EXECUTION VERSION
===============================================================================
$150,000,000
CREDIT AGREEMENT
AMONG
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION,
AS GUARANTOR,
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A., INC.,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT
FLEET NATIONAL BANK,
AS DOCUMENTATION AGENT
JPMORGAN CHASE BANK, N.A.
AS ADMINISTRATIVE AGENT
DATED AS OF APRIL 19, 2005
===============================================================================
▇.▇. ▇▇▇▇▇▇ SECURITIES INC., AS SOLE BOOKRUNNER AND SOLE LEAD ARRANGER
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS.......................................................1
1.1. DEFINED TERMS......................................................1
1.2. OTHER DEFINITIONAL PROVISIONS.....................................10
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS..................................10
2.1. L/C COMMITMENT....................................................10
2.2. PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT........................11
2.3. FEES AND OTHER CHARGES............................................11
2.4. L/C PARTICIPATIONS................................................11
2.5. REIMBURSEMENT OBLIGATION OF THE BORROWER..........................12
2.6. OBLIGATIONS ABSOLUTE..............................................12
2.7. LETTER OF CREDIT PAYMENTS.........................................13
2.8. APPLICATIONS......................................................13
2.9. COMMITMENT FEES...................................................13
2.10. TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS.................13
2.11. OVERDUE AMOUNTS...................................................13
2.12. COMPUTATION OF INTEREST AND FEES..................................13
2.13. PRO RATA TREATMENT AND PAYMENTS...................................14
2.14. REQUIREMENTS OF LAW...............................................14
2.15. TAXES.............................................................15
2.16. CHANGE OF LENDING OFFICE..........................................16
2.17. REPLACEMENT OF LENDERS............................................16
2.18. NOTICES...........................................................16
SECTION 3. REPRESENTATIONS AND WARRANTIES...................................17
3.1. FINANCIAL CONDITION...............................................17
3.2. NO CHANGE.........................................................17
3.3. EXISTENCE; COMPLIANCE WITH LAW....................................17
3.4. POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.....................17
3.5. NO LEGAL BAR......................................................18
3.6. LITIGATION........................................................18
3.7. NO DEFAULT........................................................18
3.8. OWNERSHIP OF PROPERTY.............................................18
3.9. INTELLECTUAL PROPERTY.............................................18
3.10. TAXES.............................................................18
3.11. LABOR MATTERS.....................................................19
3.12. ERISA.............................................................19
3.13. INVESTMENT COMPANY ACT; OTHER REGULATIONS.........................19
3.14. SUBSIDIARIES......................................................19
3.15. ENVIRONMENTAL MATTERS.............................................19
3.16. ACCURACY OF INFORMATION, ETC......................................20
3.17. SOLVENCY..........................................................20
SECTION 4. CONDITIONS PRECEDENT.............................................20
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PAGE
4.1. CONDITIONS TO INITIAL EXTENSION OF CREDIT.........................20
4.2. CONDITIONS TO EACH EXTENSION OF CREDIT............................21
SECTION 5. AFFIRMATIVE COVENANTS............................................22
5.1. FINANCIAL STATEMENTS..............................................22
5.2. CERTIFICATES; OTHER INFORMATION...................................22
5.3. PAYMENT OF TAX OBLIGATIONS........................................23
5.4. MAINTENANCE OF EXISTENCE; COMPLIANCE..............................23
5.5. MAINTENANCE OF PROPERTY; INSURANCE................................23
5.6. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS............23
5.7. NOTICES...........................................................24
5.8. ENVIRONMENTAL LAWS................................................24
5.9. USE OF LETTERS OF CREDIT..........................................24
SECTION 6. NEGATIVE COVENANTS...............................................25
6.1. LIENS.............................................................25
6.2. FUNDAMENTAL CHANGES...............................................25
6.3. CERTAIN INVESTMENTS...............................................25
6.4. MODIFICATIONS OF SENIOR NOTES.....................................25
6.5. LINES OF BUSINESS.................................................25
6.6. MATTERS RELATING TO FINANCECO.....................................25
SECTION 7. EVENTS OF DEFAULT................................................26
SECTION 8. THE ADMINISTRATIVE AGENT.........................................29
8.1. APPOINTMENT.......................................................29
8.2. DELEGATION OF DUTIES..............................................29
8.3. EXCULPATORY PROVISIONS............................................29
8.4. RELIANCE BY ADMINISTRATIVE AGENT..................................29
8.5. NOTICE OF DEFAULT.................................................30
8.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS............30
8.7. INDEMNIFICATION...................................................30
8.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY...................31
8.9. SUCCESSOR ADMINISTRATIVE AGENT....................................31
SECTION 9. GUARANTEE........................................................31
9.1. GUARANTEE.........................................................31
9.2. NO SUBROGATION, CONTRIBUTION, REIMBURSEMENT OR INDEMNITY..........32
9.3. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS..................32
9.4. GUARANTEE ABSOLUTE AND UNCONDITIONAL..............................32
9.5. REINSTATEMENT.....................................................33
9.6. PAYMENTS..........................................................33
SECTION 10. MISCELLANEOUS...................................................33
10.1. AMENDMENTS AND WAIVERS...........................................33
10.2. NOTICES..........................................................34
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PAGE
10.3. NO WAIVER; CUMULATIVE REMEDIES...................................35
10.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES.......................35
10.5. PAYMENT OF EXPENSES AND TAXES....................................35
10.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS...........36
10.7. ADJUSTMENTS; SET-OFF.............................................38
10.8. COUNTERPARTS.....................................................39
10.9. SEVERABILITY.....................................................39
10.10. INTEGRATION......................................................39
10.11. GOVERNING LAW....................................................39
10.12. SUBMISSION TO JURISDICTION; WAIVERS..............................39
10.13. ACKNOWLEDGEMENTS.................................................40
10.14. WAIVERS OF JURY TRIAL............................................40
10.15. CONFIDENTIALITY..................................................40
10.16. DOCUMENTATION AGENT AND SYNDICATION AGENT........................41
10.17. USA PATRIOT ACT..................................................41
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SCHEDULES:
1.1 Disclosed Matters
1.2 Revolving Commitments
2.1 Existing Letters of Credit
3.14 Subsidiaries
EXHIBITS:
A-1 Form of Borrower Closing Certificate
A-2 Form of Holdings Closing Certificate
A-3 Form of Financeco Closing Certificate
B Form of Assignment and Assumption
C-1 Form of Legal Opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
C-2 Form of Legal Opinion of ▇▇▇▇▇▇, Westwood & Riegels
C-3 Form of Legal Opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
D Form of Subsidiary Guarantee
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CREDIT AGREEMENT, dated as of April 19, 2005, among ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
CORPORATION, a British Virgin Islands corporation ("HOLDINGS"), ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
U.S.A., INC., a Delaware corporation (the "BORROWER"), the several banks and
other financial institutions or entities from time to time parties to this
Agreement (the "LENDERS"), WACHOVIA BANK, NATIONAL ASSOCIATION, as syndication
agent (in such capacity, the "SYNDICATION AGENT"), FLEET NATIONAL BANK, as
documentation agent (in such capacity, the "DOCUMENTATION AGENT"), and JPMORGAN
CHASE BANK, N.A., as administrative agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. DEFINED TERMS. As used in this Agreement, the terms listed in
this Section 1.1 shall have the respective meanings set forth in this Section
1.1.
"ABR": for any day, a rate per annum (rounded upwards, if necessary,
to the next 1/16 of 1%) equal to the greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "PRIME RATE" shall mean the rate of interest per
annum publicly announced from time to time by the Reference Lender as its prime
rate in effect at its principal office in New York City (the Prime Rate not
being intended to be the lowest rate of interest charged by the Reference Lender
in connection with extensions of credit to debtors). Any change in the ABR due
to a change in the Prime Rate or the Federal Funds Effective Rate shall be
effective as of the opening of business on the effective day of such change in
the Prime Rate or the Federal Funds Effective Rate, respectively.
"ADDITIONAL ISSUING LENDER SUBLIMIT": with respect to each Issuing
Lender other than JPMorgan Chase Bank, an amount specified by the Borrower to
the Administrative Agent and such Issuing Lender in writing on the Closing Date
or on the date such Lender becomes an Issuing Lender (which date shall be the
first Business Day of any month), which amount may be changed by written notice
from the Borrower to the Administrative Agent and such Issuing Lender on the
first Business Day of any fiscal quarter or, if such change is being made in
connection with the removal of an Issuing Lender, on the first Business Day of
any month.
"ADMINISTRATIVE AGENT": JPMorgan Chase Bank, together with its
affiliates, as the arranger of the Revolving Commitments and as the
administrative agent for the Lenders under this Agreement and the other Credit
Documents, together with any of its successors.
"AFFILIATE": as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with,
such Person. For purposes of this definition, "control" of a Person means the
power, directly or indirectly, either to (a) vote 20% or more of the securities
having ordinary voting power for the election of directors (or persons
performing similar functions) of such Person or (b) direct or cause the
direction of the management and policies of such Person, whether by contract or
otherwise.
"AGGREGATE EXPOSURE": with respect to any Lender at any time, the
amount of such Lender's Revolving Commitment then in effect or, if the Revolving
Commitments have been terminated, the amount of such Lender's Revolving
Extensions of Credit then outstanding.
"AGGREGATE EXPOSURE PERCENTAGE": with respect to any Lender at any
time, the ratio (expressed as a percentage) of such Lender's Aggregate Exposure
at such time to the Aggregate Exposure of all Lenders at such time.
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"AGREEMENT": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"APPLICATION": an application, in such form as the relevant
Issuing Lender may specify from time to time, requesting such Issuing Lender
to open a Letter of Credit.
"APPROVED FUND": as defined in Section 10.6.
"ASSIGNEE": as defined in Section 10.6(b).
"ASSIGNMENT AND ASSUMPTION": an Assignment and Assumption,
substantially in the form of Exhibit B.
"AVAILABLE REVOLVING COMMITMENT": as to any Lender at any time, an
amount equal to the excess, if any, of (a) such Lender's Revolving Commitment
OVER (b) such Lender's Revolving Extensions of Credit.
"BUSINESS": as defined in Section 3.15.
"BUSINESS DAY": a day other than a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law
to close.
"CAPITAL LEASE OBLIGATIONS": as to any Person, the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP
and, for the purposes of this Agreement, the amount of such obligations at any
time shall be the capitalized amount thereof at such time determined in
accordance with GAAP.
"CAPITAL STOCK": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation, any
and all equivalent ownership interests in a Person (other than a corporation)
and any and all warrants, rights or options to purchase any of the foregoing.
"CASH EQUIVALENTS": (a) the investments described in the definition
of "Collateral Cash Equivalents"; (b) commercial paper of an issuer rated at
least A-2 by Standard & Poor's Ratings Services or P-2 by ▇▇▇▇▇'▇ Investors
Service, Inc., or carrying an equivalent rating by a nationally recognized
rating agency, if both of the two named rating agencies cease publishing ratings
of commercial paper issuers generally, and maturing within thirty days from the
date of acquisition; (c) corporate bonds rated at least BBB by Standard & Poor's
Ratings Services or Baa2 by ▇▇▇▇▇'▇ Investors Service, Inc., or carrying an
equivalent rating by a nationally recognized rating agency; and (d) money market
investment funds which invest substantially exclusively in the types of
securities described in clauses (a) through (c) above.
"CLO": as defined in Section 10.6.
"CLOSING DATE": the date on which the conditions precedent set
forth in Section 4.1 shall have been satisfied, which date is April __, 2005.
"CODE": the Internal Revenue Code of 1986, as amended from time to
time.
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"COLLATERAL": as defined in the Subsidiary Guarantee.
"COLLATERAL ACCOUNT": account number 020842112 established at the
office of JPMorgan Chase Bank, N.A., at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇.
"COLLATERAL BASE": an amount equal to (a) 98% of the fair market
value of cash and Collateral Cash Equivalents constituting Collateral minus
(b) any Tax Liability Amount.
"COLLATERAL CASH EQUIVALENTS": (a) marketable direct obligations
issued by, or unconditionally guaranteed by, the United States Government or
issued by any agency thereof and backed by the full faith and credit of the
United States, in each case maturing within one year from the date of
acquisition; (b) certificates of deposit, time deposits, Yankee or eurodollar
time deposits, repurchase agreements, reverse repurchase agreements or overnight
bank deposits having maturities of twelve months or less from the date of
acquisition issued by any Lender or by any commercial bank organized under the
laws of the United States of America or any state thereof having combined
capital and surplus of not less than $500,000,000; (c) bankers acceptances or
commercial paper of an issuer rated at least A-1 by Standard & Poor's Ratings
Services or P-1 by ▇▇▇▇▇'▇ Investors Service, Inc., or carrying an equivalent
rating by a nationally recognized rating agency, if both of the two named rating
agencies cease publishing ratings of commercial paper issuers generally, and
maturing within six months from the date of acquisition; and (d) money market
investment funds which invest substantially exclusively in the types of
securities described in clauses (a) through (c) above.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not incorporated,
that is under common control with the Borrower within the meaning of Section
4001 of ERISA or is part of a group that includes the Borrower and that is
treated as a single employer under Section 414 of the Code.
"CONFIDENTIAL INFORMATION PACKAGE": the Confidential Information
Package dated March 2005 and furnished to certain Lenders.
"CONTINUING DIRECTORS": the directors of Holdings on the Closing
Date and each other director, if, in each case, such other director's nomination
for election to the board of directors of Holdings is recommended by at least a
majority of the then Continuing Directors.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CREDIT DOCUMENTS": this Agreement and the Subsidiary Guarantee.
"CREDIT PARTIES": Holdings, the Borrower and Financeco.
"DEFAULT": any of the events specified in Section 7, whether or
not any requirement for the giving of notice, the lapse of time, or both, has
been satisfied.
"DISCLOSED MATTERS": the matters disclosed on Schedule 1.1.
"DISPOSITION": with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition thereof;
and the terms "DISPOSE" and "DISPOSED OF" shall have correlative meanings.
"DOLLARS" and "$": dollars in lawful currency of the United States of
America.
