EXHIBIT 4.1
CONFORMED COPY
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CREDIT AGREEMENT
dated as of
November 14, 2002
as amended and restated as of
December 15, 2004
among
ABERCROMBIE & FITCH MANAGEMENT CO.
as Borrower
ABERCROMBIE & FITCH CO.
as Guarantor
The Lenders Party Hereto
and
NATIONAL CITY BANK
as Administrative Agent
JPMORGAN CHASE BANK, N.A.
as Syndication Agent
----------------------
NATIONAL CITY BANK and X.X. XXXXXX SECURITIES INC.
as Co-Lead Arrangers and Joint Bookrunners
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TABLE OF CONTENTS
Page
ARTICLE I
Definitions
SECTION 1.01. Defined Terms .............................................. 1
SECTION 1.02. Classification of Loans and Borrowings ..................... 18
SECTION 1.03. Terms Generally ............................................ 18
SECTION 1.04. Accounting Terms; GAAP ..................................... 19
ARTICLE II
The Credits
SECTION 2.01. Commitments ................................................ 19
SECTION 2.02. Loans and Borrowings ....................................... 19
SECTION 2.03. Requests for Revolving Borrowings .......................... 20
SECTION 2.04. Swingline Loans ............................................ 21
SECTION 2.05. Letters of Credit .......................................... 22
SECTION 2.06. Funding of Borrowings ...................................... 26
SECTION 2.07. Interest Elections ......................................... 27
SECTION 2.08. Termination and Reduction of Commitments.................... 28
SECTION 2.09. Repayment of Loans; Evidence of Debt ...................... 29
SECTION 2.10. Prepayment of Loans ........................................ 30
SECTION 2.11. Fees ....................................................... 30
SECTION 2.12. Interest ................................................... 31
SECTION 2.13. Alternate Rate of Interest ................................. 33
SECTION 2.14. Increased Costs ............................................ 33
SECTION 2.15. Break Funding Payments ..................................... 34
SECTION 2.16. Taxes ...................................................... 35
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs ................................................. 36
SECTION 2.18. Mitigation Obligations; Replacement of Lenders.............. 38
SECTION 2.19. Increase in Revolving Credit Commitments.................... 39
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers ....................................... 40
SECTION 3.02. Authorization; Enforceability .............................. 40
SECTION 3.03. Governmental Approvals; No Conflicts ....................... 40
SECTION 3.04. Financial Condition; No Material Adverse Change......... ... 41
SECTION 3.05. Properties ................................................. 41
SECTION 3.06. Litigation and Environmental Matters ....................... 41
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SECTION 3.07. Compliance with Laws and Agreements ........................ 42
SECTION 3.08. Investment and Holding Company Status ...................... 42
SECTION 3.09. Taxes ...................................................... 42
SECTION 3.10. ERISA ...................................................... 42
SECTION 3.11. Disclosure ................................................. 42
SECTION 3.12. Subsidiaries ............................................... 42
ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date ................................. 43
SECTION 4.02. Conditions to Each Credit Event ............................ 44
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial Statements and Other Information.............. ... 44
SECTION 5.02. Notices of Material Events ................................. 46
SECTION 5.03. Existence; Conduct of Business ............................. 46
SECTION 5.04. Payment of Obligations ..................................... 46
SECTION 5.05. Maintenance of Properties; Insurance ....................... 46
SECTION 5.06. Books and Records; Inspection Rights ....................... 47
SECTION 5.07. Compliance with Laws ....................................... 47
SECTION 5.08. Use of Proceeds and Letters of Credit ...................... 47
SECTION 5.09. Additional Subsidiaries; Guarantee Requirement.......... ... 47
ARTICLE VI
Negative Covenants
SECTION 6.01. Indebtedness ............................................... 47
SECTION 6.02. Liens ...................................................... 49
SECTION 6.03. Sale-Leaseback Transactions ................................ 50
SECTION 6.04. Fundamental Changes ........................................ 50
SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions .. 51
SECTION 6.06. Swap Agreements ............................................ 52
SECTION 6.07. Restricted Payments ........................................ 52
SECTION 6.08. Transactions with Affiliates ............................... 53
SECTION 6.09. Restrictive Agreements ..................................... 53
SECTION 6.10. Leverage Ratio ............................................. 53
SECTION 6.11. Coverage Ratio ............................................. 53
SECTION 6.12. Accounting Changes ......................................... 53
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ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices .................................................... 58
SECTION 9.02. Waivers; Amendments ........................................ 59
SECTION 9.03. Expenses; Indemnity; Damage Waiver ......................... 59
SECTION 9.04. Successors and Assigns ..................................... 61
SECTION 9.05. Survival ................................................... 64
SECTION 9.06. Counterparts; Integration; Effectiveness................ .... 64
SECTION 9.07. Severability ............................................... 64
SECTION 9.08. Right of Setoff ............................................ 64
SECTION 9.09. Governing Law; Submission to Jurisdiction; Venue;
Consent to Service of Process.......................... .. 65
SECTION 9.10. WAIVER OF JURY TRIAL ....................................... 65
SECTION 9.11. Headings ................................................... 66
SECTION 9.12. Confidentiality ............................................ 66
SECTION 9.13. Interest Rate Limitation ................................... 66
SECTION 9.14. USA Patriot Act ............................................ 67
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.05 -- Existing Letters of Credit
Schedule 3.06 -- Disclosed Matters
Schedule 3.12 -- Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.09 --Existing Restrictions
EXHIBITS:
Exhibit A - Form of Assignment and Assumption
Exhibit B - Form of Borrowing Request
Exhibit C - Form of Interest Election Request
Exhibit D - Form of Opinion of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel to
the Borrower
Exhibit E - Guarantee Agreement
CREDIT AGREEMENT dated as of November 14, 2002, as
amended and restated as of December 15, 2004 (this
"Agreement"), among ABERCROMBIE & FITCH MANAGEMENT CO., a
Delaware corporation, ABERCROMBIE & FITCH CO., a Delaware
corporation, the LENDERS party hereto, NATIONAL CITY BANK, as
Administrative Agent and JPMORGAN CHASE BANK, N.A., as
Syndication Agent.
The Borrower, the Parent, the Lenders and the Administrative Agent are
parties to the Original Credit Agreement (such term and each other capitalized
term used herein having the meaning assigned to it in Article I of this
Agreement). Such parties desire to amend and restate the Original Credit
Agreement in the form of this Agreement and to restate it in its entirety giving
effect to such amendment, effective as of the Restatement Effective Date and
subject to satisfaction of the conditions set forth herein.
Accordingly, the parties hereto agree that, effective as of the
Restatement Effective Date, the Original Agreement is hereby amended and
restated in the form hereof, as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. As used in this Agreement, the following
terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, indicates that
such Loan, or the Loans comprising such Borrowing, are bearing or are to bear
interest at a rate determined by reference to the Alternate Base Rate.
"Additional Credit Assumption Agreement" means an additional credit
assumption agreement, in form and substance reasonably satisfactory to the
Administrative Agent, among the Borrower, the Administrative Agent and one or
more Additional Credit Lenders.
"Additional Credit Commitments" means the Commitment of any Lender,
established pursuant to Section 2.19, to make Loans to the Borrower.
"Additional Credit Lenders" means a Lender with Additional Credit
Commitments.
"Adjusted Total Debt" means, at any time, the sum of (a) Total Debt
plus (b) 600% of Forward Minimum Rent Commitments.
"Administrative Agent" means NCB, in its capacity as administrative
agent for the Lenders hereunder.
"Administrative Questionnaire" means an administrative questionnaire in
a form supplied by the Administrative Agent.
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"Affiliate" means, with respect to a specified Person, another Person
that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to the
higher of (a) the Prime Rate in effect on such day or (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Margin" means, for any day, with respect to any Eurodollar
Revolving Loan or with respect to the Facility Fees payable hereunder or with
respect to the Trade Letter of Credit Fees payable hereunder, as the case may
be, the applicable rate per annum set forth below under the caption "Eurodollar
Revolving Loans Margin" or "Facility Fee Rate" or "Trade Letter of Credit Fee
Rate", as the case may be, based upon the Leverage Ratio for the most recent
determination date:
EURODOLLAR TRADE LETTER
REVOLVING LOANS FACILITY FEE OF CREDIT
LEVERAGE RATIO MARGIN RATE FEE RATE
--------------------- --------------- ------------ ------------
LEVEL I
<1.00 .525% .125% .250%
LEVEL II
> or = 1.00 and <1.25 .575% .150% .275%
LEVEL III
> or = 1.25 and <1.75 .625% .175% .300%
LEVEL IV
> or = 1.75 and <2.25 .675% .200% .325%
LEVEL V
> or = 2.25 .875% .250% .425%
For the purposes of the foregoing, (i) the Leverage Ratio shall be determined as
of the end of each fiscal quarter of the Parent's fiscal year based upon the
Parent's consolidated financial statements delivered pursuant to Section 5.01(a)
or (b) and (ii) each change in the Applicable Margin resulting from a change in
the Leverage Ratio shall be effective during the period commencing on and
including the date of delivery to the Administrative Agent of such consolidated
financial statements indicating such change and ending on the date immediately
preceding the effective date of the next such change; provided that the Leverage
Ratio shall be deemed to be in Level V (A) at any time that an Event of Default
has occurred and has been continuing for 15 days and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower or (B) subject
to the Administrative Agent's discretion, if the Parent fails to deliver the
consolidated financial statements required to be delivered by it pursuant to
Section 5.01(a) or (b), during the period from the expiration of the time for
delivery thereof until such consolidated financial statements are delivered.
