EXECUTION COPY
U.S. $600,000,000
CREDIT AGREEMENT
Dated as of August 12, 1997
Among
WARNACO INC.
as Borrower
and
THE WARNACO GROUP, INC.
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
THE BANK OF NOVA SCOTIA and CITIBANK, N.A.
as Managing Agents
and
CITIBANK, N.A.
as Documentation Agent
and
THE BANK OF NOVA SCOTIA
as Administrative Agent, Competitive Bid Agent,
Swing Line Bank and an Issuing Bank
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms......................................... 1
SECTION 1.02. Computation of Time Periods...................................25
SECTION 1.03. Accounting Terms..............................................25
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances..................................................25
SECTION 2.02. Making the Advances...........................................27
SECTION 2.03. Issuance of and Drawings and Reimbursement Under Letters of
Credit......................................................31
SECTION 2.04. The Competitive Bid Advances..................................33
SECTION 2.05. Repayment of Advances.........................................38
SECTION 2.06. Termination or Reduction of the Commitments...................39
SECTION 2.07. Prepayments...................................................39
SECTION 2.08. Interest......................................................40
SECTION 2.09. Fees..........................................................41
SECTION 2.10. Conversion of Advances........................................42
SECTION 2.11. Increased Costs, Etc..........................................43
SECTION 2.12. Illegality....................................................45
SECTION 2.13. Payments and Computations.....................................45
SECTION 2.14. Taxes.........................................................46
SECTION 2.15. Sharing of Payments, Etc......................................49
SECTION 2.16. Use of Proceeds...............................................50
SECTION 2.17. Defaulting Lenders............................................50
SECTION 2.18. Evidence of Debt..............................................53
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of Section 2.01
and 2.03....................................................54
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance...........55
SECTION 3.03. Determinations Under Section 3.01.............................56
ARTICLE IV
REPRESENTATIONS AND WARRANTIES..................57
SECTION 4.01. Representations and Warranties of the Borrower................57
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants.........................................60
SECTION 5.02. Negative Covenants............................................63
SECTION 5.03. Financial Covenants...........................................68
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.............................................69
SECTION 6.02. Actions in Respect of the Letters of Credit upon Default......72
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action......................................73
SECTION 7.02. Agents' Reliance, Etc.........................................73
SECTION 7.03. Scotiabank, Citibank and Affiliates...........................74
SECTION 7.04. Lender Credit Decision........................................74
SECTION 7.05. Indemnification...............................................74
SECTION 7.06. Successor Agents..............................................75
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc...............................................75
SECTION 8.02. Notices, Etc..................................................76
SECTION 8.03. No Waiver; Remedies ..........................................77
SECTION 8.04. Costs and Expenses............................................77
SECTION 8.05. Right of Set-off..............................................79
SECTION 8.06. Binding Effect................................................79
SECTION 8.07. Assignments, Designations and Participations..................79
SECTION 8.08. Confidentiality...............................................85
SECTION 8.09. No Liability of the Issuing Banks.............................85
SECTION 8.10. Execution in Counterparts.....................................86
SECTION 8.11. Governing Law.................................................86
SECTION 8.12. Jurisdiction, Etc.............................................86
SECTION 8.13. Waiver of Jury Trial..........................................88
Page
Schedules
Schedule I - List of Applicable Lending Offices
Schedule 2.03(e) - Existing Letters of Credit
Schedule 4.01(b) - Subsidiaries
Schedule 5.02(d) - Assets Held For Sale
Exhibits
Exhibit A-1 - Form of Competitive Bid Note
Exhibit A-2 - Form of Revolving Credit Note
Exhibit B-1 - Form of Notice of Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Counsel for the Loan Parties
Exhibit F - Form of Group Guaranty
Exhibit G - Form of Subsidiary Guaranty
CREDIT AGREEMENT
Dated as of August 12, 1997
WARNACO INC., a Delaware corporation (together with any
successors-in-interest permitted hereunder, the "Borrower"), THE WARNACO GROUP,
INC., a Delaware corporation (together with any successors-in-interest permitted
hereunder, "Group"), the banks, financial institutions and other institutional
lenders (the "Initial Lenders") listed on the signature pages hereof, and THE
BANK OF NOVA SCOTIA ("Scotiabank") and CITIBANK, N.A. ("Citibank") as managing
agents (the "Managing Agents") for the Lenders (as hereinafter defined),
Citibank as documentation agent (the "Documentation Agent") for the Lenders, and
Scotiabank as administrative agent (the "Administrative Agent") and competitive
bid agent (the "Competitive Bid Agent") for the Lenders and as a Swing Line Bank
and an Issuing Bank hereunder, agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital
of parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent maintained by the Administrative Agent with
Scotiabank at its office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Special Management Account No. ▇▇▇▇▇▇▇, Reference: Warnaco.
"Advance" means a Revolving Credit Advance, a Competitive Bid
Advance, a Swing Line Advance, or a Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more
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of the Voting Stock of such Person or to direct or cause the direction
of the management and policies of such Person, whether through the
ownership of Voting Stock, by contract or otherwise.
"Agents" means each of the Managing Agents, the Documentation
Agent, the Administrative Agent and the Competitive Bid Agent,
together, in each case, with any successor or successors of any thereof
appointed pursuant to Article VII hereof.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of a Base
Rate Advance and such Lender's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a Competitive Bid
Advance, the office of such Lender notified by such Lender to the
Administrative Agent as its Applicable Lending Office with respect to
such Competitive Bid Advance.
"Applicable Margin" means, as of any date, a percentage per
annum determined by reference to the Rating Level in effect on such
date as set forth below:
================== ================ ============= ==============
Rating Debt Base Rate Eurodollar
Level Rating Advances Rate Advances
------------------ ---------------- ------------- --------------
▇▇▇▇▇ ▇ ▇-/▇▇ or higher 0.000% 0.250%
------------------ ---------------- ------------- --------------
▇▇▇▇▇ ▇ ▇▇▇▇/▇▇▇▇ 0.000% 0.275%
------------------ ---------------- ------------- --------------
Level 3 BBB/Baa2 0.000% 0.300%
------------------ ---------------- ------------- --------------
▇▇▇▇▇ ▇ ▇▇▇-/▇▇▇▇ 0.000% 0.425%
------------------ ---------------- ------------- --------------
Level 5 BB+/Ba1 or 0.250% 0.625%
lower
================== ================ ============= ==============
provided, that at any time that the Rating Level is Level 1, 2 or 3 and
the aggregate Available Amount of Letters of Credit plus the principal
amount of Advances exceeds 25% of the aggregate Commitments, the
Applicable Margin shall be increased by 0.075% per annum.
"Applicable Percentage" means, as of any date, a percentage
per annum determined by reference to the Rating Level in effect on such
date as set forth below:
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============= ================ ===============
Rating Debt Applicable
Level Rating Percentage
------------- ---------------- ---------------
▇▇▇▇▇ ▇ ▇-/▇▇ or higher 0.080%
------------- ---------------- ---------------
▇▇▇▇▇ ▇ BBB+/Baa1 0.090%
----------------------------- ---------------
▇▇▇▇▇ ▇ ▇▇▇/ ▇▇▇▇ 0.125%
------------- ---------------- ---------------
▇▇▇▇▇ ▇ ▇▇▇-/▇▇▇▇ 0.150%
------------- ---------------- ---------------
Level 5 BB+/Ba1 or 0.200%
lower
============= ================ ===============
"Appropriate Lender" means, at any time, with respect to (a)
the Revolving Credit Facility, a Lender that has a Revolving Credit
Commitment at such time, (b) the Letter of Credit Facility, (i) the
Issuing Banks and (ii) if the other Revolving Credit Lenders shall have
made Letter of Credit Advances pursuant to Section 2.03(c) that are
outstanding at such time, each such other Revolving Credit Lender and
(c) the Swing Line Facility, (i) the Swing Line Bank and (ii) if the
other Revolving Credit Lenders have made Swing Line Advances pursuant
to Section 2.02(b) that are outstanding at such time, such other
Revolving Credit Lenders.
"Approved Accounting Firm" means ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, Coopers
& ▇▇▇▇▇▇▇ L.L.P., Deloitte & Touche LLP, Ernst & Young LLP, Price
Waterhouse LLP or KPMG Peat Marwick LLP, or any successor thereof.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Documentation Agent, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest established by the
Administrative Agent, from time to time, at its Domestic
Lending Office as its base rate for loans in United States
dollars; and
4
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.08(a)(i).
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrower's Account" means the account of the Borrower
maintained by the Borrower with Citibank at its office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Account No. 3846-9269.
"Borrowing" means a Revolving Credit Borrowing, a Competitive
Bid Borrowing or a Swing Line Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"Capital Stock Issuance" means the sale or issuance by any
Loan Party or any of its Subsidiaries of any capital stock, any
securities convertible into or exchangeable for capital stock or any
warrants, rights or options to acquire capital stock of Group or any of
its Subsidiaries other than any such sale or issuance by a wholly owned
Subsidiary of the Borrower to the Borrower or to another wholly owned
Subsidiary of the Borrower and other than the issuance or sale of
common stock (or options to purchase common stock) by Group pursuant to
customary management, employee or director stock option and stock
purchase programs or other stock option or stock purchase programs with
respect to common stock of Group approved by the Board of Directors of
Group.
"Capitalized Lease Obligations" of any Person shall at any
time mean all Obligations under Capitalized Leases of such Person, in
each case taken at the amount thereof accounted for as liabilities in
accordance with GAAP at such time.
"Capitalized Leases" has the meaning specified in clause (e)
of the definition of "Debt".
"Cash Equivalents" means cash equivalents and marketable
securities (other than equity securities).
5
"Cash Interest Expense" means, for any period, interest
expense net of interest income on all Debt of Group and its
Subsidiaries, in each case determined for such period on a Consolidated
basis for Group and its Subsidiaries in accordance with GAAP and
including, without limitation, to the extent not otherwise included in
accordance with GAAP, (a) interest expense in respect of Debt resulting
from Advances, (b) the interest component of obligations as lessee
under Capitalized Leases, (c) commissions, discounts and other fees and
charges payable in connection with letters of credit, (d) the net
payment, if any, payable in connection with interest rate hedge
agreements and other interest rate protection contracts and (e) fees
paid pursuant to Section 2.09(a), but excluding, in each case, (x)
amortization of original issue discount, (y) the interest portion of
any deferred payment obligation and (z) other interest not payable in
cash.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980.
"Citibank" has the meaning specified in the recital of parties
to this Agreement.
"Commitment" means a Revolving Credit Commitment or a Letter
of Credit Commitment.
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.04 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Agent" has the meaning specified in the
recital of parties to this Agreement.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.04.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-1 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by such Lender.
"Confidential Information" means any information, whether
written or oral that the Borrower or Group furnishes to any Agent or
Lender which is designated as confidential or which could reasonably be
expected by such Agent or Lender to be
6
confidential, provided, that for purposes of this definition, unless
otherwise specified by the Borrower or Group, the term "Confidential
Information" will include, without limitation, any information
furnished by the Borrower or Group regarding proposed acquisitions and
new product launches by Group or its Subsidiaries, and provided,
further, that the term "Confidential Information" does not include any
information that is or becomes generally available to the public or
that is or becomes available to such Agent or Lender from a source
other than the Borrower or Group.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.10 or 2.11.
"Current Liabilities" of any Person means (a) all Debt of such
Person except Funded Debt and Debt in respect of Revolving Credit
Advances, Letter of Credit Advances and Swing Line Advances, (b) all
amounts of Funded Debt of such Person required to be paid or prepaid
within one year after the date of determination and (c) all other items
(including taxes accrued as estimated) that in accordance with GAAP
would be classified as current liabilities of such Person.
"Debt" of any Person means, without duplication, the
following:
(a) all indebtedness of such Person for borrowed
money,
(b) all Obligations of such Person for the deferred
purchase price of property or services (other than trade
payables not overdue by more than 90 days incurred in the
ordinary course of such Person's business), including, without
limitation, the Trade Credit Facility,
(c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments,
(d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement
with respect to property acquired by such Person (even though
the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession
or sale of such property),
7
(e) all Obligations of such Person as lessee under
leases that have been or should be, in accordance with GAAP,
recorded as capital leases ("Capitalized Leases"),
(f) all Obligations, contingent or otherwise, of such
Person under acceptance, letter of credit or similar
facilities,
(g) all Obligations of such Person to purchase,
redeem, retire, defease or otherwise make any payment in
respect of any capital stock of or other ownership or profit
interest in such Person or any other Person or any warrants,
rights or options to acquire such capital stock, valued, in
the case of Redeemable preferred stock, at the greater of its
voluntary or involuntary liquidation preference plus accrued
and unpaid dividends,
(h) all Obligations of such Person in respect of
Hedge Agreements,
(i) all Debt of others of the kinds referred to in
clauses (a) through (h) above guaranteed directly or
indirectly in any manner by such Person, or in effect
guaranteed directly or indirectly by such Person through an
agreement (A) to pay or purchase such Debt or to advance or
supply funds for the payment or purchase of such Debt, (B) to
purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of
enabling the debtor to make payment of such Debt or to assure
the holder of such Debt against loss, (C) to supply funds to
or in any other manner invest in the debtor (including any
agreement to pay for property or services irrespective of
whether such property is received or such services are
rendered) or (D) otherwise to assure a creditor against loss,
and
(j) all Debt referred to in clauses (a) through (h)
above secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any
Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person
has not assumed or become liable for the payment of such Debt.
"Debt Rating" means, as of any date, the Public Debt Rating in
effect on such date or, if no Public Debt Rating is then in effect, the
Implied Debt Rating in effect on such date, provided that if neither
S&P nor ▇▇▇▇▇'▇ shall have in effect a Public Debt Rating or an Implied
Debt Rating, the Applicable Margin and the Applicable Percentage will
be set in accordance with Rating Level 5 under the definition of
"Applicable Margin" or "Applicable Percentage", as the case may be.
8
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at
any time, the amount of any Advance required to be made by such Lender
Party to the Borrower or for the account of the Borrower pursuant to
Section 2.01 at or prior to such time which has not been so made as of
such time; provided, however, any Advance made by the Administrative
Agent for the account of such Lender Party pursuant to Section 2.02(e)
shall not be considered a Defaulted Advance even if, at such time, such
Lender Party shall not have reimbursed the Administrative Agent
therefor as provided in Section 2.02(e). In the event that a portion of
a Defaulted Advance shall be deemed made pursuant to Section 2.17(a),
the remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time which has not been so paid as of such time,
including, without limitation, any amount required to be paid by such
Lender Party to (a) the Swing Line Bank pursuant to Section 2.02(b) to
purchase a portion of a Swing Line Advance made by the Swing Line Bank,
(b) any Issuing Bank pursuant to Section 2.03(c) to purchase a portion
of a Letter of Credit Advance made by such Issuing Bank, (c) the
Administrative Agent pursuant to Section 2.02(e) to reimburse the
Administrative Agent for the amount of any Advance made by the
Administrative Agent for the account of such Lender Party, (d) any
other Lender Party pursuant to Section 2.15 to purchase any
participation in Advances owing to such other Lender Party and (e) any
Agent pursuant to Section 7.05 to reimburse such Agent for such Lender
Party's ratable share of any amount required to be paid by the Lender
Parties to such Agent as provided therein. In the event that a portion
of a Defaulted Amount shall be deemed paid pursuant to Section 2.17(b),
the remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be made hereunder or under any
other Loan Document on the same date as the Defaulted Amount so deemed
paid in part.
"Defaulting Lender" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take or be the subject of any action or proceeding of a type
described in Section 6.01(e).
"Designated Lender" means each special purpose corporation
that (i) shall have been designated by a Designating Lender and shall
have become a party to this Agreement, all pursuant to Section 8.07(d),
and (ii) is not otherwise a Lender.
9
"Designating Lender" shall mean each Lender that is a party
hereto (other than by virtue of a Designation Agreement) that shall
designate a Designated Lender pursuant to a Designation Agreement in
accordance with Section 8.07(d).
"Designation Agreement" means a designation agreement entered
into by a Designating Lender and a Designated Lender, and accepted by
the Administrative Agent, in substantially the form of Exhibit D
hereto.
"Documentary Letter of Credit" means any Letter of Credit that
is issued under the Letter of Credit Facility for the benefit of a
supplier of Inventory to the Borrower or any of its Subsidiaries to
effect payment for such Inventory.
"Documentation Agent" has the meaning specified in the recital
of parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender, or such other office
of such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary of Group that is
not a Foreign Subsidiary.
"EBITDA" means, for any period, net income (or net loss) from
operations (determined without giving effect to extraordinary or
non-recurring gains or losses) plus, to the extent deducted in
calculating such net income (loss), the sum of (a) Interest Expense,
(b) income tax expense, (c) depreciation expense and (d) amortization
expense, in each case determined in accordance with GAAP.
"Effective Date" means the first date on which the conditions
specified in Sections 3.01 and 3.02 have been satisfied.
"Eligible Assignee" means any Person approved by the Managing
Agents and the Borrower, such approval not to be unreasonably withheld;
provided, however, that neither the Borrower nor an Affiliate of the
Borrower shall qualify as an Eligible Assignee.
"Environmental Action" means any administrative, regulatory or
judicial action, suit, demand, demand letter, claim, notice of
non-compliance or violation, notice of
10
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, Environmental Permit or Hazardous Materials or arising from
alleged injury or threat of injury to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or any third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, judgment or
decree relating to the environment, health, safety or Hazardous
Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the Borrower's controlled group, or under
common control with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of the Borrower or any of its ERISA
Affiliates in the circumstances described in Section 4062(e) of ERISA;
(e) the withdrawal by the Borrower or any of its ERISA Affiliates from
a Multiple Employer Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (f)
the failure by the Borrower or any of its ERISA Affiliates to make a
payment to a Plan if the conditions
11
for the imposition of a lien under Section 302(f)(1) of ERISA are
satisfied; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA;
or (h) the institution by the PBGC of proceedings to terminate a Plan,
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that could constitute
grounds for the termination of, or the appointment of a trustee to
administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to that
term in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum at which deposits in U.S. dollars are
offered by the principal office of the Administrative Agent in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to the Administrative Agent's
Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period and for a period equal to such
Interest Period by (b) a percentage equal to 100% minus the Eurodollar
Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.08(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances or LIBO Rate Advances comprising part
of the same Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest Period under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) for determining the maximum
reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) for a member bank
of the Federal Reserve System in New York City with respect to
liabilities or assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of liabilities that
12
includes deposits by reference to which the interest rate on Eurodollar
Rate Advances or LIBO Rate Advances is determined) having a term equal
to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excluded Person" means (i) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or (ii) any trust
of which ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ is the sole trustee or is a trustee with
effective control over the voting stock held by such trust or over the
management or policies of Group (or, in case of her death or
disability, another trustee of comparable experience and ability
selected by the Borrower within 180 days thereafter after consultation
with the Managing Agents).
