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Title: |
Loan Agreement |
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Entities: |
Borders Group, Inc.; Environmental Remediation Holding Corp.; Source Interlink Companies Inc.; Wachovia Bank, NA; Wells Fargo Bank, NA; Bank of America, NA; Schulte Roth & Zabel LLP |
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Date: |
2003 |
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Preview shows 72KB of 452KB total |
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$99 |
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ID: |
#336977 |
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LOAN AGREEMENT
BY AND AMONG
SOURCE INTERLINK COMPANIES, INC.
AND
EACH OF ITS SUBSIDIARIES THAT ARE NAMED HEREIN AS BORROWERS
AS BORROWERS,
EACH OF ITS SUBSIDIARIES THAT ARE NAMED HEREIN AS GUARANTORS
AS GUARANTORS,
THE LENDERS THAT ARE SIGNATORIES HERETO
AS THE LENDERS,
AND
WELLS FARGO FOOTHILL, INC.
AS THE ARRANGER AND ADMINISTRATIVE AGENT
DATED AS OF OCTOBER 30, 2003
================================================================================
{PAGE}
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), is entered into as of
October 30, 2003, by and among, on the one hand, the lenders identified on the
signature pages hereof (such lenders, together with their respective successors
and permitted assigns, are referred to hereinafter each individually as a
"Lender" and collectively as the "Lenders"), WELLS FARGO FOOTHILL, INC., a
California corporation, as the arranger and administrative agent for the Lenders
("Agent"), and, on the other hand, SOURCE INTERLINK COMPANIES, INC., a Missouri
corporation ("Parent"), each of Parent's Subsidiaries identified on the
signature pages hereof as "Borrowers" (such Subsidiaries, together with Parent,
are referred to hereinafter each individually as a "Borrower", and individually
and collectively, jointly and severally, as the "Borrowers"), and each of
Parent's Subsidiaries identified on the signature pages hereof as "Guarantors"
(such Subsidiaries are referred to hereinafter each individually as a
"Guarantor", and individually and collectively, jointly and severally, as the
"Guarantors ") .
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1. DEFINITIONS. As used in this Agreement, the following
terms shall have the following definitions:
"Account" means an account (as that term is defined in the
Code), and any and all supporting obligations in respect thereof.
"Account Debtor" means any Person who is obligated under, with
respect to, or on account of, an Account, chattel paper, or a General
Intangible.
"ACH Transactions" means any cash management or related
services (including the Automated Clearing House processing of electronic funds
transfers through the direct Federal Reserve Fedline system) provided by a Bank
Product Provider for the account of Administrative Borrower or its Subsidiaries.
"Acquisition" means the acquisition of (i) all or
substantially all of the Stock of any Person, or (ii) all or substantially all
of the assets of any Person or the assets comprising any material line of
business of such Person.
"Administrative Borrower" has the meaning set forth in Section
17.10.
"Advances" has the meaning set forth in Section 2.1(a).
"Affiliate" means, as applied to any Person, any other Person
who, directly or indirectly through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. For purposes of
this definition, "control" means the possession, directly or indirectly through
one or more intermediaries, of the power to direct the management and policies
of a Person, whether through the ownership of Stock, by contract, or otherwise;
provided, however, that, for purposes of the definition of Eligible Accounts and
Section 7.13 hereof:
{PAGE}
(a) any Person which owns directly or indirectly 10% or more of the Stock having
ordinary voting power for the election of directors or other members of the
governing body of a Person or 10% or more of the partnership or other ownership
interests of a Person (other than as a limited partner of such Person) shall be
deemed an Affiliate of such Person, (b) each director (or comparable manager) of
a Person shall be deemed to be an Affiliate of such Person, and (c) each
partnership or joint venture in which a Person is a partner or joint venturer
shall be deemed an Affiliate of such Person.
"Agent" means WFF, in its capacity as arranger and
administrative agent hereunder, and any successor thereto.
"Agent Advances" has the meaning set forth in Section
2.3(e)(i).
"Agent-Related Persons" means Agent, together with its
Affiliates, officers, directors, employees, attorneys, and agents.
"Agent's Account" means the Deposit Account of Agent
identified on Schedule A-1.
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"Applicable Excess Cash Flow Percentage" means, with respect
to Excess Cash Flow for any Fiscal Year of the Parent, the percentage of Excess
Cash Flow set forth below opposite the applicable Total Debt Ratio as of the
last day of such Fiscal Year, as determined by Agent based upon the Loan
Parties' financial statements delivered to Agent and Lenders pursuant to Section
6.3(b) for such Fiscal Year:
{TABLE}
{CAPTION}
Total Debt Ratio Percentage of Excess Cash Flow
---------------- ------------------------------
{S} {C}
3.0 to 1.0 or higher 25%
Lower than 3.0 to 1.0 but
higher than or equal
to 2.5 to 1.0 15%
Lower than 2.5 to 1.0 but
higher than or equal
to 2.0 to 1.0 10%
Lower than 2.0 to 1.0 0%
{/TABLE}
provided, that, notwithstanding the foregoing, if the Loan Parties fail to
deliver financial statements to the Agent and the Lenders for any Fiscal Year in
accordance with Section 6.3(b), then until such financial statements are
delivered, the Applicable Excess Cash Flow Percentage shall be 25%.
"Applicable Prepayment Premium" means, as of any date of
determination, an amount equal to (a) during the period from and after the date
of the execution and delivery of this
- 2 -
{PAGE}
Agreement up to the date that is the first anniversary of the Closing Date, 3%
times the sum of (i) the Maximum Revolver Amount, plus (ii) the outstanding
principal balance of the Term Loan on the date immediately prior to the date of
determination, (b) during the period from and including the date that is the
first anniversary of the Closing Date up to the date that is the second
anniversary of the Closing Date, 2% times the sum of (i) the Maximum Revolver
Amount, plus (ii) the outstanding principal balance of the Term Loan on the date
immediately prior to the date of determination, and (c) during the period from
and including the date that is the second anniversary of the Closing Date up to
the Maturity Date, 1% times the sum of (i) the Maximum Revolver Amount, plus
(ii) the outstanding principal balance of the Term Loan on the date immediately
prior to the date of determination.
"Appraised Value" means the net forced liquidation value (net
of liquidation expenses) of any Equipment or the net fair market value (net of
liquidation expenses) of any Real Property Collateral, in each case, determined
by the most recent appraisal performed by a qualified independent appraiser
selected by Agent, which appraisal is in form and substance satisfactory to
Agent.