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"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Approved Fund" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) any
entity or an Affiliate of an entity that administers or manages a Lender.
"Assignment and Assumption" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Attributable Debt" means, on any date, in respect of any lease of the
Parent, the Borrower or any Subsidiary entered into as a part of a sale and
leaseback transaction subject to Section 6.03, (i) if such lease is a Capital
Lease Obligation, the capitalized amount thereof that would appear on a balance
sheet of such Person prepared as of such date in accordance with GAAP, and (ii)
if such lease is not a Capital Lease Obligation, the capitalized amount of the
remaining lease payments under such lease that would appear on a balance sheet
of such Person prepared as of such date in accordance with GAAP if such lease
were accounted for as a Capital Lease Obligation.
"Availability Period" means the period from and including the
Restatement Effective Date to but excluding the earlier of the Maturity Date and
the date of termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of
the United States of America.
"Borrower" means Abercrombie & Fitch Management Co., a Delaware
corporation.
"Borrowing" means (a) Revolving Loans of the same Type, made, converted
or continued on the same date and, in the case of Eurodollar Loans, as to which
a single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03 and in the form of Exhibit B.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in Cleveland or New York City are authorized or
required by law to remain closed; provided that, when used in connection with a
Eurodollar Loan, the term "Business Day" shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London interbank
market.
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"Capital Lease Obligations" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the Restatement Effective
Date) of Equity Interests representing more than 33% of the aggregate ordinary
voting power represented by the issued and outstanding Equity Interests of the
Parent as of the date of such acquisition; (b) the occupation of a majority of
the seats (other than vacant seats) on the board of directors of the Parent by
Persons who were neither (i) nominated by the board of directors of the Parent,
or a committee thereof, nor (ii) appointed by directors so nominated; or (c) the
Borrower ceases, directly or indirectly, to be a wholly-owned Subsidiary of the
Parent.
"Change in Law" means (a) the adoption of any law, rule or regulation
after the Restatement Effective Date, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the Restatement Effective Date or (c) compliance by any Lender
or the Issuing Bank (or, for purposes of Section 2.14(b), by any lending office
of such Lender or by such Lender's or the Issuing Bank's holding company, if
any) with any request, guideline or directive (whether or not having the force
of law) of any Governmental Authority made or issued after the Restatement
Effective Date.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time.
"Commitment" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline loans hereunder, expressed as an amount representing the
maximum aggregate amount of such Lender's Revolving Credit Exposure hereunder,
as such commitment may be (a) reduced from time to time pursuant to Section
2.08, (b) increased pursuant to Section 2.19 and (c) reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
9.04. The initial amount of each Lender's Commitment on the Restatement
Effective Date is set forth on Schedule 2.01, or in the Additional Credit
Assumption Agreement or Assignment and Assumption pursuant to which such Lender
shall have assumed its Commitment, as applicable. The initial aggregate amount
of the Lenders' Commitments on the Restatement Effective Date is $250,000,000.
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"Consolidated EBITDAR" means, for any period, Consolidated Net Income
for such period plus, without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of Interest Expense, income
tax expense, depreciation expense, amortization expense, Minimum Rent and
Non-Cash Compensation Charges and minus Interest Income, all as determined in
accordance with GAAP on a consolidated basis for the Parent and the
Subsidiaries.
"Consolidated Net Income" means, for any period, the consolidated net
income (or loss) of the Parent and the Subsidiaries for such period (excluding
extraordinary gains and losses), as determined in accordance with GAAP on a
consolidated basis. For purposes of calculating Consolidated Net Income for any
fiscal period during and including the fiscal year ending January 29, 2005, all
amounts expensed in connection with the consent decree settling the three
related class action diversity lawsuits reported publicly by the Parent on
November 9, 2004 shall be added back to Consolidated Net Income for all purposes
under this Agreement.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Coverage Ratio" means, for the Parent and the Subsidiaries on a
consolidated basis at any date, the ratio of (a) Consolidated EBITDAR for the
period of four consecutive fiscal quarters then ended to (b) the sum of (x) Net
Interest Expense for such period and (y) Minimum Rent for such period.
"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Designated Unimproved Lots" means any parcel of real property located
in Franklin County, Ohio or Licking County, Ohio that has not been developed
with improvements used or useful in the Borrower's business operations.
"Disclosed Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule 3.06.
"dollars" or "$" refers to lawful money of the United States of
America.
"Domestic Subsidiary" means any Subsidiary other than a Foreign
Subsidiary.
"Effective Date" means November 14, 2002, the date on which the
Original Credit Agreement became effective in accordance with its terms.
"Environmental Laws" means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, the management, release
6
or threatened release of any Hazardous Material or the effect of the environment
on health or safety.
"Environmental Liability" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA Event" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar", when used in reference to any Loan or Borrowing,
indicates that such Loan, or the Loans comprising such Borrowing, are bearing or
are to bear interest at a rate determined by reference to the LIBO Rate.
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"Event of Default" has the meaning assigned to such term in Article
VII.
"Excluded Taxes" means, with respect to the Administrative Agent, any
Lender, the Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its applicable lending office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which the Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by the
Borrower under Section 2.18(b)), any withholding tax that is imposed on amounts
payable to such Foreign Lender and which tax is in effect at the time such
Foreign Lender becomes a party to this Agreement (or designates a new lending
office) or is attributable to such Foreign Lender's failure to comply with
Section 2.16(e), except to the extent that such Foreign Lender (or its assignor,
if any) was entitled, at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to
such withholding tax pursuant to Section 2.16(a).
"Existing Letters of Credit" means each letter of credit issued or
deemed to have been issued under the Original Credit Agreement that is
outstanding on the Restatement Effective Date. The Existing Letters of Credit
are listed on Schedule 2.05 hereto.
"Facility Fee" has the meaning set forth in Section 2.11(a).
"Federal Funds Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief operating officer, chief financial
officer, principal accounting officer, vice president-finance, treasurer or
controller of the Borrower.
"Foreign Lender" means any Lender or successor Issuing Bank that is
organized under the laws of a jurisdiction other than that in which the Borrower
is located. For purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to constitute a
single jurisdiction.
"Foreign Subsidiary" means any Subsidiary that is organized under the
laws of a jurisdiction other than the United States of America, any State
thereof or the District of Columbia.
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"Forward Minimum Rent Commitments" means minimum rent commitments (less
related sublease income) under noncancelable leases, including under any such
leases of any Person other than the Parent, the Borrower or a Subsidiary to the
extent, directly or indirectly guaranteed, endorsed or assumed by the Parent,
the Borrower or any Subsidiary or in respect of which the Parent, the Borrower
or any Subsidiary is primarily liable (or contingently or otherwise liable to
the extent required to be reported in accordance with GAAP as a forward rental
expense in the footnotes to the Parent's consolidated financial statements), for
the fiscal year following the Parent's most recently ended fiscal year, as
reported or to be reported in the Parent's annual report filed on Form 10-K with
the Securities and Exchange Commission for the Parent's most recently ended
fiscal year.
"GAAP" means generally accepted accounting principles in the United
States of America.
"Governmental Authority" means the government of the United States of
America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the "primary obligor") in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay such
Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business.
"Guarantee Agreement" means the Guarantee Agreement among the
Guarantors and the Administrative Agent acting on behalf of the Lenders, as
amended and restated as of the Restatement Effective Date, in substantially the
form of Exhibit E hereto, as the same may be amended, modified or supplemented
from time to time in accordance with the provisions hereof.
