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CREDIT AGREEMENT
by and among
KELLWOOD COMPANY
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and as Lender
THE BANK OF NOVA SCOTIA,
as Documentation Agent and as Lender
THE CHASE MANHATTAN BANK,
as Syndication Agent and as Lender,
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
BANC OF AMERICA SECURITIES LLC,
Lead Arranger and Book Manager
August 31, 1999
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions and Terms
1.1. Definitions.......................................................2
1.2. Rules of Interpretation..........................................27
ARTICLE II
The Credit Facilities
2.1. Tranche A Revolving Credit Facility..............................29
2.2. Tranche B Revolving Credit Facility..............................29
2.3. Amounts..........................................................29
2.4. Advances.........................................................30
2.5. Repayment of Loans...............................................32
2.6. Reductions.......................................................32
2.7. Use of Proceeds..................................................33
2.8. Notes. ...................................................33
ARTICLE III
Letters of Credit
3.1. Letters of Credit................................................34
3.2. Reimbursement and Participations.................................34
ARTICLE IV
Offshore and Eurodollar Funding, Fees, and Payment Conventions
4.1. Utilization of Offshore Currencies...............................38
4.2. Interest Rate Options............................................40
4.3. Conversions and Elections of Subsequent Interest Periods.........40
4.4. Payment of Interest..............................................41
4.5. Prepayments of Fixed Rate Loans..................................41
4.6. Manner of Payment................................................42
4.7. Fees.............................................................43
4.8. Pro Rata Payments................................................44
4.9. Computation of Rates and Fees....................................44
i
4.10. Deficiency Advances; Failure to Purchase Participations..........44
4.11. Intraday Funding.................................................45
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return................................46
5.2. Limitation on Types of Loans.....................................47
5.3. Illegality.......................................................48
5.4. Treatment of Affected Loans......................................48
5.5. Compensation.....................................................49
5.6. Taxes............................................................49
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance....................................52
6.2. Conditions of Loans and Letters of Credit........................54
ARTICLE VII
Representations and Warranties
7.1. Organization and Authority.......................................56
7.2. Loan Documents...................................................56
7.3. Subsidiaries and Stockholders....................................57
7.4. Ownership Interests..............................................57
7.5. Financial Condition..............................................57
7.6. Title to Properties..............................................58
7.7. Taxes............................................................58
7.8. Other Agreements.................................................58
7.9. Litigation.......................................................58
7.10. Margin Stock.....................................................58
7.11. Investment Company...............................................59
7.12. Patents, Etc.....................................................59
7.13. No Untrue Statement..............................................59
7.14. No Consents, Etc.................................................59
7.15. Employee Benefit Plans...........................................59
7.16. No Default.......................................................61
7.17. Environmental Laws...............................................61
ii
7.18. Employment Matters...............................................61
7.19. Year 2000 Compliance.............................................61
7.20. Material Subsidiaries............................................62
7.21. Insurance. .....................................................62
ARTICLE VIII
Affirmative Covenants
8.1. Financial Reports, Etc...........................................63
8.2. Maintain Properties..............................................64
8.3. Existence, Qualification, Etc....................................64
8.4. Regulations and Taxes............................................64
8.5. Insurance........................................................65
8.6. True Books.......................................................65
8.7. Year 2000 Compliance.............................................65
8.8. Right of Inspection..............................................65
8.9. Observe all Laws.................................................65
8.10. Governmental Licenses............................................65
8.11. Covenants Extending to Other Persons.............................66
8.12. Officer's Knowledge of Default...................................66
8.13. Suits or Other Proceedings.......................................66
8.14. Notice of Environmental Complaint or Condition...................66
8.15. Environmental Compliance.........................................66
8.16. Employee Benefit Plans...........................................67
8.17. Continued Operations.............................................67
8.18. Notices Regarding Material Subsidiaries..........................67
ARTICLE IX
Negative Covenants
9.1. Financial Covenants..............................................69
9.2. Acquisitions.....................................................69
9.3. Liens............................................................69
9.4. Indebtedness.....................................................71
9.5. Transfer of Assets...............................................72
9.6. Investments......................................................73
9.7. Merger or Consolidation..........................................73
9.8. Restricted Payments..............................................74
9.9. Transactions with Affiliates.....................................74
9.10. Compliance with ERISA, the Code and Foreign Benefit Laws.........74
9.11. Fiscal Year......................................................75
9.12. Dissolution, etc.................................................75
9.13. Change in Control................................................75
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9.14. Restrictive Agreements, etc......................................75
9.15. Issuance or Sale of Stock by Subsidiaries........................75
9.16. Sale of Stock in Subsidiaries....................................76
ARTICLE X
Events of Default and Acceleration
10.1. Events of Default................................................77
10.2. Agent to Act.....................................................80
10.3. Cumulative Rights................................................80
10.4. No Waiver........................................................80
10.5. Allocation of Proceeds...........................................80
ARTICLE XI
The Agent
11.1. Appointment, Powers, and Immunities..............................82
11.2. Reliance by Agent................................................82
11.3. Defaults.........................................................83
11.4. Rights as Lender.................................................83
11.5. Indemnification..................................................83
11.6. Non-Reliance on Agent and Other Lenders..........................84
11.7. Resignation of Agent.............................................84
ARTICLE XII
Miscellaneous
12.1. Assignments and Participations...................................85
12.2. Notices..........................................................87
12.3. Right of Set-off; Adjustments....................................88
12.4. Survival.........................................................88
12.5. Expenses.........................................................88
12.6. Amendments and Waivers...........................................89
12.7. Counterparts.....................................................89
12.8. Termination......................................................89
12.9. Indemnification; Limitation of Liability.........................90
12.10. Severability.....................................................91
12.11. Entire Agreement.................................................91
12.12. Agreement Controls...............................................91
12.13. Usury Savings Clause.............................................91
12.14. Payments.........................................................92
12.15. GOVERNING LAW; WAIVER OF JURY TRIAL..............................92
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12.16. Confidentiality..................................................93
12.17. Special Funding Option...........................................94
EXHIBIT A Applicable Commitment Percentages......................A-1
EXHIBIT B Form of Assignment and Acceptance......................B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative.........................................C-1
EXHIBIT D Form of Borrowing Notice...............................D-1
EXHIBIT E Form of Interest Rate Selection Notice.................E-1
EXHIBIT F-1 Form of Tranche A Note...............................F-1-1
EXHIBIT F-2 Form of Tranche B Note...............................F-2-1
EXHIBIT G Form of Opinion of Borrower's Counsel..................G-1
EXHIBIT H Compliance Certificate.................................H-1
Schedule 1.1 Existing Letters of Credit.............................S-1
Schedule 7.3 Subsidiaries and Investments in Other Persons..........S-2
Schedule 7.5 Indebtedness...........................................S-3
Schedule 7.6 Liens..................................................S-4
Schedule 7.7 Tax Matters............................................S-5
Schedule 7.9 Litigation.............................................S-6
Schedule 7.17 Environmental Matters..................................S-7
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of August 31, 1999 (the "Agreement"),
is made by and among:
KELLWOOD COMPANY, a Delaware corporation having its principal place of
business in St. Louis, Missouri (the "Borrower"),
BANK OF AMERICA, N.A., a national banking association organized and
existing under the laws of the United States, in its capacity as a Lender ("Bank
of America"), and each other financial institution executing and delivering a
signature page hereto and each other financial institution which may hereafter
execute and deliver an assignment and acceptance with respect to this Agreement
pursuant to Section 12.1 (hereinafter such financial institutions may be
referred to individually as a "Lender" or collectively as the "Lenders"),
BANK OF AMERICA, N.A., a national banking association organized and
existing under the laws of the United States, in its capacity as Administrative
Agent for the Lenders (in such capacity, and together with any successor agent
appointed in accordance with the terms of Section 11.7, the "Agent");
THE BANK OF NOVA SCOTIA, a bank governed by the Bank Act (Canada),
through its United States division, in its capacity as Documentation Agent, and
THE CHASE MANHATTAN BANK, a state bank chartered under the laws of New
York, in its capacity as Syndication Agent;
W I T N E S S E T H:
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WHEREAS, the Borrower has requested that the Lenders make available to
the Borrower (i) a 364 day revolving credit facility of up to $100,000,000, the
proceeds of which are to be used for general corporate purposes, working capital
and Capital Expenditures and (ii) a revolving credit facility of up to
$250,000,000, the proceeds of which are to be used for general corporate
purposes, working capital and Capital Expenditures and which shall include (x) a
letter of credit subfacility of up to $50,000,000 for the issuance of standby
letters of credit and up to $200,000,000 for the issuance of commercial letters
of credit and (y) a $20,000,000 sublimit for multicurrency borrowings; and
WHEREAS, the Lenders are willing to make such revolving credit and
letter of credit facilities available to the Borrower upon the terms and
conditions set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
1
ARTICLE I
Definitions and Terms
1.1. Definitions. For the purposes of this Agreement, in addition to
the definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Acquisition" means the acquisition of (i) a controlling
equity interest in another Person (including the purchase of an option,
warrant or convertible or similar type security to acquire such a
controlling interest at the time it becomes exercisable by the holder
thereof), whether by purchase of such equity interest or upon exercise
of an option or warrant for, or conversion of securities into, such
equity interest, or (ii) assets of another Person which constitute all
or substantially all of the assets of such Person or of a line or lines
of business conducted by such Person.
"Advance" means a borrowing under the Tranche A Revolving
Credit Facility or the Tranche B Revolving Credit Facility consisting
of a Base Rate Loan or a Eurodollar Rate Loan.
"Advance Date Exchange Rate" means, with respect to an Advance
of a Tranche B Loan in an Offshore Currency or a Letter of Credit
issued in an Offshore Currency, the Spot Rate of Exchange for the date
such Advance is originally made or such Letter of Credit is issued,
provided that, if such Tranche B Loan is Continued for a subsequent
Interest Period pursuant to Sections 4.1 and 4.3, the Advance Date
Exchange Rate with respect to such Tranche B Loan shall be the Spot
Rate of Exchange two Business Days preceding the effective date of the
latest Continuation of such Tranche B Loan, and the Dollar Equivalent
Amount of such Tranche B Loan shall be adjusted as set forth in Section
4.1, and provided further, if such Letter of Credit is issued for a
term exceeding three (3) months, the Advance Date Exchange Rate with
respect to such Letter of Credit shall be the Spot Rate of Exchange on
the last Business Day of each calendar quarter and the Dollar
Equivalent Amount of such Letter of Credit shall be adjusted as set
forth in Section 4.1; and provided, further, if such Letter of Credit
is drawn upon, the Advance Date Exchange Rate shall be the Spot Rate of
Exchange for the date of such drawing only for the purposes of
repayment of Reimbursement Obligations and determining the Dollar
Equivalent Amount of such Letter of Credit.
"Affiliate" means any Person (i) which directly or indirectly
through one or more intermediaries controls, or is controlled by, or is
under common control with the Borrower; or (ii) which beneficially owns
or holds 10% or more of any class of the outstanding voting stock (or
in the case of a Person which is not a corporation, 10% or more of the
equity interest) of the Borrower; or 10% or more of any class of the
outstanding voting stock (or in the case of a Person which is not a
corporation, 10% or more of the equity interest) of which is
beneficially owned or held by the Borrower. The term "control" means
the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether
through ownership of voting stock, by contract or otherwise.
2
"Applicable Commercial Letter of Credit Fee" means that
percent per annum set forth below under the heading Applicable
Commercial Letter of Credit Fee, which shall be based upon the highest
Rating existing at the date of determination as specified in the table
below:
Rating Applicable Commercial
Tier S&P or Moody's Letter of Credit Fee
---- --- -- ------- --------------------
I >=A- or >=A3 0.100%
II >=BBB+ or >=Baa1 0.125%
III >=BBB or >=Baa2 0.150%
IV < BBB and < Baa2 0.175%
The Applicable Commercial Letter of Credit Fee shall be established
from time to time based upon the Ratings in effect from time to time.
Any change in the Applicable Commercial Letter of Credit Fee due to a
change in any Rating shall be effective on the date of such change in
such Rating. In the event of a split Rating, the higher Rating shall
determine the Applicable Commercial Letter of Credit Fee. If there is
no Rating, the Applicable Commercial Letter of Credit Fee and
Applicable Standby Letter of Credit Fee shall be Tier IV.
"Applicable Commitment Percentage" means, for each Lender at
any time, with respect to the Tranche A Revolving Credit Facility, the
Tranche B Revolving Credit Facility and the Letter of Credit Facility,
a fraction, the numerator of which shall be the sum of such Lender's
Tranche A Commitment and Tranche B Commitment and the denominator of
which shall be the sum of the Total Tranche A Commitment and the Total
Tranche B Commitment, which Applicable Commitment Percentage for each
Lender as of the Closing Date is as set forth in Exhibit A; provided
that the Applicable Commitment Percentage of each Lender shall be
increased or decreased to reflect any assignments to or by such Lender
effected in accordance with Section 12.1.
"Applicable Issuing Bank" means, with respect to any Letter of
Credit, the Issuing Bank which issued such Letter of Credit in
accordance with Article III.
"Applicable Lending Office" means, for each Lender and for
each Type of Loan, the "Lending Office" of such Lender (or of an
affiliate of such Lender) designated for such Type of Loan on the
signature pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to time specify
to the Agent and the Borrower by written notice in accordance with the
terms hereof as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Standby Letter of Credit Fee" means that percent
per annum set forth in the table below under the heading Applicable
Standby Letter of Credit Fee, which shall be
3
based on the highest Rating existing at the date of determination as
specified in the table below:
Rating Applicable Standby
Tier S&P or Moody's Letter of Credit Fee
---- --- -- ------- --------------------
I >=A- or >=A3 0.275%
II >=BBB+ or >=Baa1 0.400%
III >=BBB or >=Baa2 0.575%
IV (<)BBB and (<)Baa2 0.800%
The Applicable Standby Letter of Credit Fee shall be established from
time to time based on the Ratings in effect from time to time. Any
change in the Applicable Standby Letter of Credit Fee due to a change
in any Rating shall be effective on the date of such change in such
Rating. In the event of a split Rating, the higher Rating shall
determine the Applicable Standby Letter of Credit Fee. If there is no
Rating, the Applicable Standby Letter of Credit Fee shall be Tier IV.
"Applicable Tranche A Facility Fee" means that percent per
annum set forth below under the heading Applicable Tranche A Facility
Fee, which shall be based upon the highest Rating existing at the date
of determination as specified in the table below:
Rating Applicable Tranche A
Tier S&P or Moody's Facility Fee
---- --- -- ------- ------------
I >=A- or >=A3 0.100%
II >=BBB+ or >=Baa1 0.125%
III >=BBB or >=Baa2 0.150%
IV (<)BBB and (<)Baa2 0.175%
The Applicable Tranche A Facility Fee shall be established from time to
time based upon the Ratings in effect from time to time. Any change in
the Applicable Tranche A Facility Fee due to a change in any Rating
shall be effective on the date of such change in such Rating.
In the event of a split Rating, the higher Rating shall determine the
Applicable Tranche A Facility Fee. If there is no Rating, the
Applicable Tranche A Facility Fee shall be Tier IV.
"Applicable Tranche B Facility Fee" means that percent per
annum set forth in the table below under the heading Applicable Tranche
B Facility Fee, which shall be based on the highest Rating existing at
the date of determination as specified in the table below:
4
Rating Applicable Tranche B
Tier S&P or Moody's Facility Fee
---- --- -- ------- ------------
I >=A- or >=A3 0.125%
II >=BBB+ or >=Baa1 0.150%
III >=BBB or >=Baa2 0.175%
IV (<)BBB and (<)Baa2 0.200%
The Applicable Tranche B Facility Fee shall be established from time to
time based on the Ratings in effect from time to time. Any change in
the Applicable Tranche B Facility Fee due to a change in any Rating
shall be effective on the date of such change in such Rating. In the
event of a split Rating, the higher Rating shall determine the
Applicable Tranche B Facility Fee. If there is no Rating, the
Applicable Tranche B Facility Fee shall be Tier IV.
"Applicable Tranche A Margin" means that percent per annum set
forth below under the heading Applicable Tranche A Margin, which shall
be based upon the highest Rating existing at the date of determination
as specified in the table below:
Rating Applicable Tranche A
Tier S&P or Moody's Margin
---- --- -- ------- ------
I >=A- or >=A3 0.300%
II >=BBB+ or >=Baa1 0.425%
III >=BBB or >=Baa2 0.600%
IV (<)BBB and (<)Baa2 0.825%
The Applicable Tranche A Margin shall be established from time to time
based upon the Ratings in effect from time to time. Any change in the
Applicable Tranche A Margin due to a change in any Rating shall be
effective on the date of such change in such Rating. In the event of a
split Rating, the higher Rating shall determine the Applicable Tranche
A Margin. If there is no Rating, the Applicable Tranche A Margin shall
be Tier IV.
"Applicable Tranche B Margin" means that percent per annum set
forth in the table below under the heading Applicable Tranche B Margin,
which shall be based on the highest Rating existing at the date of
determination as specified in the table below:
5
Rating Applicable Tranche B
Tier S&P or Moody's Margin
---- --- -- ------- ------
I >=A- or >=A3 0.275%
II >=BBB+ or >=Baa1 0.400%
III >=BBB or >=Baa2 0.575%
IV (<)BBB and (<)Baa2 0.800%
The Applicable Tranche B Margin shall be established from time to time
based on the Ratings in effect from time to time. Any change in the
Applicable Tranche B Margin due to a change in any Rating shall be
effective on the date of such change in such Rating. In the event of a
split Rating, the higher Rating shall determine the Applicable Tranche
B Margin. If there is no Rating, the Applicable Tranche B Margin shall
be Tier IV.
"Applications and Agreements for Letters of Credit" means,
collectively, the Applications and Agreements for Letters of Credit, or
similar documentation of the Applicable Issuing Bank, executed by the
Borrower from time to time and delivered to the Applicable Issuing Bank
to support the issuance of Letters of Credit.
"Assignment and Acceptance" shall mean an Assignment and
Acceptance in the form of Exhibit B (with blanks appropriately filled
in) delivered to the Agent in connection with an assignment of a
Lender's interest under this Agreement pursuant to Section 12.1.
"Authorized Representative" means any of the President, Chief
Executive Officer, Vice President Finance-Chief Financial Officer, Vice
President Controller, Vice President Treasurer or General Counsel of
the Borrower, or any other officer expressly designated by the Board of
Directors of the Borrower (or the appropriate committee thereof) or any
other Authorized Representative as an Authorized Representative of the
Borrower, as set forth from time to time in a certificate in the form
of Exhibit C.
"Bank of America" means Bank of America, N.A. and its
successors.
"BAS" means Banc of America Securities LLC and its successors.
"Base Rate" means, for any day, the rate per annum equal to
the higher of (i) the Federal Funds Rate for such day plus one-half of
one percent (0.5%) and (ii) the Prime Rate for such day. Any change in
the Base Rate due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such change in the
Prime Rate or Federal Funds Rate.
"Base Rate Loan" means a Loan for which the rate of interest
is determined by reference to the Base Rate.
6
"Base Rate Refunding Loan" means a Base Rate Loan made under
the Tranche B Revolving Credit Facility to satisfy Reimbursement
Obligations arising from a drawing under a Letter of Credit.
"Board" means the Board of Governors of the Federal Reserve
System (or any successor body).
"Borrower's Account" means a demand deposit account at The
National Bank of Chicago or any successor account with a Lender
designated by the Borrower.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Tranche A
Revolving Credit Facility or the Tranche B Revolving Credit Facility,
in the form of Exhibit D.
"Business Day" means, (i) except as expressly provided in
clauses (ii), (iii) and (iv), any day which is not a Saturday, Sunday
or a day on which banks in the States of New York and North Carolina
are authorized or obligated by law, executive order or governmental
decree to be closed, (ii) with respect to the selection, funding,
interest rate, payment, and Interest Period of any Eurodollar Rate
Loan, any day which is a Business Day, as described above, and on which
the relevant international financial markets are open for the
transaction of business contemplated by this Agreement and foreign
exchange transactions in London, England, New York, New York and
Charlotte, North Carolina, (iii) with respect to the selection,
funding, interest rate, payment and Interest Period for any Offshore
Rate Loan denominated in Euros, any day which is a Business Day as
described in clause (ii) above, and on which TARGET (Trans-European
Automated Real-time Gross settlement Express Transfer system) or any
successor thereto is scheduled to be open for business, and (iv) with
respect to the selection, funding, interest rate, payment and Interest
Period for any Offshore Rate Loan not denominated in Euros, any day
which is a Business Day as described in clause (ii) above, and on which
the relevant Funding Bank is open for the transaction of business
contemplated by this Agreement and on which dealings in the relevant
Offshore Currency are carried on in the applicable offshore foreign
exchange interbank market in which disbursement of or payment in such
Offshore Currency will be made or received hereunder.
"Capital Expenditures" means, with respect to the Borrower and
its Subsidiaries, for any period the sum of (without duplication) (i)
all expenditures (whether paid in cash or accrued as liabilities) by
the Borrower or any Subsidiary during such period for items that would
be classified as "property, plant or equipment" or comparable items on
the consolidated balance sheet of the Borrower and its Subsidiaries,
including without limitation all transactional costs incurred in
connection with such expenditures provided the same have been
capitalized, excluding, however, the amount of any Capital Expenditures
paid for with proceeds of casualty insurance as evidenced in writing
and submitted to the Agent together with any compliance certificate
delivered pursuant to Section 8.1(a) or (b), and (ii) with respect to
any Capital Lease entered into by the Borrower or its Subsidiaries
during such period, the present value of the lease payments due under
such Capital Lease over the term
7
of such Capital Lease applying a discount rate equal to the interest
rate provided in such lease (or in the absence of a stated interest
rate, that rate used in the preparation of the financial statements
described in Section 8.1(a)), all the foregoing in accordance with GAAP
applied on a Consistent Basis.
"Capital Leases" means all leases which have been or should be
capitalized in accordance with GAAP as in effect from time to time
including Statement No. 13 of the Financial Accounting Standards Board
and any successor thereof.
"Change of Control" means, at any time any "person" or "group"
(each as used in Sections 13(d)(3) and 14(d)(2) of the Exchange Act)
either (A) becomes the "beneficial owner" (as defined in Rule 13d-3 of
the Exchange Act ), directly or indirectly, of Voting Securities of the
Borrower (or securities convertible into or exchangeable for such
Voting Securities) representing 50% or more of the combined voting
power of all Voting Securities of the Borrower (on a fully diluted
basis) or (B) otherwise has the ability, directly or indirectly, to
elect a majority of the board of directors of the Borrower.
"Closing Date" means the date as of which this Agreement is
executed by the Borrower, the Lenders and the Agent and on which the
conditions set forth in Section 6.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended,
and any regulations promulgated thereunder.
"Commercial Letter of Credit" means (i) a documentary letter
of credit issued by an Issuing Bank pursuant to Article III hereof for
the account of the Borrower or jointly for the account of the Borrower
and a Designated Subsidiary, which letter of credit is secured by
documents and (ii) the Existing Commercial Letters of Credit.
"Commercial Letter of Credit Commitment" means, with respect
to each Lender, the obligation of such Lender to acquire Participations
in respect of Commercial Letters of Credit and the related
Reimbursement Obligations up to an aggregate amount at any one time
outstanding equal to such Lender's Applicable Commitment Percentage of
the Total Commercial Letter of Credit Commitment as the same may be
increased or decreased from time to time pursuant to this Agreement.
"Commercial Letter of Credit Outstandings" means, as of any
date of determination, the aggregate Dollar Equivalent Amount available
to be drawn under all Commercial Letters of Credit plus Reimbursement
Obligations then outstanding arising from Commercial Letters of Credit.
"Consistent Basis" in reference to the application of GAAP
means the accounting principles observed in the period referred to are
comparable in all material respects to those applied in the preparation
of the audited financial statements of the Borrower referred to as of
the Closing Date in Section 7.5(a).
8
"Consolidated EBITDA" means, with respect to the Borrower and
its Subsidiaries for any Four-Quarter Period ending on the date of
computation thereof, the sum of, without duplication, (i) Consolidated
Net Income less all Non-cash Income, (ii) Consolidated Interest
Expense, (iii) taxes on income, (iv) amortization, (v) depreciation and
(vi) all other Non- cash Expenses, all determined on a consolidated
basis in accordance with GAAP applied on a Consistent Basis.
"Consolidated Indebtedness" means all Indebtedness for Money
Borrowed of the Borrower and its Subsidiaries, all determined on a
consolidated basis, including amounts outstanding under Permitted
Receivables Securitizations.
"Consolidated Interest Coverage Ratio" means, with respect to
the Borrower and its Subsidiaries for any Four-Quarter Period ending on
the date of computation thereof, the ratio of (a) Consolidated EBITDA
for such period less Capital Expenditures for such period to (b)
Consolidated Interest Expense for such period.
"Consolidated Interest Expense" means, with respect to any
period of computation thereof, the gross interest expense of the
Borrower and its Subsidiaries, including without limitation (i) the
current amortized portion of debt discounts to the extent included in
gross interest expense, (ii) the current amortized portion of all fees
(including fees payable in respect of any Rate Hedging Obligation)
payable in connection with the incurrence of Indebtedness to the extent
included in gross interest expense and (iii) the portion of any
payments made in connection with Capital Leases allocable to interest
expense, all determined on a consolidated basis in accordance with GAAP
applied on a Consistent Basis.
"Consolidated Leverage Ratio"means, as of the date of
computation thereof, the ratio of (i) Consolidated Indebtedness
(determined as at such date) to (ii) Consolidated EBITDA (for the
Four-Quarter Period ending on (or most recently ended prior to) such
date) provided, however, that with respect to an Acquisition that is
accounted for as a "purchase" under GAAP, for the four Four-Quarter
Periods ending next following the date of such Acquisition,
Consolidated EBITDA shall be determined on a historical pro forma basis
as if such Acquisition had been consummated as a "pooling of interests"
under GAAP notwithstanding the elimination of the "pooling of
interests" accounting method under GAAP.
"Consolidated Net Income" means, for any period of computation
thereof, the gross revenues from operations of the Borrower and its
Subsidiaries (including payments received by the Borrower and its
Subsidiaries of (i) interest income, and (ii) dividends and
distributions made in the ordinary course of their businesses by
Persons in which investment is permitted pursuant to this Agreement and
not related to an extraordinary event), less all operating and
non-operating expenses of the Borrower and its Subsidiaries including
taxes on income, all determined on a consolidated basis in accordance
with GAAP applied on a Consistent Basis; but excluding (for all
purposes other than compliance with Section 9.1(a) hereof ) as income:
(i) net gains and net losses on the sale, conversion or other
disposition of capital assets, (ii) net gains and net losses on the
acquisition, retirement, sale or other
9
disposition of capital stock and other securities of the Borrower or
its Subsidiaries, (iii) net gains and net losses on the collection of
proceeds of life insurance policies, (iv) any write-up of any asset,
and (v) any other net gain or credit of an extraordinary nature as
determined in accordance with GAAP applied on a Consistent Basis.
"Consolidated Net Tangible Assets" means, as of any date on
which the amount thereof is to be determined, the total amount of all
assets of the Borrower and its Subsidiaries (less depreciation,
depletion and other properly deductible valuation reserves) after
deducting, without duplication, the sum of (i) goodwill, patents, trade
names, trademarks, copyrights, franchises, experimental expense,
organization expense, unamortized debt discount and expense, the excess
of cost of shares acquired over book value of related assets and such
other assets as are properly classified as "intangible assets" in
accordance with GAAP; and (ii) all deferred assets and prepaid expenses
(except such prepaid taxes that are properly classified as current
assets), including prepaid insurance and prepaid taxes, determined in
accordance with GAAP.
"Consolidated Shareholders' Equity" means, as of any date on
which the amount thereof is to be determined, the sum of the following
in respect of the Borrower and its Subsidiaries (determined on a
consolidated basis): (i) the amount of issued and outstanding share
capital, plus (ii) the amount of additional paid-in capital and
retained earnings (or, in the case of a deficit, minus the amount of
such deficit), plus (iii) the amount of any foreign currency
translation adjustment (if positive, or, if negative, minus the amount
of such translation adjustment), minus (iv) the amount of any treasury
stock, all as determined in accordance with GAAP applied on a
Consistent Basis.
"Consolidated Tangible Net Worth" means, as of any date on
which the amount thereof is to be determined, Consolidated
Shareholders' Equity minus (without duplication of deductions in
respect of items already deducted in arriving at surplus and retained
earnings) (i) all reserves (other than contingency reserves not
allocated to any particular purpose), including without limitation
reserves for depreciation, depletion, amortization, obsolescence,
deferred income taxes, insurance and inventory valuation and (ii) the
net book value of assets which would be treated as intangible assets,
such as (without limitation) goodwill (whether representing the excess
of cost over book value of assets acquired or otherwise), capitalized
expenses, unamortized debt discount and expense, consignment inventory
rights, patents, trademarks, trade names, copyrights, franchises and
licenses, all as determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Contingent Obligation"means, as to any Person, any direct or
indirect liability of that Person with respect to any Indebtedness,
lease, dividend, guaranty, letter of credit or other obligation (each a
"primary obligation") of another Person (the "primary obligor"),
whether or not contingent, (a) to purchase, repurchase or otherwise
acquire any such primary obligation or any property constituting direct
or indirect security therefor, or (b) to advance or provide funds (i)
for the payment or discharge of any such primary obligation, or (ii) to
maintain working capital or equity capital of the primary obligor in
respect of any such
10
primary obligation or otherwise to maintain the net worth or solvency
or any balance sheet item, level of income or financial condition of
such primary obligor, or (c) 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 thereof to
make payment of such primary obligation, or (d) otherwise to assure or
hold harmless the owner of any such primary obligation against loss or
failure or inability to perform in respect thereof. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the
stated or determinable amount of the primary obligation in respect of
which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to Section 4.1 or Section 4.3 hereof of a
Eurodollar Rate Loan or an Offshore Rate Loan from one Interest Period
to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a
conversion pursuant to Section 4.3 of one Type of Loan denominated in
Dollars into another Type of Loan denominated in Dollars.
"Default" means any event or condition which, with the giving
or receipt of notice or lapse of time or both, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to each Eurodollar Rate
Loan, until the end of the Interest Period applicable thereto, a rate
of two percent (2%) above the Eurodollar Rate applicable to such Loan,
and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (ii) with respect to each Offshore
Rate Loan, until the end of the Interest Period applicable thereto, a
rate of two percent (2%) above the Offshore Rate applicable to such
Loan, and thereafter at a rate of interest per annum which shall be two
percent (2%) above the Base Rate, (iii) with respect to Base Rate
Loans, Reimbursement Obligations, fees, and other amounts payable in
respect of Obligations, a rate of interest per annum which shall be two
percent (2%) above the Base Rate and (iv) in any case, the maximum rate
permitted by applicable law, if lower.
"Designated Subsidiary" means any of the Subsidiaries set
forth on Schedule 1.1 hereto and any additional Subsidiaries which the
Borrower may hereafter designate in writing to the Agent and the
Lenders.
"Dollar Equivalent Amount" means, (a) the amount denominated
in Dollars and (b) with respect to a specified Offshore Currency
amount, the amount of Dollars into which the Offshore Currency amount
would be converted, based on (i) the applicable Advance Date Exchange
Rate in the case of Advances and Continuations and (ii) on the Spot
Rate of Exchange in all other instances.