4
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state, local or
municipal laws, rules, orders, regulations, statutes, ordinances, codes,
decrees, requirements of any Governmental Authority or other Requirements of Law
(including common law) regulating, relating to or imposing liability or
standards of conduct concerning protection of human health or the environment,
as now or may at any time hereafter be in effect.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EVENT OF DEFAULT": any of the events specified in Section 7,
PROVIDED that any requirement for the giving of notice, the lapse of time, or
both, has been satisfied.
"EXCHANGE ACT": as defined in Section 7(j)(i).
"EXISTING ACCOUNT PARTIES": as defined in Section 2.1.
"EXPOSURE AMOUNT": the sum of (a) the aggregate L/C Obligations with
respect to Letters of Credit issued by JPMorgan Chase Bank or its Affiliates,
(b) the aggregate amount of the Additional Issuing Lender Sublimits and (c) the
aggregate amount of accrued but unpaid fees and interest owing hereunder.
"FEDERAL FUNDS EFFECTIVE RATE": for any day, the weighted average of
the rates on overnight federal funds transactions with members of the Federal
Reserve System arranged by federal funds brokers, as published on the next
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average of the
quotations for the day of such transactions received by the Reference Lender
from three federal funds brokers of recognized standing selected by it.
"FINANCECO": ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A. Guaranty LLC.
"FINANCECO ORGANIZATIONAL DOCUMENTS": the Certificate of Formation
and the Operating Agreement of Financeco.
"FINANCIAL INSTITUTION": any Person that, in the judgment of the
Administrative Agent, is a financial institution or is primarily engaged in
financial activities.
"GAAP": generally accepted accounting principles in the United States
of America as in effect from time to time set forth in the opinions and
pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and pronouncements of the
Financial Accounting Standards Board and the rules and regulations of the
Securities and Exchange Commission, or in such other statements by such other
entity as may be in general use by significant segments of the accounting
profession, that are applicable to the circumstances of Holdings and its
Subsidiaries as of the date of determination.
"GOVERNMENTAL AUTHORITY": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government (including the National Association of Insurance Commissioners).
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING person"),
any obligation of (a) the guaranteeing person or (b) another Person (including
any bank under any letter of credit) to induce
5
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"PRIMARY OBLIGATIONS") of any other third Person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly, including any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (1) for the purchase or payment of any such
primary obligation or (2) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; PROVIDED, HOWEVER, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection in the ordinary course of business. The amount of any Guarantee
Obligation of any guaranteeing person shall be deemed to be the lower of (a) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee Obligation is made and (b) the maximum amount
for which such guaranteeing person may be liable pursuant to the terms of the
instrument embodying such Guarantee Obligation, unless such primary obligation
and the maximum amount for which such guaranteeing person may be liable are not
stated or determinable, in which case the amount of such Guarantee Obligation
shall be such guaranteeing person's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"INDEBTEDNESS": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money, (b) all obligations of such
Person for the deferred purchase price of property or services (other than
current trade payables incurred in the ordinary course of such Person's
business), (c) all obligations of such Person evidenced by notes, bonds,
debentures or other similar instruments, (d) all indebtedness created or arising
under any conditional sale or other title retention agreement with respect to
property acquired by such Person (even though the rights and remedies of the
seller or lender under such agreement in the event of default are limited to
repossession or sale of such property), (e) all Capital Lease Obligations of
such Person, (f) all obligations of such Person, contingent or otherwise, as an
account party under acceptance, letter of credit or similar facilities, (g) all
obligations of such Person, contingent or otherwise, to purchase, redeem, retire
or otherwise acquire for value any Capital Stock of such Person, (h) all
Guarantee Obligations of such Person in respect of obligations of the kind
referred to in clauses (a) through (g) above, (i) all obligations of the kind
referred to in clauses (a) through (h) above secured by (or for which the holder
of such obligation has an existing right, contingent or otherwise, to be secured
by) any Lien on property (including accounts and contract rights) owned by such
Person, whether or not such Person has assumed or become liable for the payment
of such obligation, and (j) for the purposes of Section 7(e) only, all
obligations of such Person in respect of Interest Rate Protection Agreements.
"INSOLVENCY": with respect to any Multiemployer Plan, the
condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"INSOLVENT": pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY": the collective reference to all rights,
priorities and privileges relating to intellectual property, whether arising
under United States, multinational or foreign laws or otherwise, including
copyrights, copyright licenses, patents, patent licenses, trademarks, trademark
licenses, technology, know-how and processes, and all rights to ▇▇▇ at law or in
equity for any infringement or other impairment thereof, including the right to
receive all proceeds and damages therefrom.
6
"INTEREST RATE PROTECTION AGREEMENT": any interest rate protection
agreement, interest rate futures contract, interest rate option, interest rate
cap or other interest rate hedge arrangement, to or under which Holdings or any
of its Subsidiaries is a party or a beneficiary on the date hereof or becomes a
party or a beneficiary after the date hereof.
"ISSUING LENDERS": JPMorgan Chase Bank, Bank of America, N.A.,
Wachovia Bank, National Association, and/or such other Lender or Lenders
reasonably acceptable to the Administrative Agent as may be designated by the
Borrower, each in its capacity as issuer of any Letter of Credit. An Issuing
Lender may, in its discretion, arrange for one or more Letters of Credit to be
issued by Affiliates of such Issuing Lender, in which case the term "Issuing
Lender" shall include any such Affiliate with respect to Letters of Credit
issued by such Affiliate. If mutually agreed by any Issuing Lender and the
Borrower, such Issuing Lender shall cease to act in such capacity so long as no
L/C Obligations in respect of Letters of Credit issued by such Issuing Lender
remain outstanding.
"JPMORGAN CHASE BANK": JPMorgan Chase Bank, N.A., together with its
affiliates and any of their respective successors.
"L/C FEE PAYMENT DATE": five Business Days after the last day of each
March, June, September and December and the last day of the Revolving Commitment
Period (or the date of termination of the Revolving Commitments).
"L/C OBLIGATIONS": at any time, an amount equal to the sum of (a) the
aggregate then undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit that
have not then been reimbursed pursuant to Section 2.5.
"L/C PARTICIPANTS": the collective reference to all the Lenders other
than the relevant Issuing Lender.
"LENDER": as defined in the preamble hereto, and, for the
avoidance of doubt, including, unless the context otherwise requires, each
Issuing Lender.
"LETTERS OF CREDIT": as defined in Section 2.1(a).
"LIEN": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including any conditional sale or
other title retention agreement and any capital lease having substantially the
same economic effect as any of the foregoing).
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) or prospects
of Holdings and its Subsidiaries taken as a whole (other than any such effect
arising out of or related to the Disclosed Matters) or (b) the validity or
enforceability of this Agreement or any of the other Credit Documents or the
rights or remedies of the Administrative Agent or the Lenders hereunder or
thereunder.
"MATERIAL SUBSIDIARY": the Borrower, Financeco and any other
Subsidiary, the (a) assets, (b) revenues or (c) operating profit (excluding
intercompany receivables and revenues that would be eliminated upon
consolidation in accordance with GAAP) of which are, at the time of
determination (determined, in the case of clause (a), as at the end of the most
recently concluded fiscal quarter, and, in the case of clauses (b) and (c), in
respect of the most recent period of four consecutive fiscal quarters of
Holdings for which the relevant financial information is available), equal to or
greater than ten percent of
7
the consolidated assets, consolidated operating profit or consolidated revenues
(excluding intercompany receivables and revenue that would be eliminated upon
consolidation in accordance with GAAP), respectively, of Holdings and its
Subsidiaries at such time. Upon the acquisition of a new Subsidiary,
qualification as a "Material Subsidiary" shall be determined on a PRO FORMA
basis on the assumption that such Subsidiary had been acquired at the beginning
of the relevant period of four consecutive fiscal quarters.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or petroleum
(including crude oil or any fraction thereof) or petroleum products or any
hazardous or toxic substances, materials or wastes, defined or regulated as such
in or under any Environmental Law, including asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"MULTIEMPLOYER PLAN": a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NON-EXCLUDED TAXES": as defined in Section 2.15(a).
"NON-U.S. LENDER": as defined in Section 2.15(b).
"OBLIGATIONS": the unpaid principal of and interest on (including
interest accruing after the maturity of the Reimbursement Obligations and
interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding, relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding) the Reimbursement Obligations and all other
obligations and liabilities of the Borrower to the Administrative Agent or to
any Lender, whether direct or indirect, absolute or contingent, due or to become
due, or now existing or hereafter incurred, which may arise under, out of, or in
connection with, this Agreement, any other Credit Document, the Letters of
Credit or any other document made, delivered or given in connection herewith or
therewith, whether on account of principal, interest, reimbursement obligations,
fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Administrative Agent or to any Lender that are
required to be paid by the Borrower pursuant hereto) or otherwise.
"PARTICIPANT": as defined in Section 10.6(c).
"PAYMENT OFFICE: JPMorgan Chase Bank, N.A., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA (or any successor).
"PERSON": an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust, unincorporated
association, joint venture, Governmental Authority or other entity of
whatever nature.
"PLAN": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated at such time, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"PROPERTIES": as defined in Section 3.15.
8
"REFERENCE LENDER": JPMorgan Chase Bank.
"REGISTER": as defined in Section 10.6(b).
"REIMBURSEMENT OBLIGATION": the obligation of the Borrower to
reimburse the relevant Issuing Lender pursuant to Section 2.5 for amounts
drawn under Letters of Credit.
"REORGANIZATION": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section
4241 of ERISA.
"REPORTABLE EVENT": any of the events set forth in Section 4043(b)
of ERISA, other than those events as to which the thirty day notice period is
waived under subsections .27, .28, .29, .30, .31, .32, .34 or .35 of PBGC
Reg. ss. 4043.
"REQUIRED LENDERS": the holders of more than 50% of the Total
Revolving Commitments or, if the Revolving Commitments have been terminated,
the Total Revolving Extensions of Credit.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"RESPONSIBLE OFFICER": the principal executive officer, president,
principal financial officer or principal accounting officer of Holdings or the
Borrower, as the case may be, but in any event, with respect to financial
matters, the principal financial or accounting officer of Holdings or the
Borrower, as the case may be.
"REVOLVING COMMITMENT": as to any Lender, the obligation of such
Lender to participate in Letters of Credit, in an aggregate face amount not to
exceed the amount set forth opposite such Lender's name on Schedule 1.2 or set
forth in an Assignment and Assumption, as applicable, as the same may be changed
from time to time pursuant to the terms hereof.
"REVOLVING COMMITMENT PERIOD": the period from and including the
Closing Date to the Revolving Termination Date.
"REVOLVING EXTENSIONS OF CREDIT": as to any Lender at any time, an
amount equal to such Lender's Revolving Percentage of the L/C Obligations
then outstanding.
"REVOLVING PERCENTAGE": as to any Lender at any time, the percentage
which such Lender's Revolving Commitment then constitutes of the Total Revolving
Commitments (or, at any time after the Revolving Commitments shall have expired
or terminated, the percentage which the aggregate amount of such Lender's
Revolving Extensions of Credit then outstanding constitutes of the aggregate
amount of the Revolving Extensions of Credit then outstanding).
"REVOLVING TERMINATION DATE": April __, 2006.
"SENIOR NOTE INDENTURE": the Indenture, dated as of May 1, 1998,
entered into by Holdings and the Borrower with JPMorgan Chase Bank, N.A. (f/k/a
The Chase Manhattan Bank), together with all instruments and other agreements
entered into by Holdings or the Borrower in connection therewith, as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with Section 6.4.
9
"SENIOR NOTES": the notes of the Borrower issued pursuant to the
Senior Note Indenture.
"SINGLE EMPLOYER PLAN": any Plan that is covered by Title IV of
ERISA, but that is not a Multiemployer Plan.
"SOLVENT": when used with respect to any Person, means that, as of
any date of determination, (a) the amount of the "present fair saleable value"
of the assets of such Person will, as of such date, exceed the amount of all
"liabilities of such Person, contingent or otherwise", as of such date, as such
quoted terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" means liability on a "claim", and
(ii) "claim" means any (x) right to payment, whether or not such a right is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal, equitable, secured or unsecured or (y)
right to an equitable remedy for breach of performance if such breach gives rise
to a right to payment, whether or not such right to an equitable remedy is
reduced to judgment, fixed, contingent, matured or unmatured, disputed,
undisputed, secured or unsecured.
"SUBSIDIARY": as to any Person, a corporation, partnership, limited
liability company or other entity of which shares of stock or other ownership
interests having ordinary voting power (other than stock or such other ownership
interests having such power only by reason of the happening of a contingency) to
elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the
management of which is otherwise controlled, directly or indirectly through one
or more intermediaries, or both, by such Person. Unless otherwise qualified, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of Holdings and shall include the Borrower and
its Subsidiaries.
"SUBSIDIARY GUARANTEE": the Subsidiary Guarantee and Collateral
Agreement to be executed and delivered by Financeco, substantially in the
form of Exhibit D.
"SUPERMAJORITY LENDERS": the holders of more than 66 ?% of the
Total Revolving Commitments or, if the Revolving Commitments have been
terminated, the Total Revolving Extensions of Credit.
"TAX LIABILITY AMOUNT": as defined in Section 6.1.
"TOTAL REVOLVING COMMITMENTS": at any time, the aggregate amount
of the Revolving Commitments then in effect. The original amount of the
Total Revolving Commitments is $150,000,000.
"TOTAL REVOLVING EXTENSIONS OF CREDIT": at any time, the aggregate
amount of the Revolving Extensions of Credit of the Lenders outstanding at
such time.
"TRANSFEREE": any Assignee or Participant.
"UNIFORM CUSTOMS": the Uniform Customs and Practice for
Documentary Credits (1993 Revision), International Chamber of Commerce
Publication No. 500, as the same may be amended from time to time.
10
1.2. OTHER DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Credit Documents or any certificate or other document
made or delivered pursuant hereto or thereto.
(b) As used herein and in the other Credit Documents, and any
certificate or other document made or delivered pursuant hereto or thereto, (i)
accounting terms relating to Holdings and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in Section 1.1, to the extent
not defined, shall have the respective meanings given to them under GAAP, (ii)
the words "include", "includes" and "including" shall be deemed to be followed
by the phrase "without limitation", and (iii) the words "asset" and "property"
shall be construed to have the same meaning and effect and to refer to any and
all tangible and intangible assets and properties, including cash, Capital
Stock, securities, accounts, leasehold interests and contract rights.