"Guarantors" means the Parent and the Domestic Subsidiaries that become
party to the Guarantee Agreement pursuant to Sections 4.01(f) and 5.09 or
otherwise.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, friable asbestos or materials
containing friable
9
asbestos, polychlorinated biphenyls, radon gas, infectious or medical wastes and
all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Indebtedness" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person under conditional sale or other title retention
agreements relating to property acquired by such Person, (d) all obligations of
such Person in respect of the deferred purchase price of property or services
(excluding current accounts payable incurred in the ordinary course of
business), (e) all Indebtedness of others secured by (or for which the holder of
such Indebtedness has an existing right, contingent or otherwise, to be secured
by) any Lien on property owned or acquired by such Person, whether or not the
Indebtedness secured thereby has been assumed, (f) all Guarantees by such Person
of Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers' acceptances. The
Indebtedness of any Person shall include the Indebtedness of any other entity
(including any partnership in which such Person is a general partner) to the
extent such Person is liable therefor as a result of such Person's ownership
interest in or other relationship with such entity, except to the extent the
terms of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Interest Expense" means, for any period, the gross interest expense of
the Parent and the Subsidiaries for such period determined on a consolidated
basis in accordance with GAAP.
"Interest Election Request" means a request by the Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.07 and in the
form of Exhibit C.
"Interest Income" means, for any period, interest income of the Parent
and the Subsidiaries for such period determined on a consolidated basis in
accordance with GAAP.
"Interest Payment Date" means (a) with respect to any ABR Loan (other
than a Swingline Loan), the last Business Day of each January, April, July and
October, (b) with respect to any Eurodollar Loan, the last Business Day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurodollar Borrowing with an Interest Period of more than three
months' duration, each day prior to the last day of such Interest Period that
occurs at intervals of three months' duration after the first day of such
Interest Period and (c) with respect to any Swingline Loan, the day that such
Loan is required to be repaid.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is 1, 2, 3 or 6 months
thereafter as the
10
Borrower may elect; provided, that (i) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day unless, in the case of a Eurodollar Borrowing only, such
next succeeding Business Day would fall in the next calendar month, in which
case such Interest Period shall end on the next preceding Business Day and (ii)
any Interest Period pertaining to a Eurodollar Borrowing that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and, in the case of a Revolving
Borrowing, thereafter shall be the effective date of the most recent conversion
or continuation of such Borrowing.
"Issuing Bank" means (a) The Huntington National Bank and any Lender
selected by the Borrower to issue Letters of Credit hereunder as provided in
Section 2.05(i), in such capacity and (b) solely in respect of each Existing
Letter of Credit, the issuer thereof. An Issuing Bank may, in its discretion,
arrange for one or more Letters of Credit to be issued by Affiliates of the
Issuing Bank, in which case the term "Issuing Bank" shall include any such
Affiliate with respect to Letters of Credit issued by such Affiliate.
"LC Disbursement" means a payment made by the Issuing Bank pursuant to
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall be
its Applicable Percentage of the total LC Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Additional Credit
Assumption Agreement or an Assignment and Assumption, other than any such Person
that ceases to be a party hereto pursuant to an Assignment and Assumption.
Unless the context otherwise requires, the term "Lenders" includes the Swingline
Lender.
"Letters of Credit" means each letter of credit issued pursuant to this
Agreement, including the Trade Letters of Credit, Standby Letters of Credit, and
Existing Letters of Credit.
"Leverage Ratio" means, for the Parent and the Subsidiaries on a
consolidated basis at any date, the ratio of (a) Adjusted Total Debt at the end
of the most recently ended fiscal quarter to (b) Consolidated EBITDAR for the
period of four consecutive fiscal quarters then ended.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Telerate screen page 3750 (or on any
successor or substitute page of such service, or any successor to or substitute
for such service,
11
providing rate quotations comparable to those currently provided on such page of
such service, as determined by the Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to dollar deposits
in the London interbank market) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, as the rate for
dollar deposits with a maturity comparable to such Interest Period. In the event
that such rate is not available at such time for any reason, then the "LIBO
Rate" with respect to such Eurodollar Borrowing for such Interest Period shall
be the average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum) rate at which dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office of the
Reference Banks in the London interbank market at approximately 11:00 a.m.,
London time, two Business Days prior to the commencement of such Interest
Period.
"Lien" means, with respect to any asset, (a) any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance, charge or security interest in,
on or of such asset, (b) the interest of a vendor or a lessor under any
conditional sale agreement, capital lease or title retention agreement (or any
financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any
purchase option, call or similar right of a third party with respect to such
securities.
"Loan Documents" means this Agreement, any promissory notes issued
pursuant to Section 2.09(e) hereunder and the Guarantee Agreement.
"Loan Parties" means the Borrower and the Guarantors.
"Loans" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Material Adverse Effect" means a material adverse effect on (a) the
business, assets, results of operations or financial condition of the Parent and
the Subsidiaries taken as a whole, (b) the ability of the Parent or the Borrower
to perform any of its obligations under this Agreement or (c) the rights of or
benefits available to the Lenders under this Agreement or the Guarantee
Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of the Parent, the Borrower and the Subsidiaries in an aggregate
principal amount exceeding $10,000,000. For purposes of determining Material
Indebtedness, the "principal amount" of the obligations of the Parent, the
Borrower or any Subsidiary in respect of any Swap Agreement at any time shall be
the maximum aggregate amount (giving effect to any netting agreements) that the
Parent, the Borrower or such Subsidiary would be required to pay if such Swap
Agreement were terminated at such time.
"Material Subsidiary" means (a) the Borrower, (b) any Subsidiary owning
an Equity Interest in a Material Subsidiary and (c) any other Subsidiary (i) the
consolidated revenues of which for the most recent fiscal year of the Parent for
which audited financial statements have been delivered pursuant to Section 5.01
were greater
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than 5% of the Parent's consolidated revenues for such fiscal year or (ii) the
consolidated tangible assets of which as of the end of such fiscal year were
greater than 5% of the Parent's consolidated tangible assets as of such date or
(iii) the EBITDAR of which as of the end of such fiscal year was greater than 5%
of Consolidated EBITDAR for such fiscal year.
"Maturity Date" means December 15, 2009.
"Minimum Rent" means total rent expense less contingent store rent.
"Multiemployer Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"NCB" means National City Bank, a national banking association,
together with its successors and assigns.
"Net Interest Expense" means the greater of (a) zero and (b) Interest
Expense less Interest Income.
"Net Proceeds" means, with respect to any Prepayment Event (a) the cash
proceeds received in respect of such event including (i) any cash received in
respect of any non-cash proceeds, but only as and when received, (ii) in the
case of a casualty, insurance proceeds, and (iii) in the case of a condemnation
or similar event, condemnation awards and similar payments, net of (b) the sum
of (i) all reasonable fees and out-of-pocket expenses paid by the Parent, the
Borrower and the Subsidiaries to third parties (other than Affiliates) in
connection with such event, (ii) in the case of a sale, transfer or other
disposition of an asset (including pursuant to a sale and leaseback transaction
or a casualty or a condemnation or similar proceeding), the amount of all
payments required to be made by the Parent, the Borrower and the Subsidiaries as
a result of such event to repay Indebtedness (other than Loans) secured by such
asset or otherwise subject to mandatory prepayment as a result of such event,
and (iii) the amount of all taxes paid (or reasonably estimated to be payable)
by the Parent, the Borrower and the Subsidiaries, and the amount of any reserves
established by the Parent, the Borrower and the Subsidiaries to fund contingent
liabilities reasonably estimated to be payable, in each case during the year
that such event occurred or the next succeeding year and that are directly
attributable to such event (as determined reasonably and in good faith by the
chief financial officer of the Parent or the Borrower).
"Non-Cash Compensation Charge" means, for any period, non-cash
compensation expenses or other non-cash charges arising from the grant of or
issuance of stock options in connection with employee plans or other equity
compensation arrangements.
"Original Credit Agreement" means this Agreement as initially executed
and delivered and as subsequently amended, modified and in effect during the
periods prior to the Restatement Effective Date.
"Other Taxes" means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any
13
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement.
"Parent" means Abercrombie & Fitch Co., a Delaware corporation.