"Dollars" and the symbol "$" means dollars constituting legal
tender for the payment of public and private debts in the United States
of America.
11
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a
Lender, and (iii) any other Person approved by the Agent and, unless an
Event of Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 12.1, the Borrower,
such approval not to be unreasonably withheld (provided that the
incurrence by the Borrower of additional costs pursuant to Section 5.6
as a result of such assignment shall constitute a reasonable basis for
withholding such consent) or delayed by the Borrower and such approval
to be deemed given by the Borrower (in the absence of notice to the
contrary, effective upon receipt) within five Business Days after
notice of such proposed assignment has been provided by the assigning
Lender to the Borrower; provided, however, that neither the Borrower
nor an affiliate of the Borrower shall qualify as an Eligible Assignee.
"Eligible Securities" means the following obligations and any
other obligations previously approved in writing by the Agent:
(a) Government Securities;
(b) obligations of any corporation organized under
the laws of any state of the United States of America or under
the laws of any other nation, payable in the United States of
America, expressed to mature not later than 92 days following
the date of issuance thereof and rated in an investment grade
rating category by S&P and ▇▇▇▇▇'▇;
(c) interest bearing demand or time deposits or
certificates of deposit maturing within one year from the date
of issuance thereof and issued by a bank or trust company
organized under the laws of the United States or of any state
thereof having capital surplus and undivided profits
aggregating at least $400,000,000 and being rated "A" or
better by S&P or "A" or better by ▇▇▇▇▇'▇;
(d) Repurchase Agreements;
(e) Municipal Obligations;
(f) Pre-Refunded Municipal Obligations;
(g) shares of mutual funds which invest in
obligations described in paragraphs (a) through (f) above, the
shares of which mutual funds are at all times rated "AAA" by
S&P or Aaa ▇▇▇▇▇'▇;
(h) tax-exempt or taxable adjustable rate preferred
stock issued by a Person having a rating of its long term
unsecured debt of "A" or better by S&P or "A-3" or better by
▇▇▇▇▇'▇; and
(i) asset-backed remarketed certificates of
participation representing a fractional undivided interest in
the assets of a trust, which certificates are rated at least
"A-1" by S&P and "P-1" by ▇▇▇▇▇'▇.
12
"Employee Benefit Plan" means (i) any employee benefit plan,
including any Pension Plan, within the meaning of Section 3(3) of ERISA
which (A) is maintained for employees of the Borrower or any of its
ERISA Affiliates, or any Subsidiary or is assumed by the Borrower or
any of its ERISA Affiliates, or any Subsidiary in connection with any
Acquisition or (B) has at any time been maintained for the employees of
the Borrower, any current or former ERISA Affiliate, or any Subsidiary
and (ii) any plan, arrangement, understanding or scheme maintained by
the Borrower or any Subsidiary that provides retirement, deferred
compensation, employee or retiree medical or life insurance, severance
benefits or any other benefit covering any employee or former employee
and which is administered under any Foreign Benefit Law or regulated by
any Governmental Authority other than the United States of America.
"EMU Legislation" means (a) a Treaty on European Union (the
Treaty of Rome of March 25, 1957, as amended by the Single ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇ and the Maastricht Treaty (which was signed at Maastricht on
February 1, 1992 and came into force on November 1, 1993)) and (b)
legislative measures of the European Council (including without
limitation European Council regulations) for the introduction of,
changeover to or operation of the Euro, in each case as amended or
supplemented from time to time.
"Environmental Laws" means any federal, state or local
statute, law, ordinance, code, rule, regulation, order, decree, permit
or license regulating, relating to, or imposing liability or standards
of conduct concerning, any environmental matters or conditions,
environmental protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended; the Superfund Amendments and Reauthorization
Act of 1986, as amended; the Resource Conservation and Recovery Act, as
amended; the Toxic Substances Control Act, as amended; the Clean Air
Act, as amended; the Clean Water Act, as amended; together with all
regulations promulgated thereunder, and any other "Superfund" or
"Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and any successor statute and all
rules and regulations promulgated thereunder.
"ERISA Affiliate", as applied to the Borrower, means any
Person or trade or business which is a member of a group which is under
common control with the Borrower, who together with the Borrower, is
treated as a single employer within the meaning of Section 414(b) and
(c) of the Code.
"Euro" and "e" each means the single official non-legacy
currency denominated as the Euro and constituting legal tender for the
payment of public and private debts in the Participating Member States.
"Eurodollar Rate Loan" means a Loan for which the rate of
interest is determined by reference to the Eurodollar Rate.
13
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Eurodollar = Interbank Offered Rate + Applicable
---------------------------------------
Rate 1- Reserve Requirement Margin
"Event of Default" means any of the occurrences set forth as
such in Section 10.1.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the regulations promulgated thereunder.
"Existing Commercial Letters of Credit" means the documentary
letters of credit issued by Bank of America, The Bank of Nova Scotia or
Mercantile Bank of St. Louis N.A. prior to the Closing Date and
remaining outstanding as of the Closing Date, all as more particularly
described on Schedule 1.1 attached hereto.
"Existing Credit Agreement" means that certain Credit
Agreement dated as of May 31, 1996 by and among the Borrower, The Bank
of Nova Scotia, as administrative agent and syndication agent, Bank of
America National Trust and Savings Association (now known as Bank of
America), as documentation agent, and the other lenders party thereto,
as amended, modified, supplemented or restated as of the Closing Date.
"Existing Indebtedness" means the Indebtedness of the Borrower
outstanding as of the Closing Date under the Existing Credit Agreement.
"Existing Letters of Credit" means the Existing Commercial
Letters of Credit and the Existing Standby Letters of Credit.
Existing Standby Letters of Credit" means the Standby letters
of credit issued by Bank of America, The Bank of Nova Scotia or
Mercantile Bank of St. Louis N.A. prior to the Closing Date and
remaining outstanding as of the Closing Date, all as more particularly
described on Schedule 1.1 attached hereto.
"Facility Termination Date" means such date as all of the
following shall have occurred: (a) the Borrower shall have permanently
terminated the Tranche A Revolving Credit Facility and the Tranche B
Revolving Credit Facility by payment in full of all Tranche A
Outstandings, Tranche B Outstandings and Letter of Credit Outstandings,
together with all accrued and unpaid interest thereon, except for the
undrawn portion of Letters of Credit as have been fully cash
collateralized in a manner consistent with the terms of Section
10.1(B), (b) all Tranche A Commitments, Tranche B Commitments,
Commercial Letter of Credit Commitments and Standby Letter of Credit
Commitments shall have terminated or expired and (c) the Borrower shall
have fully, finally and irrevocably paid and satisfied in full all
Obligations (other than Obligations consisting of continuing
indemnities and other Contingent Obligations of the Borrower that may
be owing to the Lenders pursuant to the Loan Documents and expressly
survive termination of this Agreement).
14
"Federal Funds Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to
the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
charged to the Agent (in its individual capacity) on such day on such
transactions as determined by the Agent.
"Fiscal Year" means a fiscal period of not more than 12 months
of the Borrower and its Subsidiaries which as of the Closing Date
commences on May 1 of each calendar year and ends on April 30 of the
next calendar year.
"Fixed Rate Loan" means a Eurodollar Rate Loan or an Offshore
Rate Loan.
"Foreign Benefit Law" means any applicable statute, law,
ordinance, code, rule, regulation, order or decree of any foreign
nation or any province, state, territory, protectorate or other
political subdivision thereof regulating, relating to, or imposing
liability or standards of conduct concerning, any Employee Benefit
Plan.
"Four-Quarter Period" means a period of four full consecutive
fiscal quarters of the Borrower and its Subsidiaries, taken together as
one accounting period.
"Funding Bank" means any banking institution (which may
include any Lender) approved by the Agent located within a country
whose currency has been approved by the Lenders as an Offshore
Currency; provided that in the case of the Euro, the Funding Bank may
be located in any Participating Member State.
"GAAP" or "Generally Accepted Accounting Principles" means
generally accepted accounting principles, being those principles of
accounting set forth in pronouncements of the Financial Accounting
Standards Board, the American Institute of Certified Public
Accountants, or which have other substantial authoritative support and
are applicable in the circumstances as of the date of a report.
"Government Securities" means direct obligations of, or
obligations the timely payment of principal and interest on which are
fully and unconditionally guaranteed by, the United States of America.
"Governmental Authority" shall mean any Federal, state,
municipal, national or other governmental department, commission,
board, bureau, court, agency or instrumentality or political
subdivision thereof or any entity or officer exercising executive,
legislative, judicial, regulatory or administrative functions of or
pertaining to any government or any court, in
15
each case whether associated with a state of the United States, the
United States, or a foreign entity or government.
"Hazardous Material" means and includes any pollutant,
contaminant, or hazardous, toxic or dangerous waste, substance or
material (including without limitation petroleum products,
asbestos-containing materials and lead), the generation, handling,
storage, transportation, disposal, treatment, release, discharge or
emission of which is subject to any Environmental Law.
"Indebtedness" means as to any Person, without duplication,
(a) all Indebtedness for Money Borrowed of such Person, (b) all Rate
Hedging Obligations of such Person, and (c) all Contingent Obligations
of such Person.
"Indebtedness for Money Borrowed" means with respect to any
Person, without duplication, (a) all indebtedness in respect of money
borrowed, including without limitation, all obligations under Capital
Leases, the deferred purchase price of any property or services, and
payment and reimbursement obligations in respect of surety bonds,
standby letters of credit, and clean bankers' acceptances, whether or
not matured, evidenced by a promissory note, bond, debenture or similar
written obligation for the payment of money (including reimbursement
agreements and conditional sales or similar title retention
agreements), (b) all indebtedness secured by any Lien on any property
or asset owned or held by such Person regardless of whether the
indebtedness secured thereby shall have been assumed by such Person or
is non-recourse to the credit of such Person, and (c) Standby Letter of
Credit Outstandings, other than trade payables and accrued expenses
incurred in the ordinary course of business.
"Interbank Offered Rate" means, with respect to any Eurodollar
Rate Loan or Offshore Rate Loan, for the Interest Period applicable
thereto, the rate per annum (rounded upwards, if necessary), to the
nearest 1/100 of 1%) appearing on Dow ▇▇▇▇▇ Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits (a)
in Dollars, in the case of a Eurodollar Rate Loan or (b) in the
applicable Offshore Currency, in the case of an Offshore Rate Loan at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
Interest Period. If for any reason such rate is not available, the term
"Interbank Offered Rate" shall mean, with respect to any Eurodollar
Rate Loan or Offshore Rate Loan for the Interest Period applicable
thereto, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits (a) in Dollars, in the case
of a Eurodollar Rate Loan or (b) in the applicable Offshore Currency,
in the case of an Offshore Rate Loan at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period, provided,
however; if more than one rate is specified on Reuters Screen LIBO
Page, the applicable rate shall be the arithmetic mean of all such
rates (rounded upwards, if necessary, to the nearest 1/100 of 1%).
16
"Interest Period" means, (a) for each Eurodollar Rate Loan, a
period commencing on the date such Eurodollar Rate Loan is made or
Converted or Continued and ending, at the Borrower's option, on the
date one, two, three or six months thereafter as notified to the Agent
by the Authorized Representative in accordance with the terms hereof
and (b) for each Offshore Rate Loan, a period commencing on the date
such Offshore Rate Loan is made or Continued and ending, at the
Borrower's option, on the date one, two, three or six months thereafter
as notified to the Agent by the Authorized Representative in accordance
with the terms hereof; provided that,
(i) if an Interest Period for a Eurodollar Rate Loan
or Offshore Rate Loan would end on a day which is not a
Business Day, such Interest Period shall be extended to the
next Business Day (unless such extension would cause the
applicable Interest Period to end in the succeeding calendar
month, in which case such Interest Period shall end on the
next preceding Business Day);
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of a calendar month; and
(iii) Interest Periods in different lettered clauses
of this definition shall be deemed to be different Interest
Periods even if they are coterminous.
"Interest Rate Selection Notice" means the written notice
delivered by an Authorized Representative in connection with the
election of a subsequent Interest Period for any Eurodollar Rate Loan
or Offshore Rate Loan or the Conversion of any Eurodollar Rate Loan
into a Base Rate Loan or the Conversion of any Base Rate Loan into a
Eurodollar Rate Loan, in the form of Exhibit E.
"Issuing Bank" means any Lender, as selected by the Borrower
and thereafter any Lender which is successor to any of the foregoing as
an issuer of Letters of Credit under Article III.
"LC Account Agreement" means the LC Account Agreement dated as
of the date hereof between the Borrower and the Agent, as amended,
modified or supplemented from time to time.
"Letter of Credit" means a Standby Letter of Credit or a
Commercial Letter of Credit.
"Letter of Credit Facility" means the facility described in
Article III hereof providing for the issuance by any of the Issuing
Banks for the account of the Borrower of Letters of Credit in an
aggregate stated amount at any time outstanding not exceeding the Total
Letter of Credit Commitment minus outstanding Reimbursement
Obligations.
17
"Letter of Credit Outstandings" means, as of any date of
determination, the sum of Commercial Letter of Credit Outstandings and
Standby Letter of Credit Outstandings.
"Lien" means any interest in property securing any obligation
owed to, or a claim by, a Person other than the owner of the property,
whether such interest is based on the common law, statute or contract,
and including but not limited to the lien or security interest arising
from a mortgage, encumbrance, pledge, security agreement, conditional
sale or trust receipt or a lease, consignment or bailment for security
purposes. For the purposes of this Agreement, the Borrower and any
Subsidiary shall be deemed to be the owner of any property which it has
acquired or holds subject to a conditional sale agreement, financing
lease, or other arrangement pursuant to which title to the property has
been retained by or vested in some other Person for security purposes.
"Loans" means, collectively, the Tranche A Loans and the
Tranche B Loans.
"Loan Documents" means this Agreement, the Notes, the LC
Account Agreement, the Applications and Agreements for Letter of
Credit, and all other instruments and documents heretofore or hereafter
executed or delivered to or in favor of any Lender or the Agent in
connection with the Loans made and transactions contemplated under this
Agreement, as the same may be amended, supplemented or replaced from
the time to time.
"Material Adverse Effect" means a material adverse effect on
(i) the business, properties, operations, prospects or condition,
financial or otherwise, of the Borrower and its Material Subsidiaries,
taken as a whole, (ii) the ability of the Borrower to pay or perform
its obligations, liabilities and indebtedness under the Loan Documents
as such payment or performance becomes due in accordance with the terms
thereof, or (iii) the rights, powers and remedies of the Agent or any
Lender under any Loan Document or the validity, legality or
enforceability thereof.
"Material Subsidiary" means: (a) each Subsidiary listed on
Schedule 7.3 hereto which is designated therein as a "Material
Subsidiary"; (b) any Subsidiary that the Borrower designates as a
"Material Subsidiary" by updating Schedule 7.3 hereto in a written
notice delivered (which may be by facsimile transmission) to the Agent
from time to time; and (c) any Subsidiary which is acquired or created
or party to a merger or some other corporate reorganization or
otherwise acquires all or substantially all of the assets of another
Person following the Closing Date and meets any of the following
conditions:
(i) the assets of such Subsidiary (valued at the
greater of book or fair market) as at the end of the
immediately preceding Fiscal Year exceed $1,000,000,
(ii) the aggregate sum of all assets (valued at the
greater of book or fair market) of such Subsidiary, when
combined with the assets of all other Subsidiaries which do
not otherwise qualify as "Material Subsidiaries" under this
definition during the 3-year period immediately preceding the
date of such determination, exceeds $1,000,000, or
18
(iii) the portion of Consolidated Net Income of the
Borrower and its Subsidiaries which were contributed by such
Subsidiary during the immediately preceding Fiscal Year
exceeds $1,000,000.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Multiemployer Plan" means a "multiemployer plan" as defined
in Section 4001(a)(3) of ERISA to which the Borrower or any ERISA
Affiliate is making, or is accruing an obligation to make,
contributions or has made, or been obligated to make, contributions
within the preceding six (6) Fiscal Years.
"Municipal Obligations" means general obligations issued by,
and supported by the full taxing authority of, any state of the United
States of America or of any municipal corporation or other public body
organized under the laws of any such state which are rated in the
highest investment rating category by both S&P and Moody's.
"Non-cash Expenses" means all expenses which will not require
the utilization of cash or other assets for their satisfaction.
"Non-cash Income" means all items of income which are not
expected to be realized in cash or other comparable assets for
utilization by the Borrower and its Subsidiaries in the ordinary course
of business.
"Notes" means, collectively, the Tranche A Notes and the
Tranche B Notes.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the principal and
interest on the Loans as evidenced by the Notes, (ii) the Reimbursement
Obligations and otherwise in respect of the Letters of Credit, and
(iii) the payment and performance of all other obligations, liabilities
and Indebtedness of the Borrower to the Lenders, the Agent or BAS
hereunder, under any one or more of the other Loan Documents or with
respect to the Loans.
"Offshore Currency" means the Euro, Japanese yen, Hong Kong
dollars, and any other freely available currency notified to the Agent
upon not less than ten (10) Business Days' prior written notice that in
the opinion of all the Lenders, in their sole discretion, is at such
time freely traded in the offshore interbank foreign exchange markets
and is freely transferable and convertible into Dollars in the United
States currency market.
"Offshore Currency Equivalent Amount" means with respect to a
specified Offshore Currency and a specified Dollar amount, the amount
of such Offshore Currency into which such Dollar amount would be
converted, based on the applicable Advance Date Exchange Rate.
"Offshore Letter of Credit" means a Letter of Credit issued in
an Offshore Currency.
19
"Offshore Rate" means the interest rate per annum calculated
according to the following formula:
Offshore = Interbank Offered Rate + Applicable
---------------------------------------
Rate 1- Reserve Requirement Margin
The Offshore Rate shall be adjusted automatically as to all Offshore
Rate Loans then outstanding as of the effective date of any change in
the Reserve Requirement.
"Offshore Rate Loan" means a Tranche B Loan in an Offshore
Currency that bears interest based on an Offshore Rate.
"Operating Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other applicable documents
relating to the operation, governance or management of such entity.
"Organizational Action" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, any corporate, organizational or partnership
action (including any required shareholder, member or partner action),
or other similar official action, as applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership, limited
partnership, limited liability partnership or other legally authorized
incorporated or unincorporated entity, the articles of incorporation,
certificate of incorporation, articles of organization, certificate of
limited partnership or other applicable organizational or charter
documents relating to the creation of such entity.
"Outstandings" means, collectively, at any date, the Letter of
Credit Outstandings, the Tranche A Outstandings and the Tranche B
Outstandings on such date.
"Participating Member State" means each country which from
time to time becomes a Participating Member State as described in EMU
Legislation.
"Participation" means, (i) with respect to any Lender (other
than the Applicable Issuing Bank) and a Letter of Credit, the extension
of credit represented by the participation of such Lender hereunder in
the liability of the Applicable Issuing Bank in respect of a Letter of
Credit issued by the Applicable Issuing Bank in accordance with the
terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation and any
successor thereto.
"Pension Plan" means any employee pension benefit plan within
the meaning of Section 3(2) of ERISA, other than a Multiemployer Plan,
which is subject to the provisions
20
of Title IV of ERISA or Section 412 of the Code and which (i) is
maintained for employees of the Borrower or any of its ERISA Affiliates
or is assumed by the Borrower or any of its ERISA Affiliates in
connection with any Acquisition or (ii) has at any time been maintained
for the employees of the Borrower or any current or former ERISA
Affiliate.
"Permitted Receivables Securitization" means non-recourse
(other than by reason of violation of representations and warranties)
sales and assignments of accounts receivable of the Borrower or its
Subsidiaries to one or more special purpose entities, in connection
with the issuance of obligations by such special purpose entities
secured by such accounts, so long as (i) the obligations issued by such
special purpose entities shall not exceed $75,000,000 in the aggregate
and (ii) the proceeds of the issuance of which obligations shall be
made available to the Borrower or its Subsidiaries at such rates of
advance, and the obligations issued by such special purpose entities
shall bear such rates or rates of interest, and be subject to such
other terms and conditions, all as shall be acceptable to the Agent and
the Required Lenders which approval shall not be unreasonably withheld
or delayed.
"Person" means an individual, partnership, corporation,
limited liability company, limited liability partnership, trust,
unincorporated organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pre-Refunded Municipal Obligations" means obligations of any
state of the United States of America or of any municipal corporation
or other public body organized under the laws of any such state which
are rated, based on the escrow, in the highest investment rating
category by both S&P and Moody's and which have been irrevocably called
for redemption and advance refunded through the deposit in escrow of
Government Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to maturity, (ii)
irrevocably pledged solely to the payment of all principal and interest
on such obligations as the same becomes due and (iii) in a principal
amount and bear such rate or rates of interest as shall be sufficient
to pay in full all principal of, interest, and premium, if any, on such
obligations as the same becomes due as verified by a nationally
recognized firm of certified public accountants.
"Prime Rate" means the per annum rate of interest established
from time to time by Bank of America as its prime rate, which rate may
not be the lowest rate of interest charged by Bank of America to its
customers.
"Principal Office" means the principal office of Bank of
America, presently located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Agency Services,
or such other office and address as the Agent may from time to time
designate.
"Rate Adjustment Payment" shall have the meaning assigned to
such term in Section 4.1(b).
21
"Rate Hedging Obligations" means, without duplication, any and
all obligations (valued in accordance with GAAP applied on a Consistent
Basis) of the Borrower or any Subsidiary, whether absolute or
contingent and howsoever and whensoever created, arising, evidenced or
acquired (including all renewals, extensions and modifications thereof
and substitutions therefor), under (i) any and all agreements, devices
or arrangements designed to protect at least one of the parties thereto
from the fluctuations of interest rates, exchange rates or forward
rates applicable to such party's assets, liabilities or exchange
transactions, including, but not limited to, Dollar-denominated or
cross-currency interest rate exchange agreements, forward currency
exchange agreements, interest rate cap or collar protection agreements,
forward rate currency or interest rate options, puts, warrants and
those commonly known as interest rate "swap" agreements, (ii) all other
"derivative instruments" as defined in FASB 133 and which are subject
to the reporting requirements of FASB 133, and (iii) any and all
cancellations, buybacks, reversals, terminations or assignments of any
of the foregoing.
"Rating" means the rating of senior, unsecured, non-credit
enhanced Indebtedness for Money Borrowed of the Borrower in effect at
any time, which rating is made by either of S&P or Moody's.
"Regulation D" means Regulation D of the Board as the same may
be amended or supplemented from time to time.
"Reimbursement Obligation" shall mean at any time, the
obligation of the Borrower with respect to any Letter of Credit to
reimburse the Applicable Issuing Bank and the Lenders to the extent of
their respective Participations (including the receipt by the
Applicable Issuing Bank of proceeds of Loans pursuant to Section
2.4(d)) for amounts theretofore paid by the Applicable Issuing Bank
pursuant to a drawing under such Letter of Credit.
"Related L/C Documents" shall have the meaning assigned to
such term in Section 3.2(i)(i).
"Repurchase Agreement" means a repurchase agreement entered
into with any financial institution whose debt obligations or
commercial paper are rated "A" by either of S&P or Moody's or "A-1" by
S&P or "P-1" by Moody's.
"Required Lenders" means, as of any date, Lenders on such date
having Credit Exposures (as defined below) aggregating more than 50% of
the aggregate Credit Exposures of all the Lenders on such date. For
purposes of the preceding sentence, the amount of the "Credit Exposure"
of each Lender shall be equal at all times (a) other than following the
occurrence and during the continuance of an Event of Default, to the
sum of its Tranche A Commitment and Tranche B Commitment, and (b)
following the occurrence and during the continuance of an Event of
Default, to the sum of (i) the aggregate principal amount of such
Lender's Applicable Commitment Percentage of Tranche A Outstandings ,
(ii) the aggregate principal amount of such Lender's Applicable
Commitment Percentage of Tranche B
22
Outstandings, plus (ii) the amount of such Lender's Applicable
Commitment Percentage of Letter of Credit Outstandings; provided that,
for the purpose of this definition only, (A) if any Lender shall have
failed to fund its Applicable Commitment Percentage of any Advance,
then the Tranche A Commitment or Tranche B Commitment, as the case may
be, of such Lender shall be deemed reduced by the amount it so failed
to fund for so long as such failure shall continue and such Lender's
Credit Exposure attributable to such failure shall be deemed held by
any Lender making more than its Applicable Commitment Percentage of
such Advance to the extent it covers such failure, (B) if any Lender
shall have failed to pay to the Applicable Issuing Bank upon demand its
Applicable Commitment Percentage of any drawing under any Letter of
Credit resulting in an outstanding Reimbursement Obligation (whether by
funding its Participation therein or otherwise), such Lender's Credit
Exposure attributable to all Letter of Credit Outstandings shall be
deemed to be held by the respective Applicable Issuing Banks until such
Lender shall pay such deficiency amount to the Applicable Issuing Bank
to whom such deficiency is owed together with interest thereon as
provided in Section 4.10.
"Reserve Requirement" means, at any time, the maximum rate at
which reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained
under regulations issued from time to time by the Board of Governors of
the Federal Reserve System (or any successor) by member banks of the
Federal Reserve System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of the foregoing,
the Reserve Requirement shall reflect any other reserves required to be
maintained by such member banks with respect to (i) any category of
liabilities which includes deposits by reference to which the
Eurodollar Rate or Offshore Rate is to be determined, or (ii) any
category of extensions of credit or other assets which include
Eurodollar Rate Loans or Offshore Rate Loans. The Eurodollar Rate and
Offshore Rate shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Restricted Payment" means (a) any dividend or other
distribution, direct or indirect, on account of any shares of any class
of stock of Borrower or any of its Subsidiaries (other than those
payable or distributable solely to the Borrower) now or hereafter
outstanding, except a dividend payable solely in shares of a class of
stock to the holders of that class; (b) any redemption, conversion,
exchange, retirement or similar payment, purchase or other acquisition
for value, direct or indirect, of any shares of any class of stock of
the Borrower or any of its Subsidiaries (other than those payable or
distributable solely to the Borrower) now or hereafter outstanding; (c)
any payment made to retire, or to obtain the surrender of, any
outstanding warrants, options or other rights to acquire shares of any
class of stock of Borrower or any of its Subsidiaries now or hereafter
outstanding; and (d) any issuance and sale of capital stock of any
Subsidiary of the Borrower (or any option, warrant or right to acquire
such stock) other than to the Borrower or a Wholly-owned Subsidiary.
"S&P" means Standard & Poor's Ratings Group, a division of
▇▇▇▇▇▇-▇▇▇▇.
23
"Spot Rate of Exchange" means (i) in determining the Dollar
Equivalent Amount of a specified Offshore Currency amount as of any
date, the spot rate of exchange determined by the Agent in accordance
with its usual procedures for the purchase by the Agent of Dollars with
such Offshore Currency at approximately 10:00 A.M. on the Business Day
that is two (2) Business Days prior to such date, and (ii) in
determining the Offshore Currency Equivalent Amount of a specified
Dollar amount on any date, the spot exchange rate determined by the
Agent in accordance with its usual procedures for the purchase by the
Agent of such Offshore Currency with Dollars at approximately 10:00
A.M. on the Business Day that is two (2) Business Days prior to such
date.
"Standby Letter of Credit" means (i) a letter of credit issued
by an Issuing Bank pursuant to Article III hereof for the account of
the Borrower or jointly for the account of the Borrower and a
Designated Subsidiary in favor of a Person advancing credit or securing
an obligation on behalf of the Borrower or on behalf of the Borrower
and a Subsidiary and (ii) the Existing Standby Letters of Credit.
"Standby Letter of Credit Commitment" means, with respect to
each Lender, the obligation of such Lender to acquire Participations in
respect of Standby Letters of Credit and the related Reimbursement
Obligations up to an aggregate amount at any one time outstanding equal
to such Lender's Applicable Commitment Percentage of the Total Standby
Letter of Credit Commitment as the same may be increased or decreased
from time to time pursuant to this Agreement.
"Standby Letter of Credit Outstandings" means, as of any date
of determination, the aggregate Dollar Equivalent Amount available to
be drawn under all Standby Letters of Credit plus Reimbursement
Obligations then outstanding arising from Standby Letters of Credit.
"Subsequent Participant" means each country that adopts the
Euro as its lawful currency after January 1, 1999.
"Subsidiary" means any corporation or other entity in which
more than 50% of its outstanding Voting Securities or more than 50% of
all equity interests is owned directly or indirectly by the Borrower
and/or by one or more of the Borrower's Subsidiaries.
"Termination Event" means: (i) a "Reportable Event" described
in Section 4043 of ERISA and the regulations issued thereunder (unless
the notice requirement has been waived by applicable regulation); or
(ii) the withdrawal of the Borrower or any ERISA Affiliate from a
Pension Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA or was deemed such
under Section 4062(e) of ERISA; or (iii) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or
the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA; or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC; or (v) any other event or
condition which would constitute grounds under Section 4042(a) of ERISA
for the termination of, or the appointment of a trustee to administer,
any Pension
24
Plan; or (vi) the partial or complete withdrawal of the Borrower or any
ERISA Affiliate from a Multiemployer Plan; or (vii) the imposition of a
Lien pursuant to Section 412 of the Code or Section 302 of ERISA; or
(viii) any event or condition which results in the reorganization or
insolvency of a Multiemployer Plan under Section 4241 or Section 4245
of ERISA, respectively; or (ix) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or
the institution by the PBGC of proceedings to terminate a Multiemployer
Plan under Section 4042 of ERISA; or (x) any event or condition with
respect to any Employee Benefit Plan which is regulated by any Foreign
Benefit Law that results in the termination of such Employee Benefit
Plan or the revocation of such Employee Benefit Plan's authority to
operate under the applicable Foreign Benefit Law.
"Total Commercial Letter of Credit Commitment" means the
Dollar Equivalent Amount not to exceed $200,000,000.
"Total Letter of Credit Commitment" means the sum of the Total
Commercial Letter of Credit Commitment and the Total Standby Letter of
Credit Commitment.
"Total Offshore Currency Sublimit" means, with respect to the
principal amount of Loans and Letters of Credit outstanding in Offshore
Currencies, the Dollar Equivalent Amount of $20,000,000.
"Total Standby Letter of Credit Commitment" means the Dollar
Equivalent Amount not to exceed $50,000,000.
"Total Tranche A Commitment" means a principal amount equal to
$100,000,000, as reduced from time to time in accordance with Section
2.6.
"Total Tranche B Commitment" means a principal amount equal to
$250,000,000, as reduced from time to time in accordance with Section
2.6.
"Tranche A Commitment" means, with respect to each Lender, the
obligation of such Lender to make Tranche A Loans to the Borrower up to
an aggregate principal amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the Total Tranche A
Commitment.
"Tranche A Loans" means any borrowing pursuant to an Advance
under the Tranche A Revolving Credit Facility.
"Tranche A Notes" means, collectively, the promissory notes of
the Borrower evidencing Tranche A Loans executed and delivered to the
Lenders as provided in Section 2.8(a) substantially in the form of
Exhibit F-1, with appropriate insertions as to amounts, dates and names
of Lenders.
25
"Tranche A Outstandings" means, as of any date of
determination, the aggregate principal amount of all Tranche A Loans
then outstanding.
"Tranche A Revolving Credit Facility" means the facility
described in Section 2.1(a) hereof providing for Loans to the Borrower
by the Lenders in the aggregate principal amount of up to the Total
Tranche A Commitment.