"Assignee" has the meaning set forth in Section 14.1(a).
"Assignment and Acceptance" means an Assignment and Acceptance
Agreement substantially in the form of Exhibit A-1.
"Authorized Person" means any officer or employee of
Administrative Borrower.
"Availability" means, as of any date of determination, the
amount that Borrowers are entitled to borrow as Advances hereunder (after giving
effect to all then outstanding Obligations (other than Bank Product Obligations)
and all sublimits and reserves then applicable hereunder).
"Bank Product" means any financial accommodation extended to
Administrative Borrower or its Subsidiaries by a Bank Product Provider (other
than pursuant to this Agreement) including: (a) credit cards, (b) credit card
processing services, (c) debit cards, (d) purchase cards, (e) ACH Transactions,
(f) cash management, including controlled disbursement, accounts or services, or
(g) transactions under Hedge Agreements.
"Bank Product Agreements" means those agreements entered into
from time to time by Administrative Borrower or its Subsidiaries with a Bank
Product Provider in connection with the obtaining of any of the Bank Products.
"Bank Product Obligations" means all obligations, liabilities,
contingent reimbursement obligations, fees, and expenses owing by Administrative
Borrower or its Subsidiaries to any Bank Product Provider pursuant to or
evidenced by the Bank Product Agreements and irrespective of whether for the
payment of money, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, and including all such amounts
that Administrative Borrower or its Subsidiaries are obligated to reimburse to
Agent or any member of the Lender Group as a result of Agent or such member of
the Lender Group purchasing participations from, or executing indemnities or
reimbursement obligations to,
- 3 -
{PAGE}
a Bank Product Provider with respect to the Bank Products provided by such Bank
Product Provider to Administrative Borrower or its Subsidiaries.
"Bank Product Provider" means Wells Fargo or any of its
Affiliates.
"Bank Product Reserve" means, as of any date of determination,
the amount of reserves that Agent has established (based upon the Bank Product
Providers' reasonable determination of the maximum expected credit exposure in
respect of then extant Bank Products) in respect of Bank Products then provided
or outstanding, provided that such reserves shall be established at the time
Wells Fargo or any of its Affiliates provides the applicable Bank Products.
"Bankruptcy Code" means, as applicable, (i) the United States
Bankruptcy Code, (ii) the Bankruptcy and Insolvency Act (Canada) or (iii) the
Companies' Creditors Arrangement Act (Canada), or any similar legislation in a
relevant jurisdiction, in each case as in effect from time to time.
"Barnes and Noble" means, collectively, Barnes and Noble, Inc.
and each of its Affiliates.
"Base LIBOR Rate" means the rate per annum, determined by
Agent in accordance with its customary procedures, and utilizing such electronic
or other quotation sources as it considers appropriate (rounded upwards, if
necessary, to the next 1/100%), to be the rate at which Dollar deposits (for
delivery on the first day of the requested Interest Period) are offered to major
banks in the London interbank market 2 Business Days prior to the commencement
of the requested Interest Period, for a term and in an amount comparable to the
Interest Period and the amount of the LIBOR Rate Loan requested (whether as an
initial LIBOR Rate Loan or as a continuation of an extant LIBOR Rate Loan or as
a conversion of a Base Rate Loan to a LIBOR Rate Loan) by Administrative
Borrower in accordance with this Agreement, which determination shall be
conclusive in the absence of manifest error.
"Base Rate" means, the rate of interest announced, from time
to time, within Wells Fargo at its principal office in San Francisco as its
"prime rate", with the understanding that the "prime rate" is one of Wells
Fargo's base rates (not necessarily the lowest of such rates) and serves as the
basis upon which effective rates of interest are calculated for those loans
making reference thereto and is evidenced by the recording thereof after its
announcement in such internal publications as Wells Fargo may designate.
"Base Rate Loan" means the portion of the Advances or the Term
Loan that bears interest at a rate determined by reference to the Base Rate.
"Base Rate Margin" means the percentage points set forth below
corresponding to average Excess Availability for the three-month period ending
as of the last day of the immediately preceding month, as determined by Agent
based upon the Borrowing Base and Excess Availability calculation delivered to
Agent pursuant to Section 6.2(j) for such three-month period:
- 4 -
{PAGE}
{TABLE}
{CAPTION}
-----------------------------------------------------------------------------------------
Level Average Excess Availability Base Rate Margin
-----------------------------------------------------------------------------------------
{S} {C} {C}
I Greater than $10,000,000 Zero percentage points
-----------------------------------------------------------------------------------------
II $10,000,000 or less but greater than or 0.25 percentage points
equal to $5,000,000
-----------------------------------------------------------------------------------------
III Less than $5,000,000 0.50 percentage points
-----------------------------------------------------------------------------------------
{/TABLE}
provided, that, notwithstanding the foregoing, (a) each adjustment to the Base
Rate Margin shall be effective from the date of delivery of the Loan Parties'
Excess Availability calculation for the three-month period used to determine the
Base Rate Margin until the date of delivery of such Excess Availability
calculation pursuant to Section 6.2(j) hereof for the next succeeding
three-month period, (b) if the Loan Parties fail to deliver the Excess
Availability calculation to the Agent for any three-month period in accordance
with Section 6.2(j) hereof, then until such Excess Availability calculation is
delivered, the Base Rate Margin shall be set in accordance with Level III, and
(c) on and after the Closing Date and until the Excess Availability calculation
is delivered for the three-month period ending on January 31, 2004, the Base
Rate Margin shall be set at Level II above.
"Base Rate Term Loan Margin" means 2.50 percentage points.
"Benefit Plan" means a "defined benefit plan" (as defined in
Section 3(35) of ERISA) or a benefit plan under Canadian Employee Benefit Laws
for which any Loan Party or any Subsidiary or ERISA Affiliate of any Loan Party
has been an "employer" (as defined in Section 3(5) of ERISA) or has held
equivalent status under Canadian Employee Benefit Laws within the past six
years.
"Board of Directors" means the board of directors (or
comparable managers) of Parent or any committee thereof duly authorized to act
on behalf of the board of directors (or comparable managers).
"Books" means all of Administrative Borrower's and its
Subsidiaries' now owned or hereafter acquired books and records (including all
of their Records indicating, summarizing, or evidencing their assets (including
the Collateral) or liabilities, all of Administrative Borrower's and its
Subsidiaries' Records relating to their business operations or financial
condition, and all of their goods or General Intangibles related to such
information).