"Participant" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are being
contested in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere with
the ordinary conduct of business of the Borrower or any Subsidiary;
(f) interests of a lessor or lessee arising under a lease; and
(g) Liens resulting from judgments provided such judgments in the
aggregate do not constitute an Event of Default under clause (k) of Article
VII;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Investments" means:
(a) direct obligations of the United States Treasury;
(b) debt securities of United States Federal agencies and United States
government sponsored enterprises which carry the explicit or implied
guarantee of the United States Government, including the Government National
Mortgage
14
Association, the Federal Home Loan Bank, the Federal Farm Credit Bank, the
Federal National Mortgage Association, and the Student Loan Marketing
Association;
(c) certificates of deposit and banker's acceptances of domestic or
foreign banking institutions with total assets in excess of US$1,000,000,000
and which are rated S&P and Xxxxx'x A-1/P-1 or the equivalent;
(d) corporate debt instruments (including Rule 144A debt securities)
which are denominated and payable in U.S. dollars and are rated by S&P and
Xxxxx'x A3/A- or better or, in the case of commercial paper, A2/P2 or better;
(e) asset-backed securities of auto and credit card receivables issuers
carrying an S&P rating or A or better;
(f) auction preferred stock and auction rate certificates rated at
least AA by S&P (or the equivalent) that have not more than 180 days until
the next auction at date of purchase;
(g) short-term tax exempt debt obligations of Governmental Authorities
consisting of municipal notes, commercial paper, auction rate notes and
floating rate notes rated A1/P1 by S&P and Xxxxx'x, municipal notes rated
SP1/MIG-1 or better and bonds rated AA or better;
(h) repurchase agreements with major banks and dealers that are
recognized as primary dealers by the Federal Reserve Bank of New York and
which are collateralized by United States Treasury or agencies securities
valued at 102% of the purchase price; and
(i) United States money market funds that comply with the requirements
of Rule 2a-7 under the Investment Company Act of 1940 and are rated as least
AA/Aa by S&P and Xxxxx'x.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prepayment Event" means:
(a) any sale, transfer or other disposition (including pursuant to a
sale and leaseback transaction or asset securitization) of any property or
asset of the Parent, the Borrower or any Domestic Subsidiary, other than (i)
dispositions made in the ordinary course of business, (ii) dispositions of
Designated Unimproved
15
Lots and (iii) dispositions that result in Net Proceeds not exceeding
$10,000,000 in the aggregate during any fiscal year of the Parent; or
(b) any casualty or other insured damage to, or any taking under power
of eminent domain or by condemnation or similar proceeding of, any property
or asset of the Borrower, the Parent or any Domestic Subsidiary, other than
any such event resulting in Net Proceeds not exceeding $10,000,000 in the
aggregate during any fiscal year of the Parent, but only to the extent that
the Net Proceeds therefrom have not been applied to repair, restore or
replace such property or asset within 12 months after such event.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by NCB as its prime rate in effect at its principal office in
Cleveland, Ohio; each change in the Prime Rate shall be effective from and
including the date such change is publicly announced as being effective.
"Reinvestment Assets" means real property, equipment or other tangible
assets to be used in the business of the Parent, the Borrower or the
Subsidiaries.
"Register" has the meaning set forth in Section 9.04.
"Reinvestment Deferred Amount" means with respect to any Reinvestment
Event, the aggregate Net Proceeds received by the Parent, the Borrower or any
Domestic Subsidiary in connection therewith that, as the result of the delivery
of a Reinvestment Notice, are not applied to reduce the total Commitments
pursuant to Section 2.08(c).
"Reinvestment Event" means any Prepayment Event in respect of which the
Borrower has delivered a Reinvestment Notice.
"Reinvestment Notice" means a written notice executed by a Financial
Officer stating that no Event of Default has occurred and is continuing and that
the Parent, the Borrower or a Domestic Subsidiary intends and expects to use all
or a specified portion of the Net Proceeds of a Prepayment Event to acquire
Reinvestment Assets.
"Reinvestment Prepayment Amount" means with respect to any Reinvestment
Event, the (x) Reinvestment Deferred Amount relating thereto less (y) any amount
thereof expended prior to the relevant Reinvestment Prepayment Date (i) to
acquire Reinvestment Assets or (ii) to pay expenses relating to any proposed
acquisition of Reinvestment Assets.
"Reinvestment Prepayment Date" shall mean with respect to any
Reinvestment Event, the earlier of (a) the date occurring twelve months after
such Reinvestment Event and (b) the date on which the Parent, the Borrower or
any Domestic Subsidiary shall have notified the Administrative Agent that it has
determined not to, or shall have otherwise ceased to, acquire Reinvestment
Assets with all or any portion of the relevant Reinvestment Deferred Amount.
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"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Reference Banks" means (i) NCB and (ii) any other Lender or Lenders
selected as a Reference Bank by the Administrative Agent and the Required
Lenders; provided that if any of such Reference Banks is no longer a Lender,
such other Lender or Lenders as may be selected by the Administrative Agent
acting on instructions from the Required Lenders.
"Required Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing 51% or more of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.
"Restatement Effective Date" means the date on which the conditions
specified in Section 4.01 are satisfied (or waived in accordance with Section
9.02 of this Agreement).
"Restricted Payment" means (a) any dividend or other distribution
(whether in cash, securities or other property) with respect to any Equity
Interest of the Parent, the Borrower or any Subsidiary, or (b) any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of (i) the purchase, redemption, retirement,
acquisition, cancellation or termination of any Equity Interest of the Parent or
the Borrower or (ii) any option, warrant or other right to acquire any such
Equity Interest of the Parent or the Borrower.
"Revolving Borrowing" means a Borrowing comprised of Revolving Loans.
"Revolving Credit Exposure" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure and Swingline Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
"Standby Letter of Credit" means each irrevocable letter of credit
issued by an Issuing Bank pursuant to Section 2.05 relating to obligations
(including performance obligations) of the Borrower, any Subsidiary or any Loan
Party incurred pursuant to contracts to which the Borrower, any Subsidiary or
any Loan Party is or proposes to become a party in the ordinary course of
business.
"Standby LC Disbursement" means a payment made by the Issuing Bank
pursuant to a Standby Letter of Credit.
"Standby LC Exposure" means, at any time, the sum of (a) the aggregate
undrawn amount of all outstanding Standby Letters of Credit at such time plus
(b) the aggregate amount of all Standby LC Disbursements that have not yet been
reimbursed by or on behalf of the Borrower at such time. The Standby LC Exposure
of any Lender at
17
any time shall be its Applicable Percentage of the total Standby LC Exposure at
such time.
"Statutory Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under such Regulation D or any comparable
regulation. The Statutory Reserve Rate shall be adjusted automatically on and as
of the effective date of any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Parent or the Borrower.
"Swap Agreement" means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Parent, the Borrower or the Subsidiaries shall be a Swap Agreement.
"Swingline Exposure" means, at any time, the aggregate principal amount
of all Swingline Loans outstanding at such time. The Swingline Exposure of any
Lender at any time shall be its Applicable Percentage of the total Swingline
Exposure at such time.
"Swingline Lender" means NCB, in its capacity as lender of Swingline
Loans hereunder.
18
"Swingline Loan" means a Loan made pursuant to Section 2.04.
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Total Debt" means, at any date, the consolidated total Indebtedness of
the Parent and the Subsidiaries as of such date, as determined in accordance
with GAAP (excluding from Indebtedness all obligations, contingent or otherwise,
of the Parent and any Subsidiary as an account party in respect of Trade Letters
of Credit).
"Trade Letter of Credit" means each commercial documentary letter of
credit issued by an Issuing Bank pursuant to Section 2.05 for the purchase of
goods in the ordinary course of business.
"Trade Letter of Credit Fee" has the meaning set forth in Section
2.11(b).
"Transactions" means the execution, delivery and performance by the
Borrower and the Parent of this Agreement and by the Guarantors of the Guarantee
Agreement, the borrowing of Loans, the use of the proceeds thereof and the
issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate or the Alternate Base
Rate.
"Withdrawal Liability" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Class (e.g., a
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
Borrowing"). SECTION 1.03. Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and
19
Schedules shall be construed to refer to Articles and Sections of, and Exhibits
and Schedules to, this Agreement and (e) the words "asset" and "property" shall
be construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts and contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the Restatement Effective Date in GAAP or in the
application thereof on the operation of such provision (or if the Administrative
Agent notifies the Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
The Credits
SECTION 2.01. Commitments. (a) Subject to the terms and conditions set
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that will not result in (a) such Lender's Revolving Credit Exposure exceeding
such Lender's Commitment or (b) total Revolving Credit Exposures exceeding the
total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
(b) The lending commitments of Lenders under the Original Credit
Agreement are, as of the Restatement Effective Date, superceded and replaced by
the Commitments set forth on Schedule 2.01.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender's
failure to make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith. Each Swingline Loan shall be an ABR Loan. Each Lender at
its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement.
20
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $2,500,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $100,000 and not less than $1,000,000;
provided that (i) a Eurodollar Revolving Borrowing in an aggregate amount not
less than $2,500,000 and (ii) any ABR Revolving Borrowing, may be in an
aggregate amount that is equal to the entire unused balance of the total
Commitments or that is required to finance the reimbursement of an LC
Disbursement as contemplated by Section 2.05(e). Each Swingline Loan shall be in
an amount that is an integral multiple of $250,000 and not less than $1,000,000.