"Tranche A Stated Termination Date" means August 28, 2000.
"Tranche A Termination Date" means (i) the Tranche A Stated
Termination Date or (ii) such earlier date of termination of the
Lenders' obligations pursuant to Section 10.1 upon the occurrence of an
Event of Default, or (iii) such earlier date as the Borrower may
voluntarily and permanently terminate the Tranche A Revolving Credit
Facility by payment in full of all Tranche A Outstandings, together
with all accrued and unpaid interest thereon.
"Tranche B Commitment" means, with respect to each Lender, the
obligation of such Lender to make Tranche B Loans to the Borrower up to
an aggregate principal amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the Total Tranche B
Commitment.
"Tranche B Loans" means any borrowing pursuant to an Advance
under the Tranche B Revolving Credit Facility.
"Tranche B Notes" means, collectively, the promissory notes of
the Borrower evidencing Tranche B Loans executed and delivered to the
Lenders as provided in Section 2.8(b) substantially in the form of
Exhibit F-2, with appropriate insertions as to amounts, dates and names
of Lenders
"Tranche B Outstandings" means as of any date of
determination, the aggregate principal amount of all Tranche B Loans
then outstanding.
"Tranche B Revolving Credit Facility" means the facility
described in Section 2.1(b) hereof providing for Loans to the Borrower
by the Lenders in the aggregate principal amount of up to the Total
Tranche B Commitment.
"Tranche B Stated Termination Date" means August 30, 2002.
"Tranche B Termination Date" means (i) the Tranche B Stated
Termination Date or (ii) such earlier date of termination of the
Lenders' obligations pursuant to Section 10.1 upon the occurrence of an
Event of Default, or (iii) such earlier date as the Borrower may
voluntarily and permanently terminate the Tranche B Revolving Credit
Facility by payment in full of all Tranche B Outstandings and Letter of
Credit Outstandings, together with all accrued and unpaid interest
thereon, and the cancellation or cash collateralization acceptable to
the Applicable Issuing Bank of all Letters of Credit.
26
"Type" shall mean any type of Loan (i.e., a Base Rate Loan,
Offshore Rate Loan or Eurodollar Rate Loan).
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders
of which are ordinarily, in the absence of contingencies, entitled to
vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been
suspended by the happening of such a contingency.
"Wholly-owned Subsidiary" means any Subsidiary all of the
issued and outstanding Voting Securities (other than shares required as
directors' qualifying shares) of which is owned by the Borrower and/or
one or more of its Wholly-owned Subsidiaries.
"Year 2000 Compliant" means all computer applications that are
material to the Borrower's or any of its Subsidiaries' business and
operations will on a timely basis be able to perform properly
date-sensitive functions involving all dates on and after January 1,
2000.
"Year 2000 Problem" means the risk that computer applications
used by the Borrower or any of its Subsidiaries (including those
affected by information received from its suppliers and vendors) may be
unable to recognize and perform properly date-sensitive functions
involving certain dates on and after January 1, 2000.
1.2. Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall
have the meanings assigned to such terms and shall be interpreted in
accordance with GAAP applied on a Consistent Basis.
(b) Each term defined in Articles 1, 8 or 9 of the New York
Uniform Commercial Code shall have the meaning given therein unless
otherwise defined herein, except to the extent that the Uniform
Commercial Code of another jurisdiction is controlling, in which case
such terms shall have the meaning given in the Uniform Commercial Code
of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used
herein or in any other Loan Document are solely for convenience of
reference and shall not constitute a part of any such document or
affect the meaning, construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any
Loan Document to articles, sections, paragraphs, clauses, annexes,
appendices, exhibits and schedules are references to articles,
sections, paragraphs, clauses, annexes, appendices, exhibits and
schedules in or to such Loan Document.
(e) All definitions set forth herein or in any other Loan
Document shall apply to the singular as well as the plural form of such
defined term, and all references to the
27
masculine gender shall include reference to the feminine or neuter
gender, and vice versa, as the context may require.
(f) When used herein or in any other Loan Document, words such
as "hereunder", "hereto", "hereof" and "herein" and other words of like
import shall, unless the context clearly indicates to the contrary,
refer to the whole of the applicable document and not to any particular
article, section, subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting
the generality of any description preceding such term, and for purposes
hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of
specific matters, to matters similar to those specifically mentioned.
(h) Except as otherwise expressly provided, all dates and
times of day specified herein shall refer to such dates and times at
Charlotte, North Carolina.
(i) Whenever interest rates or fees are established in whole
or in part by reference to a numerical percentage expressed as "___%",
such arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Each of the parties to the Loan Documents and their
counsel have reviewed and revised, or requested (or had the opportunity
to request) revisions to, the Loan Documents, and any rule of
construction that ambiguities are to be resolved against the drafting
party shall be inapplicable in the construing and interpretation of the
Loan Documents and all exhibits, schedules and appendices thereto.
(k) Any reference to an officer of the Borrower or any other
Person by reference to the title of such officer shall be deemed to
refer to each other officer of such Person, however titled, exercising
the same or substantially similar functions.
(l) All references to any agreement or document as amended,
modified or supplemented, or words of similar effect, shall mean such
document or agreement, as the case may be, as amended, modified or
supplemented from time to time only as and to the extent permitted
therein and in the Loan Documents.
(m) For all purposes of this Agreement (but not for purposes
of the preparation of any financial statements delivered pursuant
hereto), the equivalent in any Offshore Currency of an amount in
Dollars, and the equivalent in Dollars of an amount in an Offshore
Currency, shall be determined as set forth in the definitions of Dollar
Equivalent Amount and Offshore Currency Equivalent Amount, as
applicable.
28
ARTICLE II
The Credit Facilities
2.1. Tranche A Revolving Credit Facility. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make Advances in
Dollars to the Borrower under the Tranche A Revolving Credit Facility from time
to time from the Closing Date until the Tranche A Termination Date on a pro rata
basis as to the total borrowing requested by the Borrower on any day determined
by such Lender's Applicable Commitment Percentage up to but not exceeding the
Tranche A Commitment of such Lender, provided, however, that the Lenders will
not be required and shall have no obligation to make any such Advance (i) so
long as a Default or an Event of Default has occurred and is continuing or (ii)
if the Agent has accelerated the maturity of any of the Notes as a result of an
Event of Default; provided further, however, that immediately after giving
effect to each such Advance, the amount of Tranche A Outstandings shall not
exceed the Total Tranche A Commitment. Within such limits and subject to the
other terms and conditions of this Agreement, the Borrower may borrow, repay and
reborrow under the Tranche A Revolving Credit Facility on a Business Day from
the Closing Date until, but (as to borrowings and reborrowings) not including,
the Tranche A Termination Date.
2.2. Tranche B Revolving Credit Facility. Subject to the terms and
conditions of this Agreement, each Lender severally agrees to make Advances in
Dollars or an Offshore Currency (as specified in the Borrowing Notice) to the
Borrower under the Tranche B Revolving Credit Facility from time to time from
the Closing Date until the Tranche B Termination Date on a pro rata basis as to
the total borrowing requested by the Borrower on any day determined by such
Lender's Applicable Commitment Percentage up to but not exceeding a Dollar
Equivalent Amount equal to the Tranche B Commitment of such Lender, provided,
however, that the Lenders will not be required and shall have no obligation to
make any such Advance (i) so long as a Default or an Event of Default has
occurred and is continuing or (ii) if the Agent has accelerated the maturity of
any of the Notes as a result of an Event of Default; provided further, however,
that immediately after giving effect to each such Advance, (x) the Dollar
Equivalent Amount of Tranche B Outstandings plus Letter of Credit Outstandings
shall not exceed the Total Tranche B Commitment and (y) the Dollar Equivalent
Amount of Tranche B Outstandings in Offshore Currencies plus the Dollar
Equivalent Amount of Letter of Credit Outstandings in Offshore Currencies shall
not exceed the Total Offshore Currency Sublimit. Within such limits and subject
to the other terms and conditions of this Agreement, the Borrower may borrow,
repay and reborrow under the Tranche B Revolving Credit Facility on a Business
Day from the Closing Date until, but (as to borrowings and reborrowings) not
including, the Tranche B Termination Date. Tranche B Loans in Offshore
Currencies shall be limited to Offshore Rate Loans.
2.3. Amounts. (a) Except as otherwise permitted by the Lenders from
time to time, the amount of Tranche A Outstandings shall not exceed at any time
the Total Tranche A Commitment, and, in the event there shall be outstanding any
such excess, the Borrower shall immediately make such payments and prepayments
as shall be necessary to comply with this restriction. Each Advance under the
Tranche A Revolving Credit Facility shall be in an amount of at least
$5,000,000, and, if greater than $5,000,000, an integral multiple of $1,000,000.
29
(b) Except as otherwise permitted by the Lenders from time to time,
(i) the Dollar Equivalent Amount of Tranche B Outstandings plus Letter of Credit
Outstandings shall not exceed at any time the Total Tranche B Commitment, and
(ii) the Dollar Equivalent Amount of Tranche B Loans in Offshore Currencies plus
the Dollar Equivalent Amount of Letter of Credit Outstandings in Offshore
Currencies shall not exceed the Total Offshore Currency Sublimit, and in the
event there shall be outstanding any such excess, the Borrower shall, in
accordance with the requirements of Section 4.1(c), immediately make such
payments and prepayments or cash collateralizations as shall be necessary to
comply with this restriction. Each Advance under the Tranche B Revolving Credit
Facility, other than Base Rate Refunding Loans, shall be in an amount of at
least $5,000,000 (or the Dollar Equivalent Amount thereof in any Offshore
Currency), and, if greater than $5,000,000, an integral multiple of $1,000,000
(or the Dollar Equivalent Amount thereof in any Offshore Currency).
2.4. Advances. (a) An Authorized Representative shall give the Agent
(i) at least three (3) Business Days' irrevocable telephonic notice of each
Fixed Rate Loan (whether representing an additional borrowing or the
Continuation of a borrowing hereunder or the Conversion of a borrowing hereunder
from a Base Rate Loan to a Eurodollar Rate Loan) prior to 11:00 A.M. and (ii)
irrevocable telephonic notice of each Base Rate Loan (other than Base Rate
Refunding Loans to the extent the same are effected without notice pursuant to
Section 2.4(d) and whether representing an additional borrowing hereunder or the
Conversion of a borrowing hereunder from a Eurodollar Rate Loan to a Base Rate
Loans) prior to 11:00 A.M. on the day of such proposed Loan. Each such notice
shall be effective upon receipt by the Agent, shall specify the amount of the
borrowing, whether the borrowing is under the Tranche A Revolving Credit
Facility or the Tranche B Revolving Credit Facility, the Type of Loan (Base Rate
or Eurodollar Rate if such Loan is requested in Dollars, or Offshore Rate if
such Loan is requested in an Offshore Currency), the date of borrowing, if a
Fixed Rate Loan, the Interest Period to be used in the computation of interest,
and if such Loan is requested in an Offshore Currency, the Offshore Currency in
which the Loan is to be made. The Authorized Representative shall provide the
Agent written confirmation of each such telephonic notice in the form of a
Borrowing Notice or Interest Rate Selection Notice (as applicable) with
appropriate insertions but failure to provide such confirmation shall not affect
the validity of such telephonic notice. Notice of receipt of such Borrowing
Notice or Interest Rate Selection Notice, as the case may be, together with the
amount of each Lender's portion of an Advance requested thereunder, shall be
provided by the Agent to each Lender by telefacsimile transmission with
reasonable promptness, but (provided the Agent shall have received such notice
by 11:00 A.M.) not later than 1:00 P.M. on the same day as the Agent's receipt
of such notice.
(b) At approximately 11:00 A.M. two (2) Business Days preceding the
date specified for each Advance under the Tranche B Revolving Credit Facility in
an Offshore Currency, the Agent shall determine the Advance Date Exchange Rate
and the applicable Offshore Rate. Not later than 11:45 A.M. two (2) Business
Days preceding the date specified for each Advance under the Tranche B Revolving
Credit Facility in an Offshore Currency, the Agent shall provide the Borrower
and each Lender notice by telefacsimile transmission of the Advance Date
Exchange Rate applicable to such Advance, and the applicable Offshore Currency
Equivalent Amount and Dollar Equivalent Amount of such Tranche B Loan or Tranche
B Loans and the applicable Offshore Rate.
30
(c) (i) In the case of Advances in Dollars, not later than 2:00 P.M. on
the date specified for each borrowing under Section 2.1 or 2.2, each Lender
shall, pursuant to the terms and subject to the conditions of this Agreement,
make the amount of the Advance or Advances to be made by it on such day
available by wire transfer to the Agent in the amount of its pro rata share,
determined according to such Lender's Applicable Commitment Percentage of the
Tranche A Loan(s) or Tranche B Loan(s) to be made on such day. Such wire
transfer shall be directed to the Agent at the Principal Office and shall be in
the form of Dollars constituting immediately available funds. The amount so
received by the Agent by 2:00 P.M. shall, subject to the terms and conditions of
this Agreement, be made available to the Borrower on such day (subject to
receipt by 2:00 P.M.) by delivery of the proceeds thereof to the Borrower's
Account or otherwise as shall be directed in the applicable Borrowing Notice by
the Authorized Representative and reasonably acceptable to the Agent.
(ii) In the case of Advances in an Offshore Currency, not later than
10:00 A.M. (local time of the Funding Bank) on the date specified for each
borrowing under Section 2.2, each Lender shall, pursuant to the terms and
subject to the conditions of this Agreement, make the amount of the Tranche B
Loan(s) to be made by it on such day available to the Borrower at the applicable
Funding Bank in the applicable Offshore Currency, to the account of the Agent
with the Funding Bank. The amount so received by the Funding Bank shall, subject
to the terms and conditions of the Loan Documents and upon instruction from the
Agent to the Funding Bank of the same day or immediately preceding day but no
later than 10:00 A.M. (local time of the Funding Bank), be made available in
such Offshore Currency to the Borrower by delivery of the Offshore Currency
Equivalent Amount of such Advance to the Borrower's account with the Funding
Bank.
(d) Notwithstanding the foregoing, if a drawing is made under any
Letter of Credit, such drawing is honored by the Applicable Issuing Bank, and
the Borrower shall not on the same day fully reimburse the Applicable Issuing
Bank in respect of such drawing from other funds available to the Borrower, (i)
provided that the conditions to making a Tranche B Loan as herein provided shall
then be satisfied, the Reimbursement Obligation arising from such drawing shall
be paid to the Applicable Issuing Bank by the Agent without the requirement of
notice to or from the Borrower from immediately available funds which shall be
advanced as a Base Rate Refunding Loan to the Agent at its Principal Office by
each Lender under the Tranche B Revolving Credit Facility in a Dollar Equivalent
Amount equal to such Lender's Applicable Commitment Percentage of such
Reimbursement Obligation, and (ii) if the conditions to making a Tranche B Loan
as herein provided shall not then be satisfied, each of the Lenders shall fund
by payment to the Agent (for the benefit of the Applicable Issuing Bank) at its
Principal Office in immediately available funds the purchase from the Applicable
Issuing Bank of their respective Participations in the related Reimbursement
Obligation based on their respective Applicable Commitment Percentages of the
Total Letter of Credit Commitment. If a drawing is presented under any Letter of
Credit in accordance with the terms thereof and the Borrower shall not on the
same day reimburse the Applicable Issuing Bank in respect thereof, then notice
of such drawing or payment shall be provided promptly by the Applicable Issuing
Bank to the Agent and the Agent shall provide notice to each Lender by telephone
or telefacsimile transmission. If notice to the Lenders of a drawing under any
Letter of Credit is given by the Agent at or before 12:00 noon on any Business
Day, each Lender shall either make a Base Rate Refunding Loan or fund the
purchase of its Participation as specified above in the
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Dollar Equivalent Amount of such Lender's Applicable Commitment Percentage of
such drawing or payment and shall pay such amount to the Agent for the account
of the Applicable Issuing Bank (i) at the Principal Office in Dollars or (ii) at
the applicable Funding Bank in the applicable Offshore Currency, as the case may
be, and in any event, in immediately available funds before 2:30 P.M. on the
same Business Day. If such notice to the Lenders is given by the Agent after
12:00 noon on any Business Day, each Lender shall either make such Base Rate
Refunding Loan or fund such purchase before 12:00 noon on the next following
Business Day.
2.5. Repayment of Loans. The principal amount of each Tranche A Loan
shall be due and payable to the Agent for the benefit of each Lender in full on
the Tranche A Termination Date, or earlier as specifically provided herein. The
principal amount of each Tranche B Loan shall be due and payable to the Agent
for the benefit of each Lender in full on the Tranche B Termination Date, or
earlier as specifically provided herein. The principal amount of any Loan may be
prepaid in whole or in part on any Business Day, together with any amounts due
and payable pursuant to Section 5.5, upon (a) at least three (3) Business Days'
irrevocable telephonic notice in the case of each Fixed Rate Loan from an
Authorized Representative (effective upon receipt) to the Agent prior to 11:00
A.M. and (b) irrevocable telephonic notice in the case of each Base Rate Loan
from an Authorized Representative (effective upon receipt) to the Agent prior to
11:00 A.M. on the day of such proposed repayment. The Authorized Representative
shall provide the Agent written confirmation of each such telephonic notice but
failure to provide such confirmation shall not effect the validity of such
telephonic notice. All prepayments of Tranche A Loans made by the Borrower shall
be in the amount of $5,000,000 or such greater amount which is an integral
multiple of $1,000,000, or the amount equal to all Tranche A Outstandings, or
such other amount as necessary to comply with Section 2.3(a). All prepayments of
Tranche B Loans made by the Borrower shall be in the Dollar Equivalent Amount of
$5,000,000 or such greater Dollar Equivalent Amount which is an integral
multiple of $1,000,000, or the amount equal to all Tranche B Outstandings, or
such other amount as necessary to comply with Section 2.3(b).
2.6. Reductions. (a) The Borrower shall, by notice from an Authorized
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than three (3) Business Days' written
notice to the Agent, effective upon receipt, to reduce the Total Tranche A
Commitment. The Agent shall give each Lender, within one (1) Business Day of
receipt of such notice, telefacsimile notice, or telephonic notice (confirmed in
writing), of such reduction. Each such reduction shall be in the aggregate
amount of $5,000,000 or such greater amount which is in an integral multiple of
$1,000,000, or the entire remaining Total Tranche A Commitment, and shall
permanently reduce the Total Tranche A Commitment. Each reduction of the Total
Tranche A Commitment shall be accompanied by payment of the Tranche A Loans to
the extent that the Tranche A Outstandings exceeds the Total Tranche A
Commitment after giving effect to such reduction, together with accrued and
unpaid interest on the amounts prepaid.
(b) The Borrower shall, by notice from an Authorized Representative,
have the right from time to time but not more frequently than once each calendar
month, upon not less than three (3) Business Days' written notice to the Agent,
effective upon receipt, to reduce the Total Tranche B Commitment; provided that
the Borrower may not reduce the Total Tranche B Commitment to less than the
Dollar Equivalent Amount of Letter of Credit Outstandings at the time of such
reduction.
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The Agent shall give each Lender, within one (1) Business Day of receipt of such
notice, telefacsimile notice, or telephonic notice (confirmed in writing), of
such reduction. Each such reduction shall be in the aggregate amount of
$5,000,000 or such greater amount which is in an integral multiple of
$1,000,000, or the entire remaining Total Tranche B Commitment, and shall
permanently reduce the Total Tranche B Commitment. Each reduction of the Total
Tranche B Commitment shall be accompanied by payment of the Tranche B Loans to
the extent that the Dollar Equivalent Amount of Tranche B Outstandings plus
Letter of Credit Outstandings exceeds the Total Tranche B Commitment after
giving effect to such reduction, together with accrued and unpaid interest on
the amounts prepaid.
2.7. Use of Proceeds. The proceeds of the Loans made pursuant to the
Tranche A Revolving Credit Facility and the Tranche B Revolving Credit Facility
hereunder shall be used by the Borrower for general working capital needs and
other lawful corporate purposes, including the making of Acquisitions and
Capital Expenditures permitted hereunder.
2.8. Notes.
(a) Tranche A Notes. Tranche A Loans made by each Lender shall be
evidenced by the Tranche A Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the Total Tranche A
Commitment, which Tranche A Note shall be dated the Closing Date or a later date
pursuant to an Assignment and Acceptance and shall be duly completed, executed
and delivered by the Borrower.
(b) Tranche B Note. Tranche B Loans made by each Lender shall be
evidenced by the Tranche B Note payable to the order of such Lender in the
respective amount of its Applicable Commitment Percentage of the Total Tranche B
Commitment, which Tranche B Note shall be dated the Closing Date or a later date
pursuant to an Assignment and Acceptance and shall be duly completed, executed
and delivered by the Borrower.
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ARTICLE III
Letters of Credit
3.1. Letters of Credit. Each Issuing Bank agrees, subject to the terms
and conditions of this Agreement, upon request of the Borrower to issue from
time to time for the account of the Borrower, or jointly for the account of the
Borrower and a Designated Subsidiary, Letters of Credit upon delivery to such
Issuing Bank of an Application and Agreement for Letter of Credit relating
thereto in form and content acceptable to such Issuing Bank; provided, that (i)
no Issuing Bank shall be obligated to issue any Letter of Credit if it has been
notified by the Agent or has actual knowledge that a Default or Event of Default
has occurred and is continuing, (ii) the Dollar Equivalent Amount of Commercial
Letter of Credit Outstandings shall not exceed the Total Commercial Letter of
Credit Commitment, (iii) the Dollar Equivalent Amount of Standby Letter of
Credit Outstandings shall not exceed the Total Standby Letter of Credit
Commitment, and (iv) no Letter of Credit shall be issued if, after giving effect
thereto, (a) the Dollar Equivalent Amount of Letter of Credit Outstandings plus
Tranche B Outstandings shall exceed the Total Tranche B Commitment or (b) the
Dollar Equivalent Amount of Tranche B Outstandings in Offshore Currencies plus
Letter of Credit Outstandings in Offshore Currencies shall exceed the Total
Offshore Currency Sublimit. Each Letter of Credit shall be issued upon the
irrevocable written request of the Borrower received by the Applicable Issuing
Bank three Business Days prior to the proposed Date of Issuance; provided,
however, that if a request is received via the Applicable Issuing Bank's
electronic letter of credit system on any Business Day, such Letter of Credit
shall be issued on the next succeeding Business Day on or prior to the hour the
request was received on the preceding Business Day. No Letter of Credit shall
have an expiry date (including all rights of the Borrower or any beneficiary
named in such Letter of Credit to require renewal) or payment date occurring
later than the earlier to occur of one year after the date of its issuance or
the seventh Business Day prior to the Tranche B Stated Termination Date;
provided, however, that Commercial Letters of Credit may have an expiration date
of up to 120 days after the Tranche B Stated Termination Date so long as the
Borrower shall, on the Tranche B Stated Termination Date, deposit cash with the
Agent in the Dollar Equivalent Amount of the Commercial Letter of Credit
Outstandings as collateral security for the repayment of any future drawings or
repayments under such Letters of Credit, and such amounts shall be held by the
Agent pursuant to the terms of the LC Account Agreement.
3.2. Reimbursement and Participations.
(a) The Borrower hereby unconditionally agrees to pay to the
Applicable Issuing Bank immediately on demand at the office of the Applicable
Issuing Bank, in the case of Letters of Credit issued in Dollars, and at the
Funding Bank, in the case of Letters of Credit issued in an Offshore Currency,
all amounts required to pay all drafts drawn or purporting to be drawn under the
Letters of Credit (which shall include Advances under the Tranche B Revolving
Credit Facility if permitted by Section 2.2) and all reasonable expenses
incurred by the Applicable Issuing Bank in connection with the Letters of Credit
issued by it, and in any event and without demand to place in possession of the
Applicable Issuing Bank (which shall include Advances under the Tranche B
Revolving Credit Facility if permitted by Section 2.2) sufficient funds to pay
all debts and liabilities arising under any Letter of Credit issued by such
Issuing Bank. Each Issuing Bank agrees to give
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the Borrower prompt notice of any request for a draw under a Letter of Credit.
The Applicable Issuing Bank may charge any account the Borrower may have with it
for any and all amounts the Applicable Issuing Bank pays under a Letter of
Credit, plus charges and reasonable expenses as from time to time agreed to by
the Applicable Issuing Bank and the Borrower; provided that to the extent
permitted by Section 2.4(d), amounts shall be paid first pursuant to Advances
under the Tranche B Revolving Credit Facility. The Borrower agrees to pay the
Applicable Issuing Bank interest on any Reimbursement Obligations not paid when
due hereunder at the Default Rate.
(b) Each Issuing Bank shall immediately notify the Agent of
any Letter of Credit issued by such Issuing Bank. In accordance with the
provisions of Section 2.4(d), the Applicable Issuing Bank shall notify the Agent
of any drawing under any Letter of Credit promptly following the receipt by the
Applicable Issuing Bank of such drawing.
(c) Each Lender (other than the Applicable Issuing Bank) shall
automatically acquire on the date of issuance thereof, or with respect to
Existing Letters of Credit on the Closing Date, a Participation in the liability
of the Applicable Issuing Bank in respect of each Letter of Credit in an amount
equal to such Lender's Applicable Commitment Percentage of such liability, and
to the extent that the Borrower is obligated to pay the Applicable Issuing Bank
under Section 3.2(a), each Lender (other than the Applicable Issuing Bank)
thereby shall absolutely, unconditionally and irrevocably assume, and shall be
unconditionally obligated to pay to the Applicable Issuing Bank, its Applicable
Commitment Percentage of the liability of the Applicable Issuing Bank under such
Letter of Credit in the manner and with the effect provided in Section 2.4(c).
(d) Simultaneously with the making of each payment by a Lender
to the Applicable Issuing Bank pursuant to Section 2.4(c)(ii), such Lender
shall, automatically and without any further action on the part of the
Applicable Issuing Bank or such Lender, acquire a Participation in an amount
equal to such payment (excluding the portion thereof constituting interest
accrued prior to the date the Lender made its payment) in the related
Reimbursement Obligation of the Borrower. Each Lender's obligation to make
payment to the Agent for the account of the Applicable Issuing Bank pursuant to
Section 2.4(c) and Section 3.2(c), and the right of the Applicable Issuing Bank
to receive the same, shall be absolute and unconditional, shall not be affected
by any circumstance whatsoever and shall be made without any offset, abatement,
withholding or reduction whatsoever. In the event the Lenders have purchased
Participations in any Reimbursement Obligation as set forth above, then at any
time payment (in fully collected, immediately available funds) of such
Reimbursement Obligation, in whole or in part, is received by the Applicable
Issuing Bank from the Borrower, the Applicable Issuing Bank shall promptly pay
to each Lender an amount equal to its Applicable Commitment Percentage of such
payment from the Borrower.
(e) Promptly following the end of each week, each Issuing Bank
shall deliver to the Agent a notice describing the aggregate daily undrawn
amount of all Letters of Credit for each day of such week, including, with
respect to each Letter of Credit issued in an Offshore Currency the date of
issuance thereof and the applicable Offshore Currency. The Agent shall deliver
to each Lender a report on a monthly basis of the aggregate Letter of Credit
Outstandings at the end of each month. Upon the request of any Lender from time
to time, the Applicable Issuing Bank shall deliver
35
to the Agent, and the Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to each Letter of Credit
outstanding.
(f) The issuance by the Applicable Issuing Bank of each Letter
of Credit shall, in addition to the conditions precedent set forth in Article
VI, be subject to the conditions that such Letter of Credit be in such form and
contain such terms as shall be reasonably satisfactory to the Applicable Issuing
Bank consistent with the then current practices and procedures of the Applicable
Issuing Bank with respect to similar letters of credit, and the Borrower shall
have executed and delivered such other instruments and agreements relating to
such Letters of Credit as the Applicable Issuing Bank shall have reasonably
requested consistent with such practices and procedures and shall not be in
conflict with any of the express terms herein contained and to the extent any
such conflict exists, the terms of this Agreement shall govern. All Letters of
Credit shall be issued pursuant to and subject to the Uniform Customs and
Practice for Documentary Credits, 1993 revision, International Chamber of
Commerce Publication No. 500 or, if the Applicable Issuing Bank shall elect by
express reference in an affected Letter of Credit, the International Chamber of
Commerce International Standby Practices commonly referred to as "ISP98", or any
subsequent amendment or revision of either thereof.
(g) The Borrower agrees that the Applicable Issuing Bank may,
in its sole discretion, accept or pay, as complying with the terms of any Letter
of Credit, any drafts or other documents otherwise in order which may be signed
or issued by an administrator, executor, trustee in bankruptcy, debtor in
possession, assignee for the benefit of creditors, liquidator, receiver,
attorney in fact or other legal representative of a party who is authorized
under such Letter of Credit to draw or issue any drafts or other documents.
(h) Without limiting the generality of the provisions of
Section 12.9, the Borrower hereby agrees to indemnify and hold harmless the
Applicable Issuing Bank, each other Lender and the Agent from and against any
and all claims and damages, losses, liabilities, reasonable costs and expenses
which the Applicable Issuing Bank, such other Lender or the Agent may incur (or
which may be claimed against the Applicable Issuing Bank, such other Lender or
the Agent) by any Person by reason of or in connection with the issuance or
transfer of or payment or failure to pay under any Letter of Credit; provided
that the Borrower shall not be required to indemnify the Applicable Issuing
Bank, any other Lender or the Agent for any claims, damages, losses,
liabilities, costs or expenses to the extent, but only to the extent, (i) caused
by the willful misconduct or gross negligence of the party to be indemnified or
(ii) caused by the failure of the Applicable Issuing Bank to pay under any
Letter of Credit after the presentation to it of a request for payment strictly
complying with the terms and conditions of such Letter of Credit, unless such
payment is prohibited by any law, regulation, court order or decree. The
indemnification and hold harmless provisions of this Section 3.2(h) shall
survive repayment of the Obligations, occurrence of the Tranche B Termination
Date and expiration or termination of this Agreement.
(i) Without limiting Borrower's rights as set forth in Section
3.2(h), the obligation of the Borrower to immediately reimburse the Applicable
Issuing Bank for drawings made under Letters of Credit and the Applicable
Issuing Bank's right to receive such payment shall be absolute, unconditional
and irrevocable, and such obligations of the Borrower shall be performed
36
strictly in accordance with the terms of this Agreement and such Letters of
Credit and the related Application and Agreement for any Letter of Credit, under
all circumstances whatsoever, including the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter of
Credit or any other agreement or instrument relating thereto
(collectively, the "Related LC Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related LC Documents;
(iii) the existence of any claim, setoff, defense
(other than the defense of payment in accordance with the
terms of this Agreement) or other rights which the Borrower
may have at any time against any beneficiary or any transferee
of a Letter of Credit (or any persons or entities for whom any
such beneficiary or any such transferee may be acting), the
Agent, the Lenders or any other Person, whether in connection
with the Loan Documents, the Related LC Documents or any
unrelated transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a Letter
of Credit (or any persons or entities for whom such
beneficiary or any such transferee may be acting), the Agent,
the Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid or insufficient (except any draft,
statement or other document which is insufficient on its face)
in any respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by the Agent, with or without notice to or approval
by the Borrower in respect of any of Borrower's Obligations
under this Agreement; or
(vii) any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing.