"Borders" means, collectively, Borders Group, Inc. and each of
its Affiliates.
"Borrower" and "Borrowers" have the respective meanings set
forth in the preamble to this Agreement.
"Borrowing" means a borrowing hereunder consisting of Advances
(or term loans, in the case of the Term Loan) made on the same day by the
Lenders (or Agent on behalf thereof), or by Swing Lender in the case of a Swing
Loan, or by Agent in the case of an Agent Advance, in each case, to
Administrative Borrower.
- 5 -
{PAGE}
"Borrowing Base" means, as of any date of determination, the
result of:
(a) the lesser of:
(i) the sum of:
(A) the lesser of:
(x) the sum of: (1) 85% of the
amount of Eligible Accounts of the Fulfillment/ANS
Business Segment of the Loan Parties, less the
amount, if any, of the Dilution Reserve for the
Fulfillment/ANS Business Segment of the Loan Parties,
(2) 85% of the amount of Eligible Accounts of the
Fulfillment/DEYCO Business Segment of the Loan
Parties, less the amount, if any, of the Dilution
Reserve for the Fulfillment/DEYCO Business Segment of
the Loan Parties, (3) 85% of the amount of Eligible
Accounts of the Fulfillment/IPD Business Segment of
the Loan Parties, less the amount, if any, of the
Dilution Reserve for the Fulfillment/IPD Business
Segment of the Loan Parties, and (4) 85% of the
amount of Eligible Accounts of the Fulfillment/WMS
Business Segment of the Loan Parties, less the
amount, if any, of the Dilution Reserve for the
Fulfillment/WMS Business Segment of the Loan Parties,
and
(y) an amount equal to
Borrowers' Collections with respect to Accounts of
the Fulfillment Business Segment of the Loan Parties
for the immediately preceding 45 day period, and
(B) the lesser of:
(x) the sum of: (1) 85% of the
amount of Eligible Accounts of the In-Store
Services/Wire Business Segment of the Loan Parties,
less the amount, if any of the Dilution Reserve for
the In-Store Services/Wire Business Segment of the
Loan Parties, (2) 85% of the amount of Eligible
Accounts of the In-Store Services/Claiming Business
Segment of the Loan Parties, less the amount, if any
of the Dilution Reserve for the In-Store
Services/Claiming Business Segment of the Loan
Parties, and (3) 85% of the amount of Eligible
Accounts of the In-Store Services/Other Business
Segment of the Loan Parties, less the amount, if any
of the Dilution Reserve for the In-Store
Services/Other Business Segment of the Loan Parties,
and
(y) (1) if such date of
determination is prior to the first anniversary of
the Closing Date, an amount equal to 66-2/3% of
Borrowers' Collections with respect to Accounts of
the In-Store Services Business Segments of the Loan
Parties for the immediately preceding 90 day period,
(2) if such date of determination is on or after the
first anniversary of the Closing Date and prior to
the second anniversary of the Closing Date, an amount
equal to 50% of the Borrowers' Collections with
respect to Accounts of the In-Store Services Business
Segments of the
- 6 -
{PAGE}
Loan Parties for the immediately preceding 90day
period, and (3) if such date of determination is on
or after the second anniversary of the Closing Date,
an amount equal to 33-1/3% of the Borrowers'
Collections with respect to Accounts of the In-Store
Services Business Segments of the Loan Parties for
the immediately preceding 90 day period, and
(C) the lesser of:
(x) the sum of: (1) 85% of the
amount of Eligible Accounts of the Wood
Manufacturing/NC Business Segment of the Loan
Parties, less the amount, if any, of the Dilution
Reserve for the Wood Manufacturing/NC Business
Segment of the Loan Parties, and (2) 85% of the
amount of Eligible Accounts of the Wood
Manufacturing/Quincy Business Segment of the Loan
Parties, less the amount, if any, of the Dilution
Reserve for the Wood Manufacturing/Quincy Business
Segment of the Loan Parties, and
(y) an amount equal to
Borrowers' Collections with respect to Accounts of
the Wood Manufacturing Business Segments of the Loan
Parties for the immediately preceding 60 day period,
and
(ii) on and after the date that is 45 days after
the Closing Date, the WFF Availability,
provided that the aggregate amount of the Borrowing Base that may be
supported by In-Store Services Accounts at any time shall not exceed
the In-Store Services Subline Amount, minus
(b) the sum of (i) the Bank Product Reserve, (ii) the
Yaqui Lien Reserve, (iii) the Rent Reserve and (iv) the aggregate amount of such
other reserves, if any, established by Agent under Section 2.1(b).
"Business Day" means any day that is not a Saturday, Sunday,
or other day on which banks are authorized or required to close in the State of
New York, except that, if a determination of a Business Day shall relate to a
LIBOR Rate Loan, the term "Business Day" also shall exclude any day on which
banks are closed for dealings in Dollar deposits in the London interbank market.
"Business Segment" means any of the Fulfillment Business
Segments, the In-Store Services Business Segments or the Wood Manufacturing
Business Segments.
"Canadian Account Debtors" means Account Debtors which either
maintain their chief executive offices in Canada or are organized under the laws
of Canada.
"Canadian Documents" means the Canadian Security Agreement,
the Canadian Pledge Agreement and the Canadian Guaranty.
- 7 -
{PAGE}
"Canadian Employee Benefits Laws" means the Canadian Pension
Plan Act (Canada), the Pension Benefit Act (Ontario), the Pension Benefits
Standards Act (British Columbia), the Health Insurance Act (Ontario), the
Employment Standard Act (Ontario), the Employment Standards Act (British
Columbia) and any federal, provincial or local counterparts or equivalents, in
each case, as amended from time to time.
"Canadian Guaranty" means, collectively, those certain
Guaranties executed and delivered by the Canadian Guarantors in favor of Agent,
for the benefit of Lender Group, in form and substance satisfactory to Agent.
"Canadian Guarantors" means collectively the Subsidiaries of
Parent named in Part I of Schedule G-1.
"Canadian Income Tax Act" means the Income Tax Act (Canada),
R.S.C. 1985 C.1 (5th Supp), as amended.
