means each agreement (excluding purchase orders)
executed by one or more Credit Parties and a Vendor regarding current and future
trade terms.
"Voluntary Cash Management Period" means any period, after which the Borrower
gives notice to such effect to the Administrative Agent, and during which the
Borrower voluntarily complies with the procedures set forth in Section 2.13(d)
regarding application of funds from the Concentration Account and Cash
Collateral Account.
"Wachovia" means Wachovia Bank, National Association.
"Wells Fargo" means Wells Fargo Foothill, LLC.
"Yucaipa" means The Yucaipa Companies LLC, a Delaware limited liability company.
"Yucaipa Management Agreement" means that certain Consulting Agreement dated as
of February 28, 2005, between Yucaipa and the Borrower, as may be amended from
time to time.
1.2
ACCOUNTING TERMS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN,
ALL ACCOUNTING TERMS NOT OTHERWISE DEFINED HEREIN SHALL HAVE THE MEANINGS
ASSIGNED TO THEM IN CONFORMITY WITH GAAP.
FINANCIAL STATEMENTS AND OTHER
INFORMATION REQUIRED TO BE DELIVERED BY THE BORROWER TO LENDERS PURSUANT TO
SECTION 5.1(A) AND 5.1(B) SHALL BE PREPARED IN ACCORDANCE WITH GAAP AS IN EFFECT
AT THE TIME OF SUCH
42
PREPARATION (AND DELIVERED TOGETHER WITH THE RECONCILIATION STATEMENTS PROVIDED
FOR IN SECTION 5.1(D), IF APPLICABLE).
SUBJECT TO THE FOREGOING, CALCULATIONS
IN CONNECTION WITH THE DEFINITIONS, COVENANTS AND OTHER PROVISIONS HEREOF SHALL
UTILIZE ACCOUNTING PRINCIPLES AND POLICIES IN CONFORMITY WITH THOSE USED TO
PREPARE THE HISTORICAL FINANCIAL STATEMENTS.
IF ANY CHANGE IN THE ACCOUNTING
PRINCIPLES USED IN THE PREPARATION OF THE MOST RECENT FINANCIAL STATEMENTS
REFERRED TO IN SECTION 5.1 IS HEREAFTER REQUIRED OR PERMITTED BY THE RULES,
REGULATIONS, PRONOUNCEMENTS AND OPINIONS OF THE FINANCIAL ACCOUNTING STANDARDS
BOARD OR THE AMERICAN INSTITUTE OF CERTIFIED PUBLIC ACCOUNTANTS (OR ANY
SUCCESSORS THERETO) AND SUCH CHANGE IS ADOPTED BY THE BORROWER WITH THE
AGREEMENT OF THE BORROWER'S ACCOUNTANTS AND RESULTS IN A CHANGE IN ANY OF THE
CALCULATIONS REQUIRED BY SECTION 6 THAT WOULD NOT HAVE RESULTED HAD SUCH
ACCOUNTING CHANGE NOT OCCURRED, THE PARTIES HERETO AGREE TO ENTER INTO
NEGOTIATIONS IN ORDER TO AMEND SUCH PROVISIONS SO AS TO EQUITABLY REFLECT SUCH
CHANGE SUCH THAT THE CRITERIA FOR EVALUATING COMPLIANCE WITH SUCH COVENANTS BY
THE BORROWER SHALL BE THE SAME AFTER SUCH CHANGE AS IF SUCH CHANGE HAD NOT BEEN
MADE.
1.3
INTERPRETATION, ETC.
ANY OF THE TERMS DEFINED HEREIN MAY, UNLESS
THE CONTEXT OTHERWISE REQUIRES, BE USED IN THE SINGULAR OR THE PLURAL, DEPENDING
ON THE REFERENCE.
REFERENCES HEREIN TO ANY SECTION, APPENDIX, SCHEDULE OR
EXHIBIT SHALL BE TO A SECTION, AN APPENDIX, A SCHEDULE OR AN EXHIBIT, AS THE
CASE MAY BE, HEREOF UNLESS OTHERWISE SPECIFICALLY PROVIDED.
THE USE HEREIN OF
THE WORD "INCLUDE" OR "INCLUDING," WHEN FOLLOWING ANY GENERAL STATEMENT, TERM OR
MATTER, SHALL NOT BE CONSTRUED TO LIMIT SUCH STATEMENT, TERM OR MATTER TO THE
SPECIFIC ITEMS OR MATTERS SET FORTH IMMEDIATELY FOLLOWING SUCH WORD OR TO
SIMILAR ITEMS OR MATTERS, WHETHER OR NOT NO LIMITING LANGUAGE (SUCH AS "WITHOUT
LIMITATION" OR "BUT NOT LIMITED TO" OR WORDS OF SIMILAR IMPORT) IS USED WITH
REFERENCE