(c) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Section, Schedule and
Exhibit references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1. L/C COMMITMENT. (a) Subject to the terms and conditions hereof,
each Issuing Lender, in reliance on the agreements of the other Lenders set
forth in Section 2.4(a), agrees toissue letters of credit ("LETTERS OF CREDIT")
for the account of the Borrower(and for the benefit of the Borrower, Holdings or
anySubsidiary of Holdings) on any Business Day during the Revolving Commitment
Period in such form as may be approved from time to time by such Issuing Lender;
PROVIDED that no Issuing Lender shall issue any Letter of Credit if, after
giving effect to such issuance, (i) the Total Revolving Extensions of Credit
would exceed the Total Revolving Commitments, (ii) the Exposure Amount would
exceed the Collateral Base, (iii) the aggregate amount of L/C Obligations with
respect to Letters of Credit issued by any Issuing Lender other than JPMorgan
Chase Bank or its Affiliates would exceed such Issuing Lender's Additional
Issuing Lender Sublimit or (iv) the aggregate amount of L/C Obligations with
respect to standby letters of credit (other than any standby letter of credit
supporting letters of creditreferred to in the second sentence of Section
4.1(f)) would exceed $20,000,000. Each letter of credit outstanding on the
Closing Date and listed on Schedule 2.1 shall constitute a "Letter of Credit"
for the purposes of this Agreement, PROVIDED, that if the account party in
respect of any such letter of credit is not the Borrower (any such account
party, an "EXISTING ACCOUNT PARTY"), the Borrower and the relevant Existing
Account Party shall be jointly and severally liable for all obligations
(including reimbursement obligations) applicable thereto. Each Letter of Credit
shall expire no later than the date that is five Business Days prior to the
Revolving Termination Date (or, in the case of commercial Letters of Credit, if
earlier, 180 days after the date of issuance).
(b) Each Letter of Credit shall be subject to the Uniform Customs
and, to the extent not inconsistent therewith, the laws of the State of New
York.
(c) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
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2.2. PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT. The Borrower may from
time to time request that an Issuing Lender issue or amend a Letter of Credit by
delivering to such Issuing Lender at its address for notices specified herein an
Application therefor, completed to the satisfaction of such Issuing Lender, and
such other certificates, documents and other papers and information as such
Issuing Lender may request. Upon receipt of any Application, such Issuing Lender
will process such Application and the certificates, documents and other papers
and information delivered to it in connection therewith in accordance with its
customary procedures and shall promptly issue the Letter of Credit requested
thereby (but in no event shall such Issuing Lender be required to issue any
Letter of Credit earlier than three Business Days after its receipt of the
Application therefor and all such other certificates, documents and other papers
and information relating thereto) by issuing the original of such Letter of
Credit to the beneficiary thereof or as otherwise may be agreed to by such
Issuing Lender and the Borrower. Each Issuing Lender shall furnish (a) monthly
reports to the Administrative Agent describing the Letters of Credit issued by
it that were outstanding during such month in a format reasonably satisfactory
to the Administrative Agent and (b) a copy of, or other evidence of the issuance
of, each relevant Letter of Credit to the Borrower promptly following the
issuance thereof and to the Administrative Agent promptly upon its request.
2.3. FEES AND OTHER CHARGES. (a) The Borrower will pay a fee on the
face amount of all outstanding standby Letters of Credit at a per annum rate
equal to 0.12%. Such fee shall be payable to the Administrative Agent quarterly
in arrears on each L/C Fee Payment Date, and shall be shared ratably among the
Lenders.
(b) The Borrower will pay a fee on the face amount of all outstanding
commercial Letters of Credit at a per annum rate equal to 0.08%. Such fee shall
be payable to the Administrative Agent quarterly in arrears on each L/C Fee
Payment Date, and shall be shared ratably among the Lenders.
(c) In addition to the foregoing fees, the Borrower shall pay (or
shall cause the applicable beneficiary to pay) each Issuing Lender any standby
Letter of Credit fronting fee separately agreed upon with such Issuing Lender.
(d) Fees paid pursuant to this Section 2.3 for the ratable benefit of
the Lenders shall be distributed to the Lenders by the Administrative Agent on
each L/C Fee Payment Date. Fees paid pursuant to this Section 2.3 shall be
nonrefundable.
2.4. L/C PARTICIPATIONS. (a) Each Issuing Lender irrevocably agrees to
grant and hereby grants to each L/C Participant, and, to induce each Issuing
Lender to issue Letters of Credit hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby accepts and purchases from each Issuing
Lender, on the terms and conditions hereinafter stated, for such L/C
Participant's own account and risk an undivided interest equal to such L/C
Participant's Revolving Percentage in each Issuing Lender's obligations and
rights under each Letter of Credit issued hereunder and the amount of each draft
paid by such Issuing Lender thereunder. Each L/C Participant unconditionally and
irrevocably agrees with each Issuing Lender that, if a draft is paid under any
Letter of Credit for which such Issuing Lender is not reimbursed in full by the
Borrower in accordance with the terms of this Agreement, such L/C Participant
shall pay to such Issuing Lender upon demand at such Issuing Lender's address
for notices specified herein an amount equal to such L/C Participant's Revolving
Percentage of the amount of such draft, or any part thereof, that is not so
reimbursed.
(b) If any amount required to be paid by any L/C Participant to the
relevant Issuing Lender pursuant to Section 2.4(a) in respect of any
unreimbursed portion of any payment made by such Issuing Lender under any Letter
of Credit is paid to such Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to such Issuing Lender
on demand an amount
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equal to the product of (i) such amount, times (ii) the daily average Federal
Funds Effective Rate during the period from and including the date such payment
is required to the date on which such payment is immediately available to such
Issuing Lender, times (iii) a fraction the numerator of which is the number of
days that elapse during such period and the denominator of which is 360. If any
such amount required to be paid by any L/C Participant pursuant to Section
2.4(a) is not made available to such Issuing Lender by such L/C Participant
within three Business Days after the date such payment is due, such Issuing
Lender shall be entitled to recover from such L/C Participant, on demand, such
amount with interest thereon calculated from such due date at a per annum rate
equal to the ABR plus 2%. A certificate of the relevant Issuing Lender submitted
to any L/C Participant with respect to any amounts owing under this Section
shall be conclusive in the absence of manifest error.
(c) Whenever, at any time after the relevant Issuing Lender has made
payment under any Letter of Credit and has received from any L/C Participant its
PRO RATA share of such payment in accordance with Section 2.4(a), such Issuing
Lender receives any payment related to such Letter of Credit (whether directly
from the Borrower or otherwise, including proceeds of collateral applied thereto
by such Issuing Lender), or any payment of interest on account thereof, such
Issuing Lender will distribute to such L/C Participant its PRO RATA share
thereof; PROVIDED, HOWEVER, that in the event that any such payment received by
such Issuing Lender shall be required to be returned by such Issuing Lender,
such L/C Participant shall return to such Issuing Lender the portion thereof
previously distributed by such Issuing Lender to it.
2.5. REIMBURSEMENT OBLIGATION OF THE BORROWER. The Borrower agrees to
reimburse the relevant Issuing Lender on each date on which such Issuing Lender
notifies the Borrower of the date and amount of a draft presented under any
Letter of Credit and paid by such Issuing Lender for the amount of (a) such
draft so paid and (b) any taxes, fees, charges or other costs or expenses
incurred by such Issuing Lender in connection with such payment; PROVIDED that
if such Issuing Lender notifies the Borrower of the presentment of a draft after
10:00 A.M. New York City time on any day, such reimbursement shall be made on
the next Business Day; and PROVIDED, FURTHER that, if so agreed by the Borrower
and the applicable Issuing Lender, such reimbursement may be effected by debit
of a bank account of the Borrower held with the applicable Issuing Lender. Each
such payment shall be made to such Issuing Lender at its address for notices
specified herein in lawful money of the United States of America and in
immediately available funds, or at such other address and in such other manner
as may be agreed upon by the Borrower and such Issuing Lender. Interest shall be
payable on any and all amounts remaining unpaid by the Borrower under this
Section from the date such amounts become payable (whether at stated maturity,
by acceleration or otherwise) until payment in full at the rate set forth in
Section 2.11.
2.6. OBLIGATIONS ABSOLUTE. The Borrower's obligations under Section
2.5 shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment that the Borrower
may have or have had against the relevant Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The Borrower also agrees with each Issuing
Lender that no Issuing Lender shall be responsible for, and the Borrower's
Reimbursement Obligations under Section 2.5 shall not be affected by, among
other things, the validity or genuineness of documents or of any endorsements
thereon, even though such documents shall in fact prove to be invalid,
fraudulent or forged, or any dispute between or among the Borrower and any
beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any such transferee. No Issuing Lender
shall be liable for any error, omission, interruption or delay in transmission,
dispatch or delivery of any message or advice, however transmitted, in
connection with any Letter of Credit, except for errors or omissions found by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Issuing Lender.
The Borrower and the Lenders each agree that any action taken or omitted by the
relevant Issuing Lender under or in connection with any Letter of
13
Credit or the related drafts or documents, if done in the absence of gross
negligence or willful misconduct and in accordance with the standards of care
specified in the Uniform Commercial Code of the State of New York, shall be
binding on the Borrower and shall not result in any liability of such Issuing
Lender to the Borrower or any Lender.
2.7. LETTER OF CREDIT PAYMENTS. If any draft shall be presented for
payment under any Letter of Credit, the relevant Issuing Lender shall promptly
notify the Borrower of the date and amount thereof. The responsibility of the
relevant Issuing Lender to the Borrower in connection with any draft presented
for payment under any Letter of Credit shall, in addition to any payment
obligation expressly provided for in such Letter of Credit, be limited to
determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit. On the last day of each month (or more
frequently if requested by the Administrative Agent), each Issuing Lender which
had any Letters of Credit outstanding during such month shall notify the
Administrative Agent of the dates and amounts of all drafts presented for
payment under such Letters of Credit during the such month and such other
information as is necessary for the Administrative Agent to calculate the
commitment fee.
2.8. APPLICATIONS. To the extent that any provision of any Application
related to any Letter of Credit is inconsistent with the provisions of this
Section 2, the provisions of this Section 2 shall apply.
2.9. COMMITMENT FEES. The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee for the period from and
including the Closing Date to the last day of the Revolving Commitment Period,
computed at a per annum rate equal to 0.08% on the average daily amount of the
Available Revolving Commitment of such Lender during the period for which
payment is made, payable quarterly in arrears five Business Days after the last
day of each March, June, September and December and on the Revolving Termination
Date, commencing on the first of such dates to occur after the date hereof.
2.10. TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS. The Borrower
shall have the right, upon not less than three Business Days' notice to the
Administrative Agent, to terminate the Revolving Commitments or, from time to
time, to reduce the amount of the Revolving Commitments; PROVIDED that no such
termination or reduction of Revolving Commitments shall be permitted if, after
giving effect thereto, the Total Revolving Extensions of Credit would exceed the
Total Revolving Commitments. Any such reduction shall be in an amount equal to
$1,000,000, or a whole multiple thereof, and shall reduce permanently the
Revolving Commitments then in effect.
2.11. OVERDUE AMOUNTS. If any Reimbursement Obligation, letter of
credit fee, commitment fee or other amount payable hereunder shall not be paid
when due (whether at the stated maturity, by acceleration or otherwise), such
overdue amount shall bear interest at a rate per annum equal to the ABR PLUS 2%,
in each case from and including the date of such non-payment until but excluding
the date such amount is paid in full (as well after as before judgment). Such
interest shall be payable from time to time on demand.
2.12. COMPUTATION OF INTEREST AND FEES. Interest and fees payable
pursuant hereto shall be calculated on the basis of a 360-day year for the
actual days elapsed, except that, with respect to any interest calculated on the
basis of the Prime Rate, such interest shall be calculated on the basis of a
365- (or 366-, as the case may be) day year for the actual days elapsed. Any
change in the interest rate resulting from a change in the ABR shall become
effective as of the opening of business on the day on which such change becomes
effective. Each determination of an interest rate by the Administrative Agent
14
pursuant to any provision of this Agreement shall be conclusive and binding on
the Borrower and the Lenders in the absence of manifest error.
2.13. PRO RATA TREATMENT AND PAYMENTS. (a) Each payment by the
Borrower on account of any commitment fee and any reduction of the Revolving
Commitments of the Lenders shall be made PRO RATA according to the Revolving
Percentages of the Lenders.
(b) All payments (including prepayments) to be made by the Borrower
hereunder, whether on account of fees, interest or otherwise, shall be made
without setoff or counterclaim and shall be made prior to 12:00 Noon, New York
City time, on the due date thereof to the Administrative Agent, for the account
of the Lenders, at the Payment Office, in Dollars and in immediately available
funds. The Administrative Agent may effect any such payment by debiting any
account maintained by the Borrower with the Administrative Agent. The
Administrative Agent shall distribute such payments to the Lenders promptly upon
receipt in like funds as received. If any payment hereunder becomes due and
payable on a day other than a Business Day, such payment shall be extended to
the next succeeding Business Day. In the case of any extension of any payment of
any Reimbursement Obligation pursuant to the preceding two sentences, interest
thereon shall be payable at the then applicable rate during such extension.
2.14. REQUIREMENTS OF LAW. (a) If the adoption of or any change in any
Requirement of Law or in the interpretation or application thereof or compliance
by any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever with
respect to this Agreement, any Letter of Credit or any Application, or
change the basis of taxation of payments to such Lender in respect thereof
(except for Non-Excluded Taxes covered by Section 2.15 and changes in the
rate of tax on the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve, special
deposit, compulsory loan or similar requirement against assets held by,
deposits or other liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of funds by, any
office of such Lender; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount that such Lender deems to be material, of issuing or participating
in Letters of Credit, or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, the Borrower shall promptly pay such Lender,
upon its demand, any additional amounts necessary to compensate such Lender for
such increased cost or reduced amount receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section 2.14, it shall promptly
notify the Borrower (with a copy to the Administrative Agent) of the event by
reason of which it has become so entitled.