"Canadian Pledge Agreement" means, collectively, those certain
Pledge Agreements executed and delivered by the Parent and The Source-Canada
Corp. in favor of Collateral Agent, for the benefit of Lender Group, the Bank
Product Providers and the Term Loan B Lender Group, in form and substance
satisfactory to Agent.
"Canadian Security Agreement" means, collectively, those
certain Security Agreements executed and delivered by the Canadian Guarantors in
favor of Collateral Agent, for the benefit of Lender Group, the Bank Product
Providers and the Term Loan B Lender Group, in form and substance satisfactory
to Agent.
"Capital Expenditures" means, with respect to any Person for
any period, the sum of (a) the aggregate of all expenditures by such Person and
its Subsidiaries during such period that are capital expenditures as determined
in accordance with GAAP, whether such expenditures are paid in cash or financed,
and (b) to the extent not covered by clause (a), the aggregate of all
expenditures by such Person and its Subsidiaries during such period to acquire
by purchase or otherwise the business or capitalized assets of, or the Stock of,
any other Person.
"Capital Lease" means a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP.
"Capitalized Lease Obligation" means that portion of the
obligations under a Capital Lease that is required to be capitalized in
accordance with GAAP.
"Cash Equivalents" means (a) marketable direct obligations
issued or unconditionally guaranteed by the United States or issued by any
agency thereof and backed by the full faith and credit of the United States, in
each case maturing within 1 year from the date of acquisition thereof, (b)
marketable direct obligations issued by any state of the United States or any
political subdivision of any such state or any public instrumentality thereof
maturing within 1 year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
Standard & Poor's Rating Group ("S&P") or Moody's Investors Service, Inc.
("Moody's"), (c) commercial paper maturing no more than 270 days from the date
of creation thereof and, at the time of acquisition, having a rating of at least
A-1 from
- 8 -
{PAGE}
S&P or at least P-1 from Moody's, (d) certificates of deposit or bankers'
acceptances maturing within 1 year from the date of acquisition thereof issued
by any bank organized under the laws of the United States or any state thereof
having at the date of acquisition thereof combined capital and surplus of not
less than $250,000,000, (e) demand Deposit Accounts maintained with any bank
organized under the laws of the United States or any state thereof so long as
the amount maintained with any individual bank is less than or equal to $100,000
and is insured by the Federal Deposit Insurance Corporation, and (f) Investments
in money market funds substantially all of whose assets are invested in the
types of assets described in clauses (a) through (e) above.
"Cash Management Account" has the meaning set forth in Section
2.7(a).
"Cash Management Agreements" means those certain cash
management agreements, in form and substance satisfactory to Agent, each of
which is among Administrative Borrower or one of its Subsidiaries, Collateral
Agent, and one of the Cash Management Banks.
"Cash Management Bank" has the meaning set forth in Section
2.7(a).
"Change of Control" means that (a) any "person" or "group"
(within the meaning of Sections 13(d) and 14(d) of the Exchange Act), other than
Permitted Holders, becomes the beneficial owner (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of 20%, or more, of the Stock of
Parent having the right to vote for the election of members of the Board of
Directors, or (b) a majority of the members of the Board of Directors do not
constitute Continuing Directors, or (c) any Borrower ceases to own, directly or
indirectly, and control 100% of the outstanding Stock of each of its
Subsidiaries extant as of the Closing Date, or (d) either S. Leslie Flegel or
Jim Gillis ceases to be involved in the day to day operations and management of
the business of the Loan Parties, and a successor reasonably acceptable to Agent
is not appointed on terms reasonably acceptable to Agent within 120 days of such
cessation of involvement, provided that Agent agrees that Jason S. Flegel shall
be an acceptable successor for either Person.
"Closing Date" means the date of the making of the initial
Advance (or other extension of credit) hereunder.
"Closing Date Business Plan" means the set of Projections of
the Loan Parties for the 2 year period following the Closing Date (on a year by
year basis, and for the 1 year period following the Closing Date, on a month by
month basis), in form and substance (including as to scope and underlying
assumptions) satisfactory to Agent.
"Code" means the New York Uniform Commercial Code, as in
effect from time to time.
"Collateral" means all assets and interests in assets and
proceeds thereof now owned or hereafter acquired by any Loan Party in or upon
which a Lien is granted under any of the Loan Documents.
"Collateral Access Agreement" means a landlord waiver, bailee
letter, or acknowledgement agreement of any lessor, warehouseman, processor,
consignee, or other Person
- 9 -
{PAGE}
in possession of, having a Lien upon, or having rights or interests in any Loan
Party's Books, Equipment or, Inventory, in each case, in form and substance
satisfactory to Agent.
"Collateral Agent" means WFF, in its capacity as collateral
agent for (i) Agent, the Lenders and the Bank Product Providers and (ii) the
Term Loan B Agent and the Term Loan B Lenders.
"Collateral Agent's Liens" means the Liens granted by Loan
Parties or their Subsidiaries to the Collateral Agent, for the benefit of the
Lender Group, the Bank Product Providers and the Term Loan B Lender Group, under
any of the Loan Documents.
"Collections" means all cash, checks, notes, instruments, and
other items of payment (including insurance proceeds, proceeds of cash sales,
rental proceeds, and tax refunds).
"Commitment" means, with respect to each Lender, its Revolver
Commitment, its Term Loan Commitment, or its Total Commitment, as the context
requires, and, with respect to all Lenders, their Revolver Commitments, their
Term Loan Commitments, or their Total Commitments, as the context requires, in
each case as such Dollar amounts are set forth beside such Lender's name under
the applicable heading on Schedule C-1 or in the Assignment and Acceptance
pursuant to which such Lender became a Lender hereunder in accordance with the
provisions of Section 14.1.
"Compliance Certificate" means a certificate substantially in
the form of Exhibit C-1 delivered by the chief financial officer of Parent to
Agent.
"Continuing Director" means (a) any member of the Board of
Directors who was a director (or comparable manager) of Parent on the Closing
Date, and (b) any individual who becomes a member of the Board of Directors
after the Closing Date if such individual was appointed or nominated for
election to the Board of Directors by a majority of the Continuing Directors,
but excluding any such individual originally proposed for election in opposition
to the Board of Directors in office at the Closing Date in an actual or
threatened election contest relating to the election of the directors (or
comparable managers) of Parent and whose initial assumption of office resulted
from such contest or the settlement thereof.
"Contribution Agreement" means a contribution agreement
executed and delivered by each Borrower and Guarantor, the form and substance of
which is satisfactory to Agent.