Borrowings of more than one Type and Class may be outstanding at the same time;
provided that there shall not at any time be more than a total of 10 Eurodollar
Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
Cleveland time, three Business Days before the date of the proposed Borrowing,
or (b) in the case of an ABR Borrowing, not later than 10:30 a.m., Cleveland
time, on the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be irrevocable and shall be confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a written Borrowing Request in a form
approved by the Administrative Agent and signed by the Borrower. Each such
telephonic and written Borrowing Request shall specify the following information
in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest Period
to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
If no election as to the Type of Revolving Borrowing is specified, then
the requested Revolving Borrowing shall be an ABR Borrowing. If no Interest
Period is specified with respect to any requested Eurodollar Revolving
Borrowing, then the Borrower shall be deemed to have selected an Interest Period
of one month's duration. Promptly following receipt of a Borrowing Request in
accordance with this Section, the
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Administrative Agent shall advise each Lender of the details thereof and of the
amount of such Lender's Loan to be made as part of the requested Borrowing.
SECTION 2.04. Swingline Loans. (a) Subject to the terms and conditions
set forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower from time to time during the Availability Period, in an aggregate
principal amount at any time outstanding that will not result in (i) the
aggregate principal amount of outstanding Swingline Loans exceeding $20,000,000
or (ii) the total Revolving Credit Exposure exceeding the total Commitments;
provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. Within the foregoing limits and
subject to the terms and conditions set forth herein, the Borrower may borrow,
prepay and reborrow Swingline Loans.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent of such request by telephone (confirmed by telecopy), not
later than 12:00 noon, Cleveland time, on the day of a proposed Swingline Loan.
Each such notice shall be irrevocable and shall specify the requested date
(which shall be a Business Day) and amount of the requested Swingline Loan. The
Administrative Agent will promptly advise the Swingline Lender of any such
notice received from the Borrower. The Swingline Lender shall make each
Swingline Loan available to the Borrower by means of a credit to a deposit
account designated by the Borrower and maintained with a Lender (or, in the case
of a Swingline Loan made to finance the reimbursement of an LC Disbursement as
provided in Section 2.05(e), by remittance to the Issuing Bank) by 2:30 p.m.,
Cleveland time, on the requested date of such Swingline Loan.
(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., Cleveland time, on any Business
Day require the Lenders to acquire participations on such Business Day in all or
a portion of the Swingline Loans outstanding. Such notice shall specify the
aggregate amount of Swingline Loans in which Lenders will participate. Promptly
upon receipt of such notice, the Administrative Agent will give notice thereof
to each Lender, specifying in such notice such Lender's Applicable Percentage of
such Swingline Loan or Loans. Each Lender hereby absolutely and unconditionally
agrees, upon receipt of notice as provided above, to pay to the Administrative
Agent, for the account of the Swingline Lender, such Lender's Applicable
Percentage of such Swingline Loan or Loans. Each Lender acknowledges and agrees
that its obligation to acquire participations in Swingline Loans pursuant to
this paragraph is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including the occurrence and continuance of a Default
or reduction or termination of the Commitments, and that each such payment shall
be made without any offset, abatement, withholding or reduction whatsoever. Each
Lender shall comply with its obligation under this paragraph by wire transfer of
immediately available funds, in the same manner as provided in Section 2.06 with
respect to Loans made by such Lender (and Section 2.06 shall apply, mutatis
mutandis, to the payment obligations of the Lenders), and the Administrative
Agent shall promptly pay to the Swingline Lender the amounts so received by it
from the Lenders. The Administrative Agent shall notify the Borrower of any
participations in any Swingline Loan acquired pursuant to this paragraph, and
thereafter payments in respect of such Swingline Loan shall be made to the
Administrative Agent and not to the Swingline Lender. Any amounts received by
the
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Swingline Lender from the Borrower (or other party on behalf of the Borrower) in
respect of a Swingline Loan after receipt by the Swingline Lender of the
proceeds of a sale of participations therein shall be promptly remitted to the
Administrative Agent; any such amounts received by the Administrative Agent
shall be promptly remitted by the Administrative Agent to the Lenders that shall
have made their payments pursuant to this paragraph and to the Swingline Lender,
as their interests may appear; provided that any such payment so remitted shall
be repaid to the Swingline Lender or to the Administrative Agent, as applicable,
if and to the extent such payment is required to be refunded to the Borrower for
any reason. The purchase of participations in a Swingline Loan pursuant to this
paragraph shall not relieve the Borrower of any default in the payment thereof.
SECTION 2.05. Letters of Credit. (a) General. Each Existing Letter of
Credit was issued pursuant to the Original Credit Agreement. On the Restatement
Effective Date, the Existing Letters of Credit will automatically, without any
action on the part of any Person, be deemed to be Letters of Credit issued
hereunder for all purposes of this Agreement and the other Loan Documents. In
addition, subject to the terms and conditions set forth herein, the Borrower may
request the issuance of Letters of Credit for itself, any Subsidiary or any Loan
Party, in a form reasonably acceptable to the Administrative Agent and the
Issuing Bank, at any time and from time to time during the Availability Period.
In the event of any inconsistency between the terms and conditions of this
Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, the Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control.
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank (reasonably in advance of the requested date of issuance, amendment,
renewal or extension) a notice requesting the issuance of a Letter of Credit, or
identifying the Letter of Credit to be amended, renewed or extended, the date of
issuance, amendment, renewal or extension, the date on which such Letter of
Credit is to expire (which shall comply with paragraph (c) of this Section), the
amount of such Letter of Credit, the name and address of the beneficiary thereof
and such other information as shall be necessary to prepare, amend, renew or
extend such Letter of Credit. On every Business Day, all Issuing Banks shall
report to the Administrative Agent (i) all such requests and (ii) the aggregate
amount of the Letters of Credit issued for the current reporting period. If
requested by the Issuing Bank, the Borrower also shall submit a letter of credit
application on the Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension the total
Revolving Credit Exposures shall not exceed the total Commitments.
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(c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension); provided that a
Trade Letter of Credit may provide that it will be automatically extended,
unless the Issuing Bank shall have notified the beneficiary thereof that such
Trade Letter of Credit will not be so extended not less than a specified period
prior to the scheduled expiration date thereof, and so long as such automatic
extensions do not extend the term of any Trade Letter of Credit beyond the
Maturity Date and (ii) the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each Lender hereby acquires from the Issuing
Bank, a participation in such Letter of Credit equal to such Lender's Applicable
Percentage of the aggregate amount available to be drawn under such Letter of
Credit. Without limiting the foregoing, each Revolving Lender shall be deemed to
have acquired such a participation with respect to each such Existing Letter of
Credit on the Restatement Effective Date and the pre-existing participations in
such Existing Letters of Credit under the Original Credit Agreement shall be
deemed terminated as of the Restatement Effective Date. In consideration and in
furtherance of the foregoing, each Lender hereby absolutely and unconditionally
agrees to pay to the Administrative Agent, for the account of the Issuing Bank,
such Lender's Applicable Percentage of each LC Disbursement made by the Issuing
Bank and not reimbursed by the Borrower on the date due as provided in paragraph
(e) of this Section, or of any reimbursement payment required to be refunded to
the Borrower for any reason. Each Lender acknowledges and agrees that its
obligation to acquire participations pursuant to this paragraph in respect of
Letters of Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If the Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, and if the Borrower shall have received notice
of such LC Disbursement prior to 10:00 a.m., Cleveland time, on such date, the
Borrower shall reimburse such LC Disbursement by paying to the Issuing Bank an
amount equal to such LC Disbursement by not later than 3:00 p.m., Cleveland
time, on the date that such LC Disbursement is made; if notice of such LC
Disbursement has not been received by the Borrower prior to 10:00 a.m. on such
date, then the Borrower shall reimburse such LC Disbursement not later than
12:00 noon, Cleveland time, on (i) the Business Day that the Borrower receives
such notice, if such notice is received prior to 10:00 a.m., Cleveland time, on
the day of receipt, or (ii) the Business Day immediately following the day that
the Borrower receives such notice, if such notice is not received prior to such
time on the day of receipt; provided that the Borrower may, subject to the
conditions to borrowing set forth herein, request in accordance with Section
2.03 that such payment be financed with an ABR Revolving Borrowing or Swingline
Loan in an equivalent amount and, to the extent so financed, the Borrower's
obligation to make such payment shall be discharged and replaced by the
resulting ABR Revolving Borrowing or Swingline Loan. If the
24
Borrower fails to make such payment when due, the Issuing Bank shall notify the
Administrative Agent and the Administrative Agent shall notify each Lender of
the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative
Agent its Applicable Percentage of the payment then due from the Borrower, in
the same manner as provided in Section 2.06 with respect to Loans made by such
Lender (and Section 2.06 shall apply, mutatis mutandis, to the payment
obligations of the Lenders), and the Administrative Agent shall promptly pay to
the Issuing Bank the amounts so received by it from the Lenders. Promptly
following receipt by the Administrative Agent of any payment from the Borrower
pursuant to this paragraph, the Administrative Agent shall distribute such
payment to the Lenders that have made payments pursuant to this paragraph to
reimburse the Issuing Bank and the Issuing Bank as their interests may appear.