(b) if any Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder or under or in respect of any Letter of
Credit to a level below that which such Lender or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
such Lender's or such corporation's
15
policies with respect to capital adequacy) by an amount deemed by such Lender to
be material, then from time to time, after submission by such Lender to the
Borrower (with a copy to the Administrative Agent) of a written request
therefor, the Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction; PROVIDED that the
Borrower shall not be required to compensate a Lender pursuant to this paragraph
for any amounts incurred more than six months prior to the date that such Lender
notifies the Borrower of such Lender's intention to claim compensation therefor;
and PROVIDED FURTHER that, if the circumstances giving rise to such claim have a
retroactive effect, then such six-month period shall be extended to include the
period of such retroactive effect.
(c) A certificate as to any additional amounts payable pursuant to
this Section 2.14 submitted by any Lender to the Borrower (with a copy to the
Administrative Agent) shall be conclusive in the absence of manifest error. The
obligations of the Borrower pursuant to this Section 2.14 shall survive the
termination of this Agreement, the termination or expiration of the Letters of
Credit and the payment of all amounts payable hereunder.
2.15. TAXES. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding net income taxes and franchise taxes (imposed in lieu of
net income taxes) imposed on the Administrative Agent or any Lender as a result
of a present or former connection between the Administrative Agent or such
Lender and the jurisdiction of the Governmental Authority imposing such tax or
any political subdivision or taxing authority thereof or therein (other than any
such connection arising solely from the Administrative Agent or such Lender
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Credit Document). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("NON-EXCLUDED TAXES") are required to be withheld from any amounts
payable to the Administrative Agent or any Lender hereunder, the amounts so
payable to the Administrative Agent or such Lender shall be increased to the
extent necessary to yield to the Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement, PROVIDED,
HOWEVER, that the Borrower shall not be required to increase any such amounts
payable to any Lender that is not organized under the laws of the United States
of America or a state thereof to the extent such Lender's compliance with the
requirements of Section 2.15(b) at the time such Lender becomes a party to this
Agreement fails to establish a complete exemption from such withholding.
Whenever any Non-Excluded Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Administrative Agent for its
own account or for the account of such Lender, as the case may be, a certified
copy of an original official receipt received by the Borrower showing payment
thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to the
appropriate taxing authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence, the Borrower shall
indemnify the Administrative Agent and the Lenders for any incremental taxes,
interest or penalties that may become payable by the Administrative Agent or any
Lender as a result of any such failure. The agreements in this Section 2.15
shall survive the termination of this Agreement, the termination or expiration
of the Letters of Credit and the payment of all amounts payable hereunder.
(b) Each Lender (or Transferee) that is not a citizen or resident of
the United States of America, a corporation, partnership or other entity created
or organized in or under the laws of the United States of America (or any
jurisdiction thereof), or any estate or trust that is subject to federal income
taxation regardless of the source of its income (a "NON-U.S. LENDER") shall
deliver to the Borrower and the Administrative Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been
purchased) two copies of either U.S. Internal Revenue Service Form W-
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8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio interest", a Form W-8, or any subsequent
versions thereof or successors thereto (and, if such Non-U.S. Lender delivers a
Form W-8, an annual certificate representing that such Non-U.S. Lender is not a
"bank" for purposes of Section 881(c) of the Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign corporation related to the Borrower
(within the meaning of Section 864(d)(4) of the Code)), properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or a
reduced rate of, U.S. federal withholding tax on all payments by the Borrower
under this Agreement and the other Credit Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to
this Agreement (or, in the case of any Participant, on or before the date such
Participant purchases the related participation). In addition, each Non-U.S.
Lender shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender
shall promptly notify the Borrower at any time it determines that it is no
longer in a position to provide any previously delivered certificate to the
Borrower (or any other form of certification adopted by the U.S. taxing
authorities for such purpose). Notwithstanding any other provision of this
Section 2.15(b), a Non-U.S. Lender shall not be required to deliver any form
pursuant to this Section 2.15(b) that such Non-U.S. Lender is not legally able
to deliver.
2.16. CHANGE OF LENDING OFFICE. Each Lender agrees that, upon the
occurrence of any event giving rise to the operation of Section 2.14 or 2.15(a)
with respect to such Lender, it will, if requested by the Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Letters of Credit affected by such
event with the object of avoiding the consequences of such event; PROVIDED, that
such designation is made on terms that, in the sole judgment of such Lender,
cause such Lender and its lending office(s) to suffer no economic, legal or
regulatory disadvantage, and PROVIDED, FURTHER, that nothing in this Section
2.16 shall affect or postpone any of the obligations of any Borrower or the
rights of any Lender pursuant to Section 2.14 or 2.15(a).
2.17. REPLACEMENT OF LENDERS. The Borrower shall be permitted to
replace any Lender that requests reimbursement for amounts owing pursuant to
Section 2.14 or 2.15; PROVIDED that (i) such replacement does not conflict with
any Requirement of Law, (ii) no Event of Default shall have occurred and be
continuing at the time of such replacement, (iii) prior to any such replacement,
such Lender shall have taken no action under Section 2.16 so as to eliminate the
continued need for payment of amounts owing pursuant to Section 2.14 or 2.15,
(iv) the replacement financial institution shall purchase, at par, all amounts
owing to such replaced Lender on or prior to the date of replacement, (v) the
replacement financial institution shall be satisfactory to the Administrative
Agent, (vi) the replaced Lender shall be obligated to make such replacement in
accordance with the provisions of Section 10.6 (PROVIDED that the Borrower shall
be obligated to pay the registration and processing fee referred to therein),
(vii) until such time as such replacement shall be consummated, the Borrower
shall pay all additional amounts (if any) required pursuant to Section 2.14 or
2.15, as the case may be, and (viii) any such replacement shall not be deemed to
be a waiver of any rights that the Borrower, the Administrative Agent or any
other Lender shall have against the replaced Lender.
2.18. NOTICES.
(a) No later than five Business Days after the end of each month, each
Issuing Lender shall provide to the Administrative Agent a summary (an
"OUTSTANDING L/C SUMMARY") of all outstanding Letters of Credit issued by it for
each day during such month and, if such month shall be the last month of a
quarter, for such quarter, in a form agreed to by such Issuing Lender and the
Administrative Agent.
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(b) No later than seven Business Days after the end of each month, the
Administrative Agent shall provide to each Lender (i) the Outstanding L/C
Summary prepared by each Issuing Lender and (ii) a statement of the then-current
Collateral Base.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into
this Agreement and to issue or participate in the Letters of Credit, Holdings
and the Borrower hereby represent and warrant to the Administrative Agent and
each Lender that:
3.1. FINANCIAL CONDITION. Except for any changes or developments
arising out of or related to the Disclosed Matters, (a) the audited consolidated
balance sheet of Holdings and its consolidated Subsidiaries as at March 31,
2004, and the related consolidated statements of income and of cash flows for
the fiscal year ended on such date, reported on by and accompanied by an
unqualified report from PricewaterhouseCoopers LLP, present fairly the
consolidated financial condition of Holdings and its consolidated Subsidiaries
as at such date, and the consolidated results of its operations and its
consolidated cash flows for the fiscal year then ended, (b) the unaudited,
condensed consolidated balance sheet of Holdings and its consolidated
Subsidiaries as at June 30, 2004, and the related condensed consolidated
statement of income and of cash flows for the three-month period ended on such
date, present fairly the consolidated financial condition of Holdings and its
consolidated Subsidiaries as at such date, and the consolidated results of its
operations and its consolidated cash flows for the three-month period then ended
(subject to normal year-end audit adjustments), and (c) Holdings and its
consolidated Subsidiaries do not have any material Guarantee Obligations,
contingent liabilities and liabilities for taxes, or any long-term leases or
unusual forward or long-term commitments, including any interest rate or foreign
currency swap or exchange transaction or other obligation in respect of
derivatives, that are required to be but are not reflected in the most recent
financial statements referred to in this paragraph or in the notes thereto.
During the period from March 31, 2004 to and including the date hereof there has
been no Disposition (other than Dispositions of inventory in the ordinary course
of business) by Holdings or any of its consolidated Subsidiaries of any material
part of its business or property.
3.2. NO CHANGE. Except as disclosed in the Confidential Information
Package, since March 31, 2004 there has been no development or event that has
had or could reasonably be expected to have a Material Adverse Effect.
3.3. EXISTENCE; COMPLIANCE WITH LAW. Each of the Credit Parties (a) is
duly organized, validly existing and in good standing (or any similar concept in
any foreign jurisdiction) under the laws of the jurisdiction of its
organization, (b) has the power and authority, and the legal right, to own and
operate its property, to lease the property it operates as lessee and to conduct
the business in which it is currently engaged, (c) is duly qualified as a
foreign corporation and in good standing under the laws of each jurisdiction
where its ownership, lease or operation of property or the conduct of its
business requires such qualification and (d) is in compliance with all
Requirements of Law except to the extent that the failure to comply therewith
could not, in the aggregate, reasonably be expected to have a Material Adverse
Effect.
3.4. POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS. Each Credit Party
has the power and authority, and the legal right, to make, deliver and perform
the Credit Documents to which it is a party and, in the case of the Borrower, to
borrow hereunder. Each Credit Party has taken all necessary action to authorize
the execution, delivery and performance of the Credit Documents to which it is a
party and, in the case of the Borrower, to authorize the extensions of credit on
the terms and conditions of this Agreement. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or
18
with the execution, delivery, performance, validity or enforceability of this
Agreement or any of the Credit Documents, other than the filing of a Form 8-K
with respect to the transactions contemplated hereby. Each Credit Document has
been duly executed and delivered on behalf of each Credit Party party thereto.
This Agreement constitutes, and each other Credit Document upon execution will
constitute, a legal, valid and binding obligation of each Credit Party party
thereto, enforceable against each such Credit Party in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
3.5. NO LEGAL BAR. The execution, delivery and performance of this
Agreement and the other Credit Documents and the issuance of Letters of Credit
will not violate any material Requirement of Law or any material Contractual
Obligation of Holdings or any of its Subsidiaries and will not result in, or
require, the creation or imposition of any Lien on any of their respective
properties or revenues pursuant to any Requirement of Law or any such
Contractual Obligation (other than Liens arising under the Credit Documents). No
Requirement of Law or Contractual Obligation applicable to Holdings or any of
its Subsidiaries could reasonably be expected to have a Material Adverse Effect.
3.6. LITIGATION. No litigation, investigation or proceeding of or
before any arbitrator or Governmental Authority is pending or, to the knowledge
of Holdings or the Borrower, threatened by or against Holdings or any of its
Subsidiaries or against any of their respective properties or revenues (a) with
respect to any of the Credit Documents or any of the transactions contemplated
hereby or thereby or (b) that could reasonably be expected to have a Material
Adverse Effect.
3.7. NO DEFAULT. Neither Holdings nor any of its Subsidiaries is in
default under or with respect to any of its Contractual Obligations in any
respect that could reasonably be expected to have a Material Adverse Effect. No
Default or Event of Default has occurred and is continuing.
3.8. OWNERSHIP OF PROPERTY. Each of Holdings and its Subsidiaries has
title in fee simple to, or a valid leasehold interest in, all its material real
property, and good title to, or a valid leasehold interest in, all its other
material property.
3.9. INTELLECTUAL PROPERTY. Holdings and each of its Subsidiaries
owns, or is licensed to use, all material Intellectual Property necessary for
the conduct of its business as currently conducted. No material claim has been
asserted and is pending by any Person challenging or questioning the use of any
such Intellectual Property or the validity or effectiveness of any such
Intellectual Property, nor does Holdings or the Borrower know of any valid basis
for any such claim. The use of such Intellectual Property by Holdings and its
Subsidiaries does not infringe on the rights of any Person in any material
respect.
3.10. TAXES. Each of Holdings and each of its Subsidiaries has filed
or caused to be filed all Federal, state and other material tax returns that are
required to be filed and has paid all material taxes shown to be due and payable
on said returns or on any assessments made against it or any of its property and
all other material taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority (other than any the amount or validity of
that are currently being contested in good faith by appropriate proceedings and
with respect to which reserves in conformity with GAAP have been provided on the
books of Holdings or its Subsidiaries, as the case may be); no tax Lien has been
filed, and, to the knowledge of Holdings and the Borrower, no claim is being
asserted (excluding the Disclosed Matters), with respect to any such tax, fee or
other charge, except as permitted by Section 6.1(b).
19
3.11. LABOR MATTERS. Except as, in the aggregate, could not reasonably
be expected to have a Material Adverse Effect: (a) there are no strikes or other
labor disputes against Holdings or any of its Subsidiaries pending or, to the
knowledge of Holdings or the Borrower, threatened; (b) hours worked by and
payment made to employees of Holdings and its Subsidiaries have not been in
violation of the Fair Labor Standards Act or any other applicable Requirement of
Law dealing with such matters; and (c) all payments due from Holdings or any of
its Subsidiaries on account of employee health and welfare insurance have been
paid or accrued as a liability on the books of Holdings or the relevant
Subsidiary.
3.12. ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Plan, and each Plan
has complied in all material respects with the applicable provisions of ERISA
and the Code. No termination of a Single Employer Plan has occurred, and no Lien
in favor of the PBGC or a Plan has arisen, during such five-year period. The
present value of all accrued benefits under each Single Employer Plan (based on
those assumptions used to fund such Plans) did not, as of the last annual
valuation date prior to the date on which this representation is made or deemed
made, exceed the value of the assets of such Plan allocable to such accrued
benefits by a material amount. Neither the Borrower nor any Commonly Controlled
Entity has had a complete or partial withdrawal from any Multiemployer Plan that
has resulted or could reasonably be expected to result in a material liability
under ERISA, and neither the Borrower nor any Commonly Controlled Entity would
become subject to any material liability under ERISA if the Borrower or any such
Commonly Controlled Entity were to withdraw completely from all Multiemployer
Plans as of the valuation date most closely preceding the date on which this
representation is made or deemed made. No such Multiemployer Plan is in
Reorganization or Insolvent.
3.13. INVESTMENT COMPANY ACT; OTHER REGULATIONS. No Credit Party is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No Credit
Party is subject to regulation under any Requirement of Law that limits its
ability to incur Indebtedness.