"Control Agreement" means a control agreement, in form and
substance satisfactory to Agent, executed and delivered by any Loan Party,
Collateral Agent, and the applicable securities intermediary (with respect to a
Securities Account) or a bank (with respect to a Deposit Account).
"Copyright Security Agreement" means a copyright security
agreement executed and delivered by each applicable Loan Party and Collateral
Agent, the form and substance of which is satisfactory to Agent.
- 10 -
{PAGE}
"Daily Balance" means, as of any date of determination and
with respect to any Obligation, the amount of such Obligation owed at the end of
such day.
"Default" means an event, condition, or default that, with the
giving of notice, the passage of time, or both, would be an Event of Default.
"Defaulting Lender" means any Lender that fails to make any
Advance (or other extension of credit) that it is required to make hereunder on
the date that it is required to do so hereunder.
"Defaulting Lender Rate" means (a) for the first 3 days from
and after the date the relevant payment is due, the Base Rate, and (b)
thereafter, the interest rate then applicable to Advances that are Base Rate
Loans (inclusive of the Base Rate Margin applicable thereto).
"Deposit Account" or "DDA" means any deposit account (as that
term is defined in the Code).
"Designated Account" means the Deposit Account of
Administrative Borrower identified on Schedule D-1.
"Designated Account Bank" has the meaning ascribed thereto on
Schedule D-1.
"DEYCO" means David E. Young, Inc., a New York corporation.
"DEYCO Letter of Intent" means the letter agreement dated
August 11, 2003, between JVCO, an entity to be owned by John Amann, Vince
Ohanyan and Bill McCurdy, and ICI, with respect to a proposed management
agreement between ICI and JVCO pursuant to which, among other things, JVCO would
manage the operations of DEYCO and JVCO would be granted the exclusive right to
purchase certain assets of DEYCO.
"DEYCO Sale" has the meaning ascribed thereto in Section 7.4.
"Dilution" means, for any Business Segment, 3-Month Dilution
or 12-Month Dilution, whichever is greater.
"Dilution Reserve" means, for each Business Segment as of any
date of determination, an amount sufficient to reduce the advance rate against
Eligible Accounts of such Business Segment by 1 percentage point for each
percentage point by which Dilution for such Business Segment is in excess of 5%.
"Disbursement Letter" means an instructional letter executed
and delivered by Administrative Borrower to Agent regarding the extensions of
credit to be made on the Closing Date, the form and substance of which is
satisfactory to Agent.
"Dollars" or "$" means United States dollars.
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"Due Diligence Certificate" means the Due Diligence
Certificate submitted by Agent to Administrative Borrower, together with
Borrowers' completed responses to the inquiries set forth therein, the form and
substance of such responses to be satisfactory to Agent.
"EBITDA" means, with respect to any fiscal period, Parent's
and its Subsidiaries' consolidated net earnings (or loss), minus extraordinary
gains and interest income, plus interest expense, income taxes, depreciation and
amortization, the prepayment premium in the amount of $125,000 to be paid by
certain Borrowers to Congress Financial Corporation (Western) on the Closing
Date, non-cash charges related to the termination on the Closing Date of the
credit facilities provided by the Existing Lenders to the Loan Parties and
relocation expenses for such period, as determined in accordance with GAAP,
provided that only relocation expenses incurred prior to the Closing Date shall
be added to consolidated net earnings (or loss) for purpose of this definition.
"Eligible Accounts" means those Accounts created by one of the
Eligible Loan Parties in the ordinary course of its business, that arise out of
its sale of goods or rendition of services, that comply with each of the
representations and warranties respecting Eligible Accounts made in the Loan
Documents, and that are not excluded as ineligible by virtue of one or more of
the excluding criteria set forth below; provided, however, that such criteria
may be revised from time to time by Agent in Agent's Permitted Discretion to
address the results of any audit performed by Agent from time to time after the
Closing Date. In determining the amount to be included, Eligible Accounts shall
be calculated net of customer deposits and unapplied cash. Eligible Accounts
shall not include the following:
(a) (i) Accounts that the Account Debtor has
failed to pay within 90 days of original invoice date, provided that,
up to $5,000,000 of In-Store Services Accounts outstanding at any time
shall not be excluded from Eligible Accounts solely by reason of this
subclause (i) if such In-Store Services Accounts are not past the
invoice date by more than 180 days, or (ii) Accounts with selling terms
of more than 60 days, provided that (A) Fulfillment/WMS Accounts shall
not be excluded from Eligible Accounts solely by reason of this
subclause (ii) if such Accounts have selling terms of not more than 90
days, (B) In-Store Services/Claiming Accounts arising under the retail
display payment claiming business of US Marketing Services shall not be
excluded from Eligible Accounts solely by reason of this subclause (ii)
if such Accounts have selling terms providing for payment not more than
90 days after the end of each calendar quarter, and (C) Accounts which
are covered by a credit insurance policy (which policy has been
assigned to the Collateral Agent) in accordance with subclause (z) of
clause (f) below shall not be excluded from Eligible Accounts solely by
reason of this subclause (ii) if such Accounts have selling terms of
not more than 90 days,
(b) Accounts owed by an Account Debtor (or its
Affiliates) where 50% or more of all Accounts owed by that Account
Debtor (or its Affiliates) are deemed ineligible under clause (a)
above, provided that no Accounts shall be excluded from Eligible
Accounts solely by reason of this clause (b) until the date which is 10
Business Days after Agent has delivered to Administrative Borrower
written notice of the effectiveness of this clause (b),
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(c) Accounts with respect to which the Account
Debtor is an Affiliate of any Loan Party or an employee or agent of any
Loan Party or any Affiliate of any Loan Party,
(d) Accounts arising in a transaction wherein
goods are placed on consignment or are sold pursuant to a guaranteed
sale, a sale or return (other than in connection with any Fulfillment
Accounts), a sale on approval, a bill and hold, or any other terms by
reason of which the payment by the Account Debtor may be conditional,
unless such Accounts arise under a Program Contract which includes the
security interest or bill and hold provisions, as applicable, set forth
in Exhibit P-1,
(e) Accounts that are not payable in (i)
Dollars, (ii) in the case of Accounts of any Canadian Guarantor,
Canadian Dollars, or (iii) in the case of Accounts eligible by reason
of subclause (y) or (z) of clause (f) below, Australian Dollars or
Euros,
(f) Accounts with respect to which the Account
Debtor either (i) does not maintain its chief executive office in the
United States or Canada, or (ii) is not organized under the laws of the
United States or any state thereof, of the laws of Canada or any
province thereof, or (iii) is the government of any foreign country or
sovereign state, or of any state, province, municipality, or other
political subdivision thereof, or of any department, agency, public
corporation, or other instrumentality thereof, unless (y) the Account
is supported by an irrevocable letter of credit satisfactory to Agent
(as to form, substance, and issuer or domestic confirming bank) that
has been delivered to Agent and is directly drawable by Agent, or (z)
(1) the Account is covered by credit insurance in form, substance, and
amount, and by an insurer, satisfactory to Agent, (2) all rights with
respect thereto have been assigned to Collateral Agent, and (3) not
more than 180 days have elapsed from the invoice date for such Account,
provided that, except for Accounts described in the preceding
subclauses (y) or (z), the aggregate amount of Eligible Accounts owing
by Canadian Account Debtors shall not exceed $3,000,000.