Any payment made by a Lender pursuant to this paragraph to reimburse the Issuing
Bank for any LC Disbursement (other than the funding of ABR Revolving Loans or a
Swingline Loan as contemplated above) shall not constitute a Loan and shall not
relieve the Borrower of its obligation to reimburse such LC Disbursement.
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or this Agreement, or any term or provision therein, (ii) any draft or
other document presented under a Letter of Credit proving to be forged,
fraudulent or invalid in any respect or any statement therein being untrue or
inaccurate in any respect, (iii) payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document that does not comply
with the terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor the Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or wilful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the
25
foregoing and without limiting the generality thereof, the parties agree that,
with respect to documents presented which appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(g) Disbursement Procedures. The Issuing Bank shall, promptly following
its receipt thereof, examine all documents purporting to represent a demand for
payment under a Letter of Credit. The Issuing Bank shall promptly notify the
Administrative Agent and the Borrower by telephone (confirmed by telecopy) of
such demand for payment and whether the Issuing Bank has made or will make an LC
Disbursement thereunder; provided that any failure to give or delay in giving
such notice shall not relieve the Borrower of its obligation to reimburse the
Issuing Bank and the Lenders with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum equal to the lower of (i) the rate then
applicable to ABR Revolving Loans and (ii) the Federal Funds Effective Rate plus
the then Applicable Margin for Eurodollar Revolving Borrowings; provided that,
if the Borrower fails to reimburse such LC Disbursement when due pursuant to
paragraph (e) of this Section, then Section 2.12(d) shall apply. Interest
accrued pursuant to this paragraph shall be for the account of the Issuing Bank,
except that interest accrued on and after the date of payment by any Lender
pursuant to paragraph (e) of this Section to reimburse the Issuing Bank shall be
for the account of such Lender to the extent of such payment.
(i) Addition, Termination or Replacement of an Issuing Bank. An Issuing
Bank may be replaced, added or terminated at any time by written agreement
between the Borrower and the Administrative Agent (whose consent will not be
unreasonably withheld) and the affected Issuing Bank(s). The Administrative
Agent shall notify the Lenders of any such addition, termination or replacement
of the Issuing Bank. At the time any such termination or replacement shall
become effective, the Borrower shall pay all unpaid fees accrued for the account
of the terminated or replaced Issuing Bank pursuant to Section 2.11(b). From and
after the effective date of any such addition or replacement, (i) the new
Issuing Bank shall have all the rights and obligations of an Issuing Bank under
this Agreement with respect to Letters of Credit to be issued thereafter and
(ii) references herein to the term "Issuing Bank" shall be deemed to refer such
new or to any previous Issuing Bank, or to such new and all previous Issuing
Banks, as the context shall require. After the termination or replacement of an
Issuing Bank hereunder, the terminated or replaced Issuing Bank shall remain a
party hereto and shall continue to have all the rights and obligations of an
Issuing Bank under this Agreement with respect to Letters of Credit issued by it
prior to such termination or replacement, but shall not be required to issue
additional Letters of Credit.
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(j) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (h) or (i) of Article VII. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
(k) Multiple Issuing Banks Contemplated. As used in this Agreement, the
term, "the Issuing Bank" shall mean the Issuing Bank issuing the applicable
Letter of Credit, but shall not be construed to mean that only one Issuing Bank
may exist at any given time.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, Cleveland time, to the account of the
Administrative Agent most recently designated by it for such purpose by notice
to the Lenders; provided that Swingline Loans shall be made as provided in
Section 2.04. The Administrative Agent will make such Loans available to the
Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower maintained with a Lender and designated by the Borrower
in the applicable Borrowing Request; provided that ABR Revolving Loans made to
finance the reimbursement of an LC Disbursement as provided in Section 2.05(e)
shall be remitted by the Administrative Agent to the Issuing Bank.
27
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the interest rate applicable to ABR Loans. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Swingline Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies and,
if different options are being elected with respect to different portions
thereof, the portions thereof to be allocated to each resulting Borrowing (in
which case the information to be specified pursuant to clauses (iii) and (iv)
below shall be specified for each resulting Borrowing);
28
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the Interest
Period to be applicable thereto after giving effect to such election, which
shall be a period contemplated by the definition of the term "Interest
Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $5,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the Revolving Credit Exposures would exceed the
total Commitments.
(c) In the event and on each occasion that any Net Proceeds are
received by or on behalf of the Parent, the Borrower or any Subsidiary in
respect of any Prepayment Event, then, unless a Reinvestment Notice shall be
delivered in respect thereof, the Borrower shall promptly, and in any event
within five Business Days after such Net Proceeds are received, reduce the total
Commitments by an aggregate amount equal to 100% of such Net Proceeds; provided,
that, on each Reinvestment Prepayment Date, an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Reinvestment Event shall be
applied to the permanent reduction of the total Commitments by an amount equal
to the Reinvestment Prepayment Amount.
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(d) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least three Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; provided that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities or the
consummation of other specified transactions, in which case such notice may be
revoked by the Borrower (by notice to the Administrative Agent on or prior to
the specified effective date) if such condition is not satisfied. Any
termination or reduction of the Commitments shall be permanent. Each reduction
of the Commitments shall be made ratably among the Lenders in accordance with
their respective Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay (i) to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date and (ii) to the Swingline Lender the then unpaid principal
amount of each Swingline Loan on the earlier of the Maturity Date and the 14th
day after such Swingline Loan is made; provided that on each date that a
Revolving Borrowing is made, the Borrower shall repay all Swingline Loans then
outstanding.
(b) 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 Loan made by such Lender, including the amounts of principal
and interest payable and paid to such Lender from time to time hereunder.
(c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Class and Type thereof
and the Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such form payable to the order of the
30
payee named therein (or, if such promissory note is a registered note, to such
payee and its registered assigns).
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (c) of this Section.
(b) In the event and on each occasion that the aggregate Revolving
Credit Exposure exceeds the total aggregate Commitments (including without
limitation as a result of any reduction of Commitments required by Section
2.08(c), the Borrower shall prepay Revolving Borrowings (or, if no such
Borrowings are outstanding, deposit cash collateral in an account with the
Administrative Agent pursuant to Section 2.05(j)) in an aggregate amount equal
to such excess.
(c) The Borrower shall notify the Administrative Agent (and, in the
case of prepayment of a Swingline Loan, the Swingline Lender) by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m.,
Cleveland time, three Business Days before the date of prepayment, (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m.,
Cleveland time, on the date of prepayment or (iii) in the case of prepayment of
a Swingline Loan, not later than 12:00 noon, Cleveland time, on the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by
Section 2.08, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.08. Promptly following
receipt of any such notice relating to a Revolving Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.02 in the aggregate principal amount thereof. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee (the
"Facility Fee"), which shall accrue at the Applicable Margin on the daily amount
of the Commitment of such Lender (whether used or unused) during the period from
and including the Restatement Effective Date to but excluding the date on which
such Commitment terminates; provided that, if such Lender continues to have any
Revolving Credit Exposure after its Commitment terminates, then such facility
fee shall continue to accrue on the daily amount of such Lender's Revolving
Credit Exposure from and including the date on which its Commitment terminates
to but excluding the date on which such Lender ceases to have any Revolving
Credit Exposure. Accrued facility fees shall be payable quarterly in arrears on
the last Business Day of January, April, July and October of each year and on
the date on which the Commitments terminate, commencing on the first such date
to occur after the Restatement Effective Date; provided that any facility fees
31
accruing after the date on which the Commitments terminate shall be payable on
demand. All facility fees shall be computed on the basis of a year of 360 days
and shall be payable for the actual number of days elapsed (including the first
day but excluding the last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for the
account of each Lender a participation fee with respect to its participations in
(x) Trade Letters of Credit (the "Trade Letter of Credit Fee"), which shall
accrue at the rate equal to the Applicable Margin and (y) Standby Letters of
Credit, which shall accrue at the Applicable Margin in effect for Eurodollar
Revolving Loans, each on the average daily amount of such Lender's LC Exposure
attributable to Trade Letters of Credit and Standby Letters of Credit, as the
case may be (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Restatement Effective
Date to but excluding the later of the date on which such Lender's Commitment
terminates and the date on which such Lender ceases to have any LC Exposure, and
(ii) to the Issuing Bank a fronting fee, which shall accrue at the rate or rates
per annum separately agreed upon between the Borrower and the Issuing Bank on
the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Restatement Effective Date to but excluding the later of the date
of termination of the Commitments and the date on which there ceases to be any
LC Exposure, as well as the Issuing Bank's standard fees with respect to the
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Participation fees and fronting fees accrued through and
including the last day of January, April, July and October of each year shall be
payable on the last Business Day of January, April, July and October of each
year, commencing on the first such date to occur after the Restatement Effective
Date; provided that all such fees shall be payable on the date on which the
Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. Any other fees payable to the
Issuing Bank pursuant to this paragraph shall be payable within 10 days after
demand. All participation fees and fronting fees shall be computed on the basis
of a year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).