3.14. SUBSIDIARIES. The Subsidiaries listed on Schedule 3.14
constitute all the Subsidiaries of Holdings at the date hereof.
3.15. ENVIRONMENTAL MATTERS. Except as, in the aggregate, could
not reasonably be expected to have a Material Adverse Effect:
(a) the facilities and properties owned, leased or operated by
Holdings or any of its Subsidiaries (the "PROPERTIES") do not contain, and
have not previously contained, any Materials of Environmental Concern in
amounts or concentrations or under circumstances that constitute or
constituted a violation of, or could give rise to liability under, any
Environmental Law;
(b) neither Holdings nor any of its Subsidiaries has received or is
aware of any notice of violation, alleged violation, non-compliance,
liability or potential liability regarding environmental matters or
compliance with Environmental Laws with regard to any of the Properties or
the business operated by Holdings or any of its Subsidiaries (the
"BUSINESS"), nor does Holdings or the Borrower have knowledge or reason to
believe that any such notice will be received or is being threatened;
(c) Materials of Environmental Concern have not been transported or
disposed of from the Properties in violation of, or in a manner or to a
location that could give rise to liability under, any Environmental Law,
nor have any Materials of Environmental Concern been generated,
20
treated, stored or disposed of at, on or under any of the Properties in
violation of, or in a manner that could give rise to liability under, any
applicable Environmental Law;
(d) no judicial proceeding or governmental or administrative action is
pending or, to the knowledge of Holdings and the Borrower, threatened,
under any Environmental Law to which Holdings or any Subsidiary is or will
be named as a party with respect to the Properties or the Business, nor are
there any consent decrees or other decrees, consent orders, administrative
orders or other orders, or other administrative or judicial requirements
outstanding under any Environmental Law with respect to the Properties or
the Business;
(e) there has been no release or threat of release of Materials of
Environmental Concern at or from the Properties, or arising from or related
to the operations of Holdings or any Subsidiary in connection with the
Properties or otherwise in connection with the Business, in violation of or
in amounts or in a manner that could give rise to liability under
Environmental Laws;
(f) the Properties and all operations at the Properties are in
compliance, and have in the last five years been in compliance, with all
applicable Environmental Laws, and there is no contamination at, under or
about the Properties or violation of any Environmental Law with respect to
the Properties or the Business; and
(g) neither Holdings nor any of its Subsidiaries has assumed any
liability of any other Person under Environmental Laws.
3.16. ACCURACY OF INFORMATION, ETC. The Borrower represents and
warrants that the historical financial information included in Exhibits 5.4 and
5.5 of the Confidential Information Package is true and correct in all material
respects. Except as disclosed under "Management Comments" in Exhibit 5.6, the
management projections included in the Confidential Information Package are
based on assumptions and estimates developed by management of the Borrower in
good faith and management believed such assumptions and estimates were
reasonable as of the date of the Confidential Information Package, it being
recognized by the Lenders that such financial information as it relates to
future events is not to be viewed as fact and that actual results during the
period or periods covered by such financial information may differ from the
projected results set forth therein by a material amount. There is no fact known
to any Credit Party that could reasonably be expected to have a Material Adverse
Effect that has not been expressly disclosed herein, in the other Credit
Documents, in the Confidential Information Package or in any other documents,
certificates and statements furnished to the Administrative Agent and the
Lenders for use in connection with the transactions contemplated hereby and by
the other Credit Documents.
3.17. SOLVENCY. Each Credit Party is, and after the incurrence of all
Indebtedness and obligations being incurred in connection herewith will be and
will continue to be, Solvent.
SECTION 4. CONDITIONS PRECEDENT
4.1. CONDITIONS TO INITIAL EXTENSION OF CREDIT. The agreement of
each Lender to make the initial extension of credit requested to be made by it
is subject to the satisfaction, prior to or concurrently with the making of such
extension of credit on the Closing Date, of the following conditions precedent:
(a) CREDIT DOCUMENTS. The Administrative Agent shall have received (i)
this Agreement, executed and delivered by a duly authorized officer of
Holdings, the Borrower and each Lender
21
and (ii) the Subsidiary Guarantee, executed and delivered by a duly
authorized officer of Financeco.
(b) FINANCECO. Financeco shall have been created pursuant to the
Financeco Organizational Documents and capitalized with a cash capital
contribution from the Borrower of $150,000,000. All actions necessary to
establish the Administrative Agent's perfected first priority security
interest in the Collateral shall have been taken.
(c) FEES AND EXPENSES. The Administrative Agent shall have received
all fees required to be paid, and all expenses for which invoices have been
presented (including the reasonable fees and expenses of legal counsel), on
or before the Closing Date.
(d) CLOSING CERTIFICATE. The Administrative Agent shall have received
a certificate of each Credit Party, dated the Closing Date, substantially
in the form of Exhibit ▇-▇, ▇-▇ or A-3, as applicable, with appropriate
insertions and attachments.
(e) LEGAL OPINIONS. The Administrative Agent shall have received the
following executed legal opinions:
(i) the legal opinion of Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇, counsel
to the Borrower and United States counsel to Holdings, substantially
in the form of Exhibit C-1;
(ii) the legal opinion of ▇▇▇▇▇▇, Westwood & Riegels, British
Virgin Islands counsel to Holdings, substantially in the form of
Exhibit C-2; and
(iii) the legal opinion of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, internal counsel to
the Borrower and Holdings, substantially in the form of Exhibit C-3.
(f) EXISTING CREDIT AGREEMENT. The Administrative Agent shall have
received evidence reasonably satisfactory to it that the existing credit
agreement of the Borrower dated as of June 28, 2002 shall have been
terminated and all amounts owing thereunder shall have been paid in full.
Any letters of credit under such credit agreement not issued by an Issuing
Lender shall be supported by arrangements required by the issuer thereof
and satisfactory to the Administrative Agent. The parties hereto that are
"Lenders" under and as defined in said agreement hereby (i) waive any
requirement of advance notice of the termination of any commitments
thereunder or of the prepayment or replacement of any extensions of credit
thereunder and (ii) agree that said commitments shall automatically
terminate on the Closing Date.
4.2. CONDITIONS TO EACH EXTENSION OF CREDIT. The agreement of each
Lender to make any extension of credit requested to be made by it on any date
(including its initial extension of credit) is subject to the satisfaction of
the following conditions precedent:
(a) REPRESENTATIONS AND WARRANTIES. Each of the representations and
warranties made by any Credit Party in or pursuant to the Credit Documents
shall be true and correct in all material respects on and as of such date
as if made on and as of such date.
(b) NO DEFAULT. No Default or Event of Default shall have occurred and
be continuing on such date or after giving effect to the extensions of
credit requested to be made on such date.
22
Each issuance or amendment of a Letter of Credit on behalf of the Borrower
hereunder shall constitute a representation and warranty by the Borrower as of
the date of such extension of credit that the conditions contained in this
Section 4.2 have been satisfied.
SECTION 5. AFFIRMATIVE COVENANTS
Holdings and the Borrower hereby jointly and severally agree that,
so long as the Revolving Commitments remain in effect, any Letter of Credit
remains outstanding or any amount is owing to any Lender or the Administrative
Agent hereunder, each of Holdings and the Borrower shall and shall cause each of
its Subsidiaries to:
5.1. FINANCIAL STATEMENTS. Furnish to the Administrative Agent and
each Lender:
(a) concurrently with any filing thereof with the Securities and
Exchange Commission, a copy of the audited consolidated balance sheet of
Holdings and its consolidated Subsidiaries as at the end of each fiscal
year of Holdings and the related audited consolidated statements of income
and of cash flows for such year (including summary financial information as
to the Borrower and its Subsidiaries in the form described in Rule 1-02(bb)
of Regulation S-X under the Exchange Act), setting forth in each case in
comparative form the figures for the previous year, reported on without a
"going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by PricewaterhouseCoopers LLP or
other independent certified public accountants of nationally recognized
standing; and
(b) concurrently with any filing thereof with the Securities and
Exchange Commission, the unaudited condensed consolidated balance sheet of
Holdings and its consolidated Subsidiaries as at the end of each of the
first three quarterly periods of each fiscal year of Holdings and the
related condensed unaudited consolidated statement of income for such
quarter and the portion of the fiscal year through the end of such quarter
and the related unaudited consolidated statement of cash flows for the
portion of the fiscal year through the end of such quarter (including
summary financial information as to the Borrower and its Subsidiaries in
the form described in Rule 1-02(bb) of Regulation S-X under the Exchange
Act), setting forth in each case in comparative form the figures for the
comparable period of the previous year, certified by a Responsible Officer
as being fairly stated in all material respects (subject to normal year-end
audit adjustments).
All such financial statements shall fairly present in all material respects the
financial condition of Holdings and its consolidated Subsidiaries on a
consolidated basis and shall be prepared in accordance with GAAP applied
consistently throughout the periods reflected therein and with prior periods
(except as approved by such accountants or officer, as the case may be, and
disclosed therein). Holdings and the Borrower shall be deemed to have complied
with this Section 5.1 if Holdings or the Borrower, as applicable, provides
written notice (which may be in electronic form) within one Business Day of the
making or filing of any financial statements required above and the same are
continuously available on "▇▇▇▇▇," the Electronic Data Gathering Analysis and
Retrieval system of the SEC, or "▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇.▇▇▇."
5.2. CERTIFICATES; OTHER INFORMATION. Furnish to the
Administrative Agent (or, in the case of clause (d), to the relevant Lender):
(a) concurrently with the delivery of any financial statements
pursuant to Section 5.1, a certificate of a Responsible Officer of Holdings
or the Borrower, as applicable, stating that, to the best of each such
Responsible Officer's knowledge, each Credit Party during such period has
23
observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the other Credit
Documents to which it is a party to be observed, performed or satisfied by
it, and that such Responsible Officer has obtained no knowledge of any
Default or Event of Default except as specified in such certificate;
(b) (i) no later than 5 Business Days prior to the effectiveness
thereof, copies of substantially final drafts of any proposed amendment,
supplement, waiver or other modification with respect to the Senior Note
Indenture or the Financeco Organizational Documents and (ii) except in the
case of intercompany transactions between or among Holdings and its
Subsidiaries (including, without limitation, intercompany dividends),
concurrently with any Disposition (other than Dispositions of inventory in
the ordinary course of business), dividend or distribution of assets
(including cash and cash equivalents) yielding gross proceeds or in an
aggregate amount in excess of $50,000,000 (whether pursuant to a single
transaction or a series of related transactions), a certificate of a
Responsible Officer of Holdings demonstrating compliance with Section
6.6(a);
(c) within 5 Business Days after the same are sent, copies of public
financial statements and public reports that Holdings or the Borrower sends
to the holders of any class of its debt securities or public equity
securities and, within five days after the same are filed, copies of all
financial statements and reports that Holdings or the Borrower may make to,
or file with, the Securities and Exchange Commission or any successor or
analogous Governmental Authority; and
(d) promptly, such additional financial and other information as any
Lender may from time to time reasonably request.
5.3. PAYMENT OF TAX OBLIGATIONS. Pay, discharge or otherwise satisfy
at or before maturity or before they become delinquent, as the case may be, all
its material tax obligations, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
Holdings or the relevant Subsidiary, as the case may be (excluding the Disclosed
Matters).
5.4. MAINTENANCE OF EXISTENCE; COMPLIANCE. (a) Preserve, renew and
keep in full force and effect its existence, except (i) as otherwise permitted
by Section 6.2 or (ii) in the case of any Subsidiary that is not a Credit Party,
to the extent that failure to do so could not reasonably be expected to have a
Material Adverse Effect; (b) take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable in the normal conduct of its
business, except (i) as otherwise permitted by Section 6.2 or (ii) to the extent
that failure to do so could not reasonably be expected to have a Material
Adverse Effect; and (c) comply with all Contractual Obligations and Requirements
of Law except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
5.5. MAINTENANCE OF PROPERTY; INSURANCE. (a) Keep all material
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted and (b) maintain with financially
sound and reputable insurance companies insurance on all its property in at
least such amounts and against at least such risks (but including in any event
public liability, product liability and business interruption) as are usually
insured against in the same general area by companies engaged in the same or a
similar business.
5.6. INSPECTION OF PROPERTY; BOOKS AND RECORDS; DISCUSSIONS. (a) Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements
24
of Law shall be made of all dealings and transactions in relation to its
business and activities and (b) permit representatives of the Administrative
Agent (or any Lender (i) no more than once during the term of this Agreement or
(ii) during such time as an Event of Default shall have occurred and be
continuing), to visit and inspect any of its properties and examine and make
abstracts from any of its books and records at any reasonable time and as often
as may reasonably be desired and to discuss the business, operations, properties
and financial and other condition of Holdings and its Subsidiaries with officers
and employees of Holdings and its Subsidiaries.
5.7. NOTICES. Promptly give notice to the Administrative Agent and
each Lender of:
(a) the occurrence of any Default or Event of Default;
(b) any (i) default or event of default under any Contractual
Obligation of Holdings or any of its Subsidiaries or (ii) litigation,
investigation or proceeding that may exist at any time between Holdings or
any of its Subsidiaries and any Governmental Authority, that in either
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting Holdings or any of its
Subsidiaries in which the amount involved is $20,000,000 or more and not
covered by insurance or a binding indemnification obligation or in which
injunctive or similar relief is sought;
(d) the following events, as soon as possible and in any event within
30 days after the Borrower knows or has reason to know thereof: (i) the
occurrence of any Reportable Event with respect to any Plan, a failure to
make any required contribution to a Plan, the creation of any Lien in favor
of the PBGC or a Plan or any withdrawal from, or the termination,
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the
institution of proceedings or the taking of any other action by the PBGC or
the Borrower or any Commonly Controlled Entity or any Multiemployer Plan
with respect to the withdrawal from, or the termination, Reorganization or
Insolvency of, any Plan; and
(e) any development or event that has had or could reasonably be
expected to have a Material Adverse Effect.
Each notice pursuant to this Section 5.7 shall be accompanied by a statement of
a Responsible Officer setting forth details of the occurrence referred to
therein and stating what action Holdings or the relevant Subsidiary proposes to
take with respect thereto.