(g) Accounts with respect to which the Account
Debtor is either (i) the United States, Canada or any department,
agency, or instrumentality of the United States (exclusive, however, of
Accounts with respect to which the applicable Borrower has complied, to
the reasonable satisfaction of Agent, with the Assignment of Claims
Act, 31 USC Section 3727 or the Financial Administration Act (Canada)),
or (ii) any state of the United States or province of Canada,
(h) Accounts with respect to which the Account
Debtor is a creditor of any Loan Party, has or has asserted a right of
setoff, or has disputed its obligation to pay all or any portion of the
Account, to the extent of such claim, right of setoff, or dispute,
(i) Accounts with respect to an Account Debtor
whose total obligations owing to any Business Segment of the Loan
Parties exceed (A) if such Account Debtor is Barnes and Noble or
Borders, (x) in the case of Wood Manufacturing Accounts and Fulfillment
Accounts owing by Barnes and Noble or Borders, 35% for each such
Account Debtor in each such Business Segment and (y) in the case of all
other Accounts owing by Barnes and Noble or Border, 15% for each such
Account Debtor, and
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{PAGE}
(B) for all other Account Debtors, 10% for each such Account Debtor
(such applicable percentage, as applied to a particular Account Debtor,
being subject to reduction by Agent in its Permitted Discretion if the
creditworthiness of such Account Debtor deteriorates) of all Eligible
Accounts to such Business Segment, to the extent of the obligations
owing by such Account Debtor to such Business Segment in excess of such
percentages; provided, however, that, in each case, the amount of
Eligible Accounts that are excluded because they exceed the foregoing
percentages shall be determined by Agent based on all of the otherwise
Eligible Accounts of such Business Segments prior to giving effect to
any eliminations based upon the foregoing concentration limit for such
Business Segment,
(j) Accounts owing by an Account Debtor whose
total obligations owing to the Loan Parties, on a consolidated basis,
exceed (A) if such Account Debtor is Barnes and Noble or Borders, 15%
for each such Account Debtor, and (B) for all other Account Debtors,
10% for each such Account Debtor (such applicable percentage, as
applied to a particular Account Debtor, being subject to reduction by
Agent in its Permitted Discretion if the creditworthiness of such
Account Debtor deteriorates) of all Eligible Accounts, to the extent of
the obligations in excess of such percentage owing by such Account
Debtor, as applicable; provided, however, that, in each case, the
amount of Eligible Accounts that are excluded because they exceed the
foregoing percentage shall be determined by Agent based on all of the
otherwise Eligible Accounts prior to giving effect to any eliminations
based upon the foregoing concentration limit,
(k) Accounts with respect to which the Account
Debtor is subject to an Insolvency Proceeding, is not Solvent, has gone
out of business, or as to which a Loan Party has received notice of an
imminent Insolvency Proceeding or a material impairment of the
financial condition of such Account Debtor,
(l) Accounts with respect to which the Account
Debtor is located in a state or jurisdiction (e.g., New Jersey,
Minnesota, and West Virginia) that requires, as a condition to access
to the courts of such jurisdiction, that a creditor qualify to transact
business, file a business activities report or other report or form, or
take one or more other actions, unless the applicable Eligible Loan
Party has so qualified, filed such reports or forms, or taken such
actions (and, in each case, paid any required fees or other charges),
except to the extent that the applicable Eligible Loan Party may
qualify subsequently as a foreign entity authorized to transact
business in such state or jurisdiction and gain access to such courts,
without incurring any cost or penalty viewed by Agent to be significant
in amount, and such later qualification cures any access to such courts
to enforce payment of such Account,
(m) Accounts, the collection of which, Agent, in
its Permitted Discretion, believes to be doubtful by reason of the
Account Debtor's financial condition,
(n) Accounts that are not subject to a valid and
perfected first priority Agent's Lien,
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{PAGE}
(o) Accounts with respect to which (i) the goods
giving rise to such Account have not been shipped and billed to the
Account Debtor, or (ii) the services giving rise to such Account have
not been performed and billed to the Account Debtor, provided that this
clause (o) shall not exclude Accounts where only delivery is required
to complete performance so long as such Accounts arise under a Program
Contract which includes the bill and hold provisions set forth in
Exhibit P-1, or
(p) Accounts that represent the right to receive
progress payments or other advance billings that are due prior to the
completion of performance by the applicable Eligible Loan Party of the
subject contract for goods or services.
"Eligible Equipment" means Equipment of the Eligible Loan
Parties located at one of the business locations of such Eligible Loan Parties
set forth on Schedule E-1, that complies with each of the representations and
warranties respecting Eligible Equipment made by such Eligible Loan Parties in
the Loan Documents, and that is not excluded as ineligible by virtue of the one
or more of the criteria set forth below; provided, however, that such criteria
may be fixed and revised from time to time by Agent in Agent's Permitted
Discretion to address the results of any audit or appraisal performed by Agent
from time to time after the Closing Date. In determining the amount to be
included, Equipment shall be valued based upon the Net Liquidation Percentage
times the most recent appraised value of such Equipment, which appraisal shall
be based upon the net forced liquidation value of such Equipment. An item of
Equipment shall not be included in Eligible Equipment if:
(a) an Eligible Loan Party does not have good,
valid, and marketable title thereto,
(b) it is not located at one of the locations in
the continental United States or Canada set forth on Schedule E-1,
(c) it is located on real property leased by a
Loan Party unless (i) it is either subject to a Collateral Access
Agreement executed by the lessor, or other third party, as the case may
be, or (ii) Agent has established a Rent Reserve against the Borrowing
Base for such Leased Real Property location,
(d) it is not subject to a valid and perfected
first priority Agent's Lien,
(e) it is substantially worn, damaged, defective
or obsolete, or it constitutes furnishings, parts, fixtures or is
affixed to real property, unless such Equipment is affixed to Real
Property that comprises Eligible Real Property Collateral,
(f) the Agent has not received evidence of the
property insurance required by this Agreement with respect to such
Equipment, or
(g) it is subject to a lease with any Person.