(c) The Borrower agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(d) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to the Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
facility fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
(including each Swingline Loan) shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Revolving Loan shall bear
interest at the LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Margin.
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(c) For so long as any Lender maintains reserves against "Eurocurrency
liabilities" (or any other category of liabilities which includes deposits by
reference to which the interest rate on Eurodollar Loans is determined or any
category of extensions of credit or other assets which includes loans by a
non-United States office of any Lender to United States residents), and as a
result the cost to such Lender (or its Eurodollar lending office) of making or
maintaining its Eurodollar Loans is increased, then such Lender may require the
Borrower to pay, contemporaneously with each payment of interest on any
Eurodollar Loan of such Lender, additional interest on such Eurodollar Loan for
the Interest Period of such Eurodollar Loan at a rate per annum up to but not
exceeding the excess of (i)(A) the applicable LIBO Rate, as the case may be,
divided by (B) one minus the Statutory Reserve Rate over (ii) the rate specified
in the preceding clause (i)(A). Any Lender wishing to require payment of such
additional interest pursuant to the preceding sentence (x) shall so notify the
Borrower and the Administrative Agent, in which case such additional interest on
the Eurodollar Loans of such Lender shall be payable to such Bank at the place
indicated in such notice with respect to each Interest Period commencing at
least three Business Days after the giving of such notice and (y) shall furnish
to the applicable Borrower at least five Business Days prior to each date on
which interest is payable on such Eurodollar Loans an officer's certificate
setting forth the amount to which such Lender is then entitled under this
subsection (c) (which shall be consistent with such Lender's good faith estimate
of the level at which the related reserves are maintained by it). Each such
certificate shall be accompanied by such information as the Borrower may
reasonably request as to the computation set forth therein.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a year of
360 days, except that interest computed by reference to the Alternate Base Rate
at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the
33
actual number of days elapsed (including the first day but excluding the last
day). The applicable Alternate Base Rate or LIBO Rate shall be determined by the
Administrative Agent, and such determination shall be conclusive absent manifest
error.
SECTION 2.13. Alternate Rate of Interest. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination
shall be conclusive absent manifest error) that adequate and reasonable
means do not exist for ascertaining the LIBO Rate for such Interest
Period; or
(b) the Administrative Agent is advised by the Required Lenders
that the LIBO Rate for such Interest Period will not adequately and
fairly reflect the cost to such Lenders (or Lender) of making or
maintaining their Loans (or its Loan) included in such Borrowing for
such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender or the Issuing Bank; or
(ii) impose on any Lender or the Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans made
by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make any such Loan) or to increase the cost to such Lender or the
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or the
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or the Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or the Issuing Bank,
as the case may be, for such additional costs incurred or reduction suffered.
(b) If any Lender or the Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or the Issuing Bank's capital or on the capital of
such Lender's or the
34
Issuing Bank's holding company, if any, as a consequence of this Agreement or
the Loans made by, or participations in Letters of Credit held by, such Lender,
or the Letters of Credit issued by the Issuing Bank, to a level below that which
such Lender or the Issuing Bank or such Lender's or the Issuing Bank's holding
company could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies and the policies of
such Lender's or the Issuing Bank's holding company with respect to capital
adequacy), then from time to time the Borrower will pay to such Lender or the
Issuing Bank, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Bank or such Lender's or the Issuing
Bank's holding company for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or the Issuing Bank or its
holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section shall be delivered promptly to the Borrower and shall be conclusive
absent manifest error. The Borrower shall pay such Lender or the Issuing Bank,
as the case may be, the amount shown as due on any such certificate within 10
days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or the Issuing Bank's right to demand such compensation; provided
that the Borrower shall not be required to compensate a Lender or the Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 90 days prior to the date that such Lender or the Issuing Bank, as the
case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or the Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
in Law giving rise to such increased costs or reductions is retroactive, then
the 90-day period referred to above shall be extended to include the period of
retroactive effect thereof.
SECTION 2.15. Break Funding Payments. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Revolving Loan on the date specified in any
notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.10(b) and is revoked in accordance therewith) or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the LIBO Rate that would have been applicable to
such Loan, for the period from the date of such event to the last day of the
then current Interest Period therefor (or, in the case of a failure to borrow,
convert or continue, for the period that would have been the Interest Period for
such Loan), over (ii) the amount of interest which would accrue on such
principal amount for
35
such period at the interest rate which such Lender would bid were it to bid, at
the commencement of such period, for dollar deposits of a comparable amount and
period from other banks in the Eurodollar market. A certificate of any Lender
setting forth any amount or amounts that such Lender is entitled to receive
pursuant to this Section shall be delivered to the Borrower and shall be
conclusive absent manifest error. The Borrower shall pay such Lender the amount
shown as due on any such certificate within 10 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (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 Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and the Issuing Bank, within 10 days after written demand therefor, for the full
amount of any Indemnified Taxes or Other Taxes paid by the Administrative Agent,
such Lender or the Issuing Bank, as the case may be, on or with respect to any
payment by or on account of any obligation of the Borrower hereunder (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section) and any penalties, interest and reasonable
expenses arising therefrom or with respect thereto, whether or not such
Indemnified Taxes or Other Taxes were correctly or legally imposed or asserted
by the relevant Governmental Authority; provided, however, that if written
demand for payment of an Indemnified Tax or Other Tax has not been made by the
Administrative Agent, a Lender or the Issuing Bank within 30 Business Days from
the later of (i) the date the Administrative Agent, such Lender or the Issuing
Bank knew of the imposition thereof or (ii) the date such Indemnified Tax or
Other Tax is due, then the Borrower shall not be obligated to pay or indemnify
the Administrative Agent, such Lender or the Issuing Bank for penalties with
respect to such Indemnified Taxes or Other Taxes that would not have been owed
had such demand been made within 45 days and payment thereof occurred within 60
days from such date. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or the Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or the Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such
36
payment or other evidence of such payment reasonably satisfactory to the
Administrative Agent.
(e) Each Foreign Lender that is entitled to an exemption from or
reduction in withholding tax under the laws of the United States (or such other
jurisdiction in which the Borrower may be located) shall, before the time
prescribed by applicable law, and from time to time thereafter (as required by
applicable law) before the date any such form expires or becomes obsolete or
invalid, provide the Borrower and the Administrative Agent with Internal Revenue
Service form W8-BEN or W8-ECI in duplicate, as appropriate, or such other form
prescribed by the Internal Revenue Service that it may legally provide,
certifying that such Foreign Lender is entitled to benefits under an income tax
treaty to which the United States is a party which exempts the Lender from
United States withholding tax or reduces the rate of United States withholding
tax on payments of interest for the account of such Foreign Lender, or
certifying that the income receivable pursuant to this Agreement is effectively
connected with the conduct of such Foreign Lender's trade or business in the
United States and exempt from United States withholding tax.