5.8. ENVIRONMENTAL LAWS. Except as could not reasonably be expected to
have a Material Adverse Effect, (a) comply with, and ensure compliance by all
tenants and subtenants, if any, with, all applicable Environmental Laws, and
obtain and comply with and maintain, and ensure that all tenants and subtenants
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws and (b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws and promptly comply with all lawful orders and directives of
all Governmental Authorities regarding Environmental Laws.
5.9. USE OF LETTERS OF CREDIT. Use the Letters of Credit for general
corporate purposes.
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SECTION 6. NEGATIVE COVENANTS
Holdings and the Borrower hereby jointly and severally agree that, so
long as the Revolving Commitments remain in effect, any Letter of Credit remains
outstanding or any amount is owing to any Lender or the Administrative Agent
hereunder, (i) the Borrower shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, (ii) Holdings shall not permit any of
its Subsidiaries to, directly or indirectly, and, (iii) in the case of Sections
6.2 and 6.6, Holdings shall not, directly or indirectly:
6.1. LIENS. Create, incur, assume or suffer to exist any Lien upon any
of the Collateral, except for (a) Liens pursuant to the Subsidiary Guarantee and
(b) Liens for taxes not yet due or that are being contested in good faith by
appropriate proceedings, PROVIDED that, in each case, the maximum possible
liability of Holdings and its Subsidiaries in connection with such taxes (the
"TAX LIABILITY AMOUNT") has been specifically identified in writing by the
relevant Governmental Authority and a copy thereof has been furnished to the
Administrative Agent within three Business Days after receipt by Holdings or any
Subsidiary.
6.2. FUNDAMENTAL CHANGES. In the case of each of Holdings, the
Borrower or Financeco, enter into any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself (or suffer any liquidation or
dissolution), or Dispose of all or substantially all of its property or
business, except that each of Holdings and the Borrower may merge, amalgamate,
consolidate or sell all or substantially all of its property or business so long
as the entity resulting from such merger, amalgamation or consolidation, or that
acquires all or substantially all of such property or business, if not Holdings
or the Borrower, respectively, (a) assumes all obligations of Holdings or the
Borrower, as the case may be, under this Agreement in a manner reasonably
satisfactory to the Administrative Agent (which shall include delivery of
customary certificates and legal opinions) and (b) is organized under a
jurisdiction within the United States (or, in the case of Holdings, the British
Virgin Islands).
6.3. CERTAIN INVESTMENTS. Purchase more than 50% of the outstanding
Capital Stock of any Person if such purchase has not been approved by a majority
of members of the board of directors (or similar governing body) of such Person.
6.4. MODIFICATIONS OF SENIOR NOTES. Amend, modify, waive or otherwise
change, or consent or agree to any amendment, modification, waiver or other
change to, any of the terms of the Senior Notes (other than any such amendment,
modification, waiver or other change that is not materially adverse to the
Lenders).
6.5. LINES OF BUSINESS. Enter into any business, either directly or
through any Subsidiary, except for those businesses in which the Borrower or any
other Subsidiary is engaged on the date of this Agreement or the fashion,
apparel or consumer products business or any business reasonably related to any
thereof.
6.6. MATTERS RELATING TO FINANCECO. (a) Enter into any transaction if,
after giving PRO FORMA effect thereto and to any other transaction consummated
since the end of the most recently completed fiscal year of Holdings, Financeco
would constitute a "Restricted Subsidiary" under the Senior Note Indenture
(determined as if the percentage threshold in the definition of "Significant
Subsidiary" referred to in the definition of "Restricted Subsidiary" contained
in the Senior Note Indenture were 9% rather than 10%).
(b) Take any action that would have the effect of reducing the amount
of capital initially contributed to Financeco on the Closing Date as described
in Section 5.1(b); PROVIDED, that on or after the
26
date of any reduction of the Revolving Commitments pursuant to Section 2.10, a
portion of such capital equal to the amount of such reduction may be distributed
to the Borrower (which distribution of capital shall be made, FIRST, from
amounts held by Financeco that are not contained in the Collateral Account and,
SECOND, from amounts contained in the Collateral Account).
(c) Amend, modify, waive or otherwise change, or consent or agree to
any amendment, modification, waiver or other change to, any of the terms of the
Financeco Organizational Documents (other than any such amendment, modification,
waiver or other change that could not reasonably be expected to be materially
adverse to the interests of the Lenders).
(d) In the case of Financeco, (i) conduct, transact or otherwise
engage in, or commit to conduct, transact or otherwise engage in, any business
or operations other than those incidental to its ownership of the Collateral,
(ii) incur, create, assume or suffer to exist any Indebtedness or other
liabilities or financial obligations, except (x) nonconsensual obligations
imposed by operation of law and (y) obligations pursuant to the Credit Documents
to which it is a party, or (iii) own, lease, manage or otherwise operate any
properties or assets other than the Collateral or other cash and Cash
Equivalents.
SECTION 7. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) the Borrower shall fail to pay any Reimbursement Obligation when
due in accordance with the terms hereof; or the Borrower shall fail to pay any
interest on any Reimbursement Obligation, or any other amount payable hereunder
or under any other Credit Document, within five days after any such interest or
other amount becomes due in accordance with the terms hereof; or
(b) any representation or warranty made or deemed made by any Credit
Party herein or in any other Credit Document or that is contained in any
certificate, document or financial or other statement furnished by it at any
time under or in connection with this Agreement or any such other Credit
Document shall prove to have been inaccurate in any material respect on or as of
the date made or deemed made; or
(c) any Credit Party shall default in the observance or performance of
any agreement contained in Section 5.4(a) (with respect to Holdings, the
Borrower and Financeco only), Section 5.7(a) or Section 6 of this Agreement; or
(d) any Credit Party shall default in the observance or performance of
any other agreement contained in this Agreement or any other Credit Document
(other than as provided in paragraphs (a) through (c) of this Section), and such
default shall continue unremedied for a period of 30 days after notice to the
Borrower from the Administrative Agent or the Required Lenders; or
(e) Holdings or any of its Subsidiaries shall (i) default in making
any payment of any principal of any Indebtedness (including any Guarantee
Obligation) on the scheduled or original due date with respect thereto; or (ii)
default in making any payment of any interest on any such Indebtedness beyond
the period of grace, if any, provided in the instrument or agreement under which
such Indebtedness was created; or (iii) default in the observance or performance
of any other agreement or condition relating to any such Indebtedness or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the holder or
beneficiary of such Indebtedness (or a trustee or agent on behalf of such holder
or beneficiary) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or (in the case of any
such Indebtedness
27
constituting a Guarantee Obligation) to become payable (excluding any default
under Section 704 of the Senior Note Indenture unless any Indebtedness under the
Senior Note Indenture is declared due and payable as a result of any failure to
comply with said Section 704); PROVIDED, that a default, event or condition
described in clause (i), (ii) or (iii) of this paragraph (e) shall not at any
time constitute an Event of Default unless, at such time, one or more defaults,
events or conditions of the type described in clauses (i), (ii) and (iii) of
this paragraph (e) shall have occurred and be continuing with respect to
Indebtedness the outstanding principal amount of which exceeds in the aggregate
$20,000,000; or
(f) (i) Holdings or any of its Material Subsidiaries shall commence
any case, proceeding or other action (A) under any existing or future law of any
jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, seeking to have an order for relief entered
with respect to it, or seeking to adjudicate it a bankrupt or insolvent, or
seeking reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts, or (B)
seeking appointment of a receiver, trustee, custodian, conservator or other
similar official for it or for all or any substantial part of its assets, or
Holdings or any of its Material Subsidiaries shall make a general assignment for
the benefit of its creditors; or (ii) there shall be commenced against Holdings
or any of its Material Subsidiaries any case, proceeding or other action of a
nature referred to in clause (i) above that (A) results in the entry of an order
for relief or any such adjudication or appointment or (B) remains undismissed,
undischarged or unbonded for a period of 60 days; or (iii) there shall be
commenced against Holdings or any of its Material Subsidiaries any case,
proceeding or other action seeking issuance of a warrant of attachment,
execution, distraint or similar process against all or any substantial part of
its assets that results in the entry of an order for any such relief that shall
not have been vacated, discharged, or stayed or bonded pending appeal within 60
days from the entry thereof; or (iv) Holdings or any of its Material
Subsidiaries shall take any action in furtherance of, or indicating its consent
to, approval of, or acquiescence in, any of the acts set forth in clause (i),
(ii), or (iii) above; or (v) Holdings or any of its Material Subsidiaries shall
generally not, or shall be unable to, or shall admit in writing its inability
to, pay its debts as they become due; or
(g) (i) any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of the Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lenders, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lenders is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could, in the sole
judgment of the Required Lenders, reasonably be expected to have a Material
Adverse Effect; or
(h) one or more judgments or decrees shall be entered against Holdings
or any of its Material Subsidiaries involving in the aggregate a liability (to
the extent not paid or covered by insurance) of $20,000,000 or more, and all
such judgments or decrees shall not have been vacated, discharged, stayed or
bonded pending appeal within 30 days from the entry thereof; or
(i) the guarantee contained in Section 10 hereof or in the Subsidiary
Guarantee or any security interest created by the Subsidiary Guarantee shall
cease, for any reason, to be in full force and
28
effect or any Credit Party or any Affiliate of any Credit Party shall so assert,
or any Lien created by the Subsidiary Guarantee shall cease to be enforceable
and of the same effect and priority purported to be created thereby; or
(j) (i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"EXCHANGE ACT")) shall become, or obtain rights (whether by means or warrants,
options or otherwise) to become, the "beneficial owner" (as defined in Rules
13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than
35% of the outstanding ordinary shares of Holdings; (ii) the board of directors
of Holdings shall cease to consist of a majority of Continuing Directors; (iii)
Holdings shall cease to own and control, of record and beneficially, directly,
100% of each class of outstanding Capital Stock of the Borrower; or (iv) the
Borrower shall cease to own and control, of record and beneficially, directly,
100% of each class of outstanding Capital Stock of Financeco free and clear of
all Liens (other than Liens imposed by operation of law); or
(k) the aggregate fair market value of cash and Cash Equivalents held
by Financeco shall be less than the Total Revolving Commitments, and such
circumstance shall continue unremedied for a period of 5 Business Days; or
(l) the Collateral Base shall be less than the Exposure Amount, and
such circumstance shall continue unremedied for a period of 5 Business Days; or
(m) Financeco shall constitute a "Restricted Subsidiary" under the
Senior Note Indenture;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) above with respect to the Borrower,
automatically the Revolving Commitments shall immediately terminate and all
amounts owing under this Agreement and the other Credit Documents (including all
amounts of L/C Obligations, whether or not the beneficiaries of the then
outstanding Letters of Credit shall have presented the documents required
thereunder) shall immediately become due and payable, and (B) if such event is
any other Event of Default, either or both of the following actions may be
taken: (i) with the consent of the Required Lenders, the Administrative Agent
may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower declare the Revolving Commitments to be
terminated forthwith, whereupon the Revolving Commitments shall immediately
terminate; and (ii) with the consent of the Required Lenders, the Administrative
Agent may, or upon the request of the Required Lenders, the Administrative Agent
shall, by notice to the Borrower, declare all amounts owing under this Agreement
and the other Credit Documents (including all amounts of L/C Obligations,
whether or not the beneficiaries of the then outstanding Letters of Credit shall
have presented the documents required thereunder) to be due and payable
forthwith, whereupon the same shall immediately become due and payable. In such
event, amounts held in the Collateral Account shall be applied by the
Administrative Agent to the payment of drafts drawn under Letters of Credit, and
the unused portion thereof after all Letters of Credit shall have expired or
been fully drawn upon, if any, shall be applied to repay other obligations of
the Borrower hereunder and under the other Credit Documents. After all Letters
of Credit shall have expired or been fully drawn upon, all Reimbursement
Obligations shall have been satisfied and all other obligations of the Borrower
hereunder and under the other Credit Documents shall have been paid in full, the
balance, if any, in the Collateral Account shall be returned to the Borrower (or
such other Person as may be lawfully entitled thereto). Except as expressly
provided above in this Section, presentment, demand, protest and all other
notices of any kind are hereby expressly waived by the Borrower.
29
SECTION 8. THE ADMINISTRATIVE AGENT
8.1. APPOINTMENT. Each Lender hereby irrevocably designates and
appoints the Administrative Agent as the agent of such Lender under this
Agreement and the other Credit Documents, and each such Lender irrevocably
authorizes the Administrative Agent, in such capacity, to take such action on
its behalf under the provisions of this Agreement and the other Credit Documents
and to exercise such powers and perform such duties as are expressly delegated
to the Administrative Agent by the terms of this Agreement and the other Credit
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Credit Document or
otherwise exist against the Administrative Agent.
8.2. DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement and the other Credit Documents by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative Agent shall
not be responsible for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
8.3. EXCULPATORY PROVISIONS. Neither the Administrative Agent nor any
of its officers, directors, employees, agents, attorneys-in-fact or affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Credit
Document (except to the extent that any of the foregoing are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted
from its or such Person's own gross negligence or willful misconduct) or (ii)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by any Credit Party or any officer thereof
contained in this Agreement or any other Credit Document or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Administrative Agent under or in connection with, this Agreement or any
other Credit Document or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document or
for any failure of any Credit Party a party thereto to perform its obligations
hereunder or thereunder. The Administrative Agent shall not be under any
obligation to any Lender to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Credit Document, or to inspect the properties, books or
records of any Credit Party.
8.4. RELIANCE BY ADMINISTRATIVE AGENT. The Administrative Agent shall
be entitled to rely, and shall be fully protected in relying, upon any
instrument, writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including counsel to Holdings or the Borrower),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent shall be fully justified in failing or refusing to take
any action under this Agreement or any other Credit Document unless it shall
first receive such advice or concurrence of the Required Lenders (or, if so
specified by this Agreement, all Lenders) as it deems appropriate or it shall
first be indemnified to its satisfaction by the Lenders against any and all
liability and expense that may be incurred by it by reason of taking or
continuing to take any such action. The Administrative Agent shall in all cases
be fully protected in acting, or in refraining from acting, under this Agreement
and the other Credit Documents in accordance with a request of the Required
Lenders (or, if so specified by this Agreement, all Lenders), and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all present and future Lenders.