The Administrative Borrower may amend Schedule E-1, provided that (i) such
amendment occurs by written notice to Agent not less than 30 days prior to the
date on which the Eligible Equipment is moved to such new location, (ii) such
new location is within the continental United
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{PAGE}
States or Canada, and (iii) at the time of such written notification, the
applicable Eligible Loan Party provides any financing statements or fixture
filings necessary to perfect and continue perfected the Collateral Agent's Liens
on such assets and, to the extent it is located on real property leased by a
Loan Party, provides to Agent a Collateral Access Agreement.
"Eligible Loan Party" mean any Loan Party named in Schedule
E-2.
"Eligible Real Property Collateral" has the meaning set forth
in Section 3.1(v).
"Eligible Transferee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having total
assets in excess of $250,000,000, (b) a commercial bank organized under the laws
of any other country which is a member of the Organization for Economic
Cooperation and Development or a political subdivision of any such country and
which has total assets in excess of $250,000,000, provided that such bank is
acting through a branch or agency located in the United States, (c) a finance
company, insurance company, or other financial institution or fund that is
engaged in making, purchasing, or otherwise investing in commercial loans in the
ordinary course of its business and having (together with its Affiliates) total
assets in excess of $250,000,000, (d) any Affiliate (other than individuals) of
a Lender, (e) so long as no Event of Default has occurred and is continuing, any
other Person approved by Agent and Administrative Borrower (which approval of
Administrative Borrower shall not be unreasonably, withheld, delayed, or
conditioned), and (f) during the continuation of an Event of Default, any other
Person approved by Agent.
"Enterprise Value" means the "enterprise value" of Parent and
its Subsidiaries, as determined by Agent pursuant to an enterprise valuation
satisfactory to Agent, using a methodology similar to the methodology used in
the enterprise valuation required pursuant to Section 3.2(d), and performed by a
third party valuation company engaged by, and acceptable to, Agent (it being
understood that the Borrowers shall be responsible for all fees, costs and
expenses incurred by Agent in connection with each such valuation to the extent
set forth in Section 2.11(c)).
"Environmental Actions" means any complaint, summons,
citation, notice, directive, order, claim, litigation, investigation, judicial
or administrative proceeding, judgment, letter, or other communication from any
Governmental Authority, or any third party involving violations or alleged
violations of Environmental Laws or releases of Hazardous Materials from (a) any
assets, properties, or businesses of any Loan Party, any Subsidiary of a Loan
Party, or any of their predecessors in interest, (b) from adjoining properties
or businesses, or (c) from or onto any facilities which received Hazardous
Materials generated by any Loan Party, any Subsidiary of a Loan Party, or any of
their predecessors in interest.
"Environmental Law" means any applicable federal, state,
provincial, foreign or local statute, law, rule, regulation, ordinance, code,
permit, binding and enforceable guideline, binding and enforceable written
policy or rule of common law now or hereafter in effect and in each case as
amended, or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent decree or judgment, to the extent
binding on any Loan Party or any Subsidiary of a Loan Party, relating to the
environment, human health, employee health and safety, or Hazardous Materials,
including CERCLA; RCRA; the Federal Water
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{PAGE}
Pollution Control Act, 33 USC Section 1251 et seq; the Toxic Substances Control
Act, 15 USC Section 2601 et seq; the Clean Air Act, 42 USC Section 7401 et seq.;
the Safe Drinking Water Act, 42 USC Section 3803 et seq.; the Oil Pollution Act
of 1990, 33 USC Section 2701 et seq.; the Emergency Planning and the Community
Right-to-Know Act of 1986, 42 USC Section 11001 et seq.; the Hazardous Material
Transportation Act, 49 USC Section 1801 et seq.; and the Occupational Safety and
Health Act, 29 USC Section 651 et seq. (to the extent it regulates occupational
exposure to Hazardous Materials); the Canadian Environmental Protection Act
(Canada); the Fisheries Act (Canada); the Transportation of Dangerous Goods Act
(Canada); the Environmental Protection Act (Ontario); the Water Resource Act
(Ontario); the Waste Management Act (British Columbia); the Environmental
Quality Act (Quebec); and any federal, state, provincial and local or foreign
counterparts or equivalents, in each case as amended from time to time.
"Environmental Liabilities and Costs" means all liabilities,
monetary obligations, Remedial Actions, losses, damages, punitive damages,
consequential damages, treble damages, costs and expenses (including all
reasonable fees, disbursements and expenses of counsel, experts, or consultants,
and costs of investigation and feasibility studies), fines, penalties,
sanctions, and interest incurred as a result of any claim or demand by any
Governmental Authority or any third party, and which relate to any Environmental
Action.
"Environmental Lien" means any Lien in favor of any
Governmental Authority for Environmental Liabilities and Costs.
"Equipment" means equipment (as that term is defined in the
Code), and includes machinery, machine tools, motors, furniture, furnishings,
fixtures, vehicles (including motor vehicles), computer hardware, tools, parts,
and goods (other than consumer goods, farm products, or Inventory), wherever
located, including all attachments, accessories, accessions, replacements,
substitutions, additions, and improvements to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto.
"ERISA Affiliate" means (a) any Person subject to ERISA whose
employees are treated as employed by the same employer as the employees of a
Loan Party or a Subsidiary of a Loan Party under IRC Section 414(b), (b) any
trade or business subject to ERISA whose employees are treated as employed by
the same employer as the employees of a Loan Party or a Subsidiary of a Loan
Party under IRC Section 414(c), (c) solely for purposes of Section 302 of ERISA
and Section 412 of the IRC, any organization subject to ERISA that is a member
of an affiliated service group of which a Loan Party or a Subsidiary of a Loan
Party is a member under IRC Section 414(m), or (d) solely for purposes of
Section 302 of ERISA and Section 412 of the IRC, any Person subject to ERISA
that is a party to an arrangement with a Loan Party or a Subsidiary of a Loan
Party and whose employees are aggregated with the employees of a Loan Party or a
Subsidiary of a Loan Party under IRC Section 414(o).