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ARTICLE IV
Offshore and Eurodollar Funding, Fees, and Payment Conventions
4.1. Utilization of Offshore Currencies. (a) Each request for a Tranche
B Loan or Letter of Credit in an Offshore Currency shall constitute the
Borrower's request for (i) a Tranche B Loan or Letter of Credit, as the case may
be, of the Dollar Equivalent Amount of the amount of the Offshore Currency
specified in such Borrowing Notice or request for a Letter of Credit and (ii)
such Tranche B Loan or Letter of Credit, as the case may be, to be made
available by the Lenders or the applicable Issuing Bank, as the case may be, to
or for the account of the Borrower in the Offshore Currency Equivalent Amount of
such Dollar Equivalent Amount. The principal amount outstanding on any Tranche B
Loan made in an Offshore Currency shall be recorded in the Agent's records in
Dollars as if the Tranche B Loan had initially been made in Dollars, in the
Dollar Equivalent Amount of such Tranche B Loan, as reduced from time to time by
the Dollar Equivalent Amount of any principal payments with respect to such
Tranche B Loan. The principal amount outstanding on any Letter of Credit issued
in an Offshore Currency shall be recorded in the Applicable Issuing Bank's
records in Dollars as if the Letter of Credit had been issued in Dollars in the
Dollar Equivalent Amount of such Letter of Credit, as such amount may be
adjusted as provided in the definition of "Advance Date Exchange Rate". For the
purposes of determining the maximum amount of Tranche B Outstandings hereunder,
it is intended by the parties that all Tranche B Loans shall be the functional
equivalent of Tranche B Loans made and repaid in Dollars and shall be included
in such determination based on their Dollar Equivalent Amount as determined from
time to time as set forth herein. For the purposes of determining the maximum
amount of Letter of Credit Outstandings and Tranche B Outstandings hereunder, it
is intended by the parties that all Letters of Credit shall be the functional
equivalent of Letters of Credit made and repaid in Dollars and shall be included
in such determination based on their Dollar Equivalent Amount as determined from
time to time as set forth herein. It is recognized that some Lenders may elect
to record Offshore Rate Loans in Offshore Currencies. The Agent shall maintain
records (which records, with respect to Letters of Credit, shall be based upon
information furnished to the Agent by the Issuing Banks) sufficient to identify
at any time (i) the Advance Date Exchange Rate with respect to, and Dollar
Equivalent Amount of, each Tranche B Loan and each Letter of Credit issued in an
Offshore Currency and (ii) the portion of Tranche B Outstandings attributable to
each Advance.
(b) The Borrower may elect to Continue an Offshore Rate Loan pursuant
to the terms of Section 4.3(b) and subject to the conditions set forth in this
Section 4.1(b). In the event an Offshore Rate Loan is Continued, such election
to Continue the Offshore Rate Loan shall be treated as an Advance and the Agent
shall notify the Borrower and the Lenders of the new Advance Date Exchange Rate
(determined as provided in the definition thereof), the Interest Period and the
rate for such Continued Offshore Rate Loan. The Lenders shall each be deemed to
have made an Advance to the Borrower of its Applicable Commitment Percentage of
each Tranche B Loan in an Offshore Currency and the Agent shall apply the new
Advance Date Exchange Rate for such new Interest Period to such Continued
Offshore Currency Equivalent Amount to determine the new Dollar Equivalent
Amount of such Tranche B Loan and shall adjust its books and the Tranche B
Outstandings. In the event that such adjustment with respect to a Continued
Tranche B Loan would cause (i) the total Dollar Equivalent Amount of Tranche B
Outstandings plus Letter of Credit
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Outstandings to exceed the Total Tranche B Commitment or (ii) the total Dollar
Equivalent Amount of Tranche B Loans in Offshore Currencies plus Letters of
Credit issued in Offshore Currencies to exceed the Total Offshore Currency
Sublimit, the Borrower shall, immediately on the effective date of such
Continuation, repay (a "Rate Adjustment Payment") the portion of such Tranche B
Loan (applying the new Advance Date Exchange Rate) necessary to ensure that,
giving effect to the Continuation of the Tranche B Loan, (x) the Dollar
Equivalent Amount of all Tranche B Outstandings plus Letter of Credit
Outstandings does not exceed the Total Tranche B Commitment and (y) the Dollar
Equivalent Amount of all Tranche B Outstandings in Offshore Currencies plus
Letters of Credit in Offshore Currencies does not exceed the Total Offshore
Currency Sublimit; provided, however, that the Borrower shall not be required to
pay any additional compensation pursuant to Section 5.5 with respect to a Rate
Adjustment Payment if such Rate Adjustment Payment is made immediately on the
effective date of the Continuation giving rise to such Rate Adjustment Payment
and no notice of such Rate Adjustment Payment shall be required. If the Agent
does not receive an Interest Rate Selection Notice giving notice of election of
the duration of an Interest Period or Continuation of an Offshore Rate Loan by
the time prescribed in Section 2.4(a) or 4.3(b), as applicable, the Borrower
shall be deemed to have elected to repay such Offshore Rate Loan and if such
Offshore Rate Loan is not repaid on the last day of the applicable Interest
Period, together with accrued interest thereon, such Offshore Rate Loan shall be
converted to a Base Rate Loan in the Dollar Equivalent Amount of such Offshore
Rate Loan. The Borrower shall not be entitled to elect to Continue any Offshore
Rate Loan if a Default or Event of Default shall have occurred and be
continuing.
(c) In the event a Letter of Credit issued in an Offshore Currency is
for a term exceeding three (3) months, the Dollar Equivalent Amount of the
corresponding Letter of Credit Outstandings shall be recalculated as of the last
Business Day of each fiscal quarter of the Borrower and the Agent shall notify
the Borrower and the Lenders of the new Advance Date Exchange Rate (determined
as provided in the definition thereof) for such Letter of Credit. The Agent
shall apply the new Advance Date Exchange Rate to determine the new Dollar
Equivalent Amount of such Letter of Credit and shall adjust its books and the
Letter of Credit Outstandings. In the event that such adjustment with respect to
a Letter of Credit causes (x) the Dollar Equivalent Amount of Letter of Credit
Outstandings plus Tranche B Outstandings to exceed the Total Tranche B
Commitment or (y) the Dollar Equivalent Amount of Tranche B Outstandings in
Offshore Currencies plus Letter of Credit Outstandings in Offshore Currencies to
exceed the Total Offshore Currency Sublimit, the Borrower shall immediately make
such payments and prepayments of Tranche B Loans as shall be necessary to comply
with the terms of Section 2.3(b). In the event that such adjustment with respect
to a Letter of Credit does not violate either of the foregoing clauses (x) and
(y) but does cause (i) the total Dollar Equivalent Amount of Standby Letters of
Credit to exceed the Total Standby Letter of Credit Commitment, or (ii) the
total Dollar Equivalent Amount of Commercial Letters of Credit to exceed the
Total Commercial Letter of Credit Commitment, the Borrower shall immediately
deposit cash with the Agent in the Dollar Equivalent Amount of Letter of Credit
Outstandings which violate either of the foregoing clauses (i) or (ii) as
collateral security for the repayment of any future drawings or repayments under
such Letters of Credit, and such amounts shall be held by the Agent pursuant to
the terms of the LC Account Agreement.
39
(d) Without prejudice and in addition to any method of conversion or
rounding prescribed by any EMU Legislation and without prejudice to (i) the
liabilities for Indebtedness of the Borrower to the Lenders (including the
Issuing Banks) under or pursuant to this Agreement or (ii) each Lender's Tranche
B Commitment, any reference in this Agreement to a minimum amount (or an
integral multiple thereof) in a national currency of a Subsequent Participant to
be paid to or by the Agent shall immediately, upon it becoming a Subsequent
Participant, be replaced by a reference to such reasonably comparable amount in
the Euro unit as the Agent may determine based on the applicable exchange rate
of such national currency for the Euro.
(e) The Agent may from time to time further modify the terms of, and
practices contemplated by, this Agreement with respect to the Euro to the extent
the Agent determines, in its reasonable discretion, that such modifications are
necessary or convenient to reflect new laws, regulations, customs or practices
developed in connection with the Euro. The Agent may effect such modifications,
and this Agreement shall be deemed so amended, without the consent of the
Borrower or Lenders to the extent such modifications are not materially
disadvantageous to the Borrowers and the Lenders, upon notice thereto.
4.2. Interest Rate Options. Loans denominated in Dollars may be Base
Rate Loans or Eurodollar Rate Loans. Tranche B Loans denominated in an Offshore
Currency shall be limited to Offshore Rate Loans. Fixed Rate Loans and Base Rate
Loans may be outstanding at the same time and, so long as no Default or Event of
Default shall have occurred and be continuing, the Borrower shall have the
option to elect (i) in the case of Loans made in Dollars, the Type of Loan
(subject to the first sentence of this Section 4.2), (ii) in the case of Fixed
Rate Loans, the duration of the initial and any subsequent Interest Periods and
(iii) to Convert or Continue Loans made in Dollars in accordance with Sections
2.4(a) and 4.3, as applicable (Tranche B Loans made in Offshore Currencies being
subject to Section 4.1(b)); provided, however, (a) there shall not be
outstanding at any one time Fixed Rate Loans having more than ten (10) different
Interest Periods, (b) no Eurodollar Rate Loan under the Tranche A Revolving
Credit Facility shall have an Interest Period that extends beyond the Tranche A
Stated Termination Date and (c) no Fixed Rate Loan under the Tranche B Revolving
Credit Facility shall have an Interest Period that extends beyond the Tranche B
Stated Termination Date. If the Agent does not receive a Borrowing Notice or an
Interest Rate Selection Notice giving notice of election of the duration of an
Interest Period or of Conversion of any Base Rate Loan to a Eurodollar Rate Loan
or Continuation of a Fixed Rate Loan by the time prescribed by Sections 2.4(a)
and 4.3, as applicable, (x) in the case of Loans that are denominated in
Dollars, the Borrower shall be deemed to have elected to obtain or Convert such
Loan to (or Continue such Loan as) a Base Rate Loan until the Borrower notifies
the Agent in accordance with Section 4.3 and (y) in the case of Offshore Rate
Loans, Section 4.1(b) shall apply. The Borrower shall not be entitled to elect
or Continue any Loan as or Convert any Loan into a Fixed Rate Loan if a Default
or Event of Default shall have occurred and be continuing.
4.3. Conversions and Elections of Subsequent Interest Periods. Subject
to the limitations set forth in the definition of "Interest Period" and in
Section 4.2 and Article V, the Borrower may:
40
(a) upon delivery of telephonic notice to the Agent (which shall be
irrevocable) on or before 11:00 A.M. on any Business Day, Convert any Eurodollar
Rate Loan to a Base Rate Loan on the last day of the Interest Period for such
Eurodollar Rate Loan; and
(b) provided that no Default or Event of Default shall have occurred
and be continuing, upon delivery of telephonic notice to the Agent (which shall
be irrevocable on or before 11:00 A.M. three (3) Business Days' prior to the
date of such Conversion or Continuation:
(i) elect a subsequent Interest Period for any Fixed Rate Loan
to begin on the last day of the then current Interest Period for such
Fixed Rate Loan (subject to Section 4.1 with respect to any Offshore
Rate Loan); or
(ii) Convert any Base Rate Loan to a Eurodollar Rate Loan on
any Business Day.
Each such notice shall be effective upon receipt by the Agent, shall specify the
amount of the Fixed Rate Loan affected, the Type of Loan, and, if a Continuation
as or Conversion into a Fixed Rate Loan, the Interest Period to be used in the
computation of interest. The Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice in the form of a Borrowing
Notice or Interest Rate Selection Notice (as applicable) with appropriate
insertions but failure to provide such confirmation shall not affect the
validity of such telephonic notice. Notice of receipt of such Borrowing Notice
or Interest Rate Selection Notice, as the case may be, shall be provided by the
Agent to each Lender by telefacsimile transmission with reasonable promptness,
but (provided the Agent shall have received such notice by 11:00 A.M.) not later
than 3:00 P.M. on the same day as the Agent's receipt of such notice. All such
Continuations or Conversions of Loans shall be effected pro rata based on the
Applicable Commitment Percentages of the Lenders.
4.4. Payment of Interest. The Borrower shall pay interest on the
outstanding and unpaid principal amount of each Loan, commencing on the first
date of such Loan until such Loan shall be repaid, at the applicable Base Rate
or Fixed Rate as designated by the Borrower in the related Borrowing Notice or
Interest Rate Selection Notice or as otherwise provided hereunder. Interest on
each Loan shall be paid on the earlier of (a) in the case of any Base Rate Loan,
quarterly in arrears of the last Business Day of each January, April, July and
October, commencing on October 31, 1999, until the Tranche A Termination Date in
the case of Tranche A Loans and the Tranche B Termination Date in the case of
Tranche B Loans, at which date the entire principal amount of and all accrued
interest on the Loans shall be paid in full, (b) in the case of any Fixed Rate
Loan, on last day of the applicable Interest Period for such Fixed Rate Loan and
if such Interest Period extends for more than three (3) months, at intervals of
three (3) months after the first day of such Interest Period, and (c) upon
payment in full of the related Loan; provided, however, that if any Event of
Default shall occur and be continuing, all amounts outstanding hereunder shall
bear interest thereafter until paid in full at the Default Rate.
4.5. Prepayments of Fixed Rate Loans. Other than a Rate Adjustment
Payment made on the applicable date of Continuation pursuant to Section 4.1,
whenever any payment of principal shall be made in respect of any Loan
hereunder, whether at maturity, on acceleration, by optional or mandatory
prepayment or as otherwise required or permitted hereunder, with the effect that
any
41
Fixed Rate Loan shall be prepaid in whole or in part prior to the last day of
the Interest Period applicable to such Fixed Rate Loan, such payment of
principal shall be accompanied by the additional payment, if any, required by
Section 5.5.
4.6. Manner of Payment. (a) The principal amount of Outstandings shall
be due and payable to the Agent for the benefit of each Lender in full on the
Tranche A Termination Date in the case of Tranche A Loans and the Tranche B
Termination Date in the case of Tranche B Loans and Letters of Credit or earlier
as specifically provided herein. Such principal amount shall be recorded in
Dollars as set forth in Section 4.1. The repayment of such principal amount
shall be made in Dollars if the Loan was made in Dollars. If the Loan was made
in an Offshore Currency, the portion of the Outstandings attributable to each
Advance (or the Continuation thereof) shall be repaid in the same Offshore
Currency as such Advance. If the Letter of Credit was issued in an Offshore
Currency, the Reimbursement Obligations arising thereunder shall be repaid in
the same Offshore Currency in which such Letter of Credit was issued and
drawings thereunder were made. Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid by or on behalf of the Borrower to the Lenders, the Applicable Issuing
Bank or the Agent with respect to any Loan, Letter of Credit, or Reimbursement
Obligation, shall be made to the Agent (i) in the case of Loans made in Dollars,
at the Principal Office in Dollars, (ii) in the case of Letters of Credit issued
in Dollars, at the office of the Applicable Issuing Bank in Dollars and (iii) in
the case of Loans made or Letters of Credit issued in Offshore Currencies, in
the same Offshore Currency at the applicable Funding Bank, in each case, in
immediately available funds without condition or deduction or for any setoff,
recoupment, deduction or counterclaim on or before 12:30 P.M. (local time for
the Funding Bank in the case of Loans made or Letters of Credit issued in
Offshore Currencies) on the date such payment is due. The Borrower shall give
the Agent not less than one (1) Business Day prior written notice of any payment
of principal, such notice to be given prior to 11:00 A.M. and to specify the
date such payment will be made and the Loan to which payment relates. In the
case of Loans made in Dollars, the Agent may, but shall not be obligated to,
debit the amount of such payment from any one or more ordinary deposit accounts
of the Borrower with the Agent.
(b) Any payment made by or on behalf of the Borrower that is not made
both (i) in Dollars in the case of Loans made and Letters of Credit issued in
Dollars or in the required Offshore Currency in the case of Loans made and
Letters of Credit issued in an Offshore Currency, and in immediately available
funds and (ii) prior to 12:30 P.M. (local time for the Funding Bank in the case
of Loans made or Letters of Credit issued in Offshore Currencies) on the date
such payment is to be made shall constitute a non-conforming payment. Any such
non-conforming payment shall not be deemed to be received until the later of (x)
the time such funds become available funds and (y) the next Business Day. Any
non-conforming payment may constitute or become a Default or Event of Default as
otherwise provided herein. Interest shall continue to accrue at the Default Rate
on any principal or fees as to which no payment or a non-conforming payment is
made from the date such amount was due and payable until the later of (A) the
date such funds become available funds or (B) the next Business Day.
(c) In the event that any payment hereunder or under any of the Notes
becomes due and payable on a day other than a Business Day, then such due date
shall be extended to the next
42
succeeding Business Day unless provided otherwise under the definition of
"Interest Period"; provided, however, that interest shall continue to accrue
during the period of any such extension; and provided further, however, that in
no event shall any such due date be extended beyond the Tranche A Termination
Date in the case of Tranche A Loans and the Tranche B Termination Date in the
case of Tranche B Loans or Letters of Credit.
4.7. Fees. (a) Tranche A Facility Fee. For the period beginning on the
Closing Date and ending on the Tranche A Termination Date, the Borrower agrees
to pay to the Agent, for the pro rata benefit of the Lenders based on their
Applicable Commitment Percentages, a Tranche A facility fee equal to the
Applicable Tranche A Facility Fee multiplied by the Total Tranche A Commitment.
Such fees shall be due in arrears on the last Business Day of each January,
April, July and October commencing October 31, 1999 to and on the Tranche A
Termination Date. Notwithstanding the foregoing, so long as any Lender fails to
make available any portion of its Tranche A Commitment when requested, such
Lender shall not be entitled to receive payment of its pro rata share of such
fee until such Lender shall make available such portion.
(b) Tranche B Facility Fee. For the period beginning on the Closing
Date and ending on the Tranche B Termination Date, the Borrower agrees to pay to
the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a Tranche B facility fee equal to the Applicable Tranche
B Facility Fee multiplied by the average daily amount by which the Total Tranche
B Commitment exceeds Commercial Letter of Credit Outstandings. Such fees shall
be due in arrears on the last Business Day of each January, April, July and
October commencing October 31, 1999 to and on the Tranche B Termination Date.
Notwithstanding the foregoing, so long as any Lender fails to make available any
portion of its Tranche B Commitment when requested, such Lender shall not be
entitled to receive payment of its pro rata share of such fee until such Lender
shall make available such portion.
(c) Commercial Letter of Credit Facility Fees. The Borrower shall pay
to the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a fee on the average daily aggregate amount available to
be drawn on each outstanding Commercial Letter of Credit at a rate equal to the
Applicable Commercial Letter of Credit Fee. Such fees shall be due with respect
to each Commercial Letter of Credit quarterly in arrears on the last day of each
January, April, July and October, the first such payment to be made on the first
such date occurring after the date of issuance of a Commercial Letter of Credit.
(d) Standby Letter of Credit Facility Fees. The Borrower shall pay to
the Agent, for the pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, a fee on the average daily aggregate amount available to
be drawn on each outstanding Standby Letter of Credit at a rate equal to the
Applicable Standby Letter of Credit Fee. Such fees shall be due with respect to
each Letter of Credit quarterly in arrears on the last day of each January,
April, July and October, the first such payment to be made on the first such
date occurring after the date of issuance of a Standby Letter of Credit.
(e) Letter of Credit Fronting and Administrative Fees. The Borrower
shall pay to the Applicable Issuing Bank a fronting fee of 0.125 percent per
annum (0.125%) on the aggregate
43
amount available to be drawn on each outstanding Standby Letter of Credit, such
fee to be payable quarterly in arrears with respect to each Standby Letter of
Credit on the dates established in Section 4.7(d) for the payment of Letter of
Credit facility fees with respect to such Standby Letter of Credit. The Borrower
shall also pay to each Applicable Issuing Bank such administrative fee and other
fees, if any, in connection with the Letters of Credit in such amounts and at
such times as the Applicable Issuing Bank and the Borrower shall agree from time
to time.
(f) Agent Fees. The Borrower agrees to pay to the Agent, for the
Agent's individual account, an annual Agent's fee, such fee to be payable in
such amounts and at such dates as from time to time agreed to by the Borrower
and Agent in writing.
4.8. Pro Rata Payments. Except as otherwise specified herein, (a) each
payment on account of the principal of and interest on Loans, the fees described
in Section 4.7(a), (b), (c) and (d), and Reimbursement Obligations as to which
the Lenders have funded their respective Participations which remain
outstanding, shall be made to the Agent for the account of the Lenders pro rata
based on their Applicable Commitment Percentages, and (b) the Agent will
promptly, and in no event later than two (2) Business Days following receipt
thereof, distribute to the Lenders in immediately available funds payments
received in fully collected immediately available funds from the Borrower.
4.9. Computation of Rates and Fees. Except as may be otherwise
expressly provided, (a) interest on Base Rate Loans shall be computed on the
basis of a year of 365/366 days and calculated for the actual of days elapsed
and (b) all other interest rates (including each Fixed Rate and the Default
Rate) and fees shall be computed on the basis of a year of 360 days and
calculated for actual days elapsed.
4.10. Deficiency Advances; Failure to Purchase Participations. No
Lender shall be responsible for any default of any other Lender with respect to
such other Lender's obligation to make any Loan or Advance hereunder or to fund
its purchase of any Participation hereunder nor shall the Tranche A Commitment,
Tranche B Commitment, Commercial Letter of Credit Commitment or Standby Letter
of Credit Commitment of any Lender hereunder be increased as a result of such
default of any other Lender. Without limiting the generality of the foregoing or
the provisions of Section 4.11, in the event any Lender shall fail to advance
funds to the Borrower as herein provided, the Agent may in its discretion, but
shall not be obligated to, advance under the applicable Note in its favor as a
Lender all or any portion of such amount or amounts (each, a "deficiency
advance") and shall thereafter be entitled to payments of principal of and
interest on such deficiency advance in the same manner and at the same interest
rate or rates to which such other Lender would have been entitled had it made
such Advance under its Note; provided that, (i) such defaulting Lender shall not
be entitled to receive payments of principal, interest or fees with respect to
such deficiency advance (together with interest thereon as provided in clause
(ii)) until such deficiency advance shall be paid by such Lender and (ii) upon
payment to the Agent from such other Lender of the entire outstanding amount of
each such deficiency advance, together with accrued and unpaid interest thereon,
from the most recent date or dates interest was paid to the Agent by the
Borrower on each Loan comprising the deficiency advance at the Federal Funds
Rate, then such payment shall be credited against the applicable Note of the
Agent in full payment of such deficiency advance and
44
such Borrower shall be deemed to have borrowed the amount of such deficiency
advance from such other Lender as of the most recent date or dates, as the case
may be, upon which any payments of interest were made by such Borrower thereon.
In the event any Lender shall fail to fund its purchase of a Participation after
notice from the Applicable Issuing Bank, such Lender shall pay to the Applicable
Issuing Bank, such amount on demand, together with interest at the Federal Funds
Rate on the amount so due from the date of such notice to the date such purchase
price is received by the Applicable Issuing Bank.
4.11. Intraday Funding. Without limiting the provisions of Section
4.10, unless the Borrower or any Lender has notified the Agent not later than
12:00 Noon of the Business Day before the date any payment (including in the
case of Lenders any Advance) to be made by it is due, that it does not intend to
remit such payment, the Agent may, in its discretion, assume that the Borrower
or each Lender, as the case may be, has timely remitted such payment in the
manner required hereunder and may, in its discretion and in reliance thereon,
make available such payment (or portion thereof) to the Person entitled thereto
as otherwise provided herein. If such payment was not in fact remitted to the
Agent in the manner required hereunder, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Agent the amount of such assumed
payment made available to such Lender, together with interest thereon
in respect of each day from and including the date such amount was made
available by the Agent to such Lender to the date such amount is repaid
to the Agent at the Federal Funds Rate.
(ii) if any Lender failed to made such payment, the Agent
shall be entitled to recover such corresponding amount forthwith upon
the Agent's demand therefor, the Agent shall promptly notify the
Borrower, and the Borrower shall promptly pay such corresponding amount
to the Agent in immediately available funds upon receipt of such
demand. The Agent also shall be entitled to recover interest on such
corresponding amount in respect of each day from the date such
corresponding amount was made available by the Agent to the Borrower to
the date such corresponding amount is recovered by the Agent, (A) from
such Lender at a rate per annum equal to the daily Federal Funds Rate
or (B) from the Borrower, at a rate per annum equal to the interest
rate applicable to the Loan which includes such corresponding amount.
Until the Agent shall recover such corresponding amount together with
interest thereon, such corresponding amount shall constitute a
deficiency advance within the meaning of Section 4.10. Nothing herein
shall be deemed to relieve any Lender from its obligation to fulfill
its commitments hereunder or to prejudice any rights which the Agent or
the Borrower may have against any Lender as a result of any default by
such Lender hereunder.
45
ARTICLE V
Change in Circumstances
5.1. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation,
or any change in the interpretation or administration thereof by any
Governmental Authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or any
Issuing Bank (or their respective Applicable Lending Offices) with any request
or directive (whether or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency:
(i) shall subject such Lender or Issuing Bank (or their
respective Applicable Lending Offices) to any tax, duty, or other
charge with respect to any Fixed Rate Loans, its Note, or its
obligation to make Fixed Rate Loans, or its obligation to participate
in any Offshore Letters of Credit, or in the case of any Issuing Bank,
its obligation to issue or maintain any Offshore Letter of Credit or of
funding any drawing under any Offshore Letter of Credit, or change the
basis of taxation of any amounts payable to such Lender or Issuing Bank
(or their respective Applicable Lending Offices) under this Agreement
or its Note in respect of any Fixed Rate Loans or its obligation to
participate in any Offshore Letters of Credit, or in the case of any
Issuing Bank, its obligation to issue or maintain any Offshore Letter
of Credit or of funding any drawing under any Offshore Letter of Credit
(other than taxes imposed on the overall net income or gross receipts
of such Lender or Issuing Bank by the jurisdiction in which such Lender
or Issuing Bank has its principal office or such Applicable Lending
Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar requirement (other
than the Reserve Requirement utilized in the determination of the
Eurodollar Rate and the Offshore Rate) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities or
commitments of, such Lender or Issuing Bank (or their respective
Applicable Lending Offices), including the Tranche A Commitment and the
Tranche B Commitment of such Lender hereunder; or
(iii) shall impose on such Lender or Issuing Bank (or
their respective Applicable Lending Offices) or on the London (or other
applicable offshore) interbank market any other condition affecting
this Agreement or its Note or any Offshore Letter of Credit or any of
such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender or
Issuing Bank (or their respective Applicable Lending Offices) of making,
Converting into, Continuing, or maintaining any Loans or to reduce any sum
received or receivable by such Lender or Issuing Bank (or their respective
Applicable Lending Offices) under this Agreement or its Note with respect to any
Fixed Rate Loans or any Offshore Letters of Credit, then the Borrower shall pay
to such Lender or Issuing Bank on demand such amount or amounts as will
compensate such Lender or Issuing Bank for such
46
increased cost or reduction; provided, that the Borrower shall not be obligated
to reimburse any Lender or Issuing Bank for any cost incurred pursuant to this
Section 5.1 more than 120 days prior to notice to the Borrower of the incurrence
of such cost except that if any change or compliance requirement described in
this Section 5.1 shall have a retroactive application, the Borrower shall be
obligated to make such reimbursement with respect to such retroactive effect, if
such Lender shall give the Borrower notice thereof within 30 days of such
Lender's having notice thereof. If any Lender or Issuing Bank requests
compensation by the Borrower under this Section 5.1(a), the Borrower may, by
notice to such Lender or such Issuing Bank (with a copy to the Agent), suspend
the obligation of such Lender to make or Continue Loans of the Type with respect
to which such compensation is requested, or to Convert Loans of any other Type
into Loans of such Type, until the event or condition giving rise to such
request ceases to be in effect (in which case the provisions of Section 5.4
shall be applicable) and suspend the obligation of such Issuing Bank to issue
Offshore Letters of Credit with respect to which compensation is requested;
provided that no such suspensions shall affect the right of such Lender or
Issuing Bank to receive the compensation so requested.
(b) If, after the date hereof, any Lender or Issuing Bank shall have
determined that the adoption of any applicable law, rule, or regulation
regarding capital adequacy or any change therein or in the interpretation or
administration thereof by any Governmental Authority, central bank, or
comparable agency charged with the interpretation or administration thereof, or
any request or directive regarding capital adequacy (whether or not having the
force of law) of any such governmental authority, central bank, or comparable
agency, has or would have the effect of reducing the rate of return on the
capital of such Lender or Issuing Bank or any corporation controlling such
Lender or Issuing Bank as a consequence of such Lender's or Issuing Bank's
obligations hereunder to a level below that which such Lender, Issuing Bank or
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time upon demand the Borrower shall pay to such
Lender or Issuing Bank such additional amount or amounts as will compensate such
Lender or Issuing Bank for such reduction.
(c) Each Lender and Issuing Bank shall promptly notify the Borrower and
the Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Lender or such Issuing Bank to compensation
pursuant to this Section 5.1 and will designate a different Applicable Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Lender or such Issuing
Bank, be otherwise disadvantageous to it. Any Lender or Issuing Bank claiming
compensation under this Section 5.1 shall furnish to the Borrower and the Agent
a statement setting forth the additional amount or amounts to be paid to it
hereunder which shall be conclusive in the absence of manifest error. In
determining such amount, such Lender or Issuing Bank may use any reasonable
averaging and attribution methods.
5.2. Limitation on Types of Loans. If on or prior to the first day of
any Interest Period for any Fixed Rate Loan:
47
(a) the Agent determines (which determination shall be
conclusive) that by reason of circumstances affecting the relevant
market, adequate and reasonable means do not exist for ascertaining the
Fixed Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall
be conclusive) and notify the Agent that the Fixed Rate will not
adequately and fairly reflect the cost to the Lenders of funding Fixed
Rate Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
5.3. Illegality. Notwithstanding any other provision of this Agreement,
in the event that it becomes unlawful for any Lender or Issuing Bank or their
respective Applicable Lending Offices to make, maintain, or fund Fixed Rate
Loans hereunder or for any Issuing Bank to issue or maintain any Offshore
Letters of Credit or of funding any drawing under any Offshore Letter of Credit,
then such Lender or Issuing Bank shall promptly notify the Borrower thereof and
such Lender's obligation to make or Continue Fixed Rate Loans and to Convert
other Types of Loans into Fixed Rate Loans shall be suspended until such time as
such Lender may again make, maintain, and fund Fixed Rate Loans (in which case
the provisions of Section 5.4 shall be applicable) and such Issuing Bank's
obligation to issue any such Offshore Letters of Credit shall be suspended until
such time as such Issuing Bank may again issue and maintain such Offshore
Letters of Credit affected by such illegality.