30
8.5. NOTICE OF DEFAULT. The Administrative Agent shall not be deemed
to have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender,
Holdings or the Borrower referring to this Agreement, describing such Default or
Event of Default and stating that such notice is a "notice of default". In the
event that the Administrative Agent receives such a notice, the Administrative
Agent shall give notice thereof to the Lenders. The Administrative Agent shall
take such action with respect to such Default or Event of Default as shall be
reasonably directed by the Required Lenders (or, if so specified by this
Agreement, all Lenders); PROVIDED that unless and until the Administrative Agent
shall have received such directions, the Administrative Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Lenders.
8.6. NON-RELIANCE ON ADMINISTRATIVE AGENT AND OTHER LENDERS. Each
Lender expressly acknowledges that neither the Administrative Agent nor any of
its officers, directors, employees, agents, attorneys-in-fact or affiliates have
made any representations or warranties to it and that no act by the
Administrative Agent hereinafter taken, including any review of the affairs of a
Credit Party or any affiliate of a Credit Party, shall be deemed to constitute
any representation or warranty by the Administrative Agent to any Lender. Each
Lender represents to the Administrative Agent that it has, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations, property,
financial and other condition and creditworthiness of the Credit Parties and
their affiliates and made its own decision to make its extensions of credit
hereunder and enter into this Agreement. Each Lender also represents that it
will, independently and without reliance upon the Administrative Agent or any
other Lender, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Credit Documents, and to make such investigation as it deems necessary to inform
itself as to the business, operations, property, financial and other condition
and creditworthiness of the Credit Parties and their affiliates. Except for
notices, reports and other documents expressly required to be furnished to the
Lenders by the Administrative Agent hereunder, the Administrative Agent shall
not have any duty or responsibility to provide any Lender with any credit or
other information concerning the business, operations, property, condition
(financial or otherwise), prospects or creditworthiness of any Credit Party or
any affiliate of a Credit Party that may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates.
8.7. INDEMNIFICATION. The Lenders agree to indemnify the
Administrative Agent in its capacity as such (to the extent not reimbursed by
Holdings or the Borrower and without limiting the obligation of Holdings or the
Borrower to do so), ratably according to their respective Aggregate Exposure
Percentages in effect on the date on which indemnification is sought under this
Section 8.7 (or, if indemnification is sought after the date upon which the
Revolving Commitments shall have terminated and no Letters of Credit remain
outstanding, ratably in accordance with such Aggregate Exposure Percentages
immediately prior to such date), from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind whatsoever that may at any time (whether
before or after the termination of this Agreement) be imposed on, incurred by or
asserted against the Administrative Agent in any way relating to or arising out
of, the Revolving Commitments, this Agreement, any of the other Credit Documents
or any documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby or any action taken or omitted by
the Administrative Agent under or in connection with any of the foregoing;
PROVIDED that no Lender shall be liable for the payment of any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements that are found by a final and nonappealable
decision of a court of competent jurisdiction to have resulted from the
Administrative
31
Agent's gross negligence or willful misconduct. The agreements in this Section
9.7 shall survive the termination or expiration of the Letters of Credit and the
payment of all amounts payable hereunder.
8.8. ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. The
Administrative Agent and its affiliates may make loans to, accept deposits from
and generally engage in any kind of business with any Credit Party as though the
Administrative Agent was not the Administrative Agent. With respect to any
Letter of Credit issued or participated in by it, the Administrative Agent shall
have the same rights and powers under this Agreement and the other Credit
Documents as any Lender and may exercise the same as though it were not the
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 10 days' notice to the Lenders and the
Borrower. If the Administrative Agent shall resign as Administrative Agent under
this Agreement and the other Credit Documents, then the Required Lenders shall
appoint from among the Lenders a successor agent for the Lenders, which
successor agent shall (unless an Event of Default under Section 7(a) or Section
7(f) with respect to the Borrower shall have occurred and be continuing) be
subject to approval by the Borrower (which approval shall not be unreasonably
withheld or delayed), whereupon such successor agent shall succeed to the
rights, powers and duties of the Administrative Agent, and the term
"Administrative Agent" shall mean such successor agent effective upon such
appointment and approval, and the former Administrative Agent's rights, powers
and duties as Administrative Agent shall be terminated, without any other or
further act or deed on the part of such former Administrative Agent or any of
the parties to this Agreement. If no successor agent has accepted appointment as
Administrative Agent by the date that is 10 days following a retiring
Administrative Agent's notice of resignation, the retiring Administrative
Agent's resignation shall nevertheless thereupon become effective and the
Lenders shall assume and perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above. After any retiring Administrative Agent's
resignation as Administrative Agent, the provisions of this Section 8 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent under this Agreement and the other Credit Documents.
SECTION 9. GUARANTEE
9.1. GUARANTEE. In order to induce the Administrative Agent and the
Lenders to execute and deliver this Agreement and to issue or participate in
Letters of Credit hereunder, and in consideration thereof, Holdings hereby
unconditionally and irrevocably guarantees to the Administrative Agent, for the
ratable benefit of the Lenders, the prompt and complete payment and performance
by the Borrower when due (whether at stated maturity, by acceleration or
otherwise) of the Obligations, and Holdings further agrees to pay any and all
expenses (including all reasonable fees, charges and disbursements of counsel)
that may be paid or incurred by the Administrative Agent or by the Lenders in
enforcing, or obtaining advice of counsel in respect of, any of their rights
under the guarantee contained in this Section 9. The guarantee contained in this
Section 9, subject to Section 9.5, shall remain in full force and effect until
the Obligations are paid in full, the Revolving Commitments are terminated and
no Letters of Credit are outstanding, notwithstanding that from time to time
prior thereto the Borrower may be free from any Obligations.
Holdings agrees that whenever, at any time, or from time to time, it
shall make any payment to the Administrative Agent or any Lender on account of
its liability under this Section 9, it will notify the Administrative Agent and
such Lender in writing that such payment is made under the guarantee contained
in this Section 9 for such purpose. No payment or payments made by the Borrower
or any other Person or received or collected by the Administrative Agent or any
Lender from the Borrower
32
or any other Person by virtue of any action or proceeding or any setoff or
appropriation or application, at any time or from time to time, in reduction of
or in payment of the Obligations shall be deemed to modify, reduce, release or
otherwise affect the liability of Holdings under this Section 9 which,
notwithstanding any such payment or payments, shall remain liable for the
Obligations until, subject to Section 9.5, the Obligations are paid in full, the
Revolving Commitments are terminated and no Letters of Credit are outstanding.
9.2. NO SUBROGATION, CONTRIBUTION, REIMBURSEMENT OR INDEMNITY.
Notwithstanding anything to the contrary in this Section 9, Holdings hereby
irrevocably waives all rights that may have arisen in connection with the
guarantee contained in this Section 9 to be subrogated to any of the rights
(whether contractual, under the United States Bankruptcy Code (or similar action
under any successor law or under any comparable law), including Section 509
thereof, under common law or otherwise) of the Administrative Agent or any
Lender against the Borrower or against the Administrative Agent or any Lender
for the payment of the Obligations, until the Obligations shall have been paid
in full, no Letters of Credit shall be outstanding and the Revolving Commitments
shall have been terminated. Holdings hereby further irrevocably waives all
contractual, common law, statutory and other rights of reimbursement,
contribution, exoneration or indemnity (or any similar right) from or against
the Borrower or any other Person that may have arisen in connection with the
guarantee contained in this Section 9, until the Obligations shall have been
paid in full, no Letters of Credit shall be outstanding and the Revolving
Commitments shall have been terminated. So long as the Obligations remain
outstanding, if any amount shall be paid by or on behalf of the Borrower to
Holdings on account of any of the rights waived in this Section 9.2, such amount
shall be held by Holdings in trust, segregated from other funds of Holdings, and
shall, forthwith upon receipt by Holdings, be turned over to the Administrative
Agent in the exact form received by Holdings (duly indorsed by Holdings to the
Administrative Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Administrative Agent may
determine. The provisions of this Section 9.2 shall survive the term of the
guarantee contained in this Section 9 and the payment in full of the Obligations
and the termination of the Revolving Commitments.
9.3. AMENDMENTS, ETC. WITH RESPECT TO THE OBLIGATIONS. Holdings shall
remain obligated under this Section 9 notwithstanding that, without any
reservation of rights against Holdings, and without notice to or further assent
by Holdings, any demand for payment of or reduction in the amount of any of the
Obligations made by the Administrative Agent or any Lender may be rescinded by
the Administrative Agent or such Lender, and any of the Obligations continued,
and the Obligations, or the liability of any other party upon or for any part
thereof, or any collateral security or guarantee therefor or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Administrative Agent or any Lender, and this Agreement, any
other Credit Document, and any other documents executed and delivered in
connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as the Lenders (or the Required Lenders, as the case may be)
may deem advisable from time to time, and any collateral security, guarantee or
right of offset at any time held by the Administrative Agent or any Lender for
the payment of the Obligations may be sold, exchanged, waived, surrendered or
released. Neither the Administrative Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Obligations or for the guarantee contained in this Section 9
or any property subject thereto.
9.4. GUARANTEE ABSOLUTE AND UNCONDITIONAL. Holdings waives any and
all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Administrative Agent or
any Lender upon the guarantee contained in this Section 9 or acceptance of the
guarantee contained in this Section 9; the Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon the
33
guarantee contained in this Section 9; and all dealings between the Borrower or
Holdings, on the one hand, and the Administrative Agent and the Lenders, on the
other, shall likewise be conclusively presumed to have been had or consummated
in reliance upon the guarantee contained in this Section 9. Holdings waives
diligence, presentment, protest, demand for payment and notice of default or
nonpayment to or upon the Borrower or Holdings with respect to the Obligations.
The guarantee contained in this Section 9 shall be construed as a continuing,
absolute and unconditional guarantee of payment without regard to (a) the
validity or enforceability of this Agreement or any other Credit Document, any
of the Obligations or any collateral security therefor or guarantee or right of
offset with respect thereto at any time or from time to time held by the
Administrative Agent or any Lender, (b) any defense, setoff or counterclaim
(other than a defense of payment or performance) that may at any time be
available to or be asserted by the Borrower against the Administrative Agent or
any Lender, or (c) any other circumstance whatsoever (with or without notice to
or knowledge of the Borrower or Holdings) that constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of Holdings under the guarantee contained in this Section 9, in
bankruptcy or in any other instance. When the Administrative Agent or any Lender
is pursuing its rights and remedies under this Section 9 against Holdings, the
Administrative Agent or any Lender may, but shall be under no obligation to,
pursue such rights and remedies as it may have against the Borrower or any other
Person or against any collateral security or guarantee for the Obligations or
any right of offset with respect thereto, and any failure by the Administrative
Agent or any Lender to pursue such other rights or remedies or to collect any
payments from the Borrower or any such other Person or to realize upon any such
collateral security or guarantee or to exercise any such right of offset, or any
release of the Borrower or any such other Person or of any such collateral
security, guarantee or right of offset, shall not relieve Holdings of any
liability under this Section 9, and shall not impair or affect the rights and
remedies, whether express, implied or available as a matter of law, of the
Administrative Agent and the Lenders against Holdings.
9.5. REINSTATEMENT. The guarantee contained in this Section 9 shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Administrative Agent or any Lender upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or upon or as a result of the appointment of a receiver, intervenor or
conservator of, or trustee or similar officer for, the Borrower or any
substantial part of its property, or otherwise, all as though such payments had
not been made.
9.6. PAYMENTS. Holdings hereby agrees that any payments in respect of
the Obligations pursuant to this Section 9 will be paid to the Administrative
Agent without setoff or counterclaim in Dollars at the Payment Office.
SECTION 10. MISCELLANEOUS
10.1. AMENDMENTS AND WAIVERS. Neither this Agreement, any other Credit
Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 10.1. The
Required Lenders and each Credit Party party to the relevant Credit Document
may, or, with the written consent of the Required Lenders, the Administrative
Agent and each Credit Party party to the relevant Credit Document may, from time
to time, (a) enter into written amendments, supplements or modifications hereto
and to the other Credit Documents for the purpose of adding any provisions to
this Agreement or the other Credit Documents or changing in any manner the
rights of the Lenders or of the Credit Parties hereunder or thereunder or (b)
waive, on such terms and conditions as the Required Lenders or the
Administrative Agent, as the case may be, may specify in such instrument, any of
the requirements of this Agreement or the other Credit Documents or any Default
or Event of Default and its consequences; PROVIDED, HOWEVER, that no such waiver
and no such amendment, supplement or modification shall (i) forgive the amount
of any Reimbursement Obligation, reduce the
34
stated rate of any interest or fee payable hereunder or extend the scheduled
date of any payment thereof, or increase the amount or extend the expiration
date of any Lender's Revolving Commitment, in each case without the consent of
each Lender directly affected thereby; (ii) amend, modify or waive any provision
of this Section 10.1 or reduce any percentage specified in the definition of
Required Lenders, consent to the assignment or transfer by the Borrower of any
of its rights and obligations under this Agreement and the other Credit
Documents, release Holdings from its obligations under Section 9, release
Financeco from its obligations under the Subsidiary Guarantee or release any
Collateral (except as contemplated by this Agreement), in each case without the
written consent of all Lenders; (iii) amend, modify or waive any provision of
Section 8 without the written consent of the Administrative Agent; (iv) amend,
modify or waive any provision of Sections 2.1 through 2.8 without the written
consent of each Issuing Lender directly affected thereby; or (v) amend, modify
or waive the definition of Collateral or Collateral Cash Equivalents without the
written consent of the Supermajority Lenders. Any such waiver and any such
amendment, supplement or modification shall apply equally to each of the Lenders
and shall be binding upon the Credit Parties, all present and future Lenders and
the Administrative Agent. In the case of any waiver, the Credit Parties, the
Lenders and the Administrative Agent shall be restored to their former position
and rights hereunder and under the other Credit Documents, and any Default or
Event of Default waived shall be deemed to be cured and not continuing; but no
such waiver shall extend to any subsequent or other Default or Event of Default,
or impair any right consequent thereon.