"ERISA Event" means (a) a Reportable Event with respect to any
Benefit Plan or Multiemployer Plan, (b) the withdrawal of a Loan Party, any of
its Subsidiaries or ERISA Affiliates from a Benefit Plan during a plan year in
which it was a "substantial employer" (as defined in Section 4001(a)(2) of
ERISA), (c) the providing of notice of intent to terminate a
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{PAGE}
Benefit Plan in a distress termination (as described in Section 4041(c) of
ERISA), (d) the institution by the PBGC of proceedings to terminate a Benefit
Plan or Multiemployer Plan, (e) any event or condition (i) that provides a basis
under Section 4042(a)(1), (2), or (3) of ERISA for the termination of, or the
appointment of a trustee to administer, any Benefit Plan or Multiemployer Plan,
or (ii) that may result in termination of a Multiemployer Plan pursuant to
Section 4041A of ERISA, (f) the partial or complete withdrawal within the
meaning of Sections 4203 and 4205 of ERISA, of a Loan Party, any of its
Subsidiaries or ERISA Affiliates from a Multiemployer Plan, (g) providing any
security to any Plan under Section 401(a)(29) of the IRC by a Loan Party or its
Subsidiaries or any of their ERISA Affiliates or (h) any equivalent event,
action, condition, proceeding or otherwise under Canadian Employee Benefit Laws.
"Event of Default" has the meaning set forth in Section 8.
"Excess Availability" means, as of any date of determination
or period, the amount equal to (x) Availability, plus (y) the amount of
unrestricted cash and Cash Equivalents of Borrowers and their Subsidiaries on
deposit in a Deposit Account or Securities Account which is the subject of a
Control Agreement and is maintained by a branch office of the bank or securities
intermediary located within the United States, minus (z) the aggregate amount,
if any, of all trade payables of Borrowers and their Subsidiaries aged in excess
of their historical levels with respect thereto and all book overdrafts of
Borrowers and their Subsidiaries in excess of their historical practices with
respect thereto, in each case as determined by Agent in its Permitted Discretion
for such date or period.
"Excess Cash Flow" means, for any fiscal period of Parent,
without duplication, (i) Parent's and its Subsidiaries' consolidated net
earnings (or loss), minus extraordinary gains and interest income, for such
period, plus (ii) all non-cash charges of Parent and its Subsidiaries deducted
in arriving at such consolidated net earnings (or loss) for such period, less
(iii) all non-cash credits of Parent and its Subsidiaries included in arriving
at such consolidated net earnings (or loss) for such period, less (iv) all
scheduled and mandatory cash principal payments on the Advances and the Term
Loan made during such period (but, in the case of the Advances, only to the
extent that the Revolver Commitment is permanently reduced by the amount of such
payments), and all scheduled cash principal payments on other Indebtedness of
Parent or any of its Subsidiaries during such period to the extent such other
Indebtedness is permitted to be incurred, and such payments are permitted to be
made, under this Agreement, less (v) the cash portion of Capital Expenditures
made by Parent and its Subsidiaries during such period to the extent permitted
to be made under this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as
in effect from time to time.
"Existing Lenders" means Bank of America, N.A. and Congress
Financial Corporation (Western).
"Extraordinary Receipts" means any Collections received by the
Parent or any of its Subsidiaries not in the ordinary course of business (and
not consisting of proceeds described in Section 2.4(c)(v), (c)(vi) or (c)(viii)
hereof), including, (i) foreign, United States, state or local tax refunds
(other than the Specified Tax Refund), (ii) pension plan reversions, (iii)
proceeds of
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{PAGE}
insurance (including proceeds of the key man life insurance policies), but
excluding insurance with respect to Inventory, (iv) judgments, proceeds of
settlements or other consideration of any kind in connection with any cause of
action, (v) condemnation awards (and payments in lieu thereof), but excluding
condemnation awards with respect to Inventory, (vi) indemnity payments, and
(vii) any purchase price adjustment received in connection with any purchase
agreement.
"Family Member" means, with respect to any individual, any
other individual having a relationship by blood (to the second degree of
consanguinity), marriage, or adoption to such individual.
"Family Trusts" means, with respect to any individual, trusts
or other estate planning vehicles established for the benefit of such individual
or Family Members of such individual and in respect of which such individual
serves as trustee or in a similar capacity.
"Fee Letter" means that certain fee letter, dated as of even
date herewith, between Borrowers and Agent, in form and substance satisfactory
to Agent.
"FEIN" means Federal Employer Identification Number.
"Fiscal Year" means (i) in the case of the Parent and its
Subsidiaries other than IPD, Huck NC and Huck Quincy, a fiscal year ending on
January 31st of each calendar year, and (ii) in the case of IPD, Huck NC and
Huck Quincy, a fiscal year ending on the Friday closest to January 31 of each
calendar year.
"Fixed Charges" means with respect to Parent and its
Subsidiaries for any period, the sum, without duplication, of (a) Interest
Expense, (b) principal payments required to be paid during such period in
respect of Indebtedness, and (c) payments made pursuant to a lease and
distribution agreement dated April 29, 2002 between the Loan Parties and
Worldwide Media Service, Inc.
"Fixed Charge Coverage Ratio" means, with respect to Parent
and its Subsidiaries for any period, the ratio of (i) EBITDA for such period
minus Capital Expenditures made (to the extent not already incurred in a prior
period) or incurred during such period, and all federal, state, and local income
taxes accrued for such period to (ii) Fixed Charges for such period.
"Florida Headquarters" means the Loan Parties' Bonita Springs,
Florida corporate headquarters.
"Flow of Funds Agreement" means an agreement among the Loan
Parties, Collateral Agent and the Term Loan B Agent with respect to the fundings
to be made on the Closing Date.
"Fulfillment Accounts" means Accounts arising from goods sold
and services rendered by the Fulfillment Business Segments of the Loan Parties.
"Fulfillment Business Segments" means the Fulfillment/WMS
Business Segment, Fulfillment/DEYCO Business Segment, Fulfillment/ANS Business
Segment and Fulfillment/IPD Business Segment.
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