTAN BANK, as
\n Administrative Agent<\/p>\n
By: William P. Rindfuss
\n ——————————
\n Name: William P. Rindfuss
\n Title: Vice President<\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6846,6851,7994],"corporate_contracts_industries":[9415,9495],"corporate_contracts_types":[9561,9560],"class_list":["post-40858","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-bank-of-america-corp","corporate_contracts_companies-bankboston-corp","corporate_contracts_companies-kmart-corp","corporate_contracts_industries-financial__banks","corporate_contracts_industries-retail__department","corporate_contracts_types-finance__credit","corporate_contracts_types-finance"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/40858","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=40858"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=40858"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=40858"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=40858"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}