10.2. NOTICES. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered, or three Business Days after being
deposited in the mail, postage prepaid, or, in the case of telecopy notice, when
received, addressed as follows in the case of Holdings, the Borrower and the
Administrative Agent, and as set forth in an administrative questionnaire
delivered to the Administrative Agent in the case of the Lenders, or to such
other address as may be hereafter notified by the respective parties hereto:
Holdings or the c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A., Inc.
Borrower: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ Scirocco - Chief
Financial Officer
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy: 212-403-2000
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
The Administrative JPMorgan Chase Bank, N.A.
Agent: c/o The Loan and Agency Services Group
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
35
with a copy to: JPMorgan Chase Bank, N.A.
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
PROVIDED that any notice, request or demand to or upon the Administrative Agent
or the Lenders shall not be effective until received.
10.3. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise and no
delay in exercising, on the part of the Administrative Agent or any Lender, any
right, remedy, power or privilege hereunder or under the other Credit Documents
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exclusive of any rights, remedies, powers and privileges provided by law.
10.4. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations
and warranties made hereunder, in the other Credit Documents and in any
document, certificate or statement delivered pursuant hereto or in connection
herewith shall survive the execution and delivery of this Agreement and the
making of the extensions of credit hereunder.
10.5. PAYMENT OF EXPENSES AND TAXES. The Borrower agrees (a) to pay or
reimburse the Administrative Agent for all its reasonable out-of-pocket costs
and expenses incurred in connection with the development, preparation and
execution of, and any amendment, supplement or modification to, this Agreement
and the other Credit Documents and any other documents prepared in connection
herewith or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including the reasonable fees and
disbursements of counsel to the Administrative Agent and filing and recording
fees and expenses, with statements with respect to the foregoing to be submitted
to the Borrower prior to the Closing Date (in the case of amounts to be paid on
the Closing Date) and from time to time thereafter on a quarterly basis or such
other periodic basis as the Administrative Agent shall deem appropriate, (b) to
pay or reimburse each Lender and the Administrative Agent for all its reasonable
costs and expenses incurred in connection with the enforcement or preservation
of any rights under this Agreement, the other Credit Documents and any such
other documents, including the reasonable fees and disbursements of counsel
(including the allocated fees and expenses of in-house counsel) to each Lender
and of counsel to the Administrative Agent, (c) to pay, indemnify, and hold each
Lender and the Administrative Agent harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, that may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation or administration of any of the transactions contemplated by, or
any amendment, supplement or modification of, or any waiver or consent under or
in respect of, this Agreement, the other Credit Documents and any such other
documents, and (d) to pay, indemnify, and hold each Lender, the Administrative
Agent, their Affiliates and their respective officers, directors, employees,
affiliates, agents and controlling persons (each, an "INDEMNITEE") harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Credit Documents and
any such other documents, including any of the foregoing relating to the use of
the Letters of Credit or the violation of, noncompliance with or liability
under, any Environmental Law applicable to the operations of Holdings or any of
its Subsidiaries or any of the Properties (all the foregoing in this clause (d),
collectively, the "INDEMNIFIED LIABILITIES"),
36
PROVIDED, that the Borrower shall have no obligation hereunder to any Indemnitee
with respect to Indemnified Liabilities to the extent such Indemnified
Liabilities are found by a final and nonappealable decision of a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of such Indemnitee. Without limiting the foregoing, and to the extent
permitted by applicable law, each of Holdings and the Borrower agrees not to
assert and to cause their respective Subsidiaries not to assert, and hereby
waives and agrees to cause their respective Subsidiaries to so waive, all rights
for contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses
of whatever kind or nature, under or related to Environmental Laws, that any of
them might have by statute or otherwise against any Indemnitee. All amounts due
under this Section 10.5 shall be payable promptly after written demand therefor.
Statements payable by the Borrower pursuant to this Section 10.5 shall be
submitted to ▇▇▇▇▇▇ Scirocco - Chief Financial Officer (Telephone No.
▇▇▇-▇▇▇-▇▇▇▇) (Telecopy No. 212-548-1965), at the address of the Borrower set
forth in Section 10.2. The agreements in this Section 10.5 shall survive the
termination or expiration of the Letters of Credit and the repayment of all
amounts payable hereunder.
10.6. SUCCESSORS AND ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby
(including any affiliate of an Issuing Lender that issues any Letter of Credit),
except that (i) the Borrower may not assign or otherwise transfer any of its
rights or obligations hereunder without the prior written consent of each Lender
(and any attempted assignment or transfer by the Borrower without such consent
shall be null and void) and (ii) no Lender may assign or otherwise transfer its
rights or obligations hereunder except in accordance with this Section.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii)
below, any Lender may assign to one or more assignees (each, an "ASSIGNEE") all
or a portion of its rights and obligations under this Agreement (including all
or a portion of its Revolving Commitment) with the prior written consent of:
(A) the Borrower (such consent not to be unreasonably withheld),
PROVIDED that no consent of the Borrower shall be required for an
assignment to a Lender, an affiliate of a Lender, an Approved Fund (as
defined below) or, if an Event of Default has occurred and is
continuing, any other Person;
(B) the Issuing Lenders, if the Assignee is not a Financial
Institution; and
(C) the Administrative Agent.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender, an affiliate
of a Lender or an Approved Fund or an assignment of the entire
remaining amount of the assigning Lender's Revolving Commitment, the
amount of the Revolving Commitment of the assigning Lender subject to
each such assignment (determined as of the date the Assignment and
Assumption with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of
the Borrower and the Administrative Agent otherwise consent, PROVIDED
that (1) no such consent of the Borrower shall be required if an
Event of Default has occurred and is continuing and (2) such
amounts shall be aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;
37
(B) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500;
(C) the Assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an administrative questionnaire; and
(D) in the case of an assignment to a CLO (as defined below), the
assigning Lender shall retain the sole right to approve any amendment,
modification or waiver of any provision of this Agreement and the
other Credit Documents, PROVIDED that the Assignment and Assumption
between such Lender and such CLO may provide that such Lender will
not, without the consent of such CLO, agree to any amendment,
modification or waiver that (1) requires the consent of each Lender
directly affected thereby pursuant to the proviso to the second
sentence of Section 10.1 and (2) directly affects such CLO.
For the purposes of this Section 10.6, the terms "Approved Fund" and
"CLO" have the following meanings:
"APPROVED FUND" means (a) a CLO and (b) with respect to any Lender
that is a fund which invests in bank loans and similar extensions of
credit, any other fund that invests in bank loans and similar extensions
of credit and is managed by the same investment advisor as such Lender or
by an affiliate of such investment advisor.
"CLO" means any entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making, purchasing, holding or otherwise
investing in bank loans and similar extensions of credit in the ordinary
course of its business and is administered or managed by a Lender or an
affiliate of such Lender.
(iii) Subject to acceptance and recording thereof pursuant to
paragraph (b)(iv) below, from and after the effective date specified in each
Assignment and Assumption the Assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.14, 2.15 and 10.5). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 10.6
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Revolving Commitments of, and amount of the
L/C Obligations owing to, each Lender pursuant to the terms hereof from time to
time (the "REGISTER"). The entries in the Register shall be conclusive, and the
Borrower, the Administrative Agent, the Issuing Lenders and the Lenders may
treat each Person whose name is recorded in the Register pursuant to the terms
hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding
notice to the contrary.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an Assignee, the Assignee's completed
administrative questionnaire (unless the
38
Assignee shall already be a Lender hereunder), the processing and recordation
fee referred to in paragraph (b) of this Section and any written consent to such
assignment required by paragraph (b) of this Section, the Administrative Agent
shall accept such Assignment and Assumption and record the information contained
therein in the Register. No assignment shall be effective for purposes of this
Agreement unless it has been recorded in the Register as provided in this
paragraph.
(c) (i) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "PARTICIPANT") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Revolving Commitments);
PROVIDED that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Issuing Lenders and the other Lenders shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement pursuant to which a
Lender sells such a participation shall provide that such Lender shall retain
the sole right to enforce this Agreement and to approve any amendment,
modification or waiver of any provision of this Agreement; PROVIDED that such
agreement may provide that such Lender will not, without the consent of the
Participant, agree to any amendment, modification or waiver that (1) requires
the consent of each Lender directly affected thereby pursuant to the proviso to
the second sentence of Section 10.1 and (2) directly affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14 and 2.15 to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 10.7(b) as though
it were a Lender, provided such Participant shall be subject to Section 10.7(a)
as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.15 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. Any Participant that is a Non-U.S. Lender
shall not be entitled to the benefits of Section 2.15 unless such Participant
complies with Section 2.15(b).
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to any such pledge or
assignment of a security interest; PROVIDED that no such pledge or assignment of
a security interest shall release a Lender from any of its obligations hereunder
or substitute any such pledgee or Assignee for such Lender as a party hereto.
10.7. ADJUSTMENTS; SET-OFF. (a) If any Lender (a "BENEFITTED LENDER")
shall at any time receive any payment of all or part of the Obligations owing to
it, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7(f), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of the Obligations owing to such other Lender, such Benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of the Obligations owing to each such other Lender, or shall provide
such other Lenders with the benefits of any such collateral, as shall be
necessary to cause such Benefitted Lender to share the excess payment or
benefits of such collateral ratably with each of the Lenders; PROVIDED, HOWEVER,
that if all or any portion of such excess payment or benefits is thereafter
recovered from such Benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such recovery, but
without interest.
39
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, without prior notice to Holdings or the
Borrower, any such notice being expressly waived by Holdings and the Borrower to
the extent permitted by applicable law, upon any amount becoming due and payable
by Holdings or the Borrower hereunder (whether at the stated maturity, by
acceleration or otherwise), to set off and appropriate and apply against such
amount any and all deposits (general or special, time or demand, provisional or
final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent,
matured or unmatured, at any time held or owing by such Lender or any branch or
agency thereof to or for the credit or the account of Holdings or the Borrower,
as the case may be. Each Lender agrees promptly to notify the Borrower and the
Administrative Agent after any such setoff and application made by such Lender,
PROVIDED that the failure to give such notice shall not affect the validity of
such setoff and application.
10.8. COUNTERPARTS. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. Delivery of an executed signature page of this Agreement by
facsimile transmission shall be effective as delivery of a manually executed
counterpart hereof. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Borrower and the Administrative Agent.
10.9. SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.10. INTEGRATION. This Agreement and the other Credit Documents
represent the agreement of Holdings, the Borrower, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to subject matter hereof not expressly set forth or
referred to herein or in the other Credit Documents.
10.11. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES UNDER THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
10.12. SUBMISSION TO JURISDICTION; WAIVERS. Each of Holdings and
the Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Credit Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of
the State of New York, the courts of the United States of America for the
Southern District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such
action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
40
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to Holdings
or the Borrower, as the case may be at its address set forth in Section
10.2 or at such other address of which the Administrative Agent shall have
been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the
right to ▇▇▇ in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section 10.12 any special, exemplary, punitive or consequential
damages.
10.13. ACKNOWLEDGEMENTS. Each of Holdings and the Borrower hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Credit Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to Holdings or the Borrower arising out of or in
connection with this Agreement or any of the other Credit Documents, and
the relationship between Administrative Agent and Lenders, on one hand, and
Holdings and the Borrower, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Credit
Documents or otherwise exists by virtue of the transactions contemplated
hereby among the Lenders or among Holdings, the Borrower and the Lenders.
10.14. WAIVERS OF JURY TRIAL. HOLDINGS, THE BORROWER, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER CREDIT DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.15. CONFIDENTIALITY. Each of the Administrative Agent and each
Lender agrees to keep confidential all non-public information provided to it by
any Credit Party pursuant to this Agreement that is designated by such Credit
Party as confidential; PROVIDED that nothing herein shall prevent the
Administrative Agent or any Lender from disclosing any such information (a) to
the Administrative Agent, any other Lender or any affiliate of any Lender (so
long as such affiliate is informed that such information is confidential
non-public information), (b) to any Transferee or prospective Transferee that
agrees to comply with the provisions of this Section 10.15, (c) to its
employees, directors, agents, attorneys, accountants and other professional
advisors or those of any of its affiliates (so long as such Persons are informed
that such information is confidential non-public information), (d) upon the
request or demand of any Governmental Authority, (e) in response to any order of
any court or other Governmental Authority or as may otherwise be required
pursuant to any Requirement of Law, (f) if requested or required to do so in
connection with any litigation or similar proceeding, (g) that has been publicly
disclosed, (h) to the National Association of Insurance Commissioners or any
similar organization or any nationally recognized rating agency that requires
access to information about a Lender's investment portfolio in connection with
ratings issued with respect to such Lender, or (i) in connection with the
exercise of any remedy hereunder or under any other Credit Document.
41
10.16. DOCUMENTATION AGENT AND SYNDICATION AGENT(a) . Neither the
Documentation Agent nor the Syndication Agent shall have any duties or
responsibilities hereunder in its capacity as such.
10.17. USA PATRIOT ACT. Each Lender hereby notifies the Borrower that pursuant
to the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the "ACT"), it is required to obtain, verify and
record information that identifies the Borrower, which information includes the
name and address of the Borrower and other information that will allow such
Lender to identify the Borrower in accordance with the Act. The Borrower shall
promptly provide such information upon request by any Lender. In connection
therewith, each Lender hereby agrees that the confidentiality provisions set
forth in Section 10.15 shall apply to any non-public information provided to it
by the Borrower pursuant to this Section 10.17.
[Remainder of page left blank intentionally.]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ CORPORATION
By: /s/ ▇▇▇▇▇▇ Scirocco
---------------------------------------------
Name: ▇▇▇▇▇▇ Scirocco
Title: Chief Financial Officer,
Executive Vice President and
Treasurer
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ U.S.A., INC.
By: /s/ ▇▇▇▇▇▇ Scirocco
---------------------------------------------
Name: ▇▇▇▇▇▇ Scirocco
Title: Chief Financial Officer,
Executive Vice President and
Treasurer
JPMORGAN CHASE BANK, N.A.
as Administrative Agent and as a Lender
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WACHOVIA BANK, NATIONAL ASSOCIATION, as
Syndication Agent and as a Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
FLEET NATIONAL BANK, as Documentation Agent and
as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
CITICORP USA, INC., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Director
PNC BANK, N.A., as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
SUNTRUST BANK, as a Lender
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Director