(f) If an Issuing Bank, the Administrative Agent or a Lender becomes
aware that it has received a refund in respect of any Indemnified Taxes or Other
Taxes as to which it has been indemnified by the Borrower pursuant to this
Section 2.16 or with respect to which the Borrower has paid additional amounts
pursuant to this Section 2.16, it shall, in a reasonable period of time, pay
over such refund to the Borrower (but only to the extent of indemnity payments
made, or additional amounts paid, by the Borrower under this Section 2.16 with
respect to the Indemnified Taxes or Other Taxes giving rise to such refund), net
of all out-of-pocket expenses of the Administrative Agent or such Lender and
without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided, that the Borrower, upon the
request of the Administrative Agent or such Lender, agrees to repay the amount
paid over to the Borrower (plus any penalties, interest or other charges imposed
by the relevant Governmental Authority) to the Administrative Agent or such
Lender in the event the Administrative Agent or such Lender is required to repay
such refund to such Governmental Authority. This Section shall not be construed
to require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) not later than 3:00 p.m., Cleveland time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at National City Bank,
000 Xxxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxxxxx, Xxxx 00000, except payments to be
made directly to the Issuing Bank or Swingline Lender as expressly provided
herein and except that
37
payments pursuant to Sections 2.14, 2.15, 2.16 and 9.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest and fees then due hereunder, such funds shall be applied
(i) first, towards payment of interest and fees then due hereunder, ratably
among the parties entitled thereto in accordance with the amounts of interest
and fees then due to such parties, and (ii) second, towards payment of principal
and unreimbursed LC Disbursements then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or the Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such
38
payment on such date in accordance herewith and may, in reliance upon such
assumption, distribute to the Lenders or the Issuing Bank, as the case may be,
the amount due. In such event, if the Borrower has not in fact made such
payment, then each of the Lenders or the Issuing Bank, as the case may be,
severally agrees to repay to the Administrative Agent forthwith on demand the
amount so distributed to such Lender or Issuing Bank with interest thereon, for
each day from and including the date such amount is distributed to it to but
excluding the date of payment to the Administrative Agent, at the greater of the
Federal Funds Effective Rate and a rate determined by the Administrative Agent
in accordance with banking industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by
it pursuant to Section 2.05(d) or (e), 2.06(b) or 2.17(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a) If
any Lender requests compensation under Section 2.14, or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.16, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.14 or 2.16, as the case may be, in the
future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If any Lender requests compensation under Section 2.14, or if the
Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.16,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions contained in
Section 9.04), all its interests, rights and obligations under this Agreement to
an assignee that shall assume such obligations (which assignee may be another
Lender, if a Lender accepts such assignment); provided that (i) the Borrower
shall have received the prior written consent of the Administrative Agent (and,
if a Commitment is being assigned, the Issuing Bank), which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements and Swingline Loans, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.14 or payments required
to be made pursuant to Section 2.16, such assignment will result in a
39
reduction in such compensation or payments. A Lender shall not be required to
make any such assignment and delegation if, prior thereto, as a result of a
waiver by such Lender or otherwise, the circumstances entitling the Borrower to
require such assignment and delegation cease to apply.
SECTION 2.19. Increase in Revolving Credit Commitments. (a) The
Borrower may, by written notice to the Administrative Agent, request Additional
Credit Commitments in an amount not to exceed $50,000,000 from one or more
Additional Credit Lenders, which may include any existing Lender; provided that
during the life of this Agreement, the Borrower may only make one request for
Additional Credit Commitments pursuant to this Section 2.19; provided further
that each Additional Credit Lender, if not already a Lender hereunder, shall be
subject to the approval of the Administrative Agent and the Borrower (which
approvals shall not be unreasonably withheld). Each such notice shall set forth
(i) the amount of the Additional Credit Commitments being requested (which shall
be in a minimum amount of $2,500,000) and (ii) the date on which such Additional
Credit Commitments are requested to become effective (which shall not be less
than 10 Business Days nor more than 60 days after the date of such notice).
(b) The Borrower and each Additional Credit Lender shall execute and
deliver to the Administrative Agent an Additional Credit Assumption Agreement
and such other documentation as the Administrative Agent shall reasonably
specify to evidence the Additional Credit Commitment of such Additional Credit
Lender. The Administrative Agent shall promptly notify each Lender as to the
effectiveness of each Additional Credit Assumption Agreement. Each of the
parties hereto hereby agrees that, upon the effectiveness of any Additional
Credit Assumption Agreement, each such Additional Credit Lender shall, to the
extent not an existing Lender, become a Lender hereunder and this Agreement
shall be deemed amended to the extent (but only to the extent) necessary to
reflect the existence and terms of the Additional Credit Commitment evidenced
thereby.
(c) Each of the parties hereto hereby agrees that the Administrative
Agent may take any and all actions as may be reasonably necessary to ensure
that, after giving effect to any Additional Credit Commitment pursuant to this
Section 2.19, the outstanding Loans (if any) are held by the Lenders in
accordance with their new pro rata percentages. This may be accomplished at the
discretion of the Administrative Agent (i) by requiring the outstanding Loans to
be prepaid with the proceeds of a new Borrowing, (ii) by causing the existing
Lenders to assign portions of their outstanding Loans to Additional Credit
Lenders, which assignments shall be deemed to be effective pursuant to Section
9.04 or (iii) by any combination of the foregoing. Notwithstanding the
foregoing, in order to eliminate any break funding liability to the Borrower,
if, upon the date that any Additional Credit Commitment becomes effective
pursuant to this Section 2.19, there is an unpaid principal amount of Revolving
Loans to the Borrower, the principal outstanding amount of all such Revolving
Loans shall (A) in the case of such Revolving Loans which are ABR Loans, be
immediately prepaid by the Borrower (but all such Revolving Loans may, on the
terms and conditions hereof, be reborrowed on such date on a pro rata basis,
based on the revised Commitments as then in effect) and (B) in the case of such
Revolving Loans which are Eurodollar Loans, continue to remain outstanding
40
(notwithstanding any other requirement in this Agreement that such Revolving
Loans be held on a pro rata basis based on the revised Commitments as then in
effect) until the end of the then current Interest Period therefor, at which
time such Eurodollar Loans shall be paid by the Borrower (but all such Revolving
Loans may, on the terms and conditions hereof, be reborrowed on such date on a
pro rata basis, based on the Commitments as then in effect).
(d) Notwithstanding the foregoing, no Additional Credit Commitment
shall become effective under this Section 2.19 unless on the date of such
effectiveness, the conditions set forth in paragraphs (a) and (b) of Section
4.02 shall be satisfied and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of the Borrower.
ARTICLE III
Representations and Warranties
The Borrower represents and warrants to each of the Lenders and the
Administrative Agent that:
SECTION 3.01. Organization; Powers. Each of the Parent, the Borrower
and the Subsidiaries is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization, has all requisite power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. Authorization; Enforceability. The Transactions to be
entered into by each Loan Party are within such Loan Party's corporate powers
and have been duly authorized by all necessary corporate and, if required,
stockholder action. This Agreement has been duly executed and delivered by each
of the Parent and the Borrower and constitutes, and each other Loan Document to
which any Loan Party is to be a party, when executed and delivered by such Loan
Party, will constitute, a legal, valid and binding obligation of each of the
Parent, the Borrower or such Loan Party (as the case may be), enforceable in
accordance with its terms, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and subject to general principles of equity, regardless of whether considered in
a proceeding in equity or at law.
SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of any of the Parent, the Borrower or any Subsidiary or any order of
any Governmental Authority, (c) will not violate or result in a default under
any indenture or other agreement for borrowed money or under any other material
agreement binding upon any of the Parent, the Borrower or
41
any Subsidiary or its assets, or give rise to a right thereunder to require any
payment to be made by any of the Parent, the Borrower or any Subsidiary, and (d)
will not result in the creation or imposition of any Lien on any material asset
of any of the Parent, the Borrower or any Subsidiary.
SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Parent has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal year ended on January 31, 2004, reported on by PricewaterhouseCoopers
LLP, independent public accountants, and (ii) as of and for the fiscal quarter
ended on October 30, 2004, certified by its chief financial officer. Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Parent and its
consolidated Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to year-end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (ii) above.
(b) Since January 31, 2004, there has been no material adverse change
in the business, assets, operations, prospects or condition, financial or
otherwise, of the Parent, the Borrower and the Subsidiaries, taken as a whole.
SECTION 3.05. Properties. (a) Each of the Parent, the Borrower and the
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for defects in title
that, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(b) Each of the Parent, the Borrower and the Subsidiaries owns, or is
licensed to use, all trademarks, trade names, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Parent, the Borrower and the Subsidiaries does not infringe upon the rights of
any other Person, except for any such failure to own or be licensed and
infringements that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting any of the Parent, the Borrower or any of the Subsidiaries
(i) as to which there is a reasonable possibility of an adverse determination
and that, if adversely determined, could reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Effect (other than the
Disclosed Matters) or (ii) that expressly contest the validity of this Agreement
or the Transactions.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, none of the Parent, the
Borrower nor any Subsidiary (i) has failed to comply with any Environmental Law
or to obtain, maintain or comply with any permit, license or other approval
required under any Environmental Law, (ii) has become subject to any
Environmental Liability, (iii) has received notice of any claim with respect
42
to any Environmental Liability or (iv) knows of any basis for any Environmental
Liability.
(c) There has been no change in the status of the Disclosed Matters
that, individually or in the aggregate, has resulted in, or materially increased
the likelihood of, a Material Adverse Effect.
SECTION 3.07. Compliance with Laws and Agreements. Each of the Parent,
the Borrower and the Subsidiaries is in compliance with all laws, regulations
and orders of any Governmental Authority applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect. No
Default has occurred and is continuing.
SECTION 3.08. Investment and Holding Company Status. None of the
Parent, the Borrower nor any Subsidiary is (a) an "investment company" as
defined in, or subject to regulation under, the Investment Company Act of 1940
or (b) a "holding company" as defined in, or subject to regulation under, the
Public Utility Holding Company Act of 1935.
SECTION 3.09. Taxes. Each of the Parent, the Borrower and the
Subsidiaries