5.4. Treatment of Affected Loans. If the obligation of any Lender to
make a Fixed Rate Loan or to Continue, or to Convert Loans of any other Type
into, Loans of a particular Type shall be suspended pursuant to Section 5.1 or
5.3 hereof (Loans of such Type being herein called "Affected Loans" and such
Type being herein called the "Affected Type"), such Lender's Affected Loans
shall be automatically Converted into Base Rate Loans in the Dollar Equivalent
Amount of such Affected Loans on the last day(s) of the then current Interest
Period(s) for Affected Loans (or, in the case of a Conversion required by
Section 5.3 hereof, on such earlier date as such Lender may specify to the
Borrower with a copy to the Agent) and, unless and until such Lender gives
notice as provided below that the circumstances specified in Section 5.1 or 5.3
hereof that gave rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been
so Converted, all payments and prepayments of principal that would
otherwise be applied to such Lender's Affected Loans shall be applied
instead to its Base Rate Loans; and
(b) all Loans that would otherwise be made or Continued by
such Lender as Loans of the Affected Type shall be made or Continued
instead as Base Rate Loans, and all Loans
48
of such Lender that would otherwise be Converted into Loans of the
Affected Type shall be Converted instead into (or shall remain as) Base
Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 5.1 or 5.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this Section 5.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
(i) in the case of Affected Loans originally made in Dollars, Converted and (ii)
in the case of Affected Loans originally made in an Alternative Currency,
converted into the Alternative Currency Equivalent Amount, on the first day(s)
of the next succeeding Interest Period(s) for such outstanding Loans of the
Affected Type, to the extent necessary so that, after giving effect thereto, all
Loans held by the Lenders holding Loans of the Affected Type and by such Lender
are held pro rata (as to principal amounts, Types, currency denomination and
Interest Periods) in accordance with their respective Tranche A Commitments and
Tranche B Commitments.
5.5. Compensation. Upon the request of any Lender, the Borrower shall
pay to such Lender such amount or amounts as shall be sufficient (in the
reasonable opinion of such Lender) to compensate it for any loss, cost, or
expense (including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Fixed Rate
Loan for any reason (including, without limitation, the acceleration of
the Loans pursuant to Section 10.1) on a date other than the last day
of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including,
without limitation, the failure of any condition precedent specified in
Article VI to be satisfied) to borrow, Convert, Continue, or prepay a
Fixed Rate Loan on the date for such borrowing, Conversion,
Continuation, or prepayment specified in the relevant notice of
borrowing, prepayment, Continuation, or Conversion under this
Agreement.
5.6. Taxes. (a) Any and all payments by the Borrower to or for the
account of any Lender or the Agent hereunder or under any other Loan Document
shall be made free and clear of and without deduction for any and all present or
future taxes, duties, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case of each Lender and
the Agent, taxes imposed on its income or its receipts, and franchise taxes
imposed on it, by the jurisdiction under the laws of which such Lender (or its
Applicable Lending Office) or the Agent (as the case may be) is organized or any
political subdivision thereof (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by law to deduct any
Taxes from or in respect of any sum payable under this Agreement or any other
Loan Document to any Lender or the Agent, (i) the sum payable shall be increased
as necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 5.6) such Lender or the
Agent receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount
49
deducted to the relevant taxation authority or other authority in accordance
with applicable law, and (iv) the Borrower shall furnish to the Agent, at its
address referred to in Section 12.2, the original or a certified copy of a
receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under this Agreement
or any other Loan Document or from the execution or delivery of, or otherwise
with respect to, this Agreement or any other Loan Document (hereinafter referred
to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the
full amount of Taxes and Other Taxes (including, without limitation, any Taxes
or Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 5.6) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter if requested in writing by the Borrower
or the Agent (but only so long as such Lender remains lawfully able to do so),
shall provide the Borrower and the Agent with (i) Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces to zero
the rate of withholding tax on payments of interest or certifying that the
income receivable pursuant to this Agreement is effectively connected with the
conduct of a trade or business in the United States, (ii) Internal Revenue
Service Form W-8 or W-9, as appropriate, or any successor form prescribed by the
Internal Revenue Service, and (iii) any other form or certificate required by
any taxing authority (including any certificate required by Sections 871(h) and
881(c) of the Internal Revenue Code), certifying that such Lender is entitled to
an exemption from or a reduced rate of tax on payments pursuant to this
Agreement or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide
the Borrower and the Agent with the appropriate form pursuant to Section 5.6(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under Section 5.6(a) or
5.6(b) with respect to Taxes imposed by the United States; provided, however,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for the
account of any Lender pursuant to this Section 5.6, then such Lender will agree
to use reasonable efforts to
50
change the jurisdiction of its Applicable Lending Office so as to eliminate or
reduce any such additional payment which may thereafter accrue if such change,
in the judgment of such Lender, is not otherwise disadvantageous to such Lender.
(g) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(h) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 5.6 shall survive the termination of the Tranche A Commitments and
the Tranche B Commitments and the payment in full of the Notes.
51
ARTICLE VI
Conditions to Making Loans and Issuing Letters of Credit
6.1. Conditions of Initial Advance. The obligation of the Lenders to
make the initial Advance under the Tranche A Revolving Credit Facility and the
Tranche B Revolving Credit Facility, and of the Issuing Banks to issue any
Letter of Credit (other than Existing Letters of Credit), is subject to the
conditions precedent that:
(a) the Agent shall have received on the Closing Date, in form
and substance satisfactory to the Agent, the following:
(i) executed originals of each of this Agreement,
the Notes, the LC Account Agreement, the other Loan Documents,
together with all schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with
respect to the Loan Documents and the transactions
contemplated thereby of special counsel to the Borrower dated
the Closing Date, addressed to the Agent and the Lenders and
satisfactory to ▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P., special
counsel to the Agent, substantially in the form of Exhibit G;
(iii) resolutions of the boards of directors or other
appropriate governing body (or of the appropriate committee
thereof) of the Borrower certified by its secretary or
assistant secretary as of the Closing Date, approving and
adopting the Loan Documents, and authorizing the execution and
delivery thereof;
(iv) specimen signatures of officers or other
appropriate representatives executing the Loan Documents on
behalf of the Borrower, certified by the secretary or
assistant secretary of the Borrower;
(v) the Organizational Documents of the Borrower
certified as of a recent date by the Secretary of State of its
state of organization;
(vi) Operating Documents of the Borrower certified as
of the Closing Date as true and correct by its secretary or
assistant secretary;
(vii) certificate issued as of a recent date by the
Secretary of State of the jurisdiction of formation of the
Borrower as to the due existence and good standing of the
Borrower;
(viii) notice of appointment of the initial
Authorized Representative(s);
52
(ix) certificate of an Authorized Representative
dated the Closing Date demonstrating compliance with the
financial covenants contained in Sections 9.1(a) through
9.1(c) as of the end of the fiscal quarter most recently ended
prior to the Closing Date, substantially in the form of
Exhibit H;
(x) an initial Borrowing Notice, if any, and, if
elected by the Borrower, Interest Rate Selection Notice;
(xi) a certificate of an Authorized Representative as
to the occurrence or truthfulness, as applicable, of the
matters set forth in Section 6.1(b);
(xii) evidence that all notices required to be given
to terminate the Existing Credit Agreement in accordance with
its terms have been delivered;
(xiii) evidence of repayment of all amounts due under
the Existing Credit Agreement as of the Closing Date (other
than the Existing Letters of Credit);
(xiv) evidence of termination of the Existing Credit
Agreement;
(xv) evidence that all fees payable by the Borrower
on the Closing Date to the Agent, BAS and the Lenders have
been paid in full;
(xvi) such other documents, instruments, certificates
and opinions as the Agent or any Lender may reasonably request
on or prior to the Closing Date in connection with the
consummation of the transactions contemplated hereby; and
(b) Each of the following shall have occurred or be true, in
the good faith judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to
the Agent or the Lenders any event, condition, situation or
status since April 30, 1999 that has had or could reasonably
be expected to result in a Material Adverse Effect;
(ii) no litigation, action, suit, investigation or
other arbitral, administrative or judicial proceeding shall be
pending or threatened which could reasonably be likely to
result in a Material Adverse Effect;
(iii) the Borrower shall have received all approvals,
consents and waivers, and shall have made or given all
necessary filings and notices as shall be required to
consummate the transactions contemplated hereby without the
occurrence of any default under, conflict with or violation of
(A) any applicable law, rule, regulation, order or decree of
any Governmental Authority or arbitral authority or (B) any
agreement, document or instrument to which the Borrower is a
party or by which it or its properties is bound, except for
such approvals,
53
consents, waivers, filings and notices the receipt, making or
giving of which will not have a Material Adverse Effect;
(iv) the Borrower shall have paid in full all amounts
owing under the Existing Credit Agreement and all obligations
related thereto (other than the Existing Letters of Credit);
(v) the Agent and the Lenders shall have received and
reviewed, with results satisfactory to the Agent and the
Lenders, information confirming that (a) the Borrower and its
Subsidiaries are taking all necessary and appropriate steps to
ascertain the extent of, and to quantify and successfully
address, business and financial risks facing the Borrower and
its Subsidiaries as a result of the Year 2000 Problem,
including risks resulting from the failure of key vendors and
customers of the Borrower and its Subsidiaries to successfully
address the Year 2000 Problem and (b) the Borrower's and its
Subsidiaries' material computer applications and those of its
material vendors and customers will, not later than October
31, 1999, adequately address the Year 2000 Problem in all
material respects.
6.2. Conditions of Loans and Letters of Credit. The obligations of the
Lenders to make any Loans, and the Issuing Banks to issue Letters of Credit,
hereunder on or subsequent to the Closing Date are subject to the satisfaction
of the following conditions:
(a) the Agent shall have received a Borrowing Notice if
required by Article II;
(b) the representations and warranties of the Borrower set
forth in Article VII and in each of the other Loan Documents shall be
true and correct in all material respects on and as of the date of such
Advance or Letter of Credit issuance or renewal, with the same effect
as though such representations and warranties had been made on and as
of such date, except to the extent that such representations and
warranties expressly relate to an earlier date and except that the
financial statements referred to in Section 7.5(a) shall be deemed
(solely for the purpose of the representation and warranty contained in
such Section 7.5(a) but not for the purpose of any cross reference to
such Section 7.5(a) or to the financial statements described therein
contained in any other provision of Section 7.5 or elsewhere in Article
VII) to be those financial statements most recently delivered to the
Agent and the Lenders pursuant to Section 8.1 from the date financial
statements are delivered to the Agent and the Lenders in accordance
with such Section;
(c) in the case of the issuance of a Letter of Credit, the
Borrower and the Designated Subsidiary, if applicable, shall have
executed and delivered to the Applicable Issuing Bank an Application
and Agreement for Letter of Credit in form and content acceptable to
the Applicable Issuing Bank together with such other instruments and
documents as it shall request;
54
(d) at the time of (and after giving effect to) each Advance
or the issuance of a Letter of Credit, no Default or Event of Default
specified in Article X shall have occurred and be continuing; and
(e) immediately after giving effect to:
(i) a Tranche A Loan, the aggregate principal balance
of all outstanding Tranche A Loans for each Lender and in the
aggregate shall not exceed, respectively, (X) such Lender's
Tranche A Commitment or (Y) the Total Tranche A Commitment;
(ii) a Tranche B Loan, the Dollar Equivalent Amount
of the aggregate principal balance of all outstanding Tranche
B Loans for each Lender shall not exceed such Lender's Tranche
B Commitment;
(iii) a Commercial Letter of Credit or renewal
thereof, the Dollar Equivalent Amount of the aggregate
principal balance of all outstanding Participations in
Commercial Letters of Credit and the related Reimbursement
Obligations (or in the case of the Applicable Issuing Bank,
its remaining interest after deduction of all Participations
in Commercial Letters of Credit and the related Reimbursement
Obligations) for each Lender and in the aggregate shall not
exceed, respectively, (X) such Lender's Commercial Letter of
Credit Commitment or (Y) the Total Commercial Letter of Credit
Commitment;
(iv) a Standby Letter of Credit or renewal thereof,
the Dollar Equivalent Amount of the aggregate principal
balance of all outstanding Participations in Standby Letters
of Credit and the related Reimbursement Obligations (or in the
case of the Applicable Issuing Bank, its remaining interest
after deduction of all Participations in Standby Letters of
Credit and the related Reimbursement Obligations) for each
Lender and in the aggregate shall not exceed, respectively,
(X) such Lender's Standby Letter of Credit Commitment or (Y)
the Total Standby Letter of Credit Commitment;
(v) a Tranche B Loan or a Letter of Credit or renewal
thereof, the sum of the Dollar Equivalent Amount of Letter of
Credit Outstandings plus the Dollar Equivalent Amount of
Tranche B Outstandings shall not exceed the Total Tranche B
Commitment;
(vi) a Tranche B Loan or a Letter of Credit
denominated in an Offshore Currency, the Dollar Equivalent
Amount of Outstandings in Offshore Currencies shall not exceed
the Total Offshore Currency Sublimit.
55
ARTICLE VII
Representations and Warranties
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
7.1. Organization and Authority.
(a) The Borrower and each Material Subsidiary is a corporation
duly organized and validly existing under the laws of the jurisdiction
of its formation;
(b) The Borrower and each Material Subsidiary (x) has the
requisite power and authority to own its properties and assets and to
carry on its business as now being conducted and as contemplated in the
Loan Documents, and (y) is qualified to do business in every
jurisdiction in which failure so to qualify would have a Material
Adverse Effect;
(c) The Borrower has the power and authority to execute,
deliver and perform this Agreement and the Notes, and to borrow
hereunder, and to execute, deliver and perform each of the other Loan
Documents to which it is a party; and
(d) When executed and delivered, each of the Loan Documents to
which the Borrower is a party will be the legal, valid and binding
obligation or agreement, as the case may be, of the Borrower,
enforceable against the Borrower in accordance with its terms, subject
to the effect of any applicable bankruptcy, moratorium, insolvency,
reorganization or other similar law affecting the enforceability of
creditors' rights generally and to the effect of general principles of
equity (whether considered in a proceeding at law or in equity).
7.2. Loan Documents. The execution, delivery and performance by the
Borrower of each of the Loan Documents to which it is a party:
(a) have been duly authorized by all requisite Organizational
Action of the Borrower required for the lawful execution, delivery and
performance thereof;
(b) do not violate any provisions of (i) applicable law, rule
or regulation, (ii) any judgment, writ, order, determination, decree or
arbitral award of any Governmental Authority or arbitral authority
binding on the Borrower or its properties, or (iii) the Organizational
Documents or Operating Documents of the Borrower;
(c) does not and will not be in conflict with, result in a
breach of or constitute an event of default, or an event which, with
notice or lapse of time or both, would constitute an event of default,
under any contract, indenture, agreement or other
56
instrument or document to which the Borrower is a party, or by which
the properties or assets of the Borrower are bound; and
(d) does not and will not result in the creation or imposition
of any Lien upon any of the properties or assets of the Borrower or any
Subsidiary.
7.3. Subsidiaries and Stockholders. The Borrower has no Subsidiaries
other than those Persons listed as Subsidiaries in Schedule 7.3 and additional
Subsidiaries created or acquired after the Closing Date; Schedule 7.3 identifies
the Material Subsidiaries, states as of the date hereof the organizational form
of each entity, the authorized and issued capitalization of each Subsidiary
listed thereon, the number of shares or other equity interests of each class of
capital stock or interest issued and outstanding of each such Subsidiary and the
number and/or percentage of outstanding shares or other equity interest
(including options, warrants and other rights to acquire any interest) of each
such class of capital stock or other equity interest owned by Borrower or by any
such Subsidiary; the outstanding shares or other equity interests of each such
Subsidiary have been duly authorized and validly issued and are fully paid and
non assessable; and Borrower and each such Subsidiary owns beneficially and of
record all the shares and other interests it is listed as owning in Schedule
7.3, free and clear of any Lien.
7.4. Ownership Interests. Borrower owns no interest in any Person other
than the Persons listed in Schedule 7.3, equity investments in Persons not
constituting Subsidiaries permitted under Section 9.6 and additional
Subsidiaries created or acquired after the Closing Date.
7.5. Financial Condition.
(a) The Borrower has heretofore furnished to each Lender an
audited consolidated balance sheet of the Borrower and its Subsidiaries
as at April 30, 1999, and the notes thereto and the related
consolidated statements of earnings, shareowners' equity and cash flows
for the Fiscal Year then ended as examined and certified by
PriceWaterhouseCoopers LLP. Except as set forth therein, such financial
statements (in cluding the notes thereto) present fairly the financial
condition of the Borrower and its Subsidiaries as of the end of such
Fiscal Year and results of their operations and the changes in its
shareowners' equity for the Fiscal Year then ended, all in conformity
with GAAP applied on a Consistent Basis;
(b) since the later of (i) the date of the audited financial
statements delivered pursuant to Section 7.5(a) hereof or (ii) the date
of the audited financial statements most recently delivered pursuant to
Section 8.1(a) hereof, there has been no event, condition, failure of
condition or occurrence which could reasonably be likely to have a
Material Adverse Effect; and
(c) except as set forth in the financial statements referred
to in Section 7.5(a) or in Schedule 7.5 or permitted by Section 9.4,
neither Borrower nor any Subsidiary has incurred, other than in the
ordinary course of business, any material Indebtedness,
57
Contingent Obligation or other commitment or liability which remains
outstanding or unsatisfied.
7.6. Title to Properties. The Borrower and each of its Material
Subsidiaries has good and marketable title to all its real and personal
properties, subject to no transfer restrictions or Liens of any kind, except for
the transfer restrictions and Liens described in Schedule 7.6 and Liens
permitted by Section 9.3.
7.7. Taxes. Except as set forth in Schedule 7.7, the Borrower and each
of its Subsidiaries has filed or caused to be filed all federal, state and local
tax returns which are required to be filed by it and, except for taxes and
assessments being contested in good faith by appropriate proceedings diligently
conducted and against which reserves reflected in the financial statements
described in Section 7.5(a) or Sections 8.1(a) or (b) and satisfactory to the
Borrower's independent certified public accountants have been established, have
paid or caused to be paid all taxes as shown on said returns or on any
assessment received by it, to the extent that such taxes have become due.
7.8. Other Agreements. Neither the Borrower nor any Subsidiary is
(a) a party to or subject to any judgment, order, decree,
agreement, lease or instrument, or subject to other restrictions, which
individually or in the aggregate could reasonably be expected to have a
Material Adverse Effect; or
(b) in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in any
agreement or instrument to which the Borrower is a party, which default
has, or if not remedied within any applicable grace period could
reasonably be likely to have, a Material Adverse Effect.
7.9. Litigation. Except as set forth in Schedule 7.9, there is no
action, suit, investigation or proceeding at law or in equity or by or before
any governmental instrumentality or agency or arbitral body pending, or, to the
knowledge of the Borrower, threatened by or against the Borrower or any Material
Subsidiary or affecting the Borrower or any Material Subsidiary or any
properties or rights of the Borrower or any Subsidiary, which could reasonably
be likely to have a Material Adverse Effect.
7.10. Margin Stock. The proceeds of the borrowings made hereunder will
be used by the Borrower only for the purposes expressly authorized herein. None
of such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement as a "purpose credit" within the meaning of said Regulation
U or Regulation X (12 C.F.R. Part 221) of the Board. Neither the Borrower nor
any agent acting in its behalf has taken or will take any action which might
cause this Agreement or any of the documents or instruments delivered pursuant
hereto to violate any regulation of the Board or to violate the Securities
58
Exchange Act of 1934, as amended, or the Securities Act of 1933, as amended, or
any state securities laws, in each case as in effect on the date hereof.
7.11. Investment Company. Neither the Borrower nor any Subsidiary is an
"investment company," or an "affiliated person" of, or "promoter" or "principal
underwriter" for, an "investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (15 U.S.C. ss. 80a-1, et seq.). The
application of the proceeds of the Loans and repayment thereof by the Borrower
and the performance by the Borrower of the transactions contemplated by the Loan
Documents will not violate any provision of said Act, or any rule, regulation or
order issued by the Securities and Exchange Commission thereunder, in each case
as in effect on the date hereof.
7.12. Patents, Etc. The Borrower and each Subsidiary owns or has the
right to use, under valid license agreements or otherwise, all material patents,
licenses, franchises, trademarks, trademark rights, trade names, trade name
rights, trade secrets and copyrights necessary to or used in the conduct of its
businesses as now conducted and as contemplated by the Loan Documents, without
known conflict with any patent, license, franchise, trademark, trade secret,
trade name, copyright, other proprietary right of any other Person.
7.13. No Untrue Statement. Neither (a) this Agreement nor any other
Loan Document or certificate or document executed and delivered by or on behalf
of the Borrower or any Subsidiary in accordance with or pursuant to any Loan
Document nor (b) any statement, representation, or warranty provided to the
Agent in connection with the negotiation or preparation of the Loan Documents
contains any misrepresentation or untrue statement of material fact or omits to
state a material fact necessary, in light of the circumstance under which it was
made, in order to make any such warranty, representation or statement contained
therein not misleading.
7.14. No Consents, Etc. Neither the respective businesses or properties
of the Borrower or any Subsidiary, nor any relationship among the Borrower or
any Subsidiary and any other Person, nor any circumstance in connection with the
execution, delivery and performance of the Loan Documents and the transactions
contemplated thereby, is such as to require a consent, approval or authorization
of, or filing, registration or qualification with, any Governmental Authority or
any other Person on the part of the Borrower as a condition to the execution,
delivery and performance of, or consummation of the transactions contemplated by
the Loan Documents, which, if not obtained or effected, would be reasonably
likely to have a Material Adverse Effect, or if so, such consent, approval,
authorization, filing, registration or qualification has been duly obtained or
effected, as the case may be.
7.15. Employee Benefit Plans.
(a) The Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and the regulations
and published interpretations thereunder and in compliance with all
Foreign Benefit Laws with respect to all Employee Benefit Plans except
for any required amendments for which the remedial amendment
59
period as defined in Section 401(b) of the Code has not yet expired.
Each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined or the Borrower or its
Subsidiaries is in the process of obtaining a determination by the
Internal Revenue Service to be so qualified, each trust related to such
plan has been determined to be exempt under Section 501(a) of the Code,
and each Employee Benefit Plan subject to any Foreign Benefit Law has
received the required approvals by any Governmental Authority
regulating such Employee Benefit Plan. No material liability has been
incurred by the Borrower or any ERISA Affiliate which remains
unsatisfied for any taxes or penalties with respect to any Employee
Benefit Plan or any Multiemployer Plan;
(b) Neither the Borrower nor any ERISA Affiliate has (i)
engaged in a nonexempt prohibited transaction described in Section 4975
of the Code or Section 406 of ERISA affecting any of the Employee
Benefit Plans or the trusts created thereunder which could subject any
such Employee Benefit Plan or trust to a material tax or penalty on
prohibited transactions imposed under Internal Revenue Code Section
4975 or ERISA, (ii) incurred any accumulated funding deficiency with
respect to any Employee Benefit Plan, whether or not waived, or any
other liability to the PBGC which remains outstanding other than the
payment of premiums and there are no premium payments which are due and
unpaid, (iii) failed to make a required contribution or payment to a
Multiemployer Plan, (iv) failed to make a required installment or other
required payment under Section 412 of the Code, Section 302 of ERISA or
the terms of such Employee Benefit Plan, or (v) failed to make a
required contribution or payment, or otherwise failed to operate in
compliance with any Foreign Benefit Law regulating any Employee Benefit
Plan;
(c) No Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan or Multiemployer
Plan which would reasonably be likely to result in a Material Adverse
Effect, and neither the Borrower nor any ERISA Affiliate has incurred
any unpaid withdrawal liability with respect to any Multiemployer Plan;
(d) The present value of all vested accrued benefits under
each Employee Benefit Plan which is subject to Title IV of ERISA, or
the funding of which is regulated by any Foreign Benefit Law did not,
as of the most recent valuation date for each such plan, exceed the
then current value of the assets of such Employee Benefit Plan
allocable to such benefits;
(e) To the best of the Borrower's knowledge, each Employee
Benefit Plan which is subject to Title IV of ERISA or the funding of
which is regulated by any Foreign Benefit Law, maintained by the
Borrower or any ERISA Affiliate, has been administered in accordance
with its terms in all material respects and is in compliance in all
material respects with all applicable requirements of ERISA, applicable
Foreign Benefit Law and other applicable laws, regulations and rules;
and
60
(f) No material proceeding, claim, lawsuit and/or
investigation exists or, to the best knowledge of the Borrower after
due inquiry, is threatened concerning or involving any Employee Benefit
Plan;
7.16. No Default. As of the date hereof, there does not exist any
Default or Event of Default hereunder.
7.17. Environmental Laws. Except as listed on Schedule 7.17, the
Borrower and each Subsidiary is in compliance with all applicable Environmental
Laws and has been issued and currently maintains all required federal, state and
local permits, licenses, certificates and approvals. Except as listed on
Schedule 7.17, neither the Borrower nor any Subsidiary has been notified of any
pending or threatened action, suit, proceeding or investigation, and neither the
Borrower nor any Subsidiary is aware of any facts, which (a) calls into
question, or could reasonably be expected to call into question, compliance by
the Borrower or any Subsidiary with any Environmental Laws, (b) seeks, or could
reasonably be expected to form the basis of a meritorious proceeding, to
suspend, revoke or terminate any license, permit or approval necessary for the
operation of the Borrower's or any Subsidiary's business or facilities or for
the generation, handling, storage, treatment or disposal of any Hazardous
Materials, or (c) seeks to cause, or could reasonably be expected to form the
basis of a meritorious proceeding to cause, any property of the Borrower or any
Subsidiary to be subject to any restrictions on ownership, use, occupancy or
transferability under any Environmental Law.
7.18. Employment Matters. Except to the extent a failure to maintain
compliance would not have a Material Adverse Effect, the Borrower and each
Subsidiary is in compliance in all respects with all applicable laws, rules and
regulations pertaining to labor or employment matters, including without
limitation those pertaining to wages, hours, occupational safety and taxation
and there is neither pending or threatened any litigation, administrative
proceeding nor, to the knowledge of the Borrower, any investigation, in respect
of such matters which, if decided adversely, could reasonably be likely,
individually or in the aggregate, to have a Material Adverse Effect.
7.19. Year 2000 Compliance. The Borrower and its Subsidiaries have (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by information
received from suppliers and vendors) that could reasonably be expected to be
adversely affected by the Year 2000 Problem, (ii) developed a plan and timeline
for addressing the Year 2000 Problem on a timely basis, and (iii) to date,
implemented that plan substantially in accordance with that timetable. The
Borrower reasonably believes that all computer applications (including those
affected by information received from its suppliers and vendors) that are
material to its or any of its Subsidiaries' business and operations will not
later than October 31, 1999 be Year 2000 Compliant, except to the extent that a
failure to do so could not reasonably be expected to have Material Adverse
Effect.
61
7.20. Material Subsidiaries. The Borrower and its Material Subsidiaries
together account for more than 85% of each of (a) the sum of all assets (valued
at the greater of book or fair market) of the Borrower and its Subsidiaries as
of the end of the most recently completed fiscal quarter, and (b) the
Consolidated Net Income of the Borrower and its Subsidiaries, as of the end of
the most recently completed fiscal quarter, for the immediately preceding Four-
Quarter Period.
7.21. Insurance. The Borrower and each of its Material Subsidiaries
maintain insurance coverage by financially sound and reputable insurers in such
forms and amounts and against such risks as are customary for corporations of
established reputation engaged in the same or a similar business and owning and
operating similar properties in similar locations.
62
ARTICLE VIII
Affirmative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
8.1. Financial Reports, Etc. (a) As soon as practical and in any event
within 120 days after the end of each Fiscal Year of the Borrower, deliver or
cause to be delivered to the Agent and each Lender (i) a consolidated balance
sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Year,
and the notes thereto, and the related consolidated statements of earnings,
shareowners' equity and cash flows, and the respective notes thereto, for such
Fiscal Year, setting forth comparative financial statements for the preceding
Fiscal Year, all prepared in accordance with GAAP applied on a Consistent Basis
and containing, with respect to the consolidated financial statements, opinions
of PriceWaterhouseCoopers LLP, or other such independent certified public
accountants selected by the Borrower and approved by the Agent, which are
unqualified as to the scope of the audit performed and as to the "going concern"
status of the Borrower and without any exception not acceptable to the Lenders,
and (ii) a certificate of an Authorized Representative demonstrating compliance
with Sections 9.1(a) through 9.1(c), which certificate shall be in the form of
Exhibit H;
(b) as soon as practical and in any event within 45 days after the end
of each fiscal quarter (except the last fiscal quarter of the Fiscal Year),
deliver to the Agent and each Lender (i) a consolidated balance sheet of the
Borrower and its Subsidiaries as at the end of such fiscal quarter, and the
related consolidated statements of earnings, shareowners' equity and cash flows
for such fiscal quarter and for the period from the beginning of the then
current Fiscal Year through the end of such reporting period, and accompanied by
a certificate of an Authorized Representative to the effect that such financial
statements present fairly the financial position of the Borrower and its
Subsidiaries as of the end of such fiscal period and the results of their
operations and the changes in their financial position for such fiscal period,
in conformity with the standards set forth in Section 7.5(a) with respect to
interim financial statements, and (ii) a certificate of an Authorized
Representative containing computations for such quarter comparable to that
required pursuant to Section 8.1(a)(ii);
(c) together with each delivery of the financial statements required by
Section 8.1(a)(i), deliver to the Agent and each Lender a letter from the
Borrower's accountants specified in Section 8.1(a)(i) stating that in performing
the audit necessary to render an opinion on the financial statements delivered
under Section 8.1(a)(i), they obtained no knowledge of any Default or Event of
Default by the Borrower in the fulfillment of the terms and provisions of this
Agreement insofar as they relate to financial matters (which at the date of such
statement remains uncured); or if the accountants have obtained knowledge of
such Default or Event of Default, a statement specifying the nature and period
of existence thereof;
(d) together with each delivery of the financial statements required by
Section 8.1(a)(i), deliver to the Agent and each Lender, a consolidating summary
of business unit sales,
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operating income, assets and investments of the Borrower and its Material
Subsidiaries prepared by an Authorized Representative in form acceptable to the
Agent;
(e) promptly upon their becoming available to the Borrower, the
Borrower shall deliver to the Agent and each Lender a copy of (i) all regular or
special reports or effective registration statements which Borrower or any
Subsidiary shall file with the Securities and Exchange Commission (or any
successor thereto) or any securities exchange, (ii) any proxy statement
distributed by the Borrower or any Subsidiary to its shareholders, bondholders
or the financial community in general, and (iii) any management letter or other
report submitted to the Borrower or any Subsidiary by independent accountants in
connection with any annual, interim or special audit of the Borrower or any
Subsidiary; and
(f) promptly, from time to time, deliver or cause to be delivered to
the Agent and each Lender such other information regarding Borrower's and any
Subsidiary's operations, business affairs and financial condition as the Agent
or such Lender may reasonably request;
Without limitation of the terms of Section 12.16 hereof, the Agent and
the Lenders are hereby authorized to deliver a copy of any such financial or
other information delivered hereunder to the Lenders (or any affiliate of any
Lender) or to the Agent, to any Governmental Authority having jurisdiction over
the Agent or any of the Lenders pursuant to any written request therefor or in
the ordinary course of examination of loan files, or to any other Person who
shall acquire or consider the assignment of, or acquisition of any participation
interest in, any Obligation permitted by this Agreement.
8.2. Maintain Properties. Maintain all properties necessary to its
operations in good working order and condition, make all needed repairs,
replacements and renewals to such properties, and maintain free from Liens all
trademarks, trade names, patents, copyrights, trade secrets, know-how, and other
intellectual property and proprietary information (or adequate licenses
thereto), in each case as are reasonably necessary to conduct its business as
currently conducted or as contemplated hereby, all in accordance with customary
and prudent business practices.
8.3. Existence, Qualification, Etc. Except as otherwise expressly
permitted under Section 9.7, do or cause to be done all things necessary to
preserve and keep in full force and effect its existence and all material rights
and franchises, and maintain its license or qualification to do business as a
foreign corporation and good standing in each jurisdiction in which its
ownership or lease of property or the nature of its business makes such license
or qualification necessary except where the failure to so qualify would not have
a Material Adverse Effect.
8.4. Regulations and Taxes. Comply in all material respects with or
contest in good faith all statutes and governmental regulations and pay all
taxes, assessments, governmental charges, claims for labor, supplies, rent and
any other obligation which, if unpaid, would become a Lien against any of its
properties except liabilities being contested in good faith by appropriate
proceedings diligently conducted and against which adequate reserves acceptable
to the Borrower's independent certified public accountants have been established
unless and until any
64
Lien resulting therefrom attaches to any of its property and becomes enforceable
against its creditors.
8.5. Insurance. (a) Keep all of its insurable properties adequately
insured at all times with responsible insurance carriers, or, in the
alternative, maintain appropriate reserves if self- insuring, against loss or
damage by fire and other hazards to the extent and in the manner as are
customarily insured against by similar businesses owning such properties
similarly situated, (b) maintain general public liability insurance at all times
with responsible insurance carriers against liability on account of damage to
persons and property and (c) maintain insurance under all applicable workers'
compensation laws (or in the alternative, maintain required reserves if self-
insured for workers' compensation purposes) and against loss by reason of
business interruption such policies of insurance to have such limits,
deductibles, exclusions, co-insurance and other provisions providing no less
coverages than are maintained by similar businesses that are similarly situated,
such insurance policies to be in form reasonably satisfactory to the Agent.
8.6. True Books. Keep true books of record and account in which full,
true and correct entries will be made of all of its dealings and transactions,
and set up on its books such reserves as may be required by GAAP with respect to
doubtful accounts and all taxes, assessments, charges, levies and claims and
with respect to its business in general, and include such reserves in interim as
well as year-end financial statements.
8.7. Year 2000 Compliance. The Borrower will promptly notify the Agent
and the Lenders in the event the Borrower discovers or determines that any
computer application (including those affected by information received from its
suppliers and vendors) that is material to its or any of its Subsidiaries'
business and operations will not be Year 2000 Compliant on a timely basis,
except to the extent that such failure could not reasonably be expected to have
a Material Adverse Effect.
8.8. Right of Inspection. Permit any Person designated by any Lender or
the Agent to visit and inspect any of the properties, corporate books and
financial reports of the Borrower or any Subsidiary and to discuss its affairs,
finances and accounts with its principal officers and, in the presence of an
officer or agent of the Borrower, its independent certified public accountants,
all at reasonable times, at reasonable intervals and with reasonable prior
notice.
8.9. Observe all Laws. Conform to and duly observe in all material
respects all laws, rules and regulations and all other valid requirements of any
Governmental Authority with respect to the conduct of its business, except where
the failure to do so could not reasonably be expected to have a Material Adverse
Effect.
8.10. Governmental Licenses. Obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental Authorities as are
required for the conduct of its business as currently conducted and as
contemplated by the Loan Documents, except where the failure to do so could not
reasonably be expected to have a Material Adverse Effect.
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8.11. Covenants Extending to Other Persons. Cause each of its
Subsidiaries to do with respect to itself, its business and its assets, each of
the things required of the Borrower in Sections 8.2 through 8.10, and 8.20
inclusive.
8.12. Officer's Knowledge of Default. Upon any officer of the Borrower
obtaining knowledge of any Default or Event of Default hereunder or under any
other obligation of the Borrower or any Subsidiary to any Lender, or any event,
development or occurrence which could reasonably be expected to have a Material
Adverse Effect, cause such officer or an Authorized Representative to notify the
Agent of the nature thereof, the period of existence thereof, and what action
the Borrower or such Subsidiary proposes to take with respect thereto.
8.13. Suits or Other Proceedings. Upon any officer of the Borrower
obtaining knowledge of any litigation or other proceedings being instituted
against the Borrower or any Subsidiary, or any attachment, levy, execution or
other process being instituted against any assets of the Borrower or any
Subsidiary, making a claim or claims in an aggregate amount greater than
$2,000,000 not otherwise covered by insurance, deliver to the Agent within five
Business Days written notice thereof stating the nature and status of such
litigation, dispute, proceeding, levy, execution or other process.
8.14. Notice of Environmental Complaint or Condition. Promptly provide
to the Agent true, accurate and complete copies of any and all notices,
complaints, orders, directives, claims or citations received by the Borrower or
any Subsidiary relating to any (a) violation or alleged violation by the
Borrower or any Subsidiary of any applicable Environmental Law; (b) release or
threatened release by the Borrower or any Subsidiary, or by any Person handling,
transporting or disposing of any Hazardous Material on behalf of the Borrower or
any Subsidiary, or at any facility or property owned or leased or operated by
the Borrower or any Subsidiary, of any Hazardous Material, except where
occurring legally pursuant to a permit or license; or (c) liability or alleged
liability of the Borrower or any Subsidiary for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials; which,
in each of the foregoing cases, could reasonably be expected to result in an
aggregate liability greater than $2,000,000.
8.15. Environmental Compliance. If the Borrower or any Subsidiary shall
receive any letter, notice, complaint, order, directive, claim or citation
alleging that the Borrower or any Subsidiary has violated any Environmental Law,
has released any Hazardous Material, or is liable for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous Materials, the
Borrower and any Subsidiary shall, within the time period permitted and to the
extent required by the applicable Environmental Law or the Governmental
Authority responsible for enforcing such Environmental Law, (a) remove or
remedy, or cause the applicable Subsidiary to remove or remedy, such violation
or release or (b) satisfy such liability or (c) contest such liability in good
faith by appropriate proceedings diligently conducted and maintain adequate
reserves or other appropriate provisions in accordance with GAAP with respect to
such liability.
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8.16. Employee Benefit Plans.
(a) With reasonable promptness, and in any event within thirty
(30) days thereof, give notice to the Agent of (a) the establishment of
any new Pension Plan (which notice shall include a copy of such plan),
(b) the commencement of contributions in a material amount to any
Employee Benefit Plan to which the Borrower or any of its ERISA
Affiliates was not previously contributing, (c) any material increase
in the benefits of any existing Employee Benefit Plan, (d) each funding
waiver request filed with respect to any Pension Plan and all
communications received or sent by the Borrower or any ERISA Affiliate
with respect to such request and (e) the failure of the Borrower or any
ERISA Affiliate to make a required installment or payment under Section
302 of ERISA or Section 412 of the Code (in the case of Employee
Benefit Plans regulated by the Code or ERISA) or under any Foreign
Benefit Law (in the case of Employee Benefit Plans regulated by any
Foreign Benefit Law) by the due date;
(b) Promptly and in any event within fifteen (15) days of
becoming aware of the occurrence or forthcoming occurrence of any (a)
Termination Event or (b) nonexempt "prohibited transaction," as such
term is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Employee Benefit Plan or any trust created
thereunder, deliver to the Agent a notice specifying the nature
thereof, what action the Borrower or any ERISA Affiliate has taken, is
taking or proposes to take with respect thereto and, when known, any
action taken or threatened by the Internal Revenue Service, the
Department of Labor or the PBGC with respect thereto; and
(c) With reasonable promptness but in any event within fifteen
(15) days for purposes of clauses (a), (b) and (c), deliver to the
Agent copies of (a) any unfavorable determination letter from the
Internal Revenue Service regarding the qualification of an Employee
Benefit Plan under Section 401(a) of the Code, (b) all notices received
by the Borrower or any ERISA Affiliate of the PBGC's or any
Governmental Authority's intent to terminate any Pension Plan or to
have a trustee appointed to administer any Pension Plan, (c) each
Schedule B (Actuarial Information) to the annual report (Form 5500
Series) filed by the Borrower or any ERISA Affiliate with the Internal
Revenue Service with respect to each Employee Benefit Plan and (d) all
notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of
withdrawal liability pursuant to Section 4202 of ERISA. The Borrower
will notify the Agent in writing within five (5) Business Days of the
Borrower or any ERISA Affiliate obtaining knowledge or reason to know
that the Borrower or any ERISA Affiliate has filed or intends to file a
notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA.
8.17. Continued Operations. Continue at all times to conduct its
business and engage principally in the same line or lines of business
substantially as heretofore conducted.
8.18. Notices Regarding Material Subsidiaries. Promptly from time to
time, upon request of the Agent, deliver to the Agent a written report of any
change in the list of Material
67
Subsidiaries set forth on Schedule 7.3 or any change in the designation of any
Subsidiary as or to a "Material Subsidiary".
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ARTICLE IX
Negative Covenants
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary to:
9.1. Financial Covenants.
(a) Consolidated Shareholders' Equity. Permit Consolidated
Shareholders' Equity to be less than (i) $379,000,000 at April 30, 1999 and (ii)
as at the last day of each succeeding fiscal quarter of the Borrower and until
(but excluding) the last day of the next following fiscal quarter of the
Borrower, the sum of (A) the amount of Consolidated Shareholders' Equity
required to be maintained pursuant to this Section 9.1(a) as at the end of the
immediately preceding fiscal quarter, plus (B) 50% of Consolidated Net Income
(with no reduction for net losses during any period) for the fiscal quarter of
the Borrower ending on such day (including within "Consolidated Net Income"
certain items otherwise excluded, as provided for in the definition of
"Consolidated Net Income"), plus (C) 100% of the aggregate amount of all
increases in the stated capital and additional paid-in capital accounts of the
Borrower resulting from the issuance of equity securities or other capital
investments.
(b) Consolidated Leverage Ratio. Permit the Consolidated Leverage Ratio
as of the end of any Four-Quarter Period to be greater than 3.50 to 1.00.
(c) Consolidated Interest Coverage Ratio. Permit the Consolidated
Interest Coverage Ratio as of the end of any Four-Quarter Period to be less than
2.25 to 1.00.
9.2. Acquisitions. Enter into any agreement, contract, binding
commitment or other arrangement providing for any Acquisition, or take any
action to solicit the tender of securities or proxies in respect thereof in
order to effect any Acquisition, unless (i) the board of directors or other
managing body of the Person to be (or whose assets are to be) acquired does not
oppose such Acquisition and the line or lines of business of the Person to be
acquired are substantially the same as one or more line or lines of business
conducted by the Borrower and its Subsidiaries, (ii) no Default or Event of
Default shall have occurred and be continuing either immediately prior to or
immediately after giving effect to such Acquisition and, (iii) the Person
acquired shall be a Wholly-owned Subsidiary, or be merged into the Borrower or a
Subsidiary (with the Borrower or such Subsidiary surviving), or be merged with a
Subsidiary and such Person survives as a Subsidiary, subject to compliance with
Section 9.7(ii), immediately upon consummation of the Acquisition (or if assets
are being acquired, the acquiror shall be the Borrower or a Wholly-owned
Subsidiary).
9.3. Liens. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Borrower or any Subsidiary, other than
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(a) Liens existing as of the date hereof and as set forth in
Schedule 7.6;
(b) Liens imposed by law for taxes, assessments or charges of
any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings diligently conducted
and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP and which Liens
are not yet enforceable against other creditors;
(c) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen and other Liens imposed by law or
created in the ordinary course of business and in existence less than
90 days from the date of creation thereof for amounts not yet due or
which are being contested in good faith by appropriate proceedings
diligently conducted and with respect to which adequate reserves or
other appropriate provisions are being maintained in accordance with
GAAP and which Liens are not yet enforceable against other creditors;
(d) Liens incurred or deposits made in the ordinary course of
business (including, without limitation, surety bonds and appeal bonds)
in connection with workers' compensation, unemployment insurance and
other types of social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the repayment of
Indebtedness), statutory obligations and other similar obligations or
arising as a result of progress payments under government contracts;
(e) easements (including reciprocal easement agreements and
utility agreements), rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other restrictions, charges or
encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or
any Subsidiary and which do not materially detract from the value of
the property to which they attach or materially impair the use thereof
to the Borrower or any Subsidiary;
(f) Liens of or resulting from any judgment or award, the time
for appeal or petition for rehearing of which shall not have expired,
or in respect of which the Borrower or a Subsidiary shall at any time
in good faith be prosecuting an appeal or proceeding for a review and
in respect of which a stay of execution pending such appeal or
proceeding for review shall have been secured, and any pledges or
deposits for the purpose of securing such appeal or stay; provided that
the aggregate amount secured by such Liens, pledges and deposits does
not at any time exceed $10,000,000;
(g) Liens, mortgages, conditional sales contracts, security
interests or other arrangements for the retention of title (including
Capital Leases) incurred after the Closing Date and given to secure the
payment of the purchase price incurred in connection with the
acquisition or construction of fixed assets useful and intended to be
used in carrying on the business of the Borrower or a Subsidiary,
including Liens existing on such fixed assets at the time of
acquisition thereof or at the time of
70
Acquisition by the Borrower or a Subsidiary of any Person then owning
such fixed assets, whether or not such existing Liens were given to
secure the payment of the purchase price of the fixed assets to which
they attach so long as they were not incurred, extended or renewed in
contemplation of such Acquisition; provided that (i) the Lien or charge
shall attach solely to the property acquired or purchased, (ii) at the
time of acquisition of such fixed assets, the aggregate amount
remaining unpaid on all Indebtedness secured by Liens on such fixed
assets whether or not assumed by the Borrower or a Subsidiary shall not
exceed an amount equal to the lesser of the total purchase price or
fair market value at the time of acquisition of such fixed assets (as
determined in good faith by the Board of Directors of the Borrower),
and (iii) all such Indebtedness shall have been incurred within the
applicable limitations of Section 9.4; and
(h) Liens incurred by the Borrower or any Subsidiary in
addition to those described in clauses (a) through (g) above; provided
that (i) the aggregate amount of all Indebtedness secured by Liens
pursuant to this clause (h) shall not at any time exceed 3% of
Consolidated Net Tangible Assets, and (ii) all such Indebtedness shall
have been incurred within the applicable limitations of Section 9.4;
9.4. Indebtedness. Incur, create, assume or permit to exist any
Indebtedness of the Borrower, howsoever evidenced, except:
(a) Indebtedness existing as of the Closing Date as set forth
in Schedule 7.5; provided, none of the instruments and agreements
evidencing or governing such Indebtedness shall be amended, modified or
supplemented after the Closing Date to change any terms of
subordination, repayment or rights of conversion, put, exchange or
other rights from such terms and rights as in effect on the Closing
Date;
(b) Indebtedness owing to the Agent or any Lender in
connection with this Agreement, any Note or other Loan Document;
(c) the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business;
and
(d) unsecured Indebtedness (excluding reimbursement
obligations in respect of letters of credit) of the Borrower that is
pari passu with, or subordinate in right of payment to, the
Obligations; provided that at the time of creation, assumption or
incurrence thereof and after giving effect thereto and to the
application of the proceeds thereof, no Default or Event of Default
shall have occurred and be continuing;
(e) unsecured Indebtedness (excluding reimbursement
obligations in respect of letters of credit) of any Subsidiary;
provided that at the time of creation, assumption or incurrence thereof
and after giving effect thereto and to the application of the proceeds
thereof, no Default or Event of Default shall have occurred and be
continuing; and provided, further that the aggregate amount of such
Indebtedness at any time outstanding
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(including such Indebtedness existing as of the Closing Date) shall not
exceed 20% of Consolidated Tangible Net Worth;
(f) Indebtedness in respect of Capital Leases and purchase
money Indebtedness (other than such Indebtedness falling within clause
(i) below) not to exceed the Dollar Equivalent Amount of $50,000,000 in
the aggregate at any one time outstanding;
(g) unsecured intercompany Indebtedness for loans and advances
made by the Borrower or any Wholly-owned Subsidiary to the Borrower or
any Wholly-owned Subsidiary, provided that such intercompany
Indebtedness of the Borrower is evidenced by a promissory note or
similar written instrument acceptable to the Agent which provides that
such Indebtedness is subordinated to obligations, liabilities and
undertakings of the holder or owner thereof under the Loan Documents on
terms acceptable to the Agent;
(h) unsecured reimbursement obligations (including commercial
letters of credit which are secured by documents) in respect of any
surety bonds and letters of credit (other than any Letter of Credit) so
long as the sum of (x) the maximum Dollar Equivalent Amount that
thereafter could be drawn under such letters of credit (other than
Letters of Credit) plus (y) the aggregate Dollar Equivalent Amount
drawn but not unreimbursed with respect to all such letters of credit
does not exceed a Dollar Equivalent Amount of $20,000,000; and
(i) Indebtedness secured by Liens permitted by Section 9.3(g)
so long as the aggregate amount of such Indebtedness at any time
outstanding shall not exceed 15% of Consolidated Net Tangible Assets.
9.5. Transfer of Assets. Sell, lease, transfer or otherwise dispose of
any assets of Borrower or any Subsidiary other than:
(a) dispositions of inventory and accounts receivable in the
ordinary course of business. For the purposes of this Section 9.5(a)
the sale or discount of any receivable for fair value consistent with
industry custom and without recourse shall be deemed to be "in the
ordinary course of business";
(b) dispositions of property that is substantially worn,
damaged, obsolete or, in the judgment of the Borrower, no longer best
used or useful in its business or that of any Subsidiary;
(c) transfers of assets necessary to give effect to merger or
consolidation transactions permitted by Section 9.7;
(d) the disposition of Eligible Securities in the ordinary
course of management of the investment portfolio of the Borrower and
its Subsidiaries;
72
(e) any Subsidiary may sell, lease or otherwise dispose of all
or any substantial part of its assets to the Borrower or any
Wholly-owned Subsidiary; and
(f) the Borrower or any Subsidiary may sell, lease or
otherwise dispose of assets for fair value if such assets (valued at
the greater of book or fair market), when added to all other assets
sold, leased or otherwise disposed of by the Borrower and its
Subsidiaries (other than in the ordinary course of business) during the
term of this Agreement, do not exceed 20% of the consolidated assets of
the Borrower and its Subsidiaries (determined as of the end of the
fiscal quarter most recently ended prior to the Closing Date in
accordance with GAAP), and also do not contribute more than 20% of the
consolidated gross revenues of the Borrower and its Subsidiaries
(determined as of the end of the Four-Quarter Period most recently
ended prior to the Closing Date in accordance with GAAP); and
(g) sales of accounts receivable in connection with Permitted
Receivables Securitizations.
9.6. Investments. Purchase, own, invest in or otherwise acquire,
directly or indirectly, any stock or other securities, or make or permit to
exist any interest whatsoever in any other Person or permit to exist any loans
or advances to any Person, except that Borrower may maintain investments or
invest in:
(a) securities of any Person acquired in an Acquisition
permitted hereunder;
(b) Eligible Securities;
(c) investments existing as of the date hereof and as set
forth in Schedule 7.3;
(d) accounts receivable arising and trade credit granted in
the ordinary course of business and any securities received in
satisfaction or partial satisfaction thereof in connection with
accounts of financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss; and
(e) investments in Subsidiaries;
(f) loans between the Borrower and Subsidiaries described in
Section 9.4(g); and
(g) other loans, advances and investments in an aggregate
principal amount at any time outstanding not to exceed $40,000,000.
9.7. Merger or Consolidation. (a) Consolidate with or merge into any
other Person, or (b) permit any other Person to merge into it, or (c) sell,
transfer or lease or otherwise dispose of all or a substantial part of its
assets (other than sales permitted under Section 9.5(a), (b), (d), (e) and (f));
provided, however, (i) any Subsidiary of the Borrower may merge or transfer all
or
73
substantially all of its assets into or consolidate with the Borrower or any
Wholly-owned Subsidiary, and (ii) any other Person may merge into or consolidate
with the Borrower or any Wholly-owned Subsidiary and any Subsidiary may merge
into or consolidate with any other Person, in each event in order to consummate
an Acquisition permitted by Section 9.2, provided further, that any resulting or
surviving entity shall execute and deliver such agreements and other documents,
and take such other action as the Agent may require to evidence or confirm its
express assumption of the obligations and liabilities of its predecessor
entities under the Loan Documents.
9.8. Restricted Payments. Make any Restricted Payment or apply or set
apart any of their assets therefor or agree to do any of the foregoing unless
immediately preceding and immediately after giving effect to such Restricted
Payment there exists no Default or Event of Default hereunder.
9.9. Transactions with Affiliates. Other than transactions permitted
under Sections 9.6 and 9.7, enter into any transaction after the Closing Date,
including, without limitation, the purchase, sale, lease or exchange of
property, real or personal, or the rendering of any service, with any Affiliate
of the Borrower, except (a) that such Persons may render services to the
Borrower or its Subsidiaries for compensation at the same rates generally paid
by Persons engaged in the same or similar businesses for the same or similar
services, (b) that the Borrower or any Subsidiary may render services to such
Persons for compensation at the same rates generally charged by the Borrower or
such Subsidiary and (c) in either case in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's (or any Subsidiary's)
business consistent with past practice of the Borrower and its Subsidiaries and
upon fair and reasonable terms no less favorable to the Borrower (or any
Subsidiary) than would be obtained in a comparable arm's-length transaction with
a Person not an Affiliate.
9.10. Compliance with ERISA, the Code and Foreign Benefit Laws. With
respect to any Pension Plan, Employee Benefit Plan or Multiemployer Plan:
(a) permit the occurrence of any Termination Event which would
result in a liability on the part of the Borrower or any ERISA
Affiliate to the PBGC or to any Governmental Authority; or
(b) permit the present value of all benefit liabilities under
all Pension Plans to exceed the current value of the assets of such
Pension Plans allocable to such benefit liabilities; or
(c) permit any accumulated funding deficiency (as defined in
Section 302 of ERISA and Section 412 of the Code) with respect to any
Pension Plan, whether or not waived; or
(d) fail to make any contribution or payment to any
Multiemployer Plan which the Borrower or any ERISA Affiliate may be
required to make under any agreement relating to such Multiemployer
Plan, or any law pertaining thereto; or
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(e) engage, or permit any Borrower or any ERISA Affiliate to
engage, in any prohibited transaction under Section 406 of ERISA or
Sections 4975 of the Code for which a civil penalty pursuant to Section
502(I) of ERISA or a tax pursuant to Section 4975 of the Code may be
imposed in a material amount; or
(f) permit the establishment of any Employee Benefit Plan
providing post- retirement welfare benefits or establish or amend any
Employee Benefit Plan which establishment or amendment could result in
material liability to the Borrower or any ERISA Affiliate or increase
the obligation of the Borrower or any ERISA Affiliate to a
Multiemployer Plan; or
(g) fail, or permit the Borrower or any ERISA Affiliate to
fail, to establish, maintain and operate each Employee Benefit Plan in
compliance in all material respects with the provisions of ERISA, the
Code, all applicable Foreign Benefit Laws and all other applicable laws
and the regulations and interpretations thereof.
9.11. Fiscal Year. Change its Fiscal Year more than one time during the
term of this Agreement.
9.12. Dissolution, etc. Wind up, liquidate or dissolve (voluntarily or
involuntarily) or commence or suffer any proceedings seeking any such winding
up, liquidation or dissolution, except in connection with a merger or
consolidation permitted pursuant to Section 9.7.
9.13. Change in Control. Cause, suffer or permit to exist or occur any
Change of Control.
9.14. Restrictive Agreements, etc.. Enter into or cause, suffer or
permit to exist any agreement with any Person other than the Agent and the
Lenders pursuant to this Agreement or any other Loan Documents which prohibits
or limits (a) the ability of the Borrower to amend or otherwise modify this
Agreement or any other Loan Document or (b) the ability of any Subsidiary to
make any payments, directly or indirectly, to the Borrower by way of dividends,
advances, repayments of loans or advances, reimbursements of management and
other intercompany charges, expenses and accruals or other returns on
investments, or any other agreement or arrangement which restricts the ability
of any such Subsidiary to make any such payment, directly or indirectly, to the
Borrower.
9.15. Issuance or Sale of Stock by Subsidiaries. The Borrower will not
permit any Subsidiary to issue or sell any shares of capital stock of any class
(including as "capital stock" for the purposes of this Section 9.15, any
warrants, rights or options to purchase or otherwise acquire capital stock or
other securities exchangeable for or convertible into capital stock) of such
Subsidiary to any Person other than the Borrower or a Wholly-owned Subsidiary,
except for the purpose of qualifying directors, or except in satisfaction of the
validly pre-existing preemptive rights of minority shareholders in connection
with the simultaneous issuance of capital stock to the Borrower and/or a
Wholly-owned Subsidiary whereby the Borrower and/or such Wholly-owned Subsidiary
maintain their same proportionate interests in such Subsidiary.
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9.16. Sale of Stock in Subsidiaries. The Borrower will not sell,
transfer or otherwise dispose of any shares of capital stock in any Subsidiary
(except to qualify directors) or any Indebtedness of any Subsidiary, and will
not permit any Subsidiary to sell, transfer or otherwise dispose of (except to
the Borrower or a Wholly-owned Subsidiary) any shares of capital stock or any
Indebtedness of any other Subsidiary, unless:
(a) there shall not exist any violation of Sections 9.5 or 9.7
either immediately prior to, or immediately after giving effect to,
such sale, transfer or disposition;
(b) simultaneously with such sale, transfer, or disposition,
all shares of capital stock and all Indebtedness of such Subsidiary at
the time owned by the Borrower and by every other Subsidiary shall be
sold, transferred or disposed of as an entirety;
(c) the Board of Directors of the Borrower shall have
determined, as evidenced by a resolution thereof, that the retention of
such capital stock and Indebtedness is no longer in the best interests
of the Borrower;
(d) such capital stock and Indebtedness is sold, transferred
or otherwise disposed of to a Person, for fair value and on terms
reasonably deemed by the Board of Directors to be adequate and
satisfactory; and
(e) the Subsidiary being disposed of shall not have any
continuing investment in the Borrower or any other Subsidiary not being
simultaneously disposed of.
.
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ARTICLE X
Events of Default and Acceleration
10.1. Events of Default. If any one or more of the following events
(herein called "Events of Default") shall occur for any reason whatsoever (and
whether such occurrence shall be voluntary or involuntary or come about or be
effected by operation of law or pursuant to or in compliance with any judgment,
decree or order of any court or any order, rule or regulation of any
Governmental Authority), that is to say:
(a) if default shall be made in the due and punctual payment
of the principal of any Loan, Reimbursement Obligation or other
Obligation, when and as the same shall be due and payable whether
pursuant to any provision of Article II or Article III or Article IV,
at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment
of any amount of interest on any Loan, Reimbursement Obligation or
other Obligation or of any fees or other amounts payable to any of the
Lenders or the Agent within three Business Days of the date on which
the same shall be due and payable; or
(c) if default shall be made in the performance or observance
of any covenant set forth in Section 8.8, 8.12, 8.13, or Article IX;
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement or
provision contained in this Agreement or the Notes (other than as
described in clauses (a), (b) or (c) above) and such default shall
continue for 30 or more days after the earlier of receipt of notice of
such default by the Authorized Representative from the Agent or an
officer of the Borrower becomes aware of such default, or if a default
shall be made in the performance or observance of, or shall occur
under, any covenant, agreement or provision contained in any of the
other Loan Documents (beyond 30 days or any other applicable grace
period contained therein) or in any instrument or document evidencing
or creating any obligation, guaranty, or Lien in favor of the Agent or
any of the Lenders or delivered to the Agent or any of the Lenders in
connection with or pursuant to this Agreement or any of the
Obligations, or if any Loan Document ceases to be in full force and
effect (other than as expressly provided for hereunder or thereunder or
with the express written consent of the Agent), or if without the
written consent of the Lenders, this Agreement or any other Loan
Document shall be disaffirmed or shall terminate, be terminable or be
terminated or become void or unenforceable for any reason whatsoever
(other than as expressly provided for hereunder or thereunder or with
the express written consent of the Agent); or
(e) if there shall occur (i) a default, which is not waived,
in the payment of any principal, interest, premium or other amount with
respect to any Indebtedness (other than the Loans and other
Obligations) of the Borrower or any Material Subsidiary in an
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amount not less than $5,000,000 in the aggregate outstanding, or (ii) a
default, which is not waived, in the performance, observance or
fulfillment of any term or covenant contained in any agreement or
instrument under or pursuant to which any such Indebtedness may have
been issued, created, assumed, guaranteed or secured by the Borrower or
any Material Subsidiary, or (iii) any other event of default as
specified in any agreement or instrument under or pursuant to which any
such Indebtedness may have been issued, created, assumed, guaranteed or
secured by the Borrower or any Material Subsidiary, and such default or
event of default shall continue for more than the period of grace, if
any, therein specified, or such default or event of default shall
permit the holder of any such Indebtedness (or any agent or trustee
acting on behalf of one or more holders) to accelerate the maturity
thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender by or on
behalf of the Borrower pursuant to or in connection with any Loan
Document, or otherwise, shall be false or misleading in any material
respect when given; or
(g) if the Borrower or any Material Subsidiary shall be unable
to pay its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit
of its creditors; commence a proceeding for the appointment of a
receiver, trustee, liquidator or conservator of itself or of the whole
or any substantial part of its property; file a petition or answer
seeking liquidation, reorganization or arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or
statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee,
liquidator or conservator of the Borrower or any Material Subsidiary or
of the whole or any substantial part of its properties and such order,
judgment or decree continues unstayed and in effect for a period of
sixty (60) days, or approve a petition filed against the Borrower or
any Material Subsidiary seeking liquidation, reorganization or
arrangement or similar relief under the federal bankruptcy laws or any
other applicable law or statute of the United States of America or any
state, which petition is not dismissed within sixty (60) days; or if,
under the provisions of any other law for the relief or aid of debtors,
a court of competent jurisdiction shall assume custody or control of
the Borrower or any Material Subsidiary or of the whole or any
substantial part of its properties, which control is not relinquished
within sixty (60) days; or if there is commenced against the Borrower
or any Material Subsidiary any proceeding or petition seeking
reorganization, arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United
States of America or any state which proceeding or petition remains
undismissed for a period of sixty (60) days; or if the Borrower or any
Material Subsidiary takes any action to indicate its consent to or
approval of any such proceeding or petition; or
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(i) if (i) one or more judgments or orders where the amount
not covered by insurance (or the amount as to which the insurer denies
liability) is in excess of $5,000,000 is rendered against the Borrower
or any Subsidiary, or (ii) there is any attachment, injunction or
execution against any of the Borrower's or Subsidiaries' properties for
any amount in excess of $5,000,000 in the aggregate; and such judgment,
attachment, injunction or execution remains unpaid, unstayed,
undischarged, unbonded or undismissed for a period of thirty (30) days;
or
(j) if the Borrower or any Subsidiary shall, other than in the
ordinary course of business (as determined by past practices), suspend
all or any part of its operations material to the conduct of the
business of the Borrower or such Subsidiary for a period of more than
60 days;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be
taken: (i) the Agent may, and at the direction of the Required
Lenders shall, declare any obligation of the Lenders and the
Issuing Banks to make further Loans or to issue additional
Letters of Credit terminated, whereupon the obligation of each
Lender to make further Loans and of the Issuing Banks to issue
additional Letters of Credit, hereunder shall terminate
immediately, and (ii) the Agent shall at the direction of the
Required Lenders, at their option, declare by notice to the
Borrower any or all of the Obligations to be immediately due
and payable, and the same, including all interest accrued
thereon and all other obligations of the Borrower to the Agent
and the Lenders, shall forthwith become immediately due and
payable without presentment, demand, protest, notice or other
formality of any kind, all of which are hereby expressly
waived, anything contained herein or in any instrument
evidencing the Obligations to the contrary notwithstanding;
provided, however, that notwithstanding the above, if there
shall occur an Event of Default under clause (g) or (h) above,
then the obligation of the Lenders to make Loans and of the
Issuing Banks to issue Letters of Credit hereunder shall
automatically terminate and any and all of the Obligations
shall be immediately due and payable without the necessity of
any action by the Agent or the Required Lenders or notice to
the Agent or the Lenders;
(B) The Borrower shall, upon demand of the Agent or
the Required Lenders, deposit cash with the Agent in an amount
equal to the amount of any Letter of Credit Outstandings, as
collateral security for the repayment of any future drawings
or payments under such Letters of Credit, and such amounts
shall be held by the Agent pursuant to the terms of the LC
Account Agreement; and
(C) the Agent and each of the Lenders shall have all
of the rights and remedies available under the Loan Documents
or under any applicable law.
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10.2. Agent to Act. In case any one or more Events of Default shall
occur and not have been waived, the Agent may, and at the direction of the
Required Lenders shall, proceed to protect and enforce their rights or remedies
either by suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
10.3. Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
10.4. No Waiver. No course of dealing between the Borrower and any
Lender or the Agent or any failure or delay on the part of any Lender or the
Agent in exercising any rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or remedies and no
single or partial exercise of any rights or remedies shall operate as a waiver
or preclude the exercise of any other rights or remedies hereunder or of the
same right or remedy on a future occasion.
10.5. Allocation of Proceeds. If an Event of Default has occurred and
not been waived, and the maturity of the Notes has been accelerated pursuant to
Article X hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the following order:
(a) amounts due to the Lenders and the Applicable Issuing Bank
pursuant to Sections 4.7(a), 4.7(b), 4.7(c), 4.7(d), 4.7(e) and 12.5;
(b) amounts due to the Agent pursuant to Section 4.7(f);
(c) payments of interest on Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(d) payments of principal of Loans and Reimbursement
Obligations, to be applied for the ratable benefit of the Lenders;
(e) payments of cash amounts to the Agent in respect of
outstanding Letters of Credit pursuant to Section 10.1(B);
(f) amounts due to the Applicable Issuing Bank, the Agent and
the Lenders pursuant to Sections 3.2(h) and 12.9;
(g) payments of all other amounts due under any of the Loan
Documents, if any, to be applied for the ratable benefit of the
Lenders; and
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(h) any surplus remaining after application as provided for
herein, to the Borrower or otherwise as may be required by applicable
law.
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ARTICLE XI
The Agent
11.1. Appointment, Powers, and Immunities. Each Lender hereby
irrevocably appoints and authorizes the Agent to act as its agent under this
Agreement and the other Loan Documents with such powers and discretion as are
specifically delegated to the Agent by the terms of this Agreement and the other
Loan Documents, together with such other powers as are reasonably incidental
thereto. The Agent (which term as used in this sentence and in Section 11.5 and
the first sentence of Section 11.6 hereof shall include its affiliates and its
own and its affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except
those expressly set forth in this Agreement and shall not be a trustee
or fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made
in or in connection with any Loan Document or any certificate or other
document referred to or provided for in, or received by any of them
under, any Loan Document, or for the value, validity, effectiveness,
genuineness, enforceability, or sufficiency of any Loan Document, or
any other document referred to or provided for therein or for any
failure by the Borrower or any other Person to perform any of its
obligations thereunder;
(c) shall not be responsible for or have any duty to
ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by the Borrower or the satisfaction of any
condition or to inspect the property (including the books and records)
of the Borrower or any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any
litigation or collection proceedings under any Loan Document except as
directed by and together with the Required Lenders; and
(e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
11.2. Reliance by Agent. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for the Borrower or its Subsidiaries), independent
82
accountants, and other experts selected by the Agent. The Agent may deem and
treat the payee of any Note as the holder thereof for all purposes hereof unless
and until the Agent receives and accepts an Assignment and Acceptance executed
in accordance with Section 12.1 hereof. As to any matters not expressly provided
for by this Agreement, the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Lenders, and such instructions shall be
binding on all of the Lenders; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal liability or that
is contrary to any Loan Document or applicable law or unless it shall first be
indemnified to its satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking any such action.
11.3. Defaults. The Agent shall not be deemed to have knowledge or
notice of the occurrence of a Default or Event of Default unless the Agent has
received written notice from a Lender or the Borrower specifying such Default or
Event of Default and stating that such notice is a "Notice of Default". In the
event that the Agent receives such a notice of the occurrence of a Default or
Event of Default, the Agent shall give prompt notice thereof to the Lenders. The
Agent shall (subject to Section 11.2 hereof) take such action with respect to
such Default or Event of Default as shall reasonably be directed by the Required
Lenders, provided that, unless and until the Agent shall have received such
directions, the 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 interest of the Lenders.
11.4. Rights as Lender. With respect to its Tranche A Commitment and
Tranche B Commitment and the Loans made by it and Letters of Credit issued by
it, Bank of America (and any successor acting as Agent) in its capacity as a
Lender hereunder shall have the same rights and powers hereunder as any other
Lender and may exercise the same as though it were not acting as the Agent, and
the term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. Bank of America (and any successor
acting as Agent) and its affiliates may (without having to account therefor to
any Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with the Borrower or any of its Subsidiaries or affiliates as if it
were not acting as Agent, and Bank of America (and any successor acting as
Agent) and its affiliates may accept fees and other consideration from the
Borrower or any of its Subsidiaries or affiliates for services in connection
with this Agreement or otherwise without having to account for the same to the
Lenders.
11.5. Indemnification. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under Section 12.9 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Tranche A Commitments and Tranche B Commitments, for any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses (including reasonable attorneys' fees), or disbursements of any
kind and nature whatsoever that may be imposed on, incurred by or asserted
against the Agent (including by any Lender) in any way relating to or arising
out of any Loan Document or the transactions contemplated thereby or any action
taken or omitted by the Agent under any
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Loan Document; provided that no Lender shall be liable for any of the foregoing
to the extent they arise from the gross negligence or willful misconduct of the
Person to be indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse the Agent promptly upon demand for its ratable share of any
costs or expenses payable by the Borrower under Section 12.5, to the extent that
the Agent is not promptly reimbursed for such costs and expenses by the
Borrower. The agreements contained in this Section 11.5 shall survive payment in
full of the Loans and all other amounts payable under this Agreement.
11.6. Non-Reliance on Agent and Other Lenders. Each Lender agrees that
it has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and its Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the 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 analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of the
Borrower or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
11.7. Resignation of Agent. The Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders (with the Borrower's consent) shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders and shall have accepted such appointment within thirty (30)
days after the retiring Agent's giving of notice of resignation, then the
retiring Agent may, on behalf of the Lenders, appoint a successor Agent which
shall be a commercial bank organized under the laws of the United States of
America having combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
XI shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
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ARTICLE XII
Miscellaneous
12.1. Assignments and Participations. (a) Each Lender may assign to one
or more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans,
its Tranche A Note, Tranche B Note, and its Tranche A Commitment and Tranche B
Commitment); provided, however, that
(i) each such assignment shall be to an Eligible Assignee;
(ii) except in the case of an assignment to another Lender or
an assignment of all of a Lender's rights and obligations under this Agreement,
any such partial assignment shall be in an amount at least equal to $10,000,000
or an integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant,
and not varying, percentage of all of its rights and obligations under this
Agreement and its Notes (except that any assignment by a Lender that is an
Issuing Bank shall not include its rights, benefits or duties as an Issuing Bank
with respect to any Letter of Credit unless the beneficiary of such Letter of
Credit shall have agreed to such assignment); and
(iii) each such assignment by a Lender shall be the same ratable
assignment of such Lender's rights and obligations under both the Tranche A
Revolving Credit Facility and the Tranche B Revolving Credit Facility; and
(iv) the parties to such assignment shall execute and deliver
to the Agent for its acceptance an Assignment and Acceptance in the form of
Exhibit B hereto, together with any Tranche A Note and Tranche B Note subject to
such assignment and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section, the assignor, the Agent
and the Borrower shall make appropriate arrangements so that, if required, new
Notes are issued to the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America or a state thereof,
it shall deliver to the Borrower and the Agent certification as to exemption
from deduction or withholding of Taxes in accordance with Section 5.6.
(b) The Agent shall maintain at its address referred to in Section 12.2
a copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Tranche A Commitment and Tranche B Commitment of, and principal amount of the
Loans owing to, each Lender from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent
85
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from time to time upon
reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of Exhibit B hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in all
or a portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its Tranche A Commitment and Tranche B
Commitment or its Loans); provided, however, that (i) such Lender's obligations
under this Agreement shall remain unchanged, (ii) such Lender shall remain
solely responsible to the other parties hereto for the performance of such
obligations, (iii) the participant shall be entitled to the benefit of the yield
protection provisions contained in Article V to the same extent that the Lender
selling such participation is entitled to such yield protection and the right of
set-off contained in Section 12.3, and (iv) the Borrower shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, and such Lender shall retain the sole right to
enforce the obligations of the Borrower relating to its Loans and its Note and
to approve any amendment, modification, or waiver of any provision of this
Agreement (other than amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable on such Loans or
Note, extending any scheduled principal payment date or date fixed for the
payment of interest on such Loans or Note, or extending its Tranche A Commitment
or Tranche B Commitment).
(e) Notwithstanding any other provision set forth in this Agreement,
any Lender may at any time assign and pledge all or any portion of its Loans and
its Note to any Federal Reserve Bank as collateral security pursuant to
Regulation A and any Operating Circular issued by such Federal Reserve Bank. No
such assignment shall release the assigning Lender from its obligations
hereunder.
(f) Without limitation of the terms of Section 12.16, any Lender may
furnish any information concerning the Borrower or any of its Subsidiaries in
the possession of such Lender from time to time to assignees and participants
(including prospective assignees and participants).
(g) Whenever in this Agreement any of the parties hereto is referred
to, such reference shall be deemed to include the successors and permitted
assigns of such party and all covenants, provisions and agreements by or on
behalf of the Borrower which are contained in the Loan Documents shall inure to
the benefit of the successors and permitted assigns of the Agent, the Lenders,
or any of them. The Borrower may not assign or otherwise transfer to any other
Person any right, power, benefit, or privilege (or any interest therein)
conferred hereunder
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or under any of the other Loan Documents, or delegate (by assumption or
otherwise) to any other Person any duty, obligation, or liability arising
hereunder or under any of the other Loan Documents, and any such purported
assignment, delegation or other transfer shall be void.
12.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested, in each case delivered, transmitted or mailed, as the case
may be, to the address or telefacsimile number, as appropriate, set forth below
or such other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
Kellwood Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Legal Department/Corporate Secretary
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Bank of America, N.A.
Apparel-Textiles-Furnishings
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
87
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each Assignment
and Acceptance.
12.3. Right of Set-off; Adjustments. (a) Upon the occurrence and during
the continuance of any Event of Default, each Lender (and each of its
affiliates) is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other indebtedness at any time owing by such Lender (or any of its affiliates)
to or for the credit or the account of the Borrower against any and all of the
obligations of the Borrower now or hereafter existing under this Agreement and
the Note held by such Lender, irrespective of whether such Lender shall have
made any demand under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the Borrower after any
such set-off and application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender under this Section 12.3 are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefitted Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as shall be necessary to cause such benefitted Lender to share the excess
payment or benefits of such collateral or proceeds 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. The Borrower agrees that any Lender so
purchasing a participation from a Lender pursuant to this Section 12.3 may, to
the fullest extent permitted by law, exercise all of its rights of payment
(including the right of set- off) with respect to such participation as fully as
if such Person were the direct creditor of the Borrower in the amount of such
participation.
12.4. Survival. All covenants, agreements, representations and
warranties made herein shall survive the making by the Lenders of the Loans and
the issuance of the Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in full force and
effect so long as any of Obligations remain outstanding or any Lender has any
Tranche A Commitment or Tranche B Commitment hereunder or the Borrower has
continuing obligations hereunder unless otherwise provided herein.
12.5. Expenses. The Borrower agrees to pay on demand all costs and
expenses of the Agent in connection with the syndication, preparation,
execution, delivery, administration,
88
modification, and amendment of this Agreement, the other Loan Documents, and the
other documents to be delivered hereunder, including, without limitation, the
reasonable fees and expenses of counsel for the Agent (including the cost of
internal counsel) with respect thereto and with respect to advising the Agent as
to its rights and responsibilities under the Loan Documents. The Borrower
further agrees to pay on demand all costs and expenses of the Agent and the
Lenders, if any (including, without limitation, reasonable attorneys' fees and
expenses and the cost of internal counsel), in connection with the enforcement
(whether through negotiations, legal proceedings, or otherwise) of the Loan
Documents and the other documents to be delivered hereunder.
12.6. Amendments and Waivers. Any provision of this Agreement or any
other Loan Document may be amended or waived if, but only if, such amendment or
waiver is in writing and is signed by the Borrower and either the Required
Lenders or (as to Loan Documents other than the Credit Agreement) the Agent on
behalf of the Required Lenders (and, if Article XI or the rights or duties of
the Agent are affected thereby, by the Agent); provided that no such amendment
or waiver shall, unless signed by all the Lenders, (i) increase the Tranche A
Commitments or Tranche B Commitments of the Lenders or the Total Tranche A
Commitment or the Total Tranche B Commitment, (ii) reduce the principal of or
rate of interest on any Loan or any fees or other amounts payable hereunder,
(iii) postpone any date fixed for the payment of any scheduled installment of
principal of or interest on any Loan or any fees or other amounts payable
hereunder or for termination of any Tranche A Commitment or Tranche B
Commitment, or (iv) change the percentage of the Tranche A Commitment or Tranche
B Commitment or of the unpaid principal amount of the Notes, or the number of
Lenders, which shall be required for the Lenders or any of them to take any
action under this Section 12.6 or any other provision of this Agreement; and
provided, further, that no such amendment or waiver that affects the rights,
privileges or obligations of each Issuing Bank as issuer of Letters of Credit,
shall be effective unless signed in writing by each Issuing Bank.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly provided herein. No delay or
omission on any Lender's or the Agent's part in exercising any right, remedy or
option shall operate as a waiver of such or any other right, remedy or option or
of any Default or Event of Default.
12.7. Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully- executed counterpart.
12.8. Termination. The termination of this Agreement shall not affect
any rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The
89
rights granted to the Agent for the benefit of the Lenders under the Loan
Documents shall continue in full force and effect, notwithstanding the
termination of this Agreement, until all of the Obligations have been paid in
full after the termination hereof (other than Obligations in the nature of
continuing indemnities or expense reimbursement obligations not yet due and
payable, which shall continue) or the Borrower has furnished the Lenders and the
Agent with an indemnification satisfactory to the Agent and each Lender with
respect thereto. Notwithstanding the foregoing, if after receipt of any payment
of all or any part of the Obligations, any Lender is for any reason compelled to
surrender such payment to any Person because such payment is determined to be
void or voidable as a preference, impermissible setoff, a diversion of trust
funds or for any other reason, this Agreement shall continue in full force and
the Borrower shall be liable to, and shall indemnify and hold the Agent or such
Lender harmless for, the amount of such payment surrendered until the Agent or
such Lender shall have been finally and irrevocably paid in full. The provisions
of the foregoing sentence shall be and remain effective notwithstanding any
contrary action which may have been taken by the Agent or the Lenders in
reliance upon such payment, and any such contrary action so taken shall be
without prejudice to the Agent or the Lenders' rights under this Agreement and
shall be deemed to have been conditioned upon such payment having become final
and irrevocable.
12.9. Indemnification; Limitation of Liability. (a) The Borrower agrees
to indemnify and hold harmless the Agent and each Lender and each of their
affiliates and their respective officers, directors, employees, agents, and
advisors (each, an "Indemnified Party") from and against any and all claims,
damages, losses, liabilities, costs, and expenses (including, without
limitation, reasonable attorneys' fees) that may be incurred by or asserted or
awarded against any Indemnified Party, in each case arising out of or in
connection with or by reason of (including, without limitation, in connection
with any investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Loan Documents, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Loans or Letters of
Credit, except to the extent such claim, damage, loss, liability, cost, or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 12.9 applies, such indemnity
shall be effective whether or not such investigation, litigation or proceeding
is brought by the Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Borrower agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to it,
any of its Subsidiaries, or any security holders or creditors thereof arising
out of, related to or in connection with the transactions contemplated herein,
except to the extent that such liability is found in a final non-appealable
judgment by a court of competent jurisdiction to have directly resulted from
such Indemnified Party's gross negligence or willful misconduct. The Borrower
agrees not to assert any claim against the Agent, any Lender, any of their
affiliates, or any of their respective directors, officers, employees,
attorneys, agents, and advisers, on any theory of liability, for special,
indirect, consequential, or punitive damages arising out of or otherwise
relating to the Loan Documents, any of the transactions contemplated herein or
the actual or proposed use of the proceeds of the Loans.
90
(b) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 12.9 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
12.10. Severability. If any provision of this Agreement or the other
Loan Documents shall be determined to be illegal or invalid as to one or more of
the parties hereto, then such provision shall remain in effect with respect to
all parties, if any, as to whom such provision is neither illegal nor invalid,
and in any event all other provisions hereof shall remain effective and binding
on the parties hereto.
12.11. Entire Agreement. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto (except that those
provisions (if any) which by the express terms of the commitment letter dated as
of May 11, 1999, executed by Bank of America and BAS and accepted by the
Borrower, survive the closing of the Tranche A Revolving Credit Facility and the
Tranche B Revolving Credit Facility, shall survive and continue in effect).
12.12. Agreement Controls. In the event that any term of any of the
Loan Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
12.13. Usury Savings Clause. Notwithstanding any other provision
herein, the aggregate interest rate charged under any of the Notes, including
all charges or fees in connection therewith deemed in the nature of interest
under applicable law shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without regard to the
preceding sentence) under this Agreement at any time exceeds the Highest Lawful
Rate (as defined below), the outstanding amount of the Loans made hereunder
shall bear interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect. In addition, if when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account the increase
provided for above) is less than the total amount of interest which would have
been due hereunder if the stated rates of interest set forth in this Agreement
had at all times been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent for the benefit of itself and the Lenders an
amount equal to the difference between the amount of interest paid and the
amount of interest which would have been paid if the Highest Lawful Rate had at
all times been in effect. Notwithstanding the foregoing, it is the intention of
the Lenders and the Borrower to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives any consideration
which constitutes interest in excess of the Highest Lawful Rate, then any such
excess shall be cancelled automatically and, if previously paid, shall at such
Lender's option be applied to the outstanding amount of the Loans made hereunder
or be refunded to the Borrower. As used in this paragraph, the term "Highest
Lawful Rate" means the maximum
91
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
12.14. Payments. All principal, interest, and other amounts to be paid
by the Borrower under this Agreement and the other Loan Documents shall be paid
to the Agent or the Applicable Issuing Bank in immediately available funds,
without setoff, deduction or counterclaim. Subject to the definition of
"Interest Period" herein, whenever any payment under this Agreement or any other
Loan Document shall be stated to be due on a day that is not a Business Day,
such payment may be made on the next succeeding Business Day, and such extension
of time in such case shall be included in the computation of interest and fees,
as applicable, and as the case may be.
12.15. GOVERNING LAW; WAIVER OF JURY TRIAL.
(A) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED,
IN SUCH STATE.
(B) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND
CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING
TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN ▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ OF AMERICA AND, BY THE EXECUTION AND
DELIVERY OF THIS AGREEMENT, THE BORROWER EXPRESSLY WAIVES ANY OBJECTION
THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE IN, OR TO THE
EXERCISE OF JURISDICTION OVER IT AND ITS PROPERTY BY, ANY SUCH COURT IN
ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE BORROWER HEREBY
IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO THE JURISDICTION
OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(C) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER
PROVIDED IN SECTION 12.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED
FOR UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(D) NOTHING CONTAINED IN SUBSECTIONS (B) OR (C) HEREOF
SHALL PRECLUDE THE AGENT OR ANY LENDER FROM BRINGING ANY
92
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENT IN THE COURTS OF ANY JURISDICTION WHERE THE BORROWER OR ANY OF
THE BORROWER'S PROPERTY OR ASSETS MAY BE FOUND OR LOCATED. TO THE
EXTENT PERMITTED BY THE APPLICABLE LAWS OF ANY SUCH JURISDICTION, THE
BORROWER HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH
COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH SUIT, ACTION OR
PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER IT AND ITS
PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR HEREAFTER MAY
BE AVAILABLE UNDER APPLICABLE LAW.
(E) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS OR REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN
THE FUTURE BE DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE
AGENT AND THE LENDERS HEREBY AGREE, TO THE EXTENT PERMITTED BY
APPLICABLE LAW, THAT ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY AND HEREBY IRREVOCABLY WAIVE, TO
THE EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PERSON MAY HAVE
TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR PROCEEDING.
(F) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY
HAVE THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO
THE TERMS HEREOF IS AN INCONVENIENT FORUM.
12.16. Confidentiality. The Agent and each Lender (each a "Lending
Party") agrees to keep confidential any information furnished or made available
to it by the Borrower pursuant to this Agreement that is marked confidential;
provided that nothing herein shall prevent any Lending Party from disclosing
such information (a) to any other Lending Party or affiliate of any Lending
Party, or any officer, director, employee, agent or advisor of any Lending Party
or affiliate of any Lending Party, (b) as required by any law, rule or
regulation, (c) upon the order of any court or administrative agency, (d) upon
the request or demand of any regulatory agency or authority, (e) that is or
becomes available to the public or that is or becomes available to any Lending
Party other than as a result of a disclosure by any Lending Party prohibited by
this Agreement, (f) in connection with any litigation to which such Lending
Party or any of its affiliates may be a party, (g) to the extent necessary in
connection with the exercise of any remedy under this Agreement or any other
Loan Document, and (h) subject to provisions substantially similar to those
contained in this Section 12.16, to any actual or proposed participant or
assignee.
93
12.17. Special Funding Option.
(a) Notwithstanding anything to the contrary contained herein,
any Lender (for purposes of this Section 12.17, a "Granting Lender")
may grant to a special purpose funding vehicle (for the purposes of
this Section 12.17, an "SPC") the option to make, on behalf of such
Granting Lender, all or a portion of the Advances which such Granting
Lender is obligated to make (a "Funding Obligation") under the Tranche
A Revolving Credit Facility, the Tranche B Revolving Credit Facility
and the Letter of Credit Facility, such option to be exerciseable in
the sole discretion of the SPC; provided, however, that notwithstanding
the granting of such option to the SPC, or the exercise of such option
by the SPC:
(i) such Granting Lender's obligations under this
Agreement and the Loan Documents shall remain unchanged,
including without limitation the indemnification obligations
of the Granting Lender pursuant to Section 11.5 hereof;
(ii) such Granting Lender shall remain solely
responsible to the other parties hereto for the performance of
all Funding Obligations;
(iii) the Borrower and the Lenders (other than the
Granting Lender) shall continue to deal solely and directly
with such Granting Lender in connection with such Granting
Lender's rights and obligations under this Agreement, and the
Agent shall continue to deal directly with the Granting Lender
as agent for the SPC with respect to distribution of payments
of principal, interest and fees, notices of Conversion and
Continuation and all other matters;
(iv) such Granting Lender shall retain the sole right
(x) to enforce the obligations of the Borrower relating to its
Loans, its Notes and its Participations, and (y) to approve
any amendment, modification or waiver of any provision of this
Agreement;
(v) shall not constitute an assignment to or
participation of such SPC of or in the Granting Lender's
Commitments and Participations and Obligations owing thereto;
(vi) such SPC shall not become a Lender hereunder;
(vii) such SPC shall not become obligated or
committed to make Advances; and
(viii) if such SPC elects not to exercise such option
or otherwise fails to make all or any part of an Advance, the
Granting Lender shall retain its Funding Obligation and be
obligated to make the entire Advance or any portion of such
Advance not made by such SPC.
94
(b) Advances made by an SPC hereunder shall be deemed to
satisfy the Funding Obligation and utilize the Tranche A Commitment and
Tranche B Commitment, as applicable, of the Granting Lender as if, and
to the same extent, such Advances were made by such Granting Lender.
(c) Each party hereto agrees that no SPC shall be liable for
any indemnity or payment under this Agreement for which a Granting
Lender would otherwise be liable so long as, and to the extent that,
the Granting Lender provides such indemnity or makes such payment.
(d) Notwithstanding anything to the contrary contained in this
Agreement, an SPC may disclose on a confidential basis, subject to
provisions substantially similar to those contained in Section 12.16,
any nonpublic information relating to Advances made by such SPC
hereunder to any rating agency, commercial paper dealer or provider of
any surety or guarantee to such SPC.
(e) This Section 12.17 may not be amended without the prior
written consent of the Granting Lender on behalf of which such SPC has
made all or any part of its Advances which remain outstanding at the
time of such amendment.
[Signatures on following pages]
95
IN WITNESS WHEREOF, the parties hereto have caused this instrument to
be made, executed and delivered by their duly authorized officers as of the day
and year first above written.
KELLWOOD COMPANY
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
BANK OF AMERICA, N.A.
as Agent for the Lenders
By:
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CREDIT AGREEMENT
Signature Page 1 of 16
BANK OF AMERICA, N.A.
By:
---------------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank of America, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 1366212250600
Reference: Kellwood
Attention: Administrative Services
Lending Office for Fixed Rate Loans:
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Bank of America, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 1366212250600
Reference: Kellwood
Attention: Administrative Services
CREDIT AGREEMENT
Signature Page 2 of ▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Lending Office for Base Rate Loans:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 404/▇▇▇-▇▇▇▇
Telefacsimile: 404/888-8998
Wire Transfer Instructions:
The Bank of Nova Scotia.
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇
Reference: Kellwood Company
Attention: Chicago Team
Lending Office for Fixed Rate Loans:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 404/▇▇▇-▇▇▇▇
Telefacsimile: 404/888-8998
Wire Transfer Instructions:
The Bank of Nova Scotia
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇
Reference: Kellwood Company
Attention: Chicago Team
CREDIT AGREEMENT
Signature Page 3 of 16
THE CHASE MANHATTAN BANK
By:
---------------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
Lending Office for Base Rate Loans and
Eurodollar Loans:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Tio
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/403-5060
Wire Transfer Instructions for Base Rate Loans
and Eurodollar Loans
The Chase Manhattan Bank.
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: Commercial Loan
Operations-Dept. 9420
Reference: Kellwood Company
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Lending Office for Offshore Currency Loans:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ Tio
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/403-5060
Wire Transfer Instructions for Offshore Currency
Loans:
* Note: Wire instructions for Offshore
Currency Loans are dependent on the
type of currency utilized.
CREDIT AGREEMENT
Signature Page 4 of 16
MERCANTILE BANK NATIONAL ASSOCIATION
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
Lending Office for Base Rate Loans:
Mercantile Bank National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Mercantile Bank National Association
ABA #: ▇▇▇▇▇▇▇▇▇
Account No.: 140117-939
Account Name: Commercial Loan
Operations
Reference: Kellwood Company
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Lending Office for Fixed Rate Loans:
Mercantile Bank National Association
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Mercantile Bank National Association
ABA #: ▇▇▇▇▇▇▇▇▇
Account No.: 140117-939
Account Name: Commercial Loan
Operations
Reference: Kellwood Company
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CREDIT AGREEMENT
Signature Page 5 of 16
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
Lending Office for Base Rate Loans:
The Bank of Tokyo-Mitsubishi, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telefacsimile: 312/696-4532
Wire Transfer Instructions:
Federal Reserve Bank of Chicago,
for the account of The Bank of Tokyo-
Mitsubishi, Ltd., Chicago Branch
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 1525720230
Reference: Kellwood Company
Attention: Loan Administration
Lending Office for Fixed Rate Loans:
The Bank of Tokyo-Mitsubishi, Ltd.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telefacsimile: 312/696-4532
Wire Transfer Instructions:
Federal Reserve Bank of Chicago,
for the account of The Bank of Tokyo-
Mitsubishi, Ltd., Chicago Branch
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 1525720230
Reference: Kellwood Company
Attention: Loan Administration
CREDIT AGREEMENT
Signature Page 6 of 16
THE FIRST NATIONAL BANK OF CHICAGO
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
Lending Office for Base Rate Loans:
The First National Bank of Chicago
One First National Plaza
IL1-0173
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telefacsimile: 312/732-2715
Wire Transfer Instructions:
First National Bank of Chicago
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 481152860000
Reference: Kellwood
Attention: Loan Processing DP
Lending Office for Fixed Rate Loans:
The First National Bank of Chicago
One First National Plaza
IL1-0173
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telefacsimile: 312/732-2715
Wire Transfer Instructions:
First National Bank of Chicago
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 481152860000
Reference: Kellwood
Attention: Loan Processing DP
CREDIT AGREEMENT
Signature Page 7 of 16
THE DAI-ICHI KANGYO BANK, LTD.
By:
-------------------------------------------
Name:
-----------------------------------------
Title:
----------------------------------------
Lending Office for Base Rate Loans:
The Dai-Ichi Kangyo Bank, Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/549-0049
Wire Transfer Instructions:
Dai-Ichi Kangyo Bank, New York
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: N/A
Reference: Kellwood Company
Attention: Loan Admin. Asst. General
Manager
Lending Office for Fixed Rate Loans:
The Dai-Ichi Kangyo Bank, Ltd.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/549-0049
Wire Transfer Instructions:
Dai-Ichi Kangyo Bank, New York
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: N/A
Reference: Kellwood Company
Attention: Loan Admin. Asst. General
Manager
CREDIT AGREEMENT
Signature Page 8 of 16
FLEET BANK N.A.
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Lending Office for Base Rate Loans:
Fleet Bank N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone:
--------------------
Telefacsimile:
-----------
Wire Transfer Instructions:
Fleet Bank, NA
ABA# 021 300 019
Account No.: GL A/C #▇▇▇▇▇▇▇-03102
Reference: Kellwood Company
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Lending Office for Fixed Rate Loans:
Fleet Bank N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone:
--------------------
Telefacsimile:
-----------
Wire Transfer Instructions:
Fleet Bank, NA
ABA# 021 300 019
Account No.: GL AlC #▇▇▇▇▇▇▇-03102
Reference: Kellwood Company
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
CREDIT AGREEMENT
Signature Page 9 of 16
▇▇▇▇▇▇ TRUST AND SAVINGS BANK
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Lending Office for Base Rate Loans:
▇▇▇▇▇▇ Trust and Savings Bank
▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telefacsimile: 312/293-5283
Wire Transfer Instructions:
▇▇▇▇▇▇ Bank
ABA# 071 000 288
Account No.: ▇▇▇-▇▇▇-▇
Reference: Kellwood
Attention: Loan Accounting
Lending Office for Fixed Rate Loans:
Wire Transfer Instructions:
CREDIT AGREEMENT
Signature Page 10 of ▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Lending Office for Base Rate Loans:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/635-1481
Wire Transfer Instructions:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: GLA #111556
Reference: Kellwood Company
Attention: Commercial Loan Servicing
Dept.
Lending Office for Fixed Rate Loans:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/635-1481
Wire Transfer Instructions:
The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: GLA #111556
Reference: Kellwood Company
Attention: Eurodollar/Cayman Funding
Area
CREDIT AGREEMENT
Signature Page 11 of 16
BANQUE NATIONALE DE PARIS
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Lending Office for Base Rate Loans:
Banque Nationale de Paris
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telefacsimile: 312/977-2234
Wire Transfer Instructions:
Banque Nationale de Paris-New York
Branch
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 14119400189
Reference: Kellwood Company
Attention: ▇▇▇ ▇▇▇▇▇▇-Loan
Administrator
Lending Office for Fixed Rate Loans:
Banque Nationale de Paris
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telefacsimile: 312/977-2234
Wire Transfer Instructions:
Banque Nationale de Paris-New York
Branch
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 14119400189
Reference: Kellwood Company
Attention: ▇▇▇ ▇▇▇▇▇▇-Loan
Administrator
CREDIT AGREEMENT
Signature Page 12 of 16
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Lending Office for Base Rate Loans:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/355-0593
Wire Transfer Instructions:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA# 021 000 018
Account No.: ▇▇▇-▇▇▇▇-▇▇▇
Account Name: CSFB NY Loan Clearing
Reference: Kellwood
Lending Office for Fixed Rate Loans:
Credit Suisse First Boston
Eleven Madison Avenue
New York, New York 10010
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/355-0593
Wire Transfer Instructions:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA# 021 000 018
Account No.: ▇▇▇-▇▇▇▇-▇▇▇
Account Name: CSFB NY Loan Clearing
Reference: Kellwood
CREDIT AGREEMENT
Signature Page 13 of 16
ISRAEL DISCOUNT BANK OF NEW YORK
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Lending Office for Base Rate Loans:
Israel Discount Bank of New York
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/551-8872
Reference: Kellwood
Wire Transfer Instructions:
Israel Discount Bank of New York
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 355400901621
Reference: Kellwood
Attention: Accounts Payable-Loan
Dept./▇▇▇▇▇ ▇▇▇▇▇▇
Lending Office for Fixed Rate Loans:
Israel Discount Bank of New York
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/551-8872
Reference: Kellwood
Wire Transfer Instructions:
Israel Discount Bank of New York
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 355400901621
Reference: Kellwood
Attention: Accounts Payable-Loan
Dept./▇▇▇▇▇ ▇▇▇▇▇▇
CREDIT AGREEMENT
Signature Page 14 of 16
THE INDUSTRIAL BANK OF JAPAN, LIMITED
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Lending Office for Base Rate Loans:
The Industrial Bank of Japan, Limited
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/282-4478
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited
ABA# :▇▇▇-▇▇▇-▇▇▇
Account No.: N/A
Reference: Kellwood
Attention: Credit Administrative
Department
Lending Office for Fixed Rate Loans:
The Industrial Bank of Japan, Limited
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Telefacsimile: 212/282-4478
Wire Transfer Instructions:
The Industrial Bank of Japan, Limited
ABA# :▇▇▇-▇▇▇-▇▇▇
Account No.: N/A
Reference: Kellwood
Attention: Credit Administrative
Department
CREDIT AGREEMENT
Signature Page 15 of 16
UMB BANK OF ST. LOUIS, N.A.
By:
--------------------------------------------
Name:
------------------------------------------
Title:
-----------------------------------------
Lending Office for Base Rate Loans:
UMB Bank of St. Louis, N.A.
▇ ▇. ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇
Telephone: 314/▇▇▇-▇▇▇▇
Telefacsimile: 314/612-8150
Wire Transfer Instructions:
UMB Bank of St. Louis, N.A.
ABA# : ▇▇▇▇▇▇▇▇▇
Account No.: N/A
Reference: Kellwood
Attention: Commercial Loan Department
Lending Office for Fixed Rate Loans:
UMB Bank of St. Louis, N.A.
▇ ▇. ▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇
Telephone: 314/▇▇▇-▇▇▇▇
Telefacsimile: 314/612-8150
Wire Transfer Instructions:
UMB Bank of St. Louis, N.A.
ABA# : ▇▇▇▇▇▇▇▇▇
Account No.: N/A
Reference: Kellwood
Attention: Commercial Loan Department
CREDIT AGREEMENT
Signature Page 16 of 16
EXHIBIT A
Applicable Commitment Percentages
APPLICABLE
TRANCHE A TRANCHE B TOTAL COMMITMENT
LENDER COMMITMENT COMMITMENT COMMITMENT PERCENTAGE
==================================== ===================== ====================== ====================== ======================
Bank of America, N.A. $13,142,857.12 $32,857,142.88 $46,000,000 13.▇▇▇▇▇▇▇▇▇%
The Bank of Nova Scotia 13,142,857.14 32,857,142.86 $46,000,000 13.142857143%
The Chase Manhattan Bank 13,142,857.14 32,857,142.86 $46,000,000 13.142857143%
The First National Bank of 6,628,571.43 16,571,428.57 $23,200,000 6.628571429%
Chicago
Mercantile Bank National 6,628,571.43 16,571,428.57 $23,200,000 6.628571429%
Association
The Bank of Tokyo-Mitsubishi, 6,628,571.43 16,571,428.57 $23,200,000 6.628571429%
Ltd., Chicago Branch
The Dai-Ichi Kangyo Bank, Ltd. 6,628,571.43 16,571,428.57 $23,200,000 6.628571429%
Fleet Bank N.A. 6,628,571.43 16,571,428.57 $23,200,000 6.628571429%
▇▇▇▇▇▇ Trust and Savings Bank 5,714,285.71 14,285,714.29 $20,000,000 5.714285714%
UMB Bank of St. Louis, N.A. 4,285,714.29 10,714,285.71 $15,000,000 4.285741286%
Credit Suisse First Boston 4,285,714.29 10,714,285.71 $15,000,000 4.285714286%
Banque Nationale de Paris 3,285,714.29 8,214,285.71 $11,500,000 3.285714286%
The Industrial Bank of Japan, 3,285,714.29 8,214,285.71 $11,500,000 3.285714286%
Limited
The Bank of New York 3,285,714.29 8,214,285.71 $11,500,000 3.285714286%
Israel Discount Bank of New 3,285,714.29 8,214,285.71 $11,500,000 3.285714286%
York
TOTAL $100,000,000.00 $250,000,000.00 $350,000,000.00 100.00000000%
A-1
EXHIBIT B
Form of Assignment and Acceptance
Reference is made to the Credit Agreement dated as of August 31, 1999
(the "Credit Agreement") among Kellwood Company, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement) and Bank of
America, N.A., as Administrative Agent for the Lenders (the "Agent") and the
Documentation Agent and Syndication Agent named therein. Terms defined in the
Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT
RECOURSE and without representation or warranty except as expressly set forth
herein, and the Assignee hereby purchases and assumes from the Assignor, an
interest in and to the Assignor's rights and obligations under the Credit
Agreement and the other Loan Documents as of the date hereof equal to the
percentage interest specified on Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents. After
giving effect to such sale and assignment, the Assignee's Tranche A Commitment
and Tranche B Commitment and the amount of the Tranche A Loans and Tranche B
Loans owing to the Assignee will be as set forth on Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower and its
Subsidiaries or the performance or observance by the Borrower of any of its
obligations under the Loan Documents or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Tranche A Note and Tranche B
Note held by the Assignor and requests that the Agent exchange such Tranche A
Note and Tranche B Note for new Tranche A Notes and Tranche B Notes payable to
the order of the Assignee in an amount equal to the Tranche A Commitment and
Tranche B Commitment assumed by the Assignee pursuant hereto and to the Assignor
in an amount equal to the Tranche A Commitment and Tranche B Commitment retained
by the Assignor, if any, as specified on Schedule 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 8.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and
B-1
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) confirms that it is an Eligible Assignee; (iv) appoints and authorizes the
Agent to take such action as agent on its behalf and to exercise such powers and
discretion under the Credit Agreement as are delegated to the Agent by the terms
thereof, together with such powers and discretion as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their terms all of
the obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; and (vi) attaches any U.S. Internal Revenue Service
or other forms required under Section 5.6.
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Agent, unless otherwise specified on
Schedule 1.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Tranche A Notes and Tranche B Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest and
commitment fees with respect thereto) to the Assignee. The Assignor and Assignee
shall make all appropriate adjustments in payments under the Credit Agreement
and the Tranche A Notes and Tranche B Notes for periods prior to the Effective
Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule
1 to this Assignment and Acceptance to be executed by their officers thereunto
duly authorized as of the date specified thereon.
B-2
Schedule 1
Percentage interest assigned: ________%
Assignee's Tranche A Commitment: $_______
Assignee's Tranche B Commitment: $_______
Aggregate outstanding principal amount
of Tranche A Loans assigned: $_______
Aggregate outstanding principal amount
of Tranche A Loans retained by Assignor: $_______
Aggregate outstanding principal amount
of Tranche B Loans assigned: $_______
Aggregate outstanding principal amount
of Tranche B Loans retained by Assignor: $_______
Principal amount of Tranche A Note
payable to Assignee: $_______
Principal amount of Tranche B Note
payable to Assignee: $_______
Principal amount of Tranche A Note
payable to Assignor: $_______
Principal amount of Tranche B Note
payable to Assignor: $_______
Effective Date (if other than date
of acceptance by Agent): _______, 19__
[NAME OF ASSIGNOR], as Assignor
By:
--------------------------------
Title:
B-3
Dated: , 19 _
--------------------
[NAME OF ASSIGNEE], as Assignee
By:
--------------------------------
Title:
Domestic Lending Office:
Fixed Rate Loan Lending Office:
Accepted [and Approved] **
this ___ day of ___________, 19 _
BANK OF AMERICA, N.A., as Agent
By:
------------------------
Title:
[Approved this ____ day
of ____________, 19__
KELLWOOD COMPANY
By: ]**
------------------------
Title:
** Required if the Assignee is an Eligible Assignee solely by reason of clause
(iii) of the definition of "Eligible Assignee".
B-4
EXHIBIT C
Notice of Appointment (or Revocation) of Authorized Representative
Reference is hereby made to the Credit Agreement dated as of August
31, 1999 (the "Agreement") among Kellwood Company, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Agreement), and Bank of America,
N.A., as Administrative Agent for the Lenders ("Agent") and the Documentation
Agent and Syndication Agent named therein. Capitalized terms used but not
defined herein shall have the respective meanings therefor set forth in the
Agreement.
The Borrower hereby nominates, constitutes and appoints each
individual named below as an Authorized Representative under the Loan Documents,
and hereby represents and warrants that (i) set forth opposite each such
individual's name is a true and correct statement of such individual's office
(to which such individual has been duly elected or appointed), a genuine
specimen signature of such individual and an address for the giving of notice,
and (ii) each such individual has been duly authorized by the Borrower to act as
Authorized Representative under the Loan Documents:
Name and Address Office Specimen Signature
------------------------ ------------------------ -------------------------
------------------------
------------------------
------------------------ ------------------------ -------------------------
------------------------ ------------------------ -------------------------
------------------------
Borrower hereby revokes (effective upon receipt hereof by the Agent) the prior
appointment of ________________ as an Authorized Representative.
This the ___ day of __________________, 19__.
KELLWOOD COMPANY
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
C-1
EXHIBIT D
Form of Borrowing Notice
To: Bank of America, N.A.
as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇)▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of August
31, 1999 (the "Agreement") among Kellwood Company (the "Borrower"), the Lenders
(as defined in the Agreement), and Bank of America, N.A., as Administrative
Agent for the Lenders ("Agent") and the Documentation Agent and Syndication
Agent named therein. Capitalized terms used but not defined herein shall have
the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives
notice to the Agent that Loans of the type and amount set forth below be made on
the date indicated:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3) Currency(4)
----------- --------- --------- --------------- -----------
Tranche A Loan
--------------
Base Rate Loan ________ ________ ________ ________
Eurodollar Rate Loan ________ ________ ________ ________
Tranche B Loan
--------------
Base Rate Loan ________ ________ ________ ________
Eurodollar Rate Loan ________ ________ ________ ________
Offshore Rate Loan ________ ________ ________ ________
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $5,000,000 or if greater an integral multiple of $1,000,000 if a Tranche A Loan. Must be the
Dollar Equivalent Amount of $5,000,000 or if greater an integral multiple of the Dollar Equivalent Amount
of $1,000,000 if a Tranche B Loan, unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Fixed Rate Loan;
(4) Specify Dollars or the applicable Offshore Currency.
D-1
The Borrower hereby requests that the proceeds of Loans described
in this Borrowing Notice be made available to the Borrower as follows: [insert
transmittal instructions] .
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving
effect to the borrowing described herein; and
2. All the representations and warranties set forth in Article VII
of the Agreement and in the Loan Documents (other than those expressly stated to
refer to a particular date) are true and correct as of the date hereof except
that the reference to the financial statements in Section 7.5(a) of the
Agreement shall be deemed (solely for the purpose of the representation and
warranty contained in such Section 7.5(a) but not for the purpose of any cross
reference to such Section 7.5(a) or to the financial statements described
therein contained in any other provision of Section 7.5 or elsewhere in Article
VII) to refer to those financial statements most recently delivered to you
pursuant to Section 8.1 of the Agreement (it being understood that any financial
statements delivered pursuant to Section 8.1(b) have not been certified by
independent public accountants).
3. All conditions contained in the Agreement to the making of any
Loan requested hereby have been met or satisfied in full .
KELLWOOD COMPANY
BY:
---------------------------------------------
Authorized Representative
DATE:
-------------------------------------------
D-2
EXHIBIT E
Form of Interest Rate Selection Notice
To: Bank of America, as Agent
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor
NC1-001-15-04
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Agency Services
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of August
31, 1999 (the "Agreement") among Kellwood Company (the "Borrower"), the Lenders
(as defined in the Agreement), and Bank of America, N.A., as Administrative
Agent for the Lenders ("Agent") and the Documentation Agent and Syndication
Agent named therein. Capitalized terms used but not defined herein shall have
the respective meanings therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives
notice to the Agent of the following selection of a type of Loan and Interest
Period:
Type of Loan Interest Aggregate
(check one) Period(1) Amount(2) Date of Loan(3) Currency(4)
----------- --------- --------- --------------- -----------
Tranche A Loan
--------------
Eurodollar Rate Loan ________ ________ ________ ________
Tranche B Loan
--------------
Eurodollar Rate Loan ________ ________ ________ ________
Offshore Rate Loan ________ ________ ________ ________
-----------------------
(1) For any Eurodollar Rate Loan, one, two, three or six months.
(2) Must be $5,000,000 or if greater an integral multiple of $1,000,000 if a Tranche A Loan. Must be the
Dollar Equivalent Amount of $5,000,000 or if greater an integral multiple of the Dollar Equivalent Amount
of $1,000,000 if a Tranche B Loan, unless a Base Rate Refunding Loan.
(3) At least three (3) Business Days later if a Fixed Rate Loan;
(4) Specify Dollars or the applicable Offshore Currency.
KELLWOOD COMPANY
BY:
--------------------------------------
Authorized Representative
DATE:
------------------------------------
E-1
EXHIBIT F-1
Form of Tranche A Note
Promissory Note
(Tranche A Loan)
$-------------- ---------, --------------
August __, 1999
FOR VALUE RECEIVED, KELLWOOD COMPANY, a Delaware corporation having its
principal place of business located in Chesterfield, Missouri (the "Borrower"),
hereby promises to pay to the order of
_______________________________________________ (the "Lender"), in its
individual capacity, at the office of BANK OF AMERICA, N.A., as Administrative
Agent for the Lenders (the "Agent"), located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places
as the Agent may designate in writing) at the times set forth in the Credit
Agreement dated as of August __, 1999 among the Borrower, the financial
institutions party thereto (collectively, the "Lenders"), the Agent and the
Documentation Agent and Syndication Agent named therein (the "Agreement" -- all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of ___________
DOLLARS ($__________) or, if less than such principal amount, the aggregate
unpaid principal amount of all Tranche A Loans made by the Lender to the
Borrower pursuant to the Agreement on the Tranche A Termination Date or such
earlier date as may be required pursuant to the terms of the Agreement, and to
pay interest from the date hereof on the unpaid principal amount hereof, in like
money, at said office, on the dates and at the rates provided in Articles II and
IV of the Agreement. All or any portion of the principal amount of Loans may be
prepaid or required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest thereon evidenced by this Tranche A Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Tranche A Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Tranche A Note is one of the Tranche A Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security of
the Agreement to which reference is
F-1-1
hereby made for a more complete statement of the terms and conditions upon which
the Tranche A Loans evidenced hereby were or are made and are to be repaid. This
Tranche A Note is subject to certain restrictions on transfer or assignment as
provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Tranche A Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[Signature page follows.]
F-1-2
IN WITNESS WHEREOF, the Borrower has caused this Tranche A Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
KELLWOOD COMPANY
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
F-1-3
EXHIBIT ▇-▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇ Note
Promissory Note
(Tranche B Loan)
$-------------- ---------, --------------
August __, 1999
FOR VALUE RECEIVED, KELLWOOD COMPANY, a Delaware corporation having its
principal place of business located in Chesterfield, Missouri (the "Borrower"),
hereby promises to pay to the order of
_______________________________________________ (the "Lender"), in its
individual capacity, at the office of BANK OF AMERICA, N.A., as Administrative
Agent for the Lenders (the "Agent"), located at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇-▇▇▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (or at such other place or places
as the Agent may designate in writing) at the times set forth in the Credit
Agreement dated as of August __, 1999 among the Borrower, the financial
institutions party thereto (collectively, the "Lenders"), the Agent and the
Documentation Agent and Syndication Agent named therein (the "Agreement" -- all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in United States Dollars or the applicable
Offshore Currency as provided in Article II of the Agreement, and in immediately
available funds, the principal Dollar Equivalent Amount of ___________ DOLLARS
($__________) or, if less than such principal amount, the aggregate unpaid
principal amount of all Tranche B Loans made by the Lender to the Borrower
pursuant to the Agreement on the Tranche B Termination Date or such earlier date
as may be required pursuant to the terms of the Agreement, and to pay interest
from the date hereof on the unpaid principal amount hereof, in like money, at
said office, on the dates and at the rates provided in Articles II and IV of the
Agreement. All or any portion of the principal amount of Loans may be prepaid or
required to be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of
the Agreement or under the terms of the other Loan Documents executed in
connection with the Agreement, the then remaining principal amount and accrued
but unpaid interest thereon evidenced by this Tranche B Note shall become
immediately due and payable, without presentation, demand, protest or notice of
any kind, all of which are hereby waived by the Borrower.
In the event this Tranche B Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Tranche B Note is one of the Tranche B Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security of
the Agreement to which reference is
F-2-1
hereby made for a more complete statement of the terms and conditions upon which
the Tranche B Loans evidenced hereby were or are made and are to be repaid. This
Tranche B Note is subject to certain restrictions on transfer or assignment as
provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Tranche B Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[Signature page follows.]
F-2-2
IN WITNESS WHEREOF, the Borrower has caused this Tranche B Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
KELLWOOD COMPANY
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
F-2-3
EXHIBIT G
Form of Opinion of Borrower's Counsel
August ___, 1999
Bank of America, N.A.,
as Agent and
Each of the Lenders Party to the
Credit Agreement Referenced Below
Bank of America ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
RE: $350,000,000 REVOLVING CREDIT AND LETTER OF CREDIT FACILITIES AMONG
BANK OF AMERICA, N.A., AS ADMINISTRATIVE AGENT, THE SYNDICATION AGENT
AND DOCUMENTATION AGENT NAMED THEREIN, THE LENDERS PARTY THERETO AND
KELLWOOD COMPANY
Ladies and Gentlemen:
We have acted as counsel to Kellwood Company, a Delaware corporation
(the "Borrower"), in connection with the negotiation, execution, and delivery of
the Credit Agreement of even date herewith among you, the Lenders, the
Documentation Agent and Syndication Agent named therein and the Borrower (the
"Credit Agreement"; capitalized terms not otherwise defined herein shall have
the meanings provided therefor in the Credit Agreement) and the execution and
delivery of the other Transaction Documents (as defined below) by the Borrower,
pursuant to which the Lenders are providing (a) the Tranche A Revolving Credit
Facility in the amount of $100,000,000 and (b) the Tranche B Revolving Credit
Facility in the amount of $250,000,000, including the $250,000,000 Letter of
Credit Facility and the $20,000,000 Offshore Currency Sublimit, each
constituting part of the Tranche B Revolving Credit Facility, and the other
transactions contemplated under the Credit Agreement.
This opinion is being delivered in accordance with the conditions set
forth in Section 6.1 of the Credit Agreement.
As such counsel, we have reviewed originals, or copies certified or
otherwise authenticated to our satisfaction, of the following documents as
executed and delivered as of the date hereof (collectively, the "Transaction
Documents"):
1. the Credit Agreement;
G-1
2. the Notes; and
3. LC Account Agreement;
For purposes of the opinions expressed below, we have assumed that all
natural persons executing the Transaction Documents have legal capacity to do
so; that all signatures (other than those of representatives of the Borrower on
the Transaction Documents) on all documents submitted to us are genuine; that
all documents submitted to us as originals (other than the Transaction
Documents) are authentic; and that all documents submitted to us as certified
copies or photocopies conform to the originals of such documents, which
themselves are authentic.
For purposes of giving this opinion, we have examined such corporate
and other records of the Borrower, certificates of public officials,
certificates of appropriate officers or other representatives of the Borrower,
and such other documents, and have made such inquiries as we have deemed
appropriate.
Based upon and subject to the foregoing, it is our opinion that:
1. The Borrower is a corporation duly organized, validly existing and
in good standing under the laws of its state of formation and is duly qualified
to transact business as a foreign corporation and is in good standing in the
following jurisdictions:___________________ ___________________, and in each
other jurisdiction in which, in light of the nature of the business transacted
by it or the property owned by it, such qualification is necessary and the
failure so to qualify might impair title to any property material to its
operations or its right to enforce any material contract against others, or
expose it to any substantial liability or impairment of rights or defenses in
such jurisdiction. The Borrower has full corporate power and authority to own
its assets and conduct the businesses in which it is now engaged and as are
expressly contemplated by the Transaction Documents, and has full corporate
power and authority to enter into each of the Transaction Documents to which it
is a party and to perform its obligations thereunder and consummate the
transactions contemplated therein.
2. Each of the Transaction Documents to which the Borrower is a party
has been duly authorized by the Board of Directors of the Borrower (and by any
required shareholder action), has been duly executed and delivered by the
Borrower, and constitutes the legal, valid and binding obligation, agreement,
instrument or conveyance, as the case may be, of the Borrower, enforceable
against the Borrower in accordance with its terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization and
other similar laws relating to or affecting creditors' rights generally and by
the application of general equitable principles (whether considered in
proceedings at law or in equity).
3. Neither the execution or delivery of, nor performance by the
Borrower of its obligations under, the Transaction Documents (a) does or will
conflict with, violate or constitute a breach of (i) any of the Organizational
Documents or Operating Documents of the Borrower, (ii) any laws, rules or
regulations applicable to the Borrower, or (iii) any contract, agreement,
indenture, lease, instrument, commitment, judgment, writ, determination, order,
decree or arbitral award, of
G-2
which we have knowledge after due inquiry of appropriate representatives of the
Borrower, to which the Borrower or any Subsidiary is a party or by which the
Borrower or any Subsidiary or any of their properties is bound, (b) requires the
prior consent of, notice to, license from or filing with any Governmental
Authority which has not been duly obtained or made on or prior to the date
hereof, or (c) does or will result in the creation or imposition of any lien,
pledge, charge or encumbrance of any nature upon or with respect to any of the
properties of the Borrower or any Subsidiary, except for the Liens in your favor
expressly created pursuant to the Transaction Documents.
4. Insofar as we have knowledge of the operations and affairs of the
Borrower and upon due inquiry of appropriate representatives of the Borrower,
there is no pending or overtly threatened, action, suit, investigation or
proceeding (including, without limitation, any action, suit, investigation, or
proceeding under any environmental or labor law) before or by any court, or
governmental department, commission, board, bureau, instrumentality, agency or
arbitral authority, (i) which calls into question the validity or enforceability
of any of the Transaction Documents, or the titles to their respective offices
or authority of any officers of the Borrower or (ii) an adverse result in which
would reasonably be likely to have a Material Adverse Effect.
5. Insofar as we have knowledge of the operations and affairs of the
Borrower and upon due inquiry of appropriate representatives of the Borrower,
there exists no event, circumstance or condition (except that we express no
opinion as to financial reporting or accounting matters) which, immediately upon
giving effect to the Transaction Documents, would constitute a Default or Event
of Default under the Credit Agreement.
6. None of the transactions contemplated by the Credit Agreement,
including without limitation the use of the proceeds of the Loans provided for
in the Transaction Documents, will violate or result in a violation of Section 7
of the Securities Exchange Act of 1934, as amended, any regulations issued
pursuant thereto, or regulations T, U or X of the Board of Governors of the
Federal Reserve System.
7. A state or federal court located in the State of New York, if
properly presented with the question and applying the choice of laws rules of
the State of New York, would in a properly reasoned opinion give effect to the
provisions of the Transaction Documents providing that the Transaction Documents
shall be governed by and construed in accordance with the internal substantive
laws of the State of New York.
8. The rate or rates of interest provided for in the Transaction
Documents, including all late payment charges and the Default Rate provided for
therein, do not and will violate or conflict with, or give rise to any defense
to payment of the Obligations or to any claim, counterclaim, setoff or
recoupment under, any usury or other law or regulation of the State of New York
governing the maximum rate of interest or amount of other charges that may be
charged or incurred in transactions of the type contemplated under the
Transaction Documents.
9. No documentary, stamp, intangibles, excise or other tax is payable
to any Governmental Authority of the State of New York in connection with the
execution, delivery,
G-3
enforcement, recording or filing of any of the Transaction Documents, other than
court costs and fees that may be or become payable in connection with the
enforcement of the Transaction Documents.
10. Solely by reason of (i) the execution and delivery of, and
performance by the parties thereto under, the Transaction Documents, (ii) the
acceptance of the Notes and the receipt of payments in respect of the
Obligations, or (iii) the enforcement of rights and remedies by the Agent or any
Lender under the Transaction Documents, neither the Agent nor any Lender is or
shall (a) be required to qualify to do business in the State of New York or (b)
be subject to the payment of any franchise or income tax or other tax imposed by
the State of New York or any agency thereof payable in respect of payments
received under the Transaction Documents.
Our opinions contained herein are rendered solely in connection with
the transactions contemplated under the Transaction Documents and may not be
relied upon in any manner by any Person other than the addressees hereof, any
successor or assignee of any addressee (including successive assignees) and any
Person who shall acquire a participation interest in the interest of any Lender
(collectively, the "Reliance Parties"), or by any Reliance Party for any other
purpose. Our opinions herein shall not be quoted or otherwise included,
summarized or referred to in any publication or document, in whole or in part,
for any purpose whatsoever, or furnished to any Person other than a Reliance
Party (or a Person considering whether to become a Reliance Party), except as
may be required of any Reliance Party by applicable law or regulation or in
accordance with any auditing or oversight function or request of regulatory
agencies to which a Reliance Party is subject.
G-4
EXHIBIT H
Compliance Certificate
Bank of America, N.A.
as Agent
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NC1-001-15-04
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Attention: Agency Services
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America, N.A.
as Agent
Apparel, Textiles & Furnishings
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▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Reference is hereby made to the Credit Agreement dated as of August __,
1999 (the "Agreement") among Kellwood Company, a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Agreement), the Syndication Agent
and Documentation Agent named therein and Bank of America, N.A., as
Administrative Agent for the Lenders ("Agent"). Capitalized terms used but not
otherwise defined herein shall have the respective meanings therefor set forth
in the Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you as of __________ (the "Determination
Date") as follows:
1. Calculations:
A. Compliance with Section 9.1(a): Consolidated Shareholders'
Equity
1. Consolidated Shareholders' Equity required as at
the last day of the fiscal quarter immediately
preceding the Determination Date $______________
2. Consolidated Net Income for the
most recent fiscal quarter x 0.5 $______________
3. 100% of the aggregate amount of all increases
H-1
in the stated capital and additional paid-in capital
accounts of the Borrower resulting from the issuance
of equity securities or other capital investments
$______________
4. Sum of A.1 + A.2 + A.3 $______________
5. Actual Consolidated Shareholders' Equity
$______________
REQUIRED: LINE A.5 MUST NOT BE LESS THAN LINE A.4
B. Compliance with Section 9.1(b): Consolidated Leverage Ratio
1. Consolidated Indebtedness $______________
2. Consolidated EBITDA* $______________
3. B.1 / B.2 ______ to 1.00
REQUIRED: LINE B.3 MUST NOT BE GREATER THAN 3.50 TO 1.00
C. Compliance with Section 9.1(c): Consolidated Interest Coverage
Ratio
1. Consolidated EBITDA* $______________
2. Capital Expenditures $______________
3. C.1 - C.2 $______________
4. Consolidated Interest Expense $______________
5. C.3 / C.4 ______ to 1.00
REQUIRED: LINE C.2 MUST NOT BE LESS THAN 2.25 TO 1.00
*See Attached Schedule 1 for calculation of Consolidated EBITDA
H-2
2. No Default
A. Since __________ (the date of the last similar
certification), (a) the Borrower has not defaulted in the
keeping, observance, performance or fulfillment of its
obligations pursuant to any of the Loan Documents; and (b) no
Default or Event of Default specified in Article X of the
Agreement has occurred and is continuing.
B. If a Default or Event of Default has occurred
since __________ (the date of the last similar certification),
the Borrower proposes to take the following action with
respect to such Default or Event of Default: _________________
______________________________________________________________
_____________________________________.
(Note, if no Default or Event of Default has
occurred, insert "Not Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with Section 8.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 19___.
By:
--------------------------------------
Authorized Representative
Name:
------------------------------------
Title:
-----------------------------------
H-3
Schedule 1 to Compliance Certificate
Calculation of Consolidated EBIT and Consolidated EBITDA
Borrower's Actual Acquisitions Pro Forma**
----------------- ------------ -----------
A. Consolidated Net Income
less all noncash income $______________ $____________ $____________
B. Consolidated Interest
Expense $______________ $____________ $____________
C. Taxes on income $______________ $____________ $____________
D. Amortization $______________ $____________ $____________
E. Depreciation $______________ $____________ $____________
F. All other noncash
expenses $______________ $____________ $____________
G. CONSOLIDATED EBITDA $______________ $____________ $____________
(A + B+ C+ D + E + F)
** Determined on a historical pro forma basis as if such Acquisitions had been
consummated as a "pooling of interests" notwithstanding the elimination of the
"pooling of interests" accounting method under GAAP.
H-4
Schedule 1.1
------------
Existing Letters of Credit
Commercial Letters of Credit
----------------------------
Number Beneficiary Amount Expiry
------ ----------- ------ ------
Standby Letters of Credit
Number Beneficiary Amount Expiry
------ ----------- ------ ------
S-1
Schedule 7.3
------------
Subsidiaries and Investments in Other Persons
S-2
Schedule 7.5
------------
Indebtedness
S-3
Schedule 7.6
------------
Liens
S-4
Schedule 7.7
------------
Tax Matters
S-5
Schedule 7.9
------------
Litigation
S-6
Schedule 7.17
-------------
Environmental Matters
S-7