"Excluded Taxes" means, in the case of each Lender Party,
franchise taxes and taxes upon or determined by reference to such
Lender Party's net income (including, without limitation, branch profit
taxes), in each case imposed by the United States or any political
subdivision or taxing authority thereof or therein or by any
jurisdiction in which such Lender Party has its Applicable Lending
Office, is resident or in which such Lender Party is organized or has
its principal or registered office and, in the case of each Agent,
franchise taxes and net income taxes upon or determined by reference to
such Agent's net income (including, without limitation, branch profits
taxes) imposed by the United States or by the state or foreign
jurisdiction under the laws of which such Agent is organized (or by any
political subdivision of such state or foreign jurisdiction), is
resident or has its principal or registered office.
"Existing Credit Agreement means the Credit Agreement, dated
as of October 12, 1995, as amended, among the Borrower, Group, the
financial institutions named therein, Scotiabank and Citicorp, as
Managing Agents, Citicorp, as Documentation Agent and Collateral Agent,
and Scotiabank, as Paying Agent and as Swing Line Bank and an Issuing
Bank thereunder.
"Existing Letters of Credit" has the meaning specified in
Section 2.03(e).
"Facility" means the Revolving Credit Facility, the Swing Line
Facility or the Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the
13
Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fiscal Quarter" means a fiscal quarter of Group and its
Consolidated Subsidiaries ending on or about March 31, June 30,
September 30 or December 31 of each year.
"Fiscal Year" means a fiscal year of Group and its
Consolidated Subsidiaries ending on or about December 31 of each year.
"Fixed Rate Advances" has the meaning specified in Section
2.04(a)(i).
"Foreign Subsidiary" means a Subsidiary of Group organized
under the laws of a country other than the United States or any state
thereof.
"Funded Debt" of any Person means Debt (other than Debt
incurred pursuant to Section 5.02(c)(iii) hereof) of such Person that
by its terms matures more than one year from the date of its creation
or matures within one year from such date but is renewable or
extendible, at the option of such Person, to a date more than one year
after such date or arises under a revolving credit or similar agreement
that obligates the lender or lenders to extend credit during a period
of more than one year after such date, including, without limitation,
all amounts of Funded Debt of such Person required to be paid or
prepaid within one year after the date of its creation.
"GAAP" has the meaning specified in Section 1.03.
"Group" has the meaning specified in the recital of parties to
this Agreement.
"Group Guaranty" has the meaning specified in Section
3.01(f)(i).
"Guaranties" means the Group Guaranty and the Subsidiary
Guaranty.
"Guarantors" means Group and each of its Domestic Subsidiaries
(other than the Borrower) which is required to guarantee the Borrower's
Obligations under the Loan Documents pursuant to Section 5.01(k).
"Hazardous Materials" means petroleum and petroleum products,
byproducts or breakdown products, radioactive materials,
asbestos-containing materials, radon gas and any other chemicals,
materials or substances designated, classified or regulated as being
"hazardous" or "toxic", or words of similar import, under any
Environmental Law.
14
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Implied Senior Rating" means the rating assigned by S&P to
Group's unsecured "implied senior debt" from time to time, as reported
by S&P on July 11, 1997 or any subsequent report or notification in
writing issued by S&P (which rating on the date hereof is BBB), or, if
such rating is unavailable, the equivalent rating assigned by Moody's
to Group's unsecured "implied senior debt", as notified in writing to
Group by Moody's.
"Indebtedness for Borrowed Money" of any Person means all Debt
of such Person for borrowed money or evidenced by notes, bonds,
debentures or other similar instruments, all Obligations of such Person
for the deferred purchase price of any property, service or business
(other than trade accounts payable (including the Trade Credit
Facility) incurred in the ordinary course of business and constituting
Current Liabilities), and all Obligations of such Person under
Capitalized Leases and finance leases.
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency"means, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Interest Expense" means, with respect to any Person for any
period, the excess, if any, of (i) interest expense (whether cash or
accretion) of such Person during such period determined in accordance
with GAAP, and shall include in any event, without limitation, interest
expense with respect to Indebtedness for Borrowed Money, the Trade
Credit Facility and payments under Hedge Agreements over (ii) interest
income of such Person for such period, including payments received
under Hedge Agreements.
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurodollar Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance, and ending on the last day of
15
the period selected by the Borrower pursuant to the provisions below
and, thereafter, with respect to Eurodollar Rate Advances, each
subsequent period commencing on the last day of the immediately
preceding Interest Period and ending on the last day of the period
selected by the Borrower pursuant to the provisions below. The duration
of each such Interest Period shall be one, two, three, four, five or
six months, or, if available to all Lenders, nine or 12 months, as the
Borrower may, upon notice received by the Administrative Agent not
later than 11:00 A.M. (New York City time) on the third Business Day
prior to the first day of such Interest Period, select; provided,
however, that:
(a) the Borrower may not select any Interest Period
that ends after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of
the same Competitive Bid Borrowing shall be of the same
duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day, unless the Borrower and the Administrative Agent
otherwise agree; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month unless the Borrower and the
Administrative Agent otherwise agree.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or other
ownership or profit interest, warrants, rights, options, obligations or
other securities of such Person, any capital contribution to such
Person or any other investment in such Person, including, without
16
limitation, any arrangement pursuant to which the investor incurs Debt
of the types referred to in clauses (i) or (j) of the definition of
"Debt" in respect of such Person.
"Issuing Bank" means Scotiabank and any other Revolving Credit
Lender approved by the Borrower and the Managing Agents that is a
commercial bank, acting through a domestic branch, and has a Letter of
Credit Commitment, as issuer of a Letter of Credit, and, with respect
to the Existing Letters of Credit issued by it pursuant to the Existing
Credit Agreement, Societe Generale.
"L/C Cash Collateral Account" means the interest-bearing cash
collateral account to be established and maintained by the
Administrative Agent, over which the Administrative Agent shall have
sole dominion and control, upon terms as may be satisfactory to the
Administrative Agent.
"L/C Related Documents" has the meaning specified in Section
2.05(c)(ii)(A).
"Lender Party" means any Lender, any Issuing Bank and any
Swing Line Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07, including the
Designated Lenders, if any; provided, however, that the term "Lender"
shall exclude each Designated Lender when used (i) in reference to a
Revolving Credit Advance or the Commitments or terms relating thereto,
except to the extent a Designated Lender is the obligee of a Revolving
Credit Advance actually funded by such Designated Lender pursuant to
Section 2.01(a) hereof and (ii) in any determination or calculation of
Required Lenders, it being understood that for purposes hereof, any
Advance made by a Designated Lender shall be deemed to have been made
by the applicable Designating Lender.
"Letter of Credit Advance" means an advance made by any
Issuing Bank or any Revolving Credit Lender pursuant to Section
2.03(c).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to any
Issuing Bank at any time, the amount set forth opposite such Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if such Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for such Issuing Bank in the
Register maintained by the Documentation Agent pursuant to Section
8.07(c) as such Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.06.
17
"Letter of Credit Facility" means, at any time, an amount
equal to the lesser of (a) the aggregate amount of the Letter of Credit
Commitments of the Issuing Banks at such time and (b) $100,000,000, as
such amount may be reduced at or prior to such time pursuant to Section
2.06.
"Letters of Credit" has the meaning specified in Section
2.01(c).
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum at which deposits in U.S. dollars are
offered by the principal office of the Administrative Agent, in London,
England to prime banks in the London interbank market at 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period in an amount substantially equal to the amount that would be the
Administrative Agent's ratable share of such Borrowing if such
Borrowing were to be a Revolving Credit Borrowing to be outstanding
during such Interest Period and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the Eurodollar Rate
Reserve Percentage for such Interest Period.
"LIBO Rate Advances" has the meaning specified in Section
2.04(a)(i).
"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means (a) for purposes of this Agreement, the
Notes, if any, and any amendments or modifications hereof or thereof
and for all other purposes other than for purposes of the Guarantees,
(i) this Agreement, (ii) the Notes, if any, (iii) the Guarantees, (iv)
each Letter of Credit Agreement and (v) each L/C Related Document, and
(b) for purposes of the Guarantees, (i) this Agreement, (ii) the Notes,
if any, (iii) the Guarantees, (iv) each Letter of Credit Agreement, (v)
each L/C Related Document and (v) the interest rate Hedge Agreements
entered into by Group or the Borrower with Lender Parties, in the case
of each of the foregoing agreements referred to in clause (a) or (b),
and any amendments, supplements or modifications hereof or thereof.
"Loan Parties" means the Borrower and the Guarantors.
"Managing Agents" has the meaning specified in the recital of
parties to this Agreement.
18
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or of Group and
its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or of Group and
its Subsidiaries taken as a whole, (b) the rights and remedies of any
Agent or Lender Party under any Loan Document or (c) the ability of any
Loan Party to perform its Obligations under any Loan Document to which
it is or is to be a party.
"Material Guarantor" means, at any time, a Guarantor having
(i) at least 10% of Consolidated total assets of Group and its
Subsidiaries (determined as of the last day of the most recent Fiscal
Quarter) or (ii) at least 10% of Consolidated EBITDA of Group and its
Subsidiaries for the 12-month period ending on the last day of the most
recent Fiscal Quarter.
"Material Subsidiary" of any Person means, at any time, a
Subsidiary of such Person having (i) at least $5,000,000 in total
assets (determined as of the last day of the most recent fiscal quarter
of such Person) or (ii) EBITDA of at least $5,000,000 for the 12-month
period ending on the last day of the most recent fiscal quarter of such
Person.
"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 of its ERISA
Affiliates is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any of its ERISA Affiliates and at least
one Person other than the Borrower and its ERISA Affiliates or (b) was
so maintained and in respect of which the Borrower or any of its ERISA
Affiliates could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
19
"Net Worth" at any time means the excess of total assets of
Group and its Subsidiaries at such time over total liabilities of Group
and its Subsidiaries at such time, in each case as determined on a
Consolidated basis in accordance with GAAP.
"Note" means a Revolving Credit Note or a Competitive Bid
Note.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.04(a)(i).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Obligation" means, with respect to any Person, any obligation
of such Person of any kind, including, without limitation, any
liability of such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to judgment,
liquidated, unliquidated, fixed, contingent, matured, disputed,
undisputed, legal, equitable, secured or unsecured, and whether or not
such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(e). Without limiting the
generality of the foregoing, the Obligations of the Loan Parties under
the Loan Documents include (a) the obligation to pay principal,
interest, Letter of Credit commissions, charges, expenses, fees,
attorneys' fees and disbursements, indemnities and other amounts
payable by any Loan Party under any Loan Document and (b) the
obligation to reimburse any amount in respect of any of the foregoing
that any Lender, in its sole discretion, may elect to pay or advance on
behalf of such Loan Party.
"Other Taxes" has the meaning specified in Section 2.14(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Liens" means the following:
(a) Liens, other than in favor of the PBGC, arising
out of judgments or awards in respect of which Group or any of
its Subsidiaries shall in good faith be prosecuting an appeal
or proceedings for review and in respect of which it shall
have secured a subsisting stay of execution pending such
appeal or proceedings for review, provided it shall have set
aside on its books adequate
20
reserves, in accordance with GAAP, with respect to such
judgment or award and provided further that the aggregate
amount secured by such Liens does not exceed $5,000,000 in any
one case or $10,000,000 in the aggregate;
(b) Liens for taxes, assessments or governmental
charges or levies, provided payment thereof shall not at the
time be required in accordance with the provisions of Section
5.01(b) and such amount, when taken together with any amount
payable under Section 5.01(b) as to which any Lien has been
attached as described in the last phrase thereof, shall not
exceed $10,000,000;
(c) deposits, Liens or pledges to secure payments of
workmen's compensation and other payments, unemployment and
other insurance, old-age pensions or other social security
obligations, or the performance of bids, tenders, leases,
contracts (other than contracts for the payment of money),
public or statutory obligations, surety, stay or appeal bonds,
or other similar obligations arising in the ordinary course of
business;
(d) mechanics', workmen's, repairmen's,
warehousemen's, vendors' or carriers' Liens or other similar
Liens arising in the ordinary course of business and securing
sums which are not past due, or deposits or pledges to obtain
the release of any such Liens;
(e) statutory landlord's Liens under leases to which
Group or any of its Subsidiaries is a party;
(f) any Lien constituting a renewal, extension or
replacement of a Lien constituting a Permitted Lien, but only
if at the time such Lien is granted and immediately after
giving effect thereto, no Default would exist;
(g) leases or subleases granted to other Persons not
materially interfering with the conduct of the business of
Group and its Subsidiaries, taken as a whole;
(h) zoning restrictions, easements, rights of way,
licenses and restrictions on the use of real property or minor
irregularities in title thereto, which do not materially
impair the use of such property in the normal operation of the
business of Group or any of its Subsidiaries or the value of
such property for the purpose of such business; and
21
(i) statutory or common law Liens (such as rights of
set-off) on deposit accounts of Group and its Subsidiaries and
other Liens under the L/C Related Documents.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability company or
other entity, or a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pro Rata Share" of any amount means, with respect to any
Revolving Credit Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's
Revolving Credit Commitment at such time and the denominator of which
is the Revolving Credit Facility at such time.
"Public Debt Rating" means, as of any date, the higher rating
that has been most recently announced by either S&P or ▇▇▇▇▇'▇, as the
case may be, for any class of non-credit enhanced long-term senior
unsecured debt issued by Group. For purposes of the foregoing, (a) if
only one of S&P and ▇▇▇▇▇'▇ shall have in effect a Public Debt Rating,
the Applicable Margin and the Applicable Percentage shall be determined
by reference to the available rating; (b) if the ratings established by
S&P and ▇▇▇▇▇'▇ shall fall within different levels separated by two or
more levels, the Applicable Margin and the Applicable Percentage shall
be based upon the level that is one level below the higher rating; (c)
if any rating established by S&P or ▇▇▇▇▇'▇ shall be changed, such
change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (d) if
S&P or ▇▇▇▇▇'▇ shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or ▇▇▇▇▇'▇,
as the case may be, shall refer to the then equivalent rating by S&P or
▇▇▇▇▇'▇, as the case may be.
"Redeemable" means, with respect to any capital stock, Debt or
other right or Obligation, any such right or Obligation that (a) the
issuer has undertaken to redeem at a fixed or determinable date or
dates, whether by operation of a sinking fund or otherwise, or upon the
occurrence of a condition not solely within the control of the issuer
or (b) is redeemable at the option of the holder.
"Register" has the meaning specified in Section 8.07(g).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
22
"Required Lenders" means, at any time, Lenders owed or holding
more than 51% of the sum of (a) the aggregate principal amount of the
Advances (other than Competitive Bid Advances) outstanding at such
time, (b) the aggregate Available Amount of all Letters of Credit
outstanding at such time and (c) the aggregate Unused Revolving Credit
Commitments at such time; provided, however, if any Lender shall be a
Defaulting Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (i) the aggregate
principal amount of the Advances owing to such Lender (in its capacity
as a Lender) and outstanding at such time, (ii) such Lender's Pro Rata
Share of the aggregate Available Amount of all Letters of Credit
outstanding at such time and (iii) the Unused Revolving Credit
Commitment of such Lender at such time and provided further, that for
purposes of this definition, any Advance made by a Designated Lender
shall be deemed to have been made by its applicable Designating Lender.
For purposes of this definition, the aggregate principal amount of
Swing Line Advances owing to the Swing Line Bank and of Letter of
Credit Advances owing to any Issuing Bank and the Available Amount of
each Letter of Credit shall be considered to be owed to the Revolving
Credit Lenders ratably in accordance with their respective Revolving
Credit Commitments.
"Revolving Credit Advance" has the meaning specified in
Section 2.01(a).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by the
Revolving Credit Lenders pursuant to Section 2.01.
"Revolving Credit Commitment" means, with respect to any
Revolving Credit Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Revolving Credit
Commitment" or, if such Lender has entered into one or more Assignments
and Acceptances, set forth for such Lender in the Register maintained
by the Documentation Agent pursuant to Section 8.07(c) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced at or
prior to such time pursuant to Section 2.06.
"Revolving Credit Facility" means, at any time, the aggregate
amount of the Revolving Credit Lenders' Revolving Credit Commitments at
such time.
"Revolving Credit Lender" means any Lender that has a
Revolving Credit Commitment.
"Revolving Credit Note" has the meaning specified in Section
2.18.
23
"S&P" means Standard & Poor's Ratings Group, currently a
division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc., or any successor thereto.
"Scotiabank" has the meaning specified in the recital of
parties to this Agreement.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of the Borrower or any of its ERISA Affiliates and no Person
other than the Borrower and its ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any of its ERISA
Affiliates could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
as such debts and liabilities mature and (d) such Person is not engaged
in business or a transaction, and is not about to engage in business or
a transaction, for which such Person's property would constitute an
unreasonably small capital. The amount of contingent liabilities at any
time shall be computed as the amount that, in the light of all the
facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.
"Standby Letter of Credit" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Documentary Letter of
Credit.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding capital stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency), (b)
the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries. The
term "wholly owned
24
Subsidiary" shall exclude any directors' or officers' qualifying shares
which may be outstanding.
"Subsidiary Guaranty" has the meaning specified in Section
3.01(f)(ii).
"Swing Line Advance" means an advance made by (a) the Swing
Line Bank pursuant to Section 2.01(b), or (b) any Revolving Credit
Lender pursuant to Section 2.02(b).
"Swing Line Bank" means Scotiabank (and its successors and
assigns), provided that Scotiabank (and any such successors and assigns
as Swing Line Bank hereunder) may resign, and thereupon be released
from its obligations, as Swing Line Bank under this Agreement upon
receipt by the Borrower and the Managing Agents, in writing and in a
form reasonably satisfactory to the Borrower and the Managing Agents,
of the assumption by another Revolving Credit Lender of the rights and
obligations of the Swing Line Bank hereunder.
"Swing Line Borrowing" means a borrowing consisting of a Swing
Line Advance made by the Swing Line Bank.
"Swing Line Facility" has the meaning specified in Section
2.01(b).
"Tangible Assets" means total assets minus goodwill and
intangibles, in each case determined in accordance with GAAP.
"Taxes" has the meaning specified in Section 2.14(a).
"Termination Date" means the earlier of August 12, 2002 and
the date of termination in whole of the Commitments pursuant to Section
2.06 or 6.01.
"Total Debt" means, as of the end of any period of four
consecutive Fiscal Quarters, all Indebtedness for Borrowed Money
(including, without limitation, the aggregate outstanding principal
amount of all Advances and loans under other revolving credit
facilities and lines of credit and the like but excluding undrawn
letters of credit and the Trade Credit Facility) of Group and its
Subsidiaries, on a Consolidated basis at such time.
"Trade Credit Facility" means the revolving loan facility
under the Amended and Restated Credit Agreement dated as of the date
hereof among the Borrower, certain lenders party thereto and
Scotiabank, as agent for said lenders, as each such agreement has been
amended to date and the same may be amended, extended, renewed,
25
refinanced, replaced or otherwise modified from time to time (provided,
however, that the aggregate principal amount of Debt thereunder shall
not exceed $300,000,000 at any time outstanding).
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"Unused Revolving Credit Commitment" means, with respect to
any Revolving Credit Lender at any time,
(a) such Lender's Revolving Credit Commitment at such
time minus
(b) the sum of (i) the aggregate principal amount of
all Revolving Credit Advances, Swing Line Advances and Letter
of Credit Advances made by such Lender and outstanding at such
time, plus (ii) such Lender's Pro Rata Share of (A) the
aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) for all purposes other than for
purposes of calculating commitment fees pursuant to Section
2.09(a), the aggregate amount of Competitive Bid Advances
outstanding at such time, (C) the aggregate principal amount
of all Letter of Credit Advances made by the Issuing Banks
pursuant to Section 2.03(c) and outstanding at such time other
than any such Letter of Credit Advance which, at or prior to
such time, has been assigned in part to such Revolving Credit
Lender pursuant to Section 2.03(c) and other than, in the case
of each Lender that is an Issuing Bank, any such Letter of
Credit Advance in respect of a Letter of Credit issued by it
and (D) for all purposes other than for purposes of
calculating commitment fees pursuant to Section 2.09(a), the
aggregate principal amount of all Swing Line Advances made by
the Swing Line Bank pursuant to Section 2.01(b) and
outstanding at such time other than any such Swing Line
Advance which, at or prior to such time, has been assigned in
part to such Revolving Credit Lender pursuant to Section
2.02(b).
"Voting Stock" means 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.
"Welfare Plan" means a welfare plan, as defined in Section
3(1) of ERISA.
26
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this Agreement
in the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f) ("GAAP").
27
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Advances. (a) The Revolving Credit Advances.
Each Revolving Credit Lender severally agrees, on the terms and conditions
hereinafter set forth, to make Advances (each a "Revolving Credit Advance") to
the Borrower from time to time on any Business Day during the period from the
Effective Date until the Termination Date in an amount for each such Advance not
to exceed such Lender's Unused Revolving Credit Commitment at such time. Each
Revolving Credit Borrowing shall be in an aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof (or, if less, an aggregate
amount equal to the amount by which the aggregate amount of a proposed
Competitive Bid Borrowing requested by the Borrower exceeds the aggregate amount
of Competitive Bid Advances offered to be made by the Revolving Credit Lenders
and accepted by the Borrower in respect of such Competitive Bid Borrowing, if
such Competitive Bid Borrowing is made on the same date as such Revolving Credit
Borrowing) and shall consist of Revolving Credit Advances of the same Type made
on the same day by the Revolving Credit Lenders ratably according to their
respective Revolving Credit Commitments. Within the limits of each Revolving
Credit Lender's Unused Revolving Credit Commitment in effect from time to time,
the Borrower may borrow under this Section 2.01(a), prepay pursuant to Section
2.07(a) and reborrow under this Section 2.01(a). For any Lender which is a
Designating Lender, any Revolving Credit Advance to be made by such Lender may
from time to time and upon notice to the Administrative Agent, be made by its
Designated Lender pursuant to the terms hereof in such Designating Lender's sole
discretion, and nothing herein shall constitute a Commitment to make Revolving
Credit Advances by such Designated Lender; provided, that (i) if any Designated
Lender elects not to, or fails for any reason whatsoever to, make such Revolving
Credit Advance, its Designating Lender hereby agrees that it shall make such
Revolving Credit Advance pursuant to the terms hereof and (ii) notwithstanding
anything to the contrary, neither the designation of a Designated Lender, the
election or other determination that a Designated Lender will make any Revolving
Credit Advance nor any other condition or circumstance relating to the
Designated Lender shall in any way release, diminish or otherwise affect the
relevant Designating Lender's Commitment or any of its other obligations
hereunder or under any other Loan Document or any rights of the Borrower, any
Agent or any Lender Party with respect to such Designating Lender. Any Revolving
Credit Advance actually funded by a Designated Lender shall constitute a
utilization of the Commitment of the Designating Lender for all purposes
hereunder.
(b) The Swing Line Advances. The Borrower may request the
Swing Line Bank to make, and the Swing Line Bank shall make, on the terms and
conditions hereinafter set forth, Swing Line Advances to the Borrower from time
to time on any Business Day during the period from the date hereof until the
Termination Date (i) in an aggregate amount not to
28
exceed at any time outstanding $30,000,000 (the "Swing Line Facility") and (ii)
in an amount for each such Swing Line Borrowing not to exceed the aggregate of
the Unused Revolving Credit Commitments of the Revolving Credit Lenders at such
time. No Swing Line Advance shall be used for the purpose of funding the payment
of principal of any other Swing Line Advance. Each Swing Line Borrowing shall be
in an amount of $100,000 or an integral multiple of $1,000 in excess thereof and
shall be made as a Base Rate Advance. Within the limits of the Swing Line
Facility and within the limits referred to in clause (ii) above, the Borrower
may borrow under this Section 2.01(b), repay pursuant to Section 2.05(b) or
prepay pursuant to Section 2.07(a) and reborrow under this Section 2.01(b).
(c) Letters of Credit. Each Issuing Bank severally agrees, on
the terms and conditions hereinafter set forth, to issue letters of credit
(together with the Existing Letters of Credit referred to in Section 2.03(e),
the "Letters of Credit") for the account of the Borrower from time to time on
any Business Day during the period from the date hereof until 10 days before the
Termination Date (i) in an aggregate Available Amount for all Letters of Credit
issued by such Issuing Bank not to exceed at any time such Issuing Bank's Letter
of Credit Commitment at such time and (ii) in an Available Amount for each such
Letter of Credit not to exceed the lesser of (x) the Letter of Credit Facility
at such time and (y) an amount equal to the Unused Revolving Credit Commitments
of the Revolving Credit Lenders at such time. No Letter of Credit shall have an
expiration date (including all rights of the Borrower or the beneficiary to
require renewal) later than the earlier of 10 days before the Termination Date
and, in the case of a Documentary Letter of Credit, 180 days after the date of
issuance thereof. Within the limits of the Letter of Credit Facility, and
subject to the limits referred to above, the Borrower may request the issuance
of Letters of Credit under this Section 2.01(c), repay any Letter of Credit
Advances resulting from drawings thereunder pursuant to Sections 2.03(c) and
2.05(c) and request the issuance of additional Letters of Credit under this
Section 2.01(c). Each Letter of Credit issued pursuant to this Section 2.01(c)
shall, effective upon its issuance and without further action, be issued on
behalf of all Lenders (including the applicable Issuing Bank) according to their
respective Pro Rata Shares. Each Lender shall, to the extent of its Pro Rata
Share, be deemed irrevocably to have participated in the issuance of such Letter
of Credit and shall be responsible to reimburse the Issuing Bank promptly for
Letter of Credit Advances in accordance with Section 2.03.
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.03, each Borrowing shall be made on notice,
given not later than 11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Eurodollar Rate Advances, or on the date of the proposed Borrowing
in the case of a Borrowing consisting of Base Rate Advances, by the Borrower to
the Administrative Agent, which shall give to each Appropriate Lender prompt
notice thereof by telecopier or telex. Each such notice of a Borrowing (a
"Notice of Borrowing") shall be by telephone, confirmed immediately in writing,
or telecopier or telex in
29
substantially the form of Exhibit B-1 hereto, specifying therein the requested
(i) date of such Borrowing, (ii) Facility under which such Borrowing is to be
made, (iii) Type of Advances comprising such Borrowing, (iv) aggregate amount of
such Borrowing, and (v) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Appropriate Lender
shall, before 12:00 Noon (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower by
crediting the Borrower's Account; provided, however, that, in the case of any
Revolving Credit Borrowing, the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Swing Line Advances
and Letter of Credit Advances made by the Swing Line Bank or any Issuing Bank,
as the case may be, and by any other Revolving Credit Lender and outstanding on
the date of such Revolving Credit Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Line Bank or such Issuing
Bank, as the case may be, and such other Revolving Credit Lenders for repayment
of such Swing Line Advances and Letter of Credit Advances.
(b) (i) Each Swing Line Borrowing shall be made on notice,
given not later than 11:30 A.M. (New York City time) on the date of the proposed
Swing Line Borrowing, by the Borrower to the Swing Line Bank and the
Administrative Agent. Each such notice of a Swing Line Borrowing (a "Notice of
Swing Line Borrowing") shall be by telephone, confirmed immediately in writing
or telex or telecopier, specifying therein the requested (A) date of such
Borrowing and (B) amount of such Borrowing and shall constitute a representation
and warranty by the Borrower (upon which the Swing Line Bank may conclusively
rely, in the absence of prior receipt by the Swing Line Bank of written notice
from an Agent or Revolving Credit Lenders holding at least 51% of the Revolving
Credit Commitments that the conditions precedent to the making of Swing Line
Advances have not been satisfied or duly waived). Upon fulfillment of the
applicable conditions set forth in Article III, the Swing Line Bank will make
the amount thereof available to the Borrower by crediting the Borrower's
Account.
(ii) (A) (1) Subject to clause (ii)(B) below, in the event
that on any Business Day the Swing Line Bank desires that all or any portion of
one or more Swing Line Advances be paid, the Swing Line Bank shall promptly
notify the Administrative Agent to that effect and indicate the portion of the
Swing Line Advances to be paid.
(2) The Administrative Agent agrees to promptly transmit to
the Lenders the information contained in each notice received by the
Administrative Agent under clause (ii)(A)(1) above, and shall concurrently
notify the other Agents and the Revolving Credit
30
Lenders of each Revolving Credit Lender's Pro Rata Share of the Swing Line
Advances (or portion thereof) to be paid.
(3) Each Revolving Credit Lender hereby unconditionally and
irrevocably agrees to fund to the Administrative Agent for the benefit of the
Swing Line Bank, in lawful money of the United States and in same day funds, not
later than 12:00 noon (New York City time) on the Business Day immediately
following the Business Day of such Lender's receipt of such notice from the
Administrative Agent (provided that if any Lender shall receive such notice at
or prior to 1:00 P.M. (New York City time) on a Business Day, such funding shall
be made by such Lender on such Business Day), a Revolving Credit Advance in the
amount of such Lender's Pro Rata Share of the payment of the Swing Line Advances
to be made on such date, regardless, however, of whether (x) the conditions
precedent thereto set forth in Article III are then satisfied, (y) the Borrower
has provided a Notice of Borrowing under Section 2.02(a) hereof and (z) the
Revolving Credit Facility has been terminated, any Default or Event of Default
exists or all or any of the Advances have been accelerated, but subject to
clause (B) below and subject to the limitations in respect of the amount of
Revolving Credit Advances contained in Section 2.01(a). The proceeds of each
such Revolving Credit Advance shall be immediately paid over to the
Administrative Agent for the benefit of the Swing Line Bank for application to
the Swing Line Facility. Each such Revolving Credit Advance shall initially be a
Base Rate Advance and shall be deemed to be requested by the Borrower pursuant
to Section 2.02(a).
(B) In the event that Commitments of the Lenders shall have
terminated pursuant to Section 6.01 following an Event of Default of the type
described in Section 6.01(f) with respect to Group or the Borrower, no further
Revolving Credit Advances of the type described in clause (ii)(A) above shall be
made, and each of the Revolving Credit Lenders (other than the Swing Line Bank)
shall be deemed to have irrevocably, unconditionally and immediately purchased
from the Swing Line Bank such Revolving Credit Lender's Pro Rata Share of the
principal amount of the Swing Line Advances outstanding as of the date of the
occurrence of such Event of Default. Each Revolving Credit Lender shall effect
such purchase by making available an amount equal to its participation on the
date of such purchase in U.S. dollars in immediately available funds at the
office of the Swing Line Bank located at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or such other office as the Swing Line Bank may
from time to time direct for the account of such office of the Swing Line Bank.
(C) Each purchase made pursuant to clause (ii)(B) above by a
Revolving Credit Lender shall be made without recourse to the Swing Line Bank,
and, except as to the absence of liens created by the Swing Line Bank on the
Swing Line Advance and the Swing Line Bank's right to effect such sale, without
representation or warranty of any kind, and shall
31
be effected and evidenced pursuant to documents reasonably acceptable to the
Swing Line Bank.
(D) The obligations of the Revolving Credit Lenders under this
Section 2.02(b)(ii) shall be absolute, irrevocable and unconditional, shall be
made under all circumstances and shall not be affected, reduced or impaired for
any reason whatsoever, including (without limitation): (1) any Default, Event of
Default, misrepresentation, negligence, misconduct or other action or inaction
of any kind by any of the Loan Parties or any other Person, whether in, under or
in connection with this Agreement, the Guaranty or any of the other Loan
Documents; (2) any extension, renewal, release or waiver of the time of
performance of or compliance with any of the obligations or other provisions
hereof or of any other Loan Document; (3) any settlement, compromise or
subordination of any or all of the obligations to the claims of others, or any
failure by any Agent, the Swing Line Bank or any other Lender to mitigate
damages; (4) any amendment, modification or other waiver of any one or more of
the Loan Documents; (5) the insolvency, bankruptcy, reorganization or cessation
of existence of any of the Loan Parties; (6) any impossibility or illegality of
performance or the lack of genuineness, validity, legality or enforceability of
any of this Agreement or the other Loan Documents, or any term thereof or any
other agreement or instrument relating thereto for any reason, or the lack of
power or authority of any party to enter into any of the Loan Documents; (7) any
dispute, setoff, recoupment, counterclaim or other defense or right any Lender
may have at any time, whether against any Agent, the Swing Line Bank, any other
Lender or any of the Loan Parties; (8) any merger or consolidation of any of the
Loan Parties or any Lender, or any sale, lease or transfer of any or all of the
assets of any such Person; or (9) any other circumstances whether similar or
dissimilar to any of the foregoing.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $10,000,000
or if the obligation of the Appropriate Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.10, 2.11 or 2.12 and (ii) the
Advances under the Revolving Credit Facility may not be outstanding as part of
more than 20 separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each Appropriate Lender
against any loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice of Borrowing
for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund
32
the Advance to be made by such Lender as part of such Borrowing when such
Advance, as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice
from an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) or (b) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the
Administrative Agent, the Administrative Agent agrees to give prompt notice
thereof to the Borrower (provided that failure to give such notice shall not
affect the obligations of the Borrower under this Section 2.02(e)), and such
Lender and the Borrower severally agree to repay to the Administrative Agent
forthwith on demand such corresponding amount together with interest thereon,
for each day from the date such amount is made available to the Borrower until
the date such amount is repaid to the Administrative Agent, at (i) in the case
of the Borrower, the interest rate applicable at such time under Section 2.08 to
Advances comprising such Borrowing and (ii) in the case of such Lender, the
Federal Funds Rate. If such Lender shall repay to the Administrative Agent such
corresponding amount, such amount so repaid shall constitute such Lender's
Advance as part of such Borrowing for purposes of this Agreement.
(f) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
first Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to any Issuing Bank, which shall give to the
Administrative Agent and each Revolving Credit Lender prompt notice thereof by
telex or telecopier. Each such notice of issuance of a Letter of Credit (a
"Notice of Issuance") shall be by telephone, confirmed immediately in writing,
or telex or telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of such Letter of
Credit, (C) expiration date of such Letter of Credit, (D) name and address of
the beneficiary of such Letter of Credit and (E) form of such Letter of Credit,
and shall be accompanied by such application and agreement for letter of credit
as such Issuing Bank may specify to the Borrower for use in connection with such
requested
33
Letter of Credit (a "Letter of Credit Agreement"). If (x) the requested form of
such Letter of Credit is acceptable to such Issuing Bank in its sole discretion
and (y) it has not received written notice from an Agent or Lenders holding at
least 51% of the Revolving Credit Commitments that the conditions to issuing
such Letter of Credit have not been satisfied or duly waived, such Issuing Bank
will, upon fulfillment of the applicable conditions set forth in Article III,
make such Letter of Credit available to the Borrower at its office referred to
in Section 8.02 or as otherwise agreed with the Borrower in connection with such
issuance. In the event and to the extent that the provisions of any Letter of
Credit Agreement shall conflict with this Agreement, the provisions of this
Agreement shall govern.
(b) Letter of Credit Reports. Each Issuing Bank shall furnish
(A) to the Administrative Agent, the Documentation Agent and each Revolving
Credit Lender on the first Business Day of each month a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
preceding month and drawings during such month under all Letters of Credit
issued by such Issuing Bank and (B) to the Administrative Agent, the
Documentation Agent and each Revolving Credit Lender on the first Business Day
of each calendar quarter a written report setting forth the average daily
aggregate Available Amount during the preceding calendar quarter of all Letters
of Credit issued by such Issuing Bank.
(c) Drawing and Reimbursement. The payment by any Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by such Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by any Issuing Bank with an outstanding Letter of Credit Advance, with a
copy of such demand to the Administrative Agent, each Revolving Credit Lender
shall purchase from such Issuing Bank, and such Issuing Bank shall sell and
assign to each such Revolving Credit Lender, such Lender's Pro Rata Share of
such outstanding Letter of Credit Advance as of the date of such purchase, by
making available for the account of its Applicable Lending Office to the
Administrative Agent for the account of such Issuing Bank, by deposit to the
Administrative Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Letter of Credit Advance to
be purchased by such Lender. Promptly after receipt thereof, the Administrative
Agent shall transfer such funds to such Issuing Bank. The Borrower hereby agrees
to each such sale and assignment. Each Revolving Credit Lender agrees to
purchase its Pro Rata Share of an outstanding Letter of Credit Advance on (i)
the Business Day on which demand therefor is made by the Issuing Bank, provided
notice of such demand is given not later than 11:00 A.M. (New York City time) on
such Business Day or (ii) the first Business Day next succeeding such demand if
notice of such demand is given after such time. Upon any such assignment by any
Issuing Bank to any other Revolving Credit Lender of a portion of a Letter of
Credit Advance, such Issuing Bank represents and warrants to such other Lender
that such Issuing Bank is the legal and beneficial owner of such interest being
assigned by it, free and clear of any liens, but makes no other representation
or warranty and assumes no
34
responsibility with respect to such Letter of Credit Advance, the Loan Documents
or any Loan Party. If and to the extent that any Revolving Credit Lender shall
not have so made the amount of such Letter of Credit Advance available to the
Administrative Agent, such Revolving Credit Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by such Issuing Bank until the
date such amount is paid to the Administrative Agent, at the Federal Funds Rate
for its account or the account of such Issuing Bank, as applicable. If such
Lender shall pay to the Administrative Agent such amount for the account of such
Issuing Bank on any Business Day, such amount so paid in respect of principal
shall constitute a Letter of Credit Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding principal amount of the
Letter of Credit Advance made by such Issuing Bank shall be reduced by such
amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
(e) Existing Letters of Credit. Effective as of the Effective
Date, (i) the "Letters of Credit" issued for the account of the Borrower
pursuant to the Existing Credit Agreement (such Letters of Credit as are
outstanding thereunder on the date hereof and set forth on Schedule 2.03(e)
hereto being the "Existing Letters of Credit") will be deemed to be Letters of
Credit hereunder and (ii) the Existing Letters of Credit will no longer be
Obligations outstanding under the Existing Credit Agreement.
SECTION 2.04. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.04 from time to time on any Business Day during the period from
the date hereof until the date occurring 10 days prior to the Termination Date
in the manner set forth below; provided that, following the making of each
Competitive Bid Borrowing, (x) the aggregate amount of the Advances then
outstanding shall not exceed the aggregate amount of the Revolving Credit
Commitments of the Lenders and (y) the aggregate amount of the Competitive Bid
Advances then outstanding shall not exceed $350,000,000.
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.04 by delivering to the Competitive Bid Agent, by
telecopier or telex, a notice of a Competitive Bid Borrowing (a "Notice
of Competitive Bid Borrowing"), in substantially the form of Exhibit
B-2 hereto, specifying therein the requested (v) date of such proposed
Competitive Bid Borrowing, (w) aggregate amount of such proposed
Competitive Bid Borrowing, (x) in the case of a Competitive Bid
Borrowing consisting
35
of LIBO Rate Advances, Interest Period, or in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances, maturity date for
repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring 7 days after the date of such Competitive Bid
Borrowing or later than the earlier of (I) 180 days after the date of
such Competitive Bid Borrowing and (II) the Termination Date), (y)
interest payment date or dates relating thereto, and (z) other terms
(if any) to be applicable to such Competitive Bid Borrowing, not later
than 10:00 A.M. (New York City time) (A) at least four Business Days
prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid Borrowing that
the rates of interest to be offered by the Lenders shall be fixed rates
per annum (the Advances comprising any such Competitive Bid Borrowing
being referred to herein as "Fixed Rate Advances") and (B) at least
four Business Days prior to the date of the proposed Competitive Bid
Borrowing, if the Borrower shall instead specify in the Notice of
Competitive Bid Borrowing that the rates of interest be offered by the
Lenders are to be based on the LIBO Rate (the Advances comprising such
Competitive Bid Borrowing being referred to herein as "LIBO Rate
Advances"). Each Notice of Competitive Bid Borrowing shall be
irrevocable and binding on the Borrower. The Competitive Bid Agent
shall in turn promptly notify each Lender of each request for a
Competitive Bid Borrowing received by it from the Borrower by sending
such Lender a copy of the related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Competitive Bid Agent (which shall give
prompt notice thereof to the Borrower), before 10:00 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances and on the third Business Day before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, of the minimum amount and maximum
amount of each Competitive Bid Advance which such Lender would be
willing to make as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the proviso to the first sentence of
this Section 2.04(a), exceed such Lender's Revolving Credit Commitment,
if any), the rate or rates of interest therefor and such Lender's
Applicable Lending Office with respect to such Competitive Bid Advance;
provided that if the Administrative Agent in its capacity as a Lender
shall, in its sole discretion, elect to make any such offer, it shall
notify the Borrower of such offer before 9:00 A.M. (New York City time)
on the date on which notice of such election is to be given to the
Administrative Agent by the other Lenders. If any Lender shall elect
not to make such an offer, such Lender shall so notify the Competitive
Bid Agent,
36
before 10:00 A.M. (New York City time) on the date on which notice of
such election is to be given to the Administrative Agent by the other
Lenders, and such Lender shall not be obligated to, and shall not, make
any Competitive Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such notice shall not
cause such Lender to be obligated to make any Competitive Bid Advance
as part of such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before 11:00 A.M. (New York
City time) on the date of such proposed Competitive Bid Borrowing in
the case of a Competitive Bid Borrowing consisting of Fixed Rate
Advances, and before 1:00 P.M. (New York City time) three Business Days
before the date of such proposed Competitive Bid Borrowing in the case
of a Competitive Bid Borrowing consisting of LIBO Rate Advances,
either:
(x) cancel such Competitive Bid Borrowing by giving
the Competitive Bid Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in its
sole discretion, by giving notice to the Administrative Agent
of the amount of each Competitive Bid Advance (which amount
shall be equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to the
Borrower by the Competitive Bid Agent on behalf of such Lender
for such Competitive Bid Advance pursuant to paragraph (ii)
above) to be made by each Lender as part of such Competitive
Bid Borrowing, and reject any remaining offers made by Lenders
pursuant to paragraph (ii) above by giving the Competitive Bid
Agent notice to that effect. The Borrower shall accept the
offers made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of
interest offered by such Lenders. If two or more Lenders have
offered the same interest rate, the amount to be borrowed at
such interest rate will be allocated by the Administrative
Agent among such Lenders in proportion to the maximum amount
that each such Lender offered at such interest rate.
(iv) If the Borrower notifies the Competitive Bid Agent that
such Competitive Bid Borrowing is cancelled pursuant to paragraph
(iii)(x) above, the Competitive Bid Agent shall give prompt notice
thereof to the Lenders and such Competitive Bid Borrowing shall not be
made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Competitive Bid Agent shall in turn promptly notify (A) each Lender
that has made an offer as described in paragraph (ii)
37
above, of the date and aggregate amount of such Competitive Bid
Borrowing and whether or not any offer or offers made by such Lender
pursuant to paragraph (ii) above have been accepted by the Borrower,
(B) each Lender that is to make a Competitive Bid Advance as part of
such Competitive Bid Borrowing, of the amount of each Competitive Bid
Advance to be made by such Lender as part of such Competitive Bid
Borrowing, and (C) each Lender that is to make a Competitive Bid
Advance as part of such Competitive Bid Borrowing, upon receipt, that
the Competitive Bid Agent has received forms of documents, if any,
requested pursuant to Section 3.02(b). Each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing
shall, before 12:00 noon (New York City time) on the date of such
Competitive Bid Borrowing specified in the notice received from the
Competitive Bid Agent pursuant to clause (A) of the preceding sentence
or any later time when such Lender shall have received notice from the
Competitive Bid Agent pursuant to clause (C) of the preceding sentence,
make available for the account of its Applicable Lending Office to the
Competitive Bid Agent at the Competitive Bid Agent's Account, in same
day funds, such Lender's portion of such Competitive Bid Borrowing.
Upon fulfillment of the applicable conditions set forth in Article III
and after receipt by the Competitive Bid Agent of such funds, the
Competitive Bid Agent will, as promptly as possible, transfer such
funds to the Borrower's Account. Promptly after each Competitive Bid
Borrowing, the Competitive Bid Agent will notify each Lender of the
amount of the Competitive Bid Borrowing, the consequent deemed use of
the aggregate amount of the Commitments as a result thereof and the
dates upon which such Competitive Bid Borrowing commenced and will
terminate. For any Lender which is a Designating Lender, any
Competitive Bid Advance to be made by such Lender may from time to time
be made by its Designated Lender pursuant to the terms hereof in such
Designating Lender's sole discretion, and nothing herein shall
constitute a commitment to make Competitive Bid Advances by such
Designated Lender, provided, that (i) if any Designated Lender elects
not to, or fails for any reason whatsoever to, make any such
Competitive Bid Advance that has been accepted by the Borrower in
accordance with the foregoing, its Designating Lender hereby agrees
that it shall make such Competitive Bid Advance pursuant to the terms
hereof and (ii) notwithstanding anything to the contrary, neither the
designation of a Designated Lender, the election or other determination
that a Designated Lender will make any Competitive Bid Advance nor any
other condition or circumstance relating to the Designated Lender shall
in any way release, diminish or otherwise affect the relevant
Designating Lender's Commitment or any of its other obligations
hereunder or under any other Loan Document or any rights of the
Borrower, any Agent or any Lender Party with respect to such
Designating Lender.
(vi) If the Borrower notifies the Competitive Bid Agent that
it accepts one or more of the offers made by any Lender or Lenders
pursuant to paragraph (iii)(y) above,
38
such notice of acceptance shall be irrevocable and binding on the
Borrower. The Borrower shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the Competitive
Bid Advance to be made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a result of such
failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $5,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower shall
be in compliance with the limitation set forth in the proviso to the first
sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.04, the Borrower may from time to time borrow under this Section 2.04,
repay or prepay pursuant to subsection (d) below, and reborrow under this
Section 2.04, provided that a Competitive Bid Borrowing shall not be made within
three Business Days of the date of any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Competitive Bid Agent for
the account of each Lender that has made a Competitive Bid Advance, on the
maturity date of each Competitive Bid Advance (such maturity date being that
specified by the Borrower for repayment of such Competitive Bid Advance in the
related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above and provided in the Competitive Bid Note evidencing such
Competitive Bid Advance), the then unpaid principal amount of such Competitive
Bid Advance. The Borrower shall have no right to prepay any principal amount of
any Competitive Bid Advance unless, and then only on the terms, specified by the
Borrower for such Competitive Bid Advance in the related Notice of Competitive
Bid Borrowing delivered pursuant to subsection (a)(i) above, or unless
separately agreed between the Borrower and any Lender that has made a
Competitive Bid Advance, and set forth in the Competitive Bid Note evidencing
such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice with
respect thereto delivered pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by the Borrower for such Competitive
Bid Advance in
39
the related Notice of Competitive Bid Borrowing delivered pursuant to subsection
(a)(i) above, as provided in the Competitive Bid Note evidencing such
Competitive Bid Advance. Upon the occurrence and during the continuance of an
Event of Default, the Borrower shall pay interest on the amount of unpaid
principal of and interest on each Competitive Bid Advance owing to a Lender,
payable in arrears on the date or dates interest is payable thereon, at a rate
per annum equal at all times to 2% per annum above the rate per annum required
to be paid on such Competitive Bid Advance under the terms of the Competitive
Bid Note evidencing such Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid Borrowing,
the Borrower shall pay a non-refundable fee of $2,000 to the Competitive Bid
Agent for its own account.
SECTION 2.05. Repayment of Advances. (a) Revolving Credit
Advances. The Borrower shall repay to the Administrative Agent for the ratable
account of the Revolving Credit Lenders on the Termination Date the aggregate
outstanding principal amount of the Revolving Credit Advances then outstanding.
(b) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Revolving Credit Lender that has purchased a Swing Line Advance pursuant to
Section 2.02(b) the outstanding principal amount of each Swing Line Advance at
the times and in the manner and amounts specified in Section 2.02(b) and on the
Termination Date.
(c) Letter of Credit Advances. (i) The Borrower shall repay to
the Administrative Agent for the account of each Issuing Bank and each other
Revolving Credit Lender that has made a Letter of Credit Advance on the earlier
of demand and the Termination Date the outstanding principal amount of each
Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
40
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), any Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by any Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
the Guaranties or any other guaranty, for all or any of the Obligations
of the Borrower in respect of the L/C Related Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower or a guarantor.
SECTION 2.06. Termination or Reduction of the Commitments. The
Borrower shall have the right, upon at least three Business Days' notice to the
Administrative Agent, to terminate in whole or reduce ratably in part the unused
portions of the respective Commitments of the Lenders, provided that each
partial reduction (i) shall be in the aggregate amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and (ii) shall be made ratably
among the Appropriate Lenders in accordance with their Commitments with respect
to such Facility, and provided further that after giving effect to any such
reduction, the
41
Letter of Credit Commitments shall be less than or equal to the Revolving Credit
Commitments, and provided still further that the aggregate amount of the
Commitments of the Lenders shall not be reduced to an amount that is less than
the aggregate principal amount of the Competitive Bid Advances then outstanding.
SECTION 2.07. Prepayments. (a) Optional Prepayments. (i) The
Borrower may, upon at least one Business Day's notice in the case of the Swing
Line Facility and Base Rate Advances and three Business Days' notice in the case
of any Eurodollar Rate Advances, in each case to the Administrative Agent
stating the proposed date and aggregate principal amount of the prepayment, and
if such notice is given the Borrower shall, prepay the outstanding aggregate
principal amount of the Advances comprising part of the same Borrowing in whole
or ratably in part, together with accrued interest to the date of such
prepayment on the aggregate principal amount prepaid; provided, however, that
(x) each partial prepayment of the Revolving Credit Facility shall be in an
aggregate principal amount of $1,000,000 or an integral multiple of $1,000,000
in excess thereof and (y) any such prepayment of a Eurodollar Rate Advance made
other than on the last day of an Interest Period therefor shall be made together
with payment of all amounts, if any, required pursuant to Section 8.04(c).
(ii) Competitive Bid Advances may be prepaid only in
accordance with the provisions of Section 2.04(d).
(b) Mandatory Prepayments. (i) The Borrower shall, on each
Business Day, prepay an aggregate principal amount of the Revolving
Credit Advances comprising part of the same Borrowings, the Letter of
Credit Advances and the Swing Line Advances equal to the amount by
which (A) the sum of the aggregate principal amount of (x) the
Revolving Credit Advances, (y) the Letter of Credit Advances and (z)
the Swing Line Advances then outstanding plus the aggregate Available
Amount of all Letters of Credit then outstanding exceeds (B) the
Revolving Credit Facility on such Business Day.
(ii) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an
amount sufficient to cause the aggregate amount on deposit in such
Account to equal the amount by which the aggregate Available Amount of
all Letters of Credit then outstanding exceeds the Letter of Credit
Facility on such Business Day.
SECTION 2.08. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
42
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(x) the Base Rate in effect from time to time plus (y) the Applicable
Margin in effect from time to time, payable in arrears quarterly on the
first day of each January, April, July and October during such periods.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (x)
the Eurodollar Rate for such Interest Period for such Advance plus (y)
the Applicable Margin in effect from time to time, payable in arrears
on the last day of such Interest Period and, if such Interest Period
has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of
such Interest Period and on the date such Eurodollar Rate Advance shall
be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the
continuance of a Default, the Borrower shall pay interest on (i) the unpaid
principal amount of each Advance owing to each Lender (except as otherwise
provided in Section 2.04(e)), payable in arrears on the dates referred to in
clause (a)(i) or (a)(ii) above, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on such Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent permitted by law,
the amount of any interest, fee or other amount payable hereunder that is not
paid when due, from the date such amount shall be due until such amount shall be
paid in full, payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per annum above the
rate per annum required to be paid on Base Rate Advances pursuant to clause
(a)(i) above.
SECTION 2.09. Fees. (a) Commitment Fee. The Borrower shall pay
to the Administrative Agent for the account of the Lenders a commitment fee,
from the date hereof in the case of each Initial Lender and from the effective
date specified in the Assignment and Acceptance pursuant to which it became a
Lender in the case of each other Lender until the Termination Date, payable
quarterly on the first Business Day of each January, April, July and October,
commencing October 1, 1997, and on the Termination Date, at the rate per annum
equal to the Applicable Percentage in effect from time to time on the average
daily Unused Revolving Credit Commitment of such Lender; provided, however, (i)
that any commitment fee accrued with respect to any of the Commitments of a
Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrower
so long as such Lender shall be a Defaulting Lender except to the extent that
such commitment fee shall otherwise have been due and payable by the Borrower
43
prior to such time and (ii) that no commitment fee shall accrue on any of the
Commitments of a Defaulting Lender so long as such Lender shall be a Defaulting
Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to
the Administrative Agent for the account of each Revolving Credit Lender a
commission, payable in arrears quarterly on the first Business Day of each
January, April, July and October, commencing October 1, 1997, and on the
earliest to occur of the full drawing, expiration, termination or cancellation
of any such Letter of Credit and on the Termination Date, on such Lender's Pro
Rata Share of the average daily aggregate Available Amount during such quarter
at a rate per annum determined by reference to the Rating Level in effect from
time to time as set forth below:
============= ================= ================ ================
Rating Debt Standby Trade Letter
Level Rating Letters of of Credit
Credit
------------- ----------------- ---------------- ----------------
▇▇▇▇▇ ▇ ▇-/▇▇ or higher 0.250% 0.175%
------------- ----------------- ---------------- ----------------
▇▇▇▇▇ ▇ ▇▇▇▇ /▇▇▇▇ 0.275% 0.200%
------------- ----------------- ---------------- ----------------
▇▇▇▇▇ ▇ ▇▇▇ /▇▇▇▇ 0.300% 0.225%
------------- ----------------- ---------------- ----------------
▇▇▇▇▇ ▇ ▇▇▇-/▇▇▇▇ 0.425% 0.350%
------------- ----------------- ---------------- ----------------
Level 5 BB+/Ba1 or lower 0.625% 0.550%
============= ================= ================ ================
provided, that at any time that the Rating Level is Level 1, 2 or 3 and the
aggregate Available Amount of Letters of Credit plus the principal amount of
Advances exceeds 25% of the aggregate Commitments, the Letter of Credit fees
shall be increased by 0.075% per annum.
(ii) The Borrower shall pay to each Issuing Bank, for its own
account, such commissions, issuance fees, fronting fees, transfer fees and other
fees and charges in connection with the issuance or administration of each
Letter of Credit as the Borrower and such Issuing Bank shall agree.
(c) Agent's Fees. The Borrower shall pay to each of the Agents
for its own account such fees as may from time to time be agreed between the
Borrower and such Agent.
SECTION 2.10. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 11:00 A.M. (New York City time) on the third Business Day prior
to the date of the proposed Conversion
44
and subject to the provisions of Sections 2.10, 2.11 and 2.12, Convert all
Advances of one Type comprising the same Borrowing into Advances of the other
Type; provided, however, that any Conversion of Eurodollar Rate Advances into
Base Rate Advances shall be made only on the last day of an Interest Period for
such Eurodollar Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum amount
specified in Section 2.02(c) and no Conversion of any Advances shall result in
more separate Borrowings than permitted under Section 2.02(c). Each such notice
of a Conversion shall, within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Advances to be Converted, and (iii) if such
Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $10,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of any
Default, (x) each Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base Rate Advance and
(y) the obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended.
SECTION 2.11. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost (other than in taxes, including
interest, additions to tax and penalties relating thereto, except to the extent
that the same are required to be paid pursuant to Section 2.14 hereof) to any
Lender Party of agreeing to make or of making, funding or maintaining Eurodollar
Rate Advances or LIBO Rate Advances or of agreeing to issue or of issuing or
maintaining Letters of Credit or of agreeing to make or of making or maintaining
Letter of Credit Advances (excluding for purposes of this Section 2.11 any such
increased costs resulting from (x) Taxes, Other Taxes, Excluded Taxes or taxes
excluded from the definitions of Taxes or Other Taxes in Section 2.14(e) or from
indemnification pursuant to Section 2.14(f) (as to which Section 2.14 shall
govern) and
45
(y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower shall from time
to time, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate such Lender Party for
such increased cost; provided, however, that, before making any such demand,
each Lender Party agrees to use reasonable efforts (consistent with its internal
policy and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation would avoid the
need for, or reduce the amount of, such increased cost and would not, in the
reasonable judgment of such Lender Party, be otherwise disadvantageous to such
Lender Party and provided, further, that the Borrower's obligations to any
Designated Lender hereunder shall be limited as set forth in Section 8.04(e). A
certificate as to the amount of such increased cost, submitted to the Borrower
by such Lender Party, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender Party determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue Letters of Credit hereunder and
other commitments of such type or the issuance or maintenance of the Letters of
Credit (or similar contingent obligations), then, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender Party, from
time to time as specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the extent
that such Lender Party reasonably determines such increase in capital to be
allocable to the existence of such Lender Party's commitment to lend or to issue
Letters of Credit hereunder or to the issuance or maintenance of any Letters of
Credit, provided, however, that the Borrower's obligations to any Designated
Lender hereunder shall be limited as set forth in Section 8.04(e). A certificate
as to such amounts submitted to the Borrower by such Lender Party shall be
conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders (other than Designated Lenders) owed at least a majority of
the then aggregate unpaid principal amount thereof notify the Administrative
Agent that the Eurodollar Rate for any Interest Period for such Advances will
not adequately reflect the cost (excluding for purposes of this Section 2.11 any
such increased costs resulting from (i) Taxes, Other Taxes, Excluded Taxes or
taxes excluded from the definitions of Taxes or Other Taxes in Section 2.14(e)
or from indemnification pursuant to Section 2.14(f) (as to which Section 2.14
shall govern) and
46
(ii) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof) to such Lenders of making, funding
or maintaining their Eurodollar Rate Advances for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Appropriate
Lenders, whereupon (i) each such Eurodollar Rate Advance under any Facility will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Appropriate
Lenders to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended until the Administrative Agent shall notify the Borrower that such
Lenders have determined that the circumstances causing such suspension no longer
exist.
SECTION 2.12. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender (other than a Designated Lender) shall notify
the Administrative Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central bank
or other governmental authority asserts that it is unlawful, for any Lender or
its Eurodollar Lending Office to perform its obligations hereunder to make
Eurodollar Rate Advances or LIBO Rate Advances or to fund or maintain Eurodollar
Rate Advances or LIBO Rate Advances hereunder, (i) each Eurodollar Rate Advance
or LIBO Rate Advance, as the case may be, will automatically, upon such demand,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances or to Convert Revolving Credit
Advances into Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist; provided, that if it
becomes unlawful for any Designated Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make or fund or maintain Eurodollar Rate
Advances or LIBO Rate Advances, such Designated Lender shall immediately assign
its rights and obligations with respect to such Advance to its applicable
Designating Lender.
SECTION 2.13. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, if any, irrespective of
counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent's Account in same day
funds. The Administrative Agent will promptly thereafter cause to be distributed
like funds relating to the payment of principal or interest or commitment fees
ratably (other than amounts payable pursuant to Section 2.04, 2.11, 2.14 or
8.04(c)) to the Lenders for the account of their respective Applicable Lending
Offices, and like funds relating to the payment of any other amount payable to
any Lender to such Lender for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(c), from and after
the
47
effective date specified in such Assignment and Acceptance, the Administrative
Agent shall make all payments hereunder and under any Notes issued in connection
therewith in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) If the Administrative Agent receives funds for application
to the Obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, the Administrative Agent may, but
shall not be obligated to, elect to distribute such funds to each Lender Party
ratably in accordance with such Lender Party's proportionate share of the
principal amount of all outstanding Advances and the Available Amount of all
Letters of Credit then outstanding, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
(c) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under the
Note, if any, held by such Lender, to charge from time to time against any or
all of the Borrower's accounts with such Lender any amount so due.
(d) All computations of interest, fees and Letter of Credit
commissions shall be made by the Administrative Agent on the basis of a year of
360 days, in each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which such interest or
commitment fees are payable. Each determination by the Administrative Agent of
an interest rate hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(e) Whenever any payment hereunder or under the Notes, if any,
shall be stated to be due on a day other than a Business Day, such payment shall
be made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment
fee, as the case may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances or LIBO Rate
Advances to be made in the next following calendar month, such payment shall be
made on the next preceding Business Day.
(f) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each
48
Lender on such due date an amount equal to the amount then due such Lender. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each Lender shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to such
Lender until the date such Lender repays such amount to the Administrative
Agent, at the Federal Funds Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the Borrower
hereunder or under any Notes shall be made, in accordance with Section 2.13,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and each Agent,
Excluded Taxes (all such non-Excluded Taxes, 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 hereunder or under any Note to any Lender Party or any Agent,
(i) the sum payable shall be increased as may be necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section 2.14) such Lender or such Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions and (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies that arise from any payment made hereunder or under any Notes
or from the execution, delivery or registration of, or otherwise with respect
to, this Agreement or any Note (hereinafter referred to as "Other Taxes").
(c) The Borrower will indemnify each Lender Party and each
Agent for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 2.14) paid by such Lender Party or such Agent (as the
case may be) and any liability (including penalties, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be made
within 30 days from the date such Lender Party or such Agent (as the case may
be) makes written demand therefor, including in such demand an identification of
the Taxes or Other Taxes (together with the amounts thereof) with respect to
which such indemnification is being sought.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower will furnish to the Administrative Agent and the Documentation Agent,
at their respective addresses referred to in Section 8.02, the original or a
certified copy of a receipt evidencing payment thereof. In the case of any
payment hereunder or under any Notes by or on behalf of
49
the Borrower through an account or branch outside the United States or on behalf
of the Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Administrative Agent and
the Documentation Agent, at such address, an opinion of counsel acceptable to
the Administrative Agent stating that such payment is exempt from Taxes. For
purposes of this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in Section 7701 of
the Internal Revenue Code.
(e) Each Lender Party 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 initial Lender or initial
Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance or Designation Agreement pursuant to which it becomes a Lender Party
in the case of each other Lender Party, and from time to time thereafter if
requested in writing by the Borrower (but only so long as such Lender remains
lawfully able to do so), shall provide the Borrower with two original Internal
Revenue Service forms 1001, 4224 or W-8 as appropriate, or any successor or
other form prescribed by the Internal Revenue Service, certifying that such
Lender Party is exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or the Notes, if any. If
any Lender Party which is not a "United States person" determines that it is
unable to submit to the Borrower or the Documentation Agent any form or
certificate that such Lender is otherwise required to submit pursuant to this
Section 2.14, or that it is required to withdraw or cancel any such form or
certificate, or that any such form or certificate previously submitted has
otherwise become ineffective or inaccurate, such Lender shall promptly notify
the Borrower and the Documentation Agent of such fact. In addition, if a Lender
provides a form W-8 (or any successor or related form) to the Documentation
Agent and the Borrower pursuant to this Section 2.14, such Lender shall also
provide a certificate stating that such Lender is not a "bank" within the
meaning of section 881(c)(3)(A) of the Internal Revenue Code of 1986 and shall
promptly notify the Documentation Agent and the Borrower if such Lender
determines that it is no longer able to provide such certification. If the form
provided by a Lender Party at the time such Lender Party first becomes a party
to this Agreement indicates a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender Party provides the appropriate form
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
form; provided, however, that, if at the date of the Assignment and Acceptance
pursuant to which a Lender Party becomes a party to this Agreement, the Lender
Party assignor was entitled to payments under subsection (a) in respect of
United States withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise includable in
Taxes) United States withholding tax, if any, applicable with respect to the
Lender assignee on such date. Upon the
50
reasonable request of the Borrower or the Documentation Agent, each Lender Party
that has not provided the forms or other documents, as provided above, on the
basis of being a United States person shall submit to the Borrower and the
Documentation Agent a certificate to the effect that it is such a "United States
person" (as defined in Section 7701(a)(30) of the Internal Revenue Code).
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form described in Section
2.14(e) (other than if such failure is due to a change in law occurring
subsequent to the date on which such Lender became a Lender Party hereunder, or
if such form otherwise is not required under the first sentence of subsection
(e) above because the Borrower has not requested in writing such form subsequent
to the date on which such Lender Party became a Lender Party hereunder), such
Lender Party shall not be entitled to indemnification under Section 2.14(a) or
(c) with respect to Taxes imposed by the United States; provided, however, that
should a Lender Party become subject to Taxes because of its failure to deliver
a form required hereunder, the Borrower shall take such steps as the Lender
Party shall reasonably request to assist the Lender Party to recover such Taxes.
(g) Any Lender Party or Agent claiming any additional amounts
payable pursuant to this Section 2.14 shall use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
(h) Within 60 days after the written request of the Borrower,
each Lender Party or Agent shall execute and deliver to the Borrower such
certificates or forms as are reasonably requested by the Borrower in such
request, which can be furnished consistent with the facts and which are
reasonably necessary to assist the Borrower in applying for refunds of Taxes
paid by the Borrower hereunder or making payment of Taxes hereunder; provided,
however, that no Lender Party or Agent shall be required to furnish to the
Borrower and financial or other information which it considers confidential. The
cost of preparing any materials referred to in the previous sentence shall be
borne by the Borrower. If a Lender Party or Agent determines in good faith that
it has received a refund of any Taxes or Other Taxes with respect to which
Borrower has made a payment of additional amounts, such Lender Party or Agent
shall pay to the Borrower an amount that such Lender Party or Agent determines
in good faith to be equal to the net benefit, after tax, that was obtained by
such Lender Party or Agent (as the case may be) as a consequence of such refund.
(i) All obligations of the Borrower owed to any Designated
Lender pursuant to this Section 2.14 shall be limited to the amount that the
Borrower would be
51
obligated to pay to such Designated Lender's applicable Designating Lender but
for such designation, as set forth in Section 8.04(e).
SECTION 2.15. Sharing of Payments, Etc. If any Lender Party
shall obtain any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) on account of Obligations owing to it
(other than pursuant to Section 2.11, 2.14 or 8.04(c)) in excess of its ratable
share of payments on account of the Obligations obtained by all the Lender
Parties, such Lender Party shall forthwith purchase from the other Lender
Parties such participations in Obligations owing to them as shall be necessary
to cause such purchasing Lender Party to share the excess payment ratably with
each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender Party, such purchase
from each Lender Party shall be rescinded and such Lender Party shall repay to
the purchasing Lender Party the purchase price to the extent of such recovery
together with an amount equal to such Lender Party's ratable share (according to
the proportion of (i) the amount of such Lender Party's required repayment to
(ii) the total amount so recovered from the purchasing Lender Party) of any
interest or other amount paid or payable by the purchasing Lender Party in
respect of the total amount so recovered. The Borrower agrees that any Lender
Party so purchasing a participation from another Lender Party pursuant to this
Section 2.15 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender Party were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.16. Use of Proceeds. The proceeds of the Advances
shall be available to refinance amounts outstanding under the Existing Credit
Agreement, to provide working capital for the Borrower and for general corporate
purposes, including commercial paper backstop, of the Borrower and its
Subsidiaries.
SECTION 2.17. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrower and (iii) the
Borrower shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then the Borrower may,
so long as no Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law, set off and otherwise apply the
Obligation of the Borrower to make such payment to or for the account of such
Defaulting Lender against the Obligation of such Defaulting Lender to make such
Defaulted Advance. In the event that, on any date, the Borrower shall so set off
and otherwise apply its Obligation to make any such payment against the
Obligation of such Defaulting Lender to make any such Defaulted Advance on or
prior to such date, the amount so set off and otherwise applied by the Borrower
shall constitute for all purposes of this Agreement and the other Loan Documents
an Advance by such Defaulting Lender made on the date under the Facility
pursuant to which such Defaulted Advance was originally required to have been
made pursuant to Section 2.01.
52
Such Advance shall be a Base Rate Advance and shall be considered, for all
purposes of this Agreement, to comprise part of the Borrowing in connection with
which such Defaulted Advance was originally required to have been made pursuant
to Section 2.01, even if the other Advances comprising such Borrowing shall be
Eurodollar Rate Advances on the date such Advance is deemed to be made pursuant
to this subsection (a). The Borrower shall notify the Administrative Agent at
any time the Borrower exercises its right of set-off pursuant to this subsection
(a) and shall set forth in such notice (A) the name of the Defaulting Lender and
the Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender which
is paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this subsection (a), shall be applied by the
Administrative Agent as specified in subsection (b) or (c) of this Section 2.17.
(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to any Agent or any of the other Lender Parties and (iii) the Borrower
shall make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by the Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to the Administrative Agent and
the other Lender Parties, in the following order of priority:
(i) first, to the Agents for any Defaulted Amount then owing
to the Agents; and
(ii) second, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
53
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.17.
(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, any Agent or any
other Lender Party shall be required to pay or distribute any amount hereunder
or under any other Loan Document to or for the account of such Defaulting
Lender, then the Borrower or such other Lender Party shall pay such amount to
the Administrative Agent to be held by the Administrative Agent, to the fullest
extent permitted by applicable law, in escrow or the Administrative Agent shall,
to the fullest extent permitted by applicable law, hold in escrow such amount
otherwise held by it. Any funds held by the Administrative Agent in escrow under
this subsection (c) shall be deposited by the Administrative Agent in an account
with the Administrative Agent, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be the
Administrative Agent's standard terms applicable to escrow accounts maintained
with it. Any interest credited to such account from time to time shall be held
by the Administrative Agent in escrow under, and applied by the Administrative
Agent from time to time in accordance with the provisions of, this subsection
(c). The Administrative Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to any Agent or any other Lender Party, as and
when such Advances or amounts are required to be made or paid and, if the amount
so held in escrow shall at any time be insufficient to make and pay all such
Advances and amounts required to be made or paid at such time, in the following
order of priority:
(i) first, to the Agents for any amount then due and payable
by such Defaulting Lender to the Agents hereunder;
(ii) second, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iii) third, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
54
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.17 are in addition to other rights and remedies that the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that any Agent or any Lender Party may have against such Defaulting Lender
with respect to any Defaulted Amount.
SECTION 2.18. Evidence of Debt . (a) Each Lender shall
maintain in accordance with its usual practice an account or accounts evidencing
the indebtedness of the Borrower to such Lender resulting from each Advance
owing to such Lender from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender to the Borrower (with a copy of
such notice to the Administrative Agent) to the effect that a promissory note or
other evidence of indebtedness is required or appropriate in order for such
Lender to evidence (whether for purposes of pledge, enforcement or otherwise)
the Revolving Credit Advances owing to, or to be made by, such Lender, the
Borrower shall promptly execute and deliver to such Lender a promissory note in
the form of Exhibit A-2 hereto (each a "Revolving Credit Note"), payable to the
order of such Lender in a principal amount equal to the Revolving Credit
Commitment of such Lender.
(b) The Register maintained by the Administrative Agent
pursuant to Section 8.07(g) shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall be recorded
(i) the date and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable or
to become due and payable from the Borrower to each Lender hereunder, and (iv)
the amount of any sum received by the Administrative Agent from the Borrower
hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Administrative Agent in
the Register pursuant to subsection (b) above, and by each Lender in its account
or accounts pursuant to subsection (a) above, shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrower to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this Agreement, absent
manifest error; provided, however, that the failure of the Administrative Agent
or such
55
Lender to make an entry, or any finding that an entry is incorrect, in the
Register or such account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Section 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on which the
following conditions precedent have been satisfied:
(a) The Lender Parties shall be satisfied that all obligations
of the Borrower under the Existing Credit Agreement, whether for
principal, interest, fees, expenses or otherwise, have been or,
concurrently with the making of the initial Borrowing, will be paid in
full in cash and all "Commitments" (as defined therein) terminated.
(b) There shall have occurred no Material Adverse Change since
January 4, 1997 and all information provided by or on behalf of the
Borrower to the Lenders prior to the delivery of their commitments
shall be true and correct in all material aspects.
(c) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby shall
have been obtained (without the imposition of any conditions that are
not acceptable to the Lender Parties) and shall remain in effect, all
applicable waiting periods shall have expired without any action being
taken by any competent authority and no law or regulation shall be
applicable in the reasonable judgment of the Lender Parties that
restrains, prevents or imposes materially adverse conditions upon the
transactions contemplated hereby.
(d) The Borrower shall have paid all accrued and invoiced fees
and expenses of the Managing Agents and the Lender Parties (including
the accrued and invoiced fees and expenses of counsel to the Agents).
(e) On the Effective Date, the following statements shall be
true and the Documentation Agent shall have received for the account of
each Lender a certificate signed by a duly authorized officer of the
Borrower, dated the Effective Date, stating that:
(i) The representations and warranties contained in
each Loan Document are correct on and as of the Effective
Date, and
56
(ii) No event has occurred and is continuing that
constitutes a Default.
(f) The Documentation Agent shall have received on or before
the Effective Date the following, each dated such day, in form and
substance satisfactory to the Documentation Agent and in sufficient
copies for each Lender Party:
(i) A guaranty in substantially the form of Exhibit F
(as amended, supplemented or otherwise modified from time to
time in accordance with its terms, the "Group Guaranty"), duly
executed by Group.
(ii) A guaranty in substantially the form of Exhibit
G (together with each other guaranty delivered pursuant to
Section 5.01(k), in each case as amended, supplemented or
otherwise modified from time to time in accordance with its
terms, the "Subsidiary Guaranty"), duly executed by the
Guarantors (other than Group).
(iii) Certified copies of the resolutions of the
Board of Directors of the Borrower and each other Loan Party
approving this Agreement and each other Loan Document to which
it is or is to be a party, and of all documents evidencing
other necessary corporate action and governmental approvals,
if any, with respect to this Agreement and each other Loan
Document.
(iv) A certificate of the Secretary or an Assistant
Secretary of the Borrower and each other Loan Party certifying
the names and true signatures of the officers of the Borrower
and such other Loan Party authorized to sign this Agreement,
each other Loan Document to which they are or are to be
parties and the other documents to be delivered hereunder and
thereunder.
(v) A favorable opinion of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Loan Parties, in
substantially the form of Exhibit E-1 hereto and as to such
other matters as any Lender Party through the Managing Agents
may reasonably request.
(vi) A favorable opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
General Counsel for the Borrower, in substantially the form of
Exhibit E-2 hereto and as to such other matters as any Lender
Party through the Managing Agents may reasonably request.
57
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Managing Agents, in form and substance
satisfactory to the Managing Agents.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance and other than a Swing Line Advance made by a
Revolving Credit Lender pursuant to Section 2.02(b)) on the occasion of each
Borrowing (including the initial Borrowing), and the obligation of each Issuing
Bank to issue a Letter of Credit (including the initial issuance) and the right
of the Borrower to request a Swing Line Borrowing, shall be subject to the
further conditions precedent that on the date of such Borrowing or issuance:
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Borrowing, Notice of Swing Line
Borrowing or Notice of Issuance and the acceptance by the Borrower of
the proceeds of such Borrowing or of such Letter of Credit shall
constitute a representation and warranty by the Borrower that on the
date of such Borrowing or issuance such statements are true):
(i) the representations and warranties contained in
each Loan Document are correct in all material respects on and
as of the date of such Borrowing or issuance, before and after
giving effect to such Borrowing or issuance and to the
application of the proceeds therefrom, as though made on and
as of such date other than any such representations or
warranties that, by their terms, refer to a specific date
other than the date of such Borrowing or issuance, in which
case such representations and warranties shall be correct as
of such specific date, and
(ii) no event has occurred and is continuing, or
would result from such Borrowing or from the application of
the proceeds therefrom, that constitutes a Default; and
(b) the Documentation Agent shall have received such other
approvals or documents, if any, as any Appropriate Lender through the
Documentation Agent may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Documentation Agent responsible for the transactions contemplated
by Loan Documents shall have received notice from such Lender Party prior to the
date that the Borrower, by notice to the Lenders, designates as the proposed
58
Effective Date, specifying its objection thereto. The Administrative Agent shall
promptly notify the Lender Parties of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
Each of Group and the Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to so
qualify or be licensed would not have a Material Adverse Effect and
(iii) has all requisite corporate power and authority to own or lease
and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the
date hereof (as to each such Subsidiary) whether or not such Subsidiary
is a wholly-owned Subsidiary. Each such Subsidiary (i) is a corporation
duly organized or a limited liability corporation duly formed, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) is duly qualified and in good standing as a foreign
corporation in each other jurisdiction in which it owns or leases
property or in which the conduct of its business requires it to so
qualify or be licensed except where the failure to so qualify or be
licensed would not have a Material Adverse Effect and (iii) has all
requisite corporate power and authority to own or lease and operate its
properties and to carry on its business as now conducted and as
proposed to be conducted.
(c) The execution, delivery and performance by each Loan Party
of this Agreement and each other Loan Document to which it is or is to
be a party, and the consummation of the transactions contemplated
hereby, are within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene
such Loan Party's charter or by-laws, (ii) violate any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award, (iii) conflict with or result in the breach of, or constitute a
default under, any contract, loan agreement, indenture, mortgage, deed
of trust, lease or other instrument binding on or affecting any Loan
Party, any of its Subsidiaries or any of their properties or
59
(iv) result in or require the creation or imposition of any Lien upon
or with respect to any of the properties of any Loan Party or any of
its Subsidiaries. No Loan Party or any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which is or would be
reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery,
recordation, filing or performance by any Loan Party of this Agreement
or any other Loan Document to which it is or is to be a party, or for
the consummation of the transactions contemplated hereby.
(e) This Agreement has been, and each other Loan Document when
delivered hereunder will have been, duly executed and delivered by each
Loan Party party thereto. This Agreement is, and each other Loan
Document when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such
Loan Party in accordance with its terms, except as enforcement may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights generally
and by general principles of equity (regardless of whether enforcement
is sought in equity or at law).
(f) (i) The Consolidated balance sheets of Group and its
Subsidiaries as at January 4, 1997, and the related Consolidated
statements of operations, stockholders' equity and cash flow of Group
and its Subsidiaries for the fiscal years then ended, accompanied by an
opinion of Price Waterhouse, independent public accountants, and the
Consolidated balance sheet of Group and its Subsidiaries as at April 5,
1997, and the related Consolidated statements of operations,
stockholders' equity and cash flow of Group and its Subsidiaries for
the six months then ended, duly certified by the chief financial
officer of Group, copies of which have been furnished to each Lender,
fairly present, subject, in the case of said balance sheet as at April
5, 1997, and said statements of operations, stockholders' equity and
cash flow for the six months then ended, to year-end audit adjustments,
the Consolidated financial condition of Group and its Subsidiaries as
at such dates and the Consolidated results of the operations of Group
and its Subsidiaries for the periods ended on such dates, all in
accordance with generally accepted accounting principles applied on a
consistent basis, and (ii) since January 4, 1997, there has been no
Material Adverse Change.
(g) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action,
60
pending or threatened before any court, governmental agency or
arbitrator that (i) purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document or the
consummation of the transactions contemplated hereby or (ii) is or
would be reasonably likely to have a Material Adverse Effect.
(h) No proceeds of any Advance will be used to acquire any
equity security of a class that is registered pursuant to Section 12 of
the Securities Exchange Act of 1934, as amended (other than (i) shares
of capital stock of Group and (ii) to the extent applicable, in
connection with an acquisition of a company, so long as (x) the board
of directors of such company shall have approved such acquisition at
the time such acquisition is first publicly announced, (y) if such
company shall have been soliciting bids for its acquisition, the board
of directors of such company shall not have determined either to accept
no offer or to accept an offer other than the offer of Group or one of
its Subsidiaries or (z) if such company shall not have been soliciting
bids for its acquisition or if the board of directors of such company
shall have solicited bids for its acquisition but shall have initially
determined either to accept no offer or to accept an offer other than
the offer of Group or one of its Subsidiaries, the existence, amount
and availability for the acquisition of such company of the Commitments
hereunder shall not have been disclosed, orally or in writing, to such
company or its advisors; provided, that the public filing of this
Agreement shall not be deemed to be disclosure of the Commitments
hereunder to such company or its advisors, until after such time as the
board of directors of such company shall have approved such acquisition
by Group or one of its Subsidiaries and so long as, in any case, such
acquisition is otherwise permitted hereunder).
(i) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock except for shares of capital stock of Group
and as otherwise permitted in Sections 4.01(h).
(j) Neither any Loan Party nor any of its Subsidiaries 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. Neither the
making of any Advances, nor the issuance of any Letters of Credit, nor
the application of the proceeds or repayment thereof by the Borrower,
nor the consummation of the other transactions contemplated hereby,
will violate any provision of such Act or any rule, regulation or order
of the Securities and Exchange Commission thereunder.
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ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, Group and the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and Environmental Laws,
except where the failure so to comply would not have a Material Adverse
Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, would reasonably be likely to by law become a Lien
upon its property; provided, however, that neither the Borrower nor any
of its Subsidiaries shall be required to pay or discharge any such tax,
assessment, charge or claim that is being contested in good faith and
by proper proceedings and as to which appropriate reserves are being
maintained, unless and until any Lien resulting therefrom attaches to
its property and becomes enforceable against its other creditors so
long as any such amount, when taken together with any amount required
to be paid as described in clause (b) of the definition of "Permitted
Liens", shall not exceed $10 million.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Borrower or such Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that Group and its Subsidiaries may consummate any
merger, consolidation or voluntary dissolution or liquidation permitted
under Section 5.02(b).
(e) Visitation Rights. At any reasonable time and from time to
time, permit any Agent or any of the Lender Parties or any agents or
representatives thereof, upon
62
reasonable notice to the Borrower to examine and make copies of and
abstracts from the records and books of account of, and visit the
properties of, the Borrower and any of its Subsidiaries, and to discuss
the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account, in which full and correct
entries shall be made of all financial transactions and the assets and
business of the Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used or useful in the conduct of its business in
good working order and condition, ordinary wear and tear excepted.
(h) Transactions with Affiliates. Conduct, and cause each of
its Subsidiaries to conduct, (i) other than with respect to
transactions between the Borrower and its wholly owned Subsidiaries,
all transactions otherwise permitted under the Loan Documents with any
of their Affiliates on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would obtain in a
comparable arm's-length transaction with a Person not an Affiliate and
(ii) with respect to transactions between the Borrower and its wholly
owned Subsidiaries, all transactions otherwise permitted under the Loan
Documents on terms that are no less favorable to the Borrower than it
would obtain in a comparable arm's-length transaction with a Person not
an Affiliate, provided, however, that the foregoing restrictions shall
not apply to transactions pursuant to any agreement referred to in
Section 5.02(a)(ii) and provided, further, that the Borrower shall not
engage in any transaction with any such Subsidiary that would render
such Subsidiary insolvent or cause a default under, or a breach of, any
material contract to which such Subsidiary is a party.
(i) Implied Senior Rating. So long as no Public Debt Rating is
in effect, no less frequently than once during every Fiscal Year,
obtain from S&P (or, if unavailable, from ▇▇▇▇▇'▇) an update of the
Implied Senior Rating and deliver a letter to the Managing Agents from
S&P (or ▇▇▇▇▇'▇, as the case may be) advising the Managing Agents of
the current Implied Senior Rating.
(j) Reporting Requirements. Furnish to the Lenders (and for
purposes hereof, any Designated Lender shall be deemed to have received
the following information from its Designating Lender):
63
(i) as soon as available and in any event within 45
days after the end of each of the first three quarters of each
Fiscal Year, Consolidated and consolidating balance sheets of
Group and its Subsidiaries as of the end of such quarter and
Consolidated and consolidating statements of income and
Consolidated statements of cash flows of Group and its
Subsidiaries for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter,
duly certified (subject to year-end audit adjustments) by the
chief financial officer of the Borrower as having been
prepared in accordance with generally accepted accounting
principles and a certificate of the chief financial officer of
Group as to compliance with the terms of this Agreement and
setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Section 5.03, provided that in
the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(ii) as soon as available and in any event within 90
days after the end of each Fiscal Year of Group, a copy of the
annual audit report for such year for Group and its
Subsidiaries, containing Consolidated balance sheet of Group
and its Subsidiaries as of the end of such fiscal year and
Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such Fiscal Year, in each
case accompanied by an opinion acceptable to the Required
Lenders by any Approved Accounting Firm or by other
independent public accountants acceptable to the Required
Lenders, and a certificate of the chief financial officer or
Group as to compliance with the terms of this Agreement
setting forth in reasonable detail the calculations necessary
to demonstrate compliance with Section 5.03 provided that in
the event of any change in GAAP used in the preparation of
such financial statements, the Borrower shall also provide, if
necessary for the determination of compliance with Section
5.03, a statement of reconciliation conforming such financial
statements to GAAP;
(iii) as soon as possible and in any event within two
Business Days after the occurrence of each Default continuing
on the date of such statement, a statement of the chief
financial officer of the Borrower setting forth details of
such Default and the action that the Borrower has taken and
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all
64
reports that the Borrower sends to any of its securityholders
generally, and copies of all reports and registration
statements that Group or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange;
(v) promptly after the commencement thereof, notice
of all actions and proceedings before any court, governmental
agency or arbitrator affecting the Borrower or any of its
Subsidiaries of the type described in Section 4.01(g);
(vi) so long as no Public Debt Rating is then in
effect, within five Business Days after receipt thereof by any
Loan Party, copies of each notice from S&P (or ▇▇▇▇▇'▇, if S&P
has ceased to provide Implied Senior Ratings) indicating any
change in the Implied Senior Rating; and
(vii) such other information respecting the Borrower
or any of its Subsidiaries as any Lender Party through the
Managing Agents may from time to time reasonably request.
(k) Covenant To Guarantee Obligations. At such time as any new
direct or indirect Domestic Subsidiary is formed or acquired, cause
such new Subsidiary that is a wholly owned Subsidiary to (i) within 30
days thereafter or such later time as the Borrower and the
Documentation Agent shall agree (but in any event no later than 30
additional days thereafter), duly execute and deliver to the
Documentation Agent guarantees, in substantially the form of Exhibit G
and otherwise in form and substance reasonably satisfactory to the
Documentation Agent, guaranteeing the Borrower's Obligations under the
Loan Documents, provided, however, that the foregoing shall not apply
to (A) joint ventures or (B) any Subsidiary organized solely for the
purpose of entering into any agreements and transactions referred to in
Section 5.02(a)(ii) to the extent that such agreements require that
such Subsidiary not be a Guarantor hereunder, and (ii) within 30 days
thereafter or such later time as the Borrower and the Documentation
Agent shall agree (but in any event no later than 30 additional days
thereafter), deliver to the Documentation Agent a signed copy of a
favorable opinion, addressed to the Documentation Agent, of counsel for
the Loan Parties acceptable to the Documentation Agent as to the
documents contained in clause (i) above, as to such guarantees being
legal, valid and binding obligations of such Domestic Subsidiaries
enforceable in accordance with their terms and as to such other matters
as the Documentation Agent may reasonably request.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid, any Letter of Credit shall be outstanding or any Lender Party
shall have any Commitment hereunder, neither Group nor the Borrower will at any
time:
65
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Lien
on or with respect to any of its properties of any character, whether
now owned or hereafter acquired, or assign, or permit any of its
Subsidiaries to assign, any right to receive income, other than:
(i) Permitted Liens,
(ii) Liens on receivables of any kind (and in
property securing or otherwise supporting such receivables) in
connection with agreements for limited recourse sales or
financings by the Borrower or any of its Subsidiaries for cash
of such receivables or interests therein, provided that (A)
any such agreement is of a type and on terms customary for
comparable transactions in the good faith judgment of the
Board of Directors of the Borrower, (B) such agreement does
not create any interest in any asset other than receivables
(and property securing or otherwise supporting such
receivables) and proceeds of the foregoing, and (C) in the
case of sales or financings of receivables to Persons other
than Group, the Borrower or any of their Domestic
Subsidiaries, on any date of determination, the aggregate face
value of such receivables shall not exceed at any time
outstanding $150,000,000,
(iii) other Liens securing Debt, including Liens
incurred pursuant to subsection (v) below, in an aggregate
principal amount outstanding at any time not to exceed 20% of
Consolidated Tangible Assets of Group and its Subsidiaries at
such time,
(iv) Liens arising from covenants by the Borrower or
its Subsidiaries to grant security interests in the assets of
Warnaco of Canada Limited or its Subsidiaries (the "Canadian
Subsidiaries") to secure Debt of the Canadian Subsidiaries in
the event that the Lenders hereunder are granted Liens by
Group or its Subsidiaries in their respective assets to secure
the Obligations under the Loan Documents, and
(v) Liens on Margin Stock.
(b) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries
to do so or to voluntarily liquidate, except that (i) any Domestic
Subsidiary of Group may merge into or consolidate with any other
Domestic Subsidiary of Group, provided that the person formed thereby
shall be a direct or indirect wholly owned Domestic Subsidiary of
Group, (ii) any Foreign Subsidiary of Group may merge into or
consolidate with any other Foreign Subsidiary of Group, provided that
the Person formed thereby shall be a
66
direct or indirect wholly owned Foreign Subsidiary of Group, (iii) any
Domestic Subsidiary of Group may merge into or consolidate with Group,
(iv) the Borrower may merge into or consolidate with any other Person
so long as the Borrower is the surviving corporation and (v) any
Subsidiary of Group may voluntarily liquidate and distribute its assets
to Group or any direct or indirect wholly owned Domestic Subsidiary of
Group, provided, in each case, that no Default shall have occurred and
be continuing at the time of such proposed transaction or would result
therefrom.
(c) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt other than:
(i) Debt under the Loan Documents;
(ii) Debt secured by Liens permitted by Section
5.02(a)(iii) hereof;
(iii) Debt incurred on terms customary for comparable
transactions in the good faith judgment of the Board of
Directors of the Borrower in connection with any obligation
under or resulting from any agreement referred to in
Section 5.02(a)(ii);
(iv) Debt of Foreign Subsidiaries (and, without
duplication, guarantees thereof) for general corporate
purposes (other than acquisitions) not to exceed an aggregate
of $125,000,000 outstanding at any time;
(v) unsecured Debt (other than letters of credit) of
the Borrower, Group or any Domestic Subsidiary that is a
Guarantor;
(vi) Debt under the Trade Credit Facility in an
aggregate principal amount not to exceed $300,000,000 at any
time outstanding;
(vii) Debt secured by Liens permitted by Section
5.02(a)(i) hereof;
(viii) in the case of any of its Subsidiaries, Debt
owing to Group or to any of its Subsidiaries; and
(ix) Debt of Group or any of its Subsidiaries in an
aggregate amount not to exceed $250,000,000 for purposes of
Section 5.02(e)(i).
No incurrence of Debt shall be permitted unless the Borrower shall be
in compliance with each of the covenants set forth in Section 5.03 both
before and after giving effect thereto.
67
(d) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other right
to purchase, lease or otherwise acquire any assets, except:
(i) sales of inventory in the ordinary course of its
business;
(ii) sales, leases, transfers or other disposals of
assets, or grants of any option or other right to purchase,
lease or otherwise acquire assets, following the Effective
Date for fair value (valued at the time of any such sale,
lease, transfer or other disposal), in an aggregate amount
from the Effective Date not to exceed 15% of the Consolidated
total assets of the Borrower and its Subsidiaries as valued at
January 4, 1997, and the fair value of such assets shall have
been determined in good faith by the Board of Directors of the
Borrower;
(iii) sales of assets on terms customary for
comparable transactions in the good faith judgment of the
Board of Directors of the Borrower pursuant to agreements
referred to in Section 5.02(a)(ii);
(iv) transfers of assets between Group and its
Subsidiaries, and, in the case of the Borrower, subject to
Section 5.02(f)(ii);
(v) sales of assets listed on Schedule 5.02(d)
hereto;
(vi) sales of assets and properties of Group and its
Subsidiaries in connection with sale-leaseback transactions
otherwise permitted hereunder (including, without limitation,
under Section 5.02(c));
(vii) the sale or discount of accounts (A) owing by
Persons incorporated, residing or having their principal place
of business in the United States in an aggregate amount not
exceeding $10,000,000 in face amount per calendar year or (B)
that are past due by more than 90 days, provided that the sale
or discount of such accounts is in the ordinary course of the
Borrower's business and consistent with prudent business
practices;
(viii) the licensing of trademarks and trade names by
the Borrower or any of its Subsidiaries in the ordinary course
of its business, provided that such licensing takes place on
an arm's-length basis;
68
(ix) the rental by the Borrower and its Subsidiaries,
as lessors, in the ordinary course of their respective
businesses, on an arm's-length basis, of real property and
personal property, in each case under leases (other than
Capitalized Leases); and
(x) sales of Margin Stock for fair value as
determined in good faith by the Board of Directors of the
Borrower.
(e) Investments in Other Persons. Make or hold, or permit any
of its Subsidiaries to make or hold, any Investment in any Person other
than:
(i) Investments by Group or its wholly owned
Subsidiaries in Persons or assets located outside the United
States in a net aggregate amount (after giving effect to any
dividends or other returns of capital received from any such
Investments) invested from the date hereof not to exceed
$250,000,000;
(ii) Investments by Group or its wholly owned
Subsidiaries in Persons or assets located in the United
States;
(iii) the Guaranties;
(iv) Investments in Cash Equivalents;
(v) other Investments in a net aggregate amount
(after giving effect to any dividends or other returns of
capital) invested from the date hereof not to exceed
$55,000,000;
(vi) endorsement of negotiable instruments for
deposit or collection in the ordinary course of business;
(vii) Investments representing stock or obligations
issued to Group or any of its Subsidiaries in settlement of
claims against any other Person by reason of a composition or
readjustment of debt or a reorganization of any debtor of
Group or such Subsidiary;
(viii) Investments representing the Debt of any
Person owing as a result of the sale by Group or any of its
Subsidiaries in the ordinary course of business of products or
services (on customary trade terms);
69
(ix) loans or advances, not to exceed $15,000,000 in
the aggregate at any one time outstanding, to (A) employees of
the Borrower and its Subsidiaries as travel advances,
short-term loans or relocation expenses, and (B) to employees
and independent sales representatives as commission advances;
(x) Investments outstanding on the date hereof, but
not any additional investments therein;
(xi) Investments represented by the L/C Cash
Collateral Account and the other bank accounts permitted
hereunder;
(xii) Investments made with the capital stock of
Group or any of its Subsidiaries or with the proceeds of any
Capital Stock Issuance by Group; and
(xiii) Investments otherwise permitted under Section
5.02(c).
(f) Nature of Business. (i) Make, or permit any of its
Subsidiaries to make, (A) except as otherwise permitted pursuant to
subsection (B) below, any change in the nature of its business as
carried on at the date hereof in a manner materially adverse to the
Agents and the Lender Parties or (B) any investments including, without
limitation, Investments (except as permitted pursuant to Section
5.02(e)(v)) other than in apparel manufacturing or wholesaling
businesses or apparel accessories manufacturing or wholesaling
businesses or in related retail businesses, provided that on an annual
basis, at least 51% of the revenue of Group and its Subsidiaries on a
Consolidated basis is derived from apparel manufacturing or wholesaling
businesses or apparel accessories manufacturing or wholesaling
businesses, or (ii) transfer, in aggregate from the Effective Date,
from the Borrower to Group or to any of the Subsidiaries of Group other
than the Borrower operating assets (valued at the time of any such
transfer) in excess of 20% of the Consolidated total assets of Group
and its Subsidiaries as valued at January 4, 1997, provided, however,
that the limitation of this clause (ii) shall not apply to mergers,
consolidations or liquidations permitted under Section 5.02(b).
(g) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in accounting policies
(except as required or permitted by the Financial Accounting Standards
Board or generally accepted accounting principles), reporting practices
or Fiscal Year.
SECTION 5.03. Financial Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, Group and the Borrower will:
70
(a) Leverage Ratio. Maintain, as of the end of each Fiscal
Quarter, a ratio of Total Debt to the sum of Total Debt plus Net Worth
of not greater than 0.55:1.00 provided, that for the purposes of
calculating Net Worth, the amount of the one time, nonrecurring charge
during the Fiscal Year ended January 1997 in an amount of $88,804,000
shall be added thereto.
(b) Coverage Ratio. Maintain, as of the end of each period of
four consecutive Fiscal Quarters, a ratio of Consolidated EBITDA of
Group and its Subsidiaries for any four consecutive Fiscal Quarter
period to Consolidated Interest Expense of Group and its Subsidiaries
for such period of not less than 3.00:1.00.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable; or the Borrower or any
other Loan Party shall fail to pay any interest on any Advance or make
any other payment of fees or other amounts payable under any Loan
Document within three Business Days after the same becomes due and
payable; or
(b) Any representation or warranty made by any Loan Party (or
any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) (i) Group or the Borrower shall fail to perform or observe
any term, covenant or agreement contained in Section 5.01(d) or (k),
5.02 or 5.03, or (ii) any Loan Party shall fail to perform or observe
any other term, covenant or agreement contained in any Loan Document on
its part to be performed or observed if such failure shall remain
unremedied for 30 days (A) after written notice thereof shall have been
given to the Borrower by any Agent or any Lender or (B) after any
officer of the Borrower obtains knowledge thereof; or
(d) Any Loan Party or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Debt under the Trade
Credit Facility or other Debt that is outstanding in a principal or
notional amount of at least $20,000,000 in the aggregate (but excluding
Debt outstanding hereunder) of such Loan Party or such
71
Subsidiary (as the case may be), when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to any
such Debt and shall continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt; or any such Debt shall be declared to be due and
payable, or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption or other than as
a result of any event which provides cash to such Loan Party in an
amount sufficient to satisfy such redemption or prepayment), purchased
or defeased, or an offer to prepay, redeem, purchase or defease such
Debt shall be required to be made, in each case prior to the stated
maturity thereof; or
(e) Group, the Borrower or any of their Material Subsidiaries
(or any group of Subsidiaries which, in the aggregate, would constitute
a Material Subsidiary) shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against any
Group, the Borrower or any of their Subsidiaries (or any group of
Subsidiaries which, in the aggregate, would constitute a Material
Subsidiary) seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, custodian or other similar official
for it or for any substantial part of its property and, in the case of
any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a
period of 30 days, or any of the actions sought in such proceeding
(including, without limitation, the entry of an order for relief
against, or the appointment of a receiver, trustee, custodian or other
similar official for, it or for any substantial part of its property)
shall occur; or such Loan Party or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set forth above in
this subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $20,000,000 shall be rendered against any Loan Party or any of its
Subsidiaries and either (i) enforcement proceedings shall have been
commenced by any creditor upon such judgment or order or (ii) there
shall be any period of 10 consecutive days during which a stay of
enforcement of such judgment or order, by reason of a pending appeal
72
or otherwise, shall not be in effect unless the payment of such
judgment or order is covered by insurance and such insurance coverage
is not in dispute.
(g) Any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could be
reasonably expected to have a Material Adverse Effect, and there shall
be any period of 10 consecutive days during which a stay of enforcement
of such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(h) any provision of any Loan Document, after delivery thereof
pursuant to Section 3.01 or 5.01(k), shall for any reason cease to be
valid and binding on or enforceable against any Loan Party party to it,
or any such Loan Party shall so state in writing; or
(i) (A) Group shall at any time cease to have legal and
beneficial ownership of 100% of the capital stock of the Borrower
(except if such parties shall merge); or (B) any Person, or two or more
Persons acting in concert, shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934), directly or
indirectly, of Voting Stock of Group (or other securities convertible
into such Voting Stock) representing 25% or more of the combined voting
power of all Voting Stock of Group (other than Excluded Persons); or
(C) any Person, or two or more Persons acting in concert shall have
acquired by contract or otherwise, or shall have entered into a
contract or arrangement that, upon consummation, will result in its or
their acquisition of, the power to exercise, directly or indirectly, a
controlling influence over the management or policies of Group, or
control over Voting Stock of Group (or other securities convertible
into such securities) representing 25% or more of combined voting power
of all Voting Stock of Group (other than Excluded Persons); or (D)
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (or, in the case of her death or disability, another
officer or officers of comparable experience and ability selected by
the Borrower within 180 days thereafter after consultation with the
Managing Agents) shall cease to be Chairman and Chief Executive Officer
of Group and the Borrower); or
(j) Any Loan Party or any of its ERISA Affiliates shall incur,
or shall be reasonably likely to incur, liability in excess of
$20,000,000 in the aggregate as a result of one or more of the
following: (i) the occurrence of any ERISA Event; (ii) the partial or
complete withdrawal of such Loan Party or any of its ERISA Affiliates
from a Multiemployer Plan; or (iii) the reorganization or termination
of a Multiemployer Plan;
then, and in any such event, the Managing Agents (i) shall at the request, or
may with the consent, of the Required Lenders, by notice to the Borrower,
declare the obligation of each
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Appropriate Lender to make
Advances (other than Letter of Credit Advances by an Issuing Bank or a Revolving
Credit Lender pursuant to Section 2.03(c) and Swing Line Advances by a Revolving
Credit Lender pursuant to Section 2.02(b)) and of each Issuing Bank to issue
Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrower, declare the Advances, all
interest thereon and all other amounts payable under this Agreement and the
other Loan Documents to be forthwith due and payable, whereupon the Advances,
all such interest and all such amounts shall become and be forthwith due and
payable, without presentment, demand, protest or further notice of any kind, all
of which are hereby expressly waived by the Borrower and (B) by notice to each
party required under the terms of any agreement in support of which a Standby
Letter of Credit is issued, request that all Obligations under such agreement be
declared to be due and payable; provided, however, that in the event of an
actual or deemed entry of an order for relief with respect to any Loan Party or
any of its Material Subsidiaries (or any group of Subsidiaries which, in the
aggregate, would constitute a Material Subsidiary) under the Federal Bankruptcy
Code, (x) the obligation of each Lender to make Advances (other than Letter of
Credit Advances by the Issuing Bank or a Revolving Credit Lender pursuant to
Section 2.03(c) and Swing Line Advances by a Revolving Credit Lender pursuant to
Section 2.02(b)) and of each Issuing Bank to issue Letters of Credit shall
automatically be terminated and (y) the Advances, all such interest and all such
amounts shall automatically become and be due and payable, without presentment,
demand, protest or any notice of any kind, all of which are hereby expressly
waived by the Borrower.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default . If any Event of Default shall have occurred and be continuing, the
Managing Agents may, or shall at the request of the Required Lenders,
irrespective of whether they are taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Administrative Agent on behalf of the
Lender Parties in same day funds at the Administrative Agent's office designated
in such demand, for deposit in the L/C Cash Collateral Account, an amount equal
to the aggregate Available Amount of all Letters of Credit then outstanding. If
at any time the Managing Agents determine that any funds held in the L/C Cash
Collateral Account are subject to any right or claim of any Person other than
the Agents and the Lender Parties or that the total amount of such funds is less
than the aggregate Available Amount of all Letters of Credit, the Borrower will,
forthwith upon demand by the Managing Agents, pay to the Administrative Agent,
as additional funds to be deposited and held in the L/C Cash Collateral Account,
an amount equal to the excess of (a) such aggregate Available Amount over (b)
the total amount of funds, if any, then held in the L/C Cash Collateral Account
that the Managing Agents determine to be free and clear of any such right and
claim.
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ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender Party
hereby appoints and authorizes each Agent to take such action as agent on its
behalf and to exercise such powers and discretion under this Agreement and the
other Loan Documents as are delegated to such Agent by the terms hereof,
together with such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by this Agreement and the other
Loan Documents (including, without limitation, enforcement or collection of the
Notes, if any), each 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
upon all Lender Parties and all holders of Notes; provided, however, that no
Agent shall be required to take any action that exposes such Agent to personal
liability or that is contrary to this Agreement or applicable law. Each Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agents' Reliance, Etc. None of the Agents nor
any of their directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement and the other Loan Documents, except for its or their own gross
negligence or willful misconduct. Without limitation of the generality of the
foregoing, each Agent: (i) may treat the payee of any Note as the holder thereof
until the Documentation Agent receives and accepts an Assignment and Acceptance
entered into by the Lender that is the payee of such Note, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (ii) may consult
with legal counsel (including counsel for any Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (iii) makes no warranty or
representation to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with this Agreement and the other Loan Documents;
(iv) shall not have any duty to ascertain or to inquire as to the performance or
observance of any of the terms, covenants or conditions of this Agreement and
the other Loan Documents on the part of any Loan Party or to inspect the
property (including the books and records) of any Loan Party (v) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of or the other Loan Documents
or any other instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of this Agreement or the other Loan
Documents by acting upon any notice, consent, certificate or
75
other instrument or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. Scotiabank, Citibank and Affiliates. With
respect to its Commitment, the Advances made by it and any Notes issued to it,
each of Scotiabank and Citibank shall have the same rights and powers under this
Agreement and the other Loan Documents as any other Lender and may exercise the
same as though it were not an Agent; and the term "Lender Party" or "Lender
Parties" shall, unless otherwise expressly indicated, include Scotiabank and
Citibank in their individual capacities. Each of Scotiabank and Citibank and
their Affiliates may accept deposits from, lend money to, act as trustee under
indentures of, accept investment banking engagements from and generally engage
in any kind of business with, any Loan Party, any of its Subsidiaries and any
Person who may do business with or own securities of any Loan Party or any such
Subsidiary, all as if Scotiabank and Citibank were not Agents and without any
duty to account therefor to the Lender Parties.
SECTION 7.04. Lender Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 7.05. Indemnification. Each Lender Party (other than
the Designated Lenders which have only Competitive Bid Advances outstanding)
agrees to indemnify each Agent (to the extent not reimbursed by the Borrower),
ratably according to the respective principal amounts of the Advances then owed
to each of them (or if no Advances are at the time outstanding or if any
Advances are owed to Persons that are not Lenders, ratably according to the
respective amounts of their Commitments), from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against such Agent in any way relating to
or arising out of this Agreement or the other Loan Documents or any action taken
or omitted by such Agent under this Agreement or the other Loan Documents,
provided that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct; and provided, further, that no Designated Lender shall be
liable for any payment under this Section 7.05 so long as, and to the extent
that, its Designating Lender makes such payments on its behalf. The Borrower,
the Agents and the other Lender Parties shall continue to deal solely and
directly with the Designating Lender in connection with the Designated Lender's
rights
76
and obligations under this Agreement. Without limitation of the foregoing, each
Lender Party (other than the Designated Lenders which have only Competitive Bid
Advances outstanding) agrees to reimburse each Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including counsel fees)
incurred by such Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement and the other Loan Documents,
to the extent that such Agent is not reimbursed for such expenses by the
Borrower.
SECTION 7.06. Successor Agents. Any Agent may resign at any
time by giving written notice thereof to the Lender Parties and the Borrower and
may be removed at any time with or without cause by the Required Lenders. Upon
any such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent with the approval of the Borrower. If no successor
Agent shall have been so appointed by the Required Lenders, and shall have
accepted such appointment, within 30 days after the retiring Agent's giving of
notice of resignation or the Required Lenders' removal of the retiring Agent,
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 or of any State thereof and having a combined capital and
surplus of at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent 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 under this Agreement and the other Loan
Documents. After any retiring Agent's resignation or removal hereunder as Agent,
the provisions of this Article VII shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Agent under this Agreement.
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ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Required Lenders, and then such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that (a) no amendment, waiver or consent shall, unless
in writing and signed by all the Lenders (other than the Designated Lenders and
other than any Lender Party which is, at such time, a Defaulting Lender), do any
of the following at any time: (i) waive any of the conditions specified in
Section 3.01 or, in the case of the initial Borrowing, Section 3.02, (ii) change
the percentage of the Commitments or of the aggregate unpaid principal amount of
the Advances, or the number of Lenders, that shall be required for the Lenders
or any of them to take any action hereunder, (iii) release any Material
Guarantor, or (vi) amend this Section 8.01, (b) no amendment, waiver or consent
shall, unless in writing and signed by the Required Lenders and each Lender
affected by such amendment, waiver or consent (other than the Designated Lenders
and other than any Lender which is, at such time, a Defaulting Lender), (i)
reduce the principal of, or interest on, the Advances owed to such Lender or any
fees or other amounts payable hereunder to such Lender or (ii) postpone any date
fixed for any payment of principal of, or interest on, the Advances owed to such
Lender or any fees or other amounts payable hereunder to such Lender and (c) no
amendment, waiver or consent shall, unless in writing and signed by the Required
Lenders and, for each Facility directly affected by such amendment, waiver or
consent, each Lender that has a Commitment under such Facility (other than the
Designated Lenders and other than any Lender which is, at such time, a
Defaulting Lender), increase the Commitments of such Lender or subject such
Lender to any additional obligations; provided further that no amendment, waiver
or consent shall, unless in writing and signed by the Swing Line Bank or any
Issuing Bank, as the case may be, in addition to the Lenders required above to
take such action, affect the rights or obligations of the Swing Line Bank or of
such Issuing Bank, as the case may be, under this Agreement; and provided
further that no amendment, waiver or consent shall, unless in writing and signed
by an Agent in addition to the Lenders required above to take such action,
affect the rights or duties of such Agent under this Agreement. Each Designating
Lender shall act as its Designated Lender's agent and attorney in fact and
exercise on behalf of its Designated Lender all rights, if any, to vote and to
grant and make approvals, waivers, consents or waivers in accordance with this
Section 8.01. The Borrower, the Agents and the other Lender Parties shall
continue to deal solely and directly with the Designating Lender in connection
with the Designated Lender's rights and obligations under this Agreement. Any
request by any Loan Party for an amendment or waiver of any provision of any
Loan Document shall be made by such Loan Party by giving a written request
therefor to the Documentation Agent.
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SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy, telex or cable communication) and mailed, telegraphed,
telecopied, telexed, cabled or delivered, if to the Borrower, at its address at
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Chief Financial Officer,
with a copy to General Counsel; if to any Initial Lender or initial Issuing Bank
or Agent, at its Domestic Lending Office specified opposite its name on Schedule
I hereto; if to any other Lender Party, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a Lender; or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications shall,
when mailed, telegraphed, telecopied, telexed or cabled, be effective when
deposited in the mails, delivered to the telegraph company, transmitted by
telecopier, confirmed by telex answerback or delivered to the cable company,
respectively, except that notices and communications to an Agent pursuant to
Article II, III or VII shall not be effective until received by such Agent.
Delivery by telecopier of an executed counterpart of any amendment or waiver of
any provision of this Agreement or of any Exhibit hereto to be executed and
delivered hereunder shall be effective as delivery of a manually executed
counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender Party or Agent to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise thereof or the
exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) Group and the Borrower
agree to pay on demand (i) all reasonable costs and expenses (other than taxes,
including interest, additions to tax and penalties relating thereto, except to
the extent that the same are required to be paid pursuant to Section 2.14
hereof) of the Agents in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents (including,
without limitation, (A) all due diligence, syndication (including printing,
distribution and bank meetings), transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
all other out-of-pocket expenses and (B) the reasonable fees and expenses of
counsel for the Agents with respect thereto, with respect to advising the Agents
as to their respective rights and responsibilities, or the protection or
preservation of rights or interests, under the Loan Documents, with respect to
negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy, insolvency
or other similar proceeding involving creditors' rights generally, and any
proceeding ancillary thereto) and (ii) all reasonable costs and expenses (other
than
79
taxes, including interest, additions to tax and penalties relating thereto,
except to the extent that the same are required to be paid pursuant to Section
2.14 hereof) of the Agents and the Lender Parties in connection with the
enforcement of the Loan Documents, whether in any action, suit or litigation,
any bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally or otherwise (including, without limitation, the reasonable
fees and expenses of counsel for the Agents and each Lender Party with respect
thereto).
(b) Group and the Borrower agree to indemnify and hold
harmless each of the Agents and each Lender (other than any Designated Lender to
the extent such indemnification obligation exceeds that which the Borrower would
owe to its Designating Lender) and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and expenses
(including, without limitation, reasonable fees and expenses of counsel, but
other than taxes, including interest, additions to tax and penalties relating
thereto, except to the extent that the same are required to be paid pursuant to
Section 2.14 hereof) 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, or in connection with the preparation for a defense of, any
investigation, litigation or proceeding arising out of, related to or in
connection with (i) this Agreement, the Facilities, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Advances or (ii) the actual or alleged presence of Hazardous Materials on any
property of the Borrower or any of its Subsidiaries or any Environmental Action
relating in any way to the Borrower or any of its Subsidiaries, in each case
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, except to
the extent such claim, damage, loss, liability 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. The
Borrower also agrees not to assert any claim against any Agent, any Lender, any
of their Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, for special, indirect,
consequential or punitive damages arising out of or otherwise relating to this
Agreement, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Advances, except in the event of gross negligence or
willful misconduct on the part of such Agent, Lender or Affiliate.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to Section 2.11,
2.12 or 2.14, acceleration of the maturity of the Advances pursuant to Section
6.01 or for any other reason, the Borrower shall, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
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Administrative Agent for the account of such Lender Party any amounts required
to compensate such Lender Party for any additional losses, costs or expenses
that it may reasonably incur as a result of such payment or Conversion,
including, without limitation, any loss (excluding loss of anticipated profits
and taxes, including interest, additions to tax and penalties relating thereto,
except to the extent that the same are required to be paid pursuant to Section
2.14 hereof), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender Party to fund or
maintain such Advance; provided, however, that notwithstanding any of the
foregoing, the Borrower shall not be required to compensate any Designated
Lender for any losses, costs or expenses to the extent such amounts exceed that
which the Borrower would owe to its Designating Lender, but for such
designation.
(d) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.11, 2.14 and 8.04 and the agreements and obligations of
any Lender Party or Agent contained in Section 2.14 shall survive the payment in
full of principal, interest and all other amounts payable hereunder.
(e) Notwithstanding anything to the contrary, neither the
designation of any Designated Lender, any Advance made by any Designated Lender,
nor any other condition or circumstance relating to any Designated Lender shall
increase (i) any obligations or liabilities of the Borrower hereunder,
including, without limitation, pursuant to Section 2.11, 2.12, 2.14 or this
Section 8.04, or (ii) any obligations or liabilities of the Borrower under any
Loan Documents, in each case, as compared with any obligations or liabilities
which would arise if the Designating Lender were the Lender for all purposes and
had not otherwise appointed a Designated Lender.
SECTION 8.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Managing Agents to declare the Advances due and payable pursuant to the
provisions of Section 6.01, each Lender Party 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 Party or such Affiliate 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 any Note held by
such Lender, whether or not such Lender Party shall have made any demand under
this Agreement or such Note, if any, and although such obligations may be
unmatured. Each Lender agrees promptly to notify the Borrower after any such
set-off and application, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its Affiliates under this Section are in addition to other
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rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective (other than Sections 2.01 and 2.03, which shall only become effective
upon satisfaction of the conditions precedent set forth in Section 3.01) when it
shall have been executed by the Borrower, Group and the Agents and when the
Managing Agents shall have been notified by each Initial Lender and initial
Issuing Bank that such Initial Lender and initial Issuing Bank has executed it
and thereafter shall be binding upon and inure to the benefit of the Borrower,
the Agents and each Lender Party and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lender Parties.
SECTION 8.07. Assignments, Designations and Participations (a)
Each Lender Party (other than any Designated Lender except for an assignments to
its Designating Lender) may assign, and, if (i) demanded by the Borrower
following either (x) a payment by the Borrower of Taxes with respect to such
Lender in accordance with Section 2.14 or (y) the occurrence of an event that
would, upon payment to such Lender of amounts hereunder, require a payment by
the Borrower of Taxes with respect to such Lender in accordance with Section
2.14 and (ii) upon at least 30 Business Days' notice to such Lender and the
Administrative Agent, will assign, to one or more banks or other entities all or
a portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitment or Commitments, the Advances
owing to it (including accrued interest) and any Revolving Credit Note held by
it but not including any right to make Competitive Bid Advances, Competitive Bid
Advances owing to it and Competitive Bid Notes); provided, however, that (A)
each such assignment shall be of a fixed percentage of all rights and
obligations under and in respect of all of the Facilities under which it has a
Commitment; (B) except in the case of (x) an assignment to a Person that,
immediately prior to such assignment, was a Lender, (y) an assignment to an
Affiliate of the assigning Lender (including an assignment by a Designated
Lender to its Designating Lender) or (z) an assignment of all of a Lender's
rights and obligations under this Agreement, the amount of the Commitment of the
assigning Lender being assigned pursuant to each such assignment (determined as
of the date of the Assignment and Acceptance with respect to such assignment)
shall in no event be less than $10,000,000, and the amount of the Commitment of
the assigning Lender being retained by such Lender immediately after giving
effect to such assignment (determined as of the effective date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$10,000,000, (C) each such assignment shall be to an Eligible Assignee, (D) each
such assignment made as a result of a demand by the Borrower pursuant to this
Section 8.07(a) shall be arranged by the Borrower after consultation with the
Managing Agents and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an assignment of a
portion of such rights and obligations made concurrently
82
with another such assignment or other such assignments that together cover all
of the rights and obligations of the assigning Lender under this Agreement, (E)
no Lender shall be obligated to make any such assignment as a result of a demand
by the Borrower pursuant to this Section 8.07(a) unless and until such Lender
shall have received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal amount and all
other amounts payable to such Lender under this Agreement, (F) no such
assignments will be permitted without the consent of the Managing Agents until
the Managing Agents shall have notified the Lender Parties that syndication of
the Commitments thereunder has been completed, and (G) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with any Revolving Credit Note subject to such assignment and a processing and
recordation fee of $3,500. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, (x) the assignee thereunder shall be a party hereto and, to the
extent that rights and obligations hereunder have been assigned to it pursuant
to such Assignment and Acceptance, have the rights and obligations of a Lender
Party's hereunder and (y) the Lender Party's assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned by it pursuant
to such Assignment and Acceptance, relinquish its rights and be released from
its obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender Party's
rights and obligations under this Agreement, such Lender Party shall cease to be
a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
or any other Loan Document or any other instrument or document furnished
pursuant hereto; (ii) such assigning Lender makes no representation or warranty
and assumes no responsibility with respect to the financial condition of any
Loan Party or the performance or observance by any Loan Party of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto or thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the any Agent, such assigning Lender Party or any other
Lender Party and based on such documents and information as it shall deem
appropriate
83
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v)such assignee confirms that it is an Eligible
Assignee; (vi) such assignee appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and discretion under
this Agreement as are delegated to the each Agent by the terms hereof, together
with such powers and discretion as are reasonably incidental thereto; and (vii)
such assignee agrees that it will perform in accordance with their terms all of
the obligations that by the terms of this Agreement are required to be performed
by it as a Lender Party.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note subject to such assignment,
the Administrative Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept such
Assignment and Acceptance, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(d) Any Lender (other than a Designated Lender) may at any
time designate not more than one Designated Lender to fund Revolving Credit
Advances and/or Competitive Bid Advances on behalf of such Designating Lender
subject to the terms of this Section 8.07(d). Such designation may occur by
execution by such parties of a Designation Agreement. The parties to each such
designation shall execute and deliver to the Administrative Agent and the
Borrower for their acceptance a Designation Agreement. Upon receipt of an
appropriately completed Designation Agreement executed by a Designating Lender
and a designee representing that it is a Designated Lender and consented by the
Borrower, the Administrative Agent will accept such Designation Agreement and
will give prompt notice thereof to the Borrower and the other Lenders,
whereupon, (i) upon the written request of the Designating Lender, the Borrower
shall execute and deliver to the Designating Lender a Revolving Credit Note
and/or from time to time a Competitive Bid Note, as applicable, in each case
payable to the order of the Designated Lender, (ii) from and after the effective
date specified in the Designation Agreement, the Designated Lender shall become
a party to this Agreement with a right to make Revolving Credit Advances and/or
Competitive Bid Advances on behalf of its Designating Lender pursuant to
Sections 2.01(a) and 2.04, respectively, and (iii) the Designated Lender shall
not be required to make payments with respect to any obligations in this
Agreement except to the extent of excess cash flow of such Designated Lender
which is not otherwise required to repay obligations of such Designated Lender
which are then due and payable; provided, however, that regardless of such
designation and assumption by the Designated Lender, the Designating Lender (i)
shall be and remain obligated to the Borrower, the Agents and the Lender Parties
for each and every of the obligations of the Designating Lender and its related
Designated Lender with respect to this Agreement, including, without limitation,
any indemnification obligations under Section 7.05 hereof and any sums otherwise
payable to the Borrower by the Designated Lender and (ii) neither the
designation of a
84
Designated Lender, the election or other determination that a Designated Lender
will make any Advance nor any other condition or circumstance relating to the
Designated Lender shall in any way release, diminish or otherwise affect the
relevant Designating Lender's Commitment or any other of its obligations
hereunder or under any other Loan Document or any rights of the Borrower, any
Agent or any Lender with respect to such Designating Lender.
The Borrower, the Agents and the Lender Parties may, at their option, pursue
remedies against any Designating Lender which arise out of any failure of
its Designated Lender to perform such Designated Lender's obligations
under this Agreement or any other Loan Document. Each Designating Lender shall
serve as the administrative agent and attorney in fact for its Designated Lender
and shall on behalf of its Designated Lender: (i) receive any and all payments
made for the benefit of such Designated Lender and (ii) give and receive all
communications and notices and take all actions hereunder, including, without
limitation, votes, approvals, waivers, consents and amendments under or relating
to this Agreement and the other Loan Documents to the extent, if any, such
Designated Lender shall have any rights hereunder or thereunder. To the extent a
Designated Lender shall have the right to receive or give any such notice,
communication, vote, approval, waiver, consent or amendment, it shall be signed
by its Designating Lender as administrative agent and attorney in fact for such
Designated Lender and need not be signed by such Designated Lender on his own
behalf. The Borrower, the Agents and the Lender Parties may rely thereon without
any requirement that the Designated Lender sign or acknowledge the same.
Notwithstanding anything to the contrary contained herein, no Designated Lender
may assign or transfer all or any portion of its interest hereunder or under any
other Loan Document, other than via an assignment to its Designating Lender in
accordance with the provisions of this Section 8.07.
(e) By executing and delivering a Designation Agreement, the
Lender Party making the designation thereunder and its designee thereunder
confirm and agree with each other and the other parties hereto as follows: (i)
such Lender Party makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with this Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any other instrument or document furnished pursuant hereto; (ii) such Lender
Party makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the performance or
observance by the Borrower of any of its obligations under this Agreement or any
other instrument or document furnished pursuant hereto; (iii) such designee
confirms that it has received a copy of this Agreement, together with copies of
the financial statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Designation Agreement; (iv) such designee will,
independently and without reliance upon any Agent, such designating Lender Party
or any other Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
85
credit decisions in taking or not taking action under this Agreement; (v) such
designee confirms that it is a Designated Lender; (vi) such designee appoints
and authorizes each Agent to take such action as agent on its behalf and to
exercise such powers and discretion under this Agreement as are delegated to
such Agent by the terms hereof, together with such powers and discretion as are
reasonably incidental thereto; and (vii) such designee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Lender Party.
(f) Upon its receipt of a Designation Agreement executed by a
designating Lender Party and a designee representing that it is a Designated
Lender, the Administrative Agent shall, if such Designation Agreement has been
completed and is substantially in the form of Exhibit D hereto, (i) accept such
Designation Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(g) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance and each
Designation Agreement delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lender Parties and, with respect
to Lenders other than Designated Lenders, the Commitment of, and principal
amount of the Advances owing to, each Lender from time to time (the "Register").
The entries in the Register shall be conclusive and binding for all purposes,
absent manifest error, and the Borrower, the Agents and the Lender Parties may
treat each Person whose name is recorded in the Register as a Lender Party
hereunder for all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender Party at any reasonable time and
from time to time upon reasonable prior notice.
(h) Each Lender Party may sell participations to one or more
banks or other entities in or to all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment and the Advances owing to it); provided, however, that (i) such
Lender Party's obligations under this Agreement (including, without limitation,
its Commitment to the Borrower hereunder) shall remain unchanged, (ii) such
Lender Party shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Lender Party shall remain the holder
of any Note issued to it for all purposes of this Agreement, (iv) the Borrower,
the Agents and the other Lender Parties shall continue to deal solely and
directly with such Lender Party in connection with such Lender Party's rights
and obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Loan Document, or any consent to any
departure by any Loan Party therefrom, except to the extent that such amendment,
waiver or consent would (i) reduce the principal of, or interest on, the
Advances or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, (ii) postpone any date fixed for any
payment of principal of, or interest on, the Advances or any fees or other
amounts
86
payable hereunder, in each case to the extent subject to such participation or
(iii) release any Material Guarantor.
(i) Any Lender Party may, in connection with any assignment,
designation or participation or proposed assignment, designation or
participation pursuant to this Section 8.07, disclose to the assignee, designee
or participant or proposed assignee, designee or participant, any information
relating to the Borrower furnished to such Lender Party by or on behalf of the
Borrower; provided that, prior to any such disclosure, the assignee, designee or
participant or proposed assignee, designee or participant shall agree to
preserve the confidentiality of any Confidential Information relating to the
Borrower received by it from such Lender Party.
(j) Each Issuing Bank may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under the undrawn
portion of its Letter of Credit Commitment at any time; provided, however, that
(i) except in the case of an assignment to a Person that immediately prior to
such assignment was an Issuing Bank or an assignment of all of an Issuing Bank's
rights and obligations under this Agreement, the amount of the Letter of Credit
Commitment of the assigning Issuing Bank being assigned pursuant to each such
assignment (determined as of the date of the Assignment and Acceptance with
respect to such assignment) shall in no event be less than $10,000,000 and shall
be in an integral multiple of $1,000,000 in excess thereof, (ii) each such
assignment shall be to an Eligible Assignee and (iii) the parties to each such
assignment shall execute and deliver to the Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500.
(k) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without limitation,
the Advances owing to it and any Note or Notes held by it) in favor of any
Federal Reserve Bank in accordance with Regulation A of the Board of Governors
of the Federal Reserve System.
(l) Each of the Borrower, the Lenders and the Agents agrees
that it will not institute against any Designated Lender or join any other
Person in instituting against any Designated Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
federal or state bankruptcy or similar law, for one year and one day after the
payment in full of the latest maturing commercial paper note issued by such
Designated Lender. Notwithstanding the foregoing, the Designating Lender
unconditionally agrees to indemnify the Borrower, the Agents and each Lender
Party against all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be incurred by or asserted against the Borrower, such Agent
or such Lender Party, as the case may be, in any way relating to or arising as a
87
consequence of any such forbearance or delay in the initiation of any such
proceeding against its Designated Lender.
SECTION 8.08. Confidentiality. None of the Agents nor any
Lender Party shall disclose any Confidential Information to any other Person
without the consent of Group and the Borrower, other than (a) to such Agent's or
such Lender Party's Affiliates and their officers, directors, employees, agents
and advisors and, as contemplated by Section 8.07(i), to actual or prospective
assignees and participants, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process, (c) to any rating
agency when required by it, provided that, prior to any such disclosure, such
rating agency shall undertake to preserve the confidentiality of any
Confidential Information relating to Group or the Borrower received by it from
such Lender Party and (d) as requested or required by any state, federal or
foreign authority or examiner regulating banks or banking.
SECTION 8.09. No Liability of the Issuing Banks. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
any Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by such Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against such Issuing Bank, and such Issuing Bank
shall be liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower proves were
caused by (i)such Issuing Bank's willful misconduct or gross negligence in
determining whether documents presented under any Letter of Credit comply with
the terms of the Letter of Credit or (ii) such Issuing Bank's willful failure to
make lawful payment under a Letter of Credit after the presentation to it of a
draft and certificates strictly complying with the terms and conditions of the
Letter of Credit. In furtherance and not in limitation of the foregoing, such
Issuing Bank may accept documents that appear on their face to be in order,
without responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. Execution in Counterparts. This Agreement 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 a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
88
SECTION 8.11. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of New York.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent permitted by law,
in such federal court. Each of the parties hereto agrees that a final judgment
in any such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. Nothing in this Agreement shall affect any right that any party may
otherwise have to bring any action or proceeding relating to this Agreement in
the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any New
York State or federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Agents and the Lender Parties hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to this Agreement or the actions of any
Agent or any Lender Party in the negotiation, administration, performance or
enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
WARNACO INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
_______________________________
Title: Senior Vice President
and Chief Financial Officer
THE WARNACO GROUP, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
_______________________________
Title: Senior Vice President
and Chief Financial Officer
THE BANK OF NOVA SCOTIA
as Managing Agent, Administrative
Agent, Competitive Bid Agent,
Swing Line Bank and an Issuing
Bank
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________
Title:
CITIBANK, N.A.
as Managing Agent and
Documentation Agent
By /s/ ▇▇▇▇▇▇ ▇. WETRUN
_______________________________
Title: Attorney-in-Fact
Initial Lenders
UNION BANK OF CALIFORNIA, N.A.
By /s/ ▇▇▇▇ ▇▇▇▇▇
_______________________________
Title: Vice President
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
_______________________________
Title: Vice President
THE BANK OF NOVA SCOTIA
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________
Title:
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
By /s/ ▇. ▇▇▇▇▇▇▇
_______________________________
Title:
BANKBOSTON, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________
Title: Director
CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. WETRUN
_______________________________
Title: Attorney-in-Fact
COMMERZBANK A.G., NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Title: Assistant Treasurer
CORESTATES BANK, N.A.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇ MARTES
_______________________________
Title: Vice President
CREDITO ITALIANO BANK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Assistant Vice President
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Title: Assistant Vice President
DAI-ICHI KANGYO BANK, LIMITED
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_______________________________
Title: Assistant Vice President
FIRST UNION NATIONAL BANK
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________
Title: Vice President
FLEET BANK, N.A.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
_______________________________
Title: Vice President
THE FUJI BANK, LIMITED, NEW YORK
BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
_______________________________
Title: Vice President & Manager
THE INDUSTRIAL BANK OF JAPAN,
LTD., NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
_______________________________
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL
CORPORATION
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
________________________________
Title: Duly Authorized Signatory
KREDIETBANK N.V.
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
_______________________________
Title: Vice President
MARINE MIDLAND BANK
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_______________________________
Title: Vice President
▇▇▇▇▇▇ BANK LTD - NEW YORK BRANCH
By
_______________________________
Title: Vice President
By _______________________________
Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF
NEW YORK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Title: Vice President
NATIONSBANK, N.A.
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
_______________________________
Title: Vice President
THE SANWA BANK, LIMITED, NEW YORK
BRANCH
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Title: Vice President
SOCIETE GENERALE
By /s/ SEDARE ▇▇▇▇▇▇▇
_______________________________
Title: Vice President
WACHOVIA BANK, N.A.
By /s/ ▇. ▇▇▇▇▇▇
_______________________________
Title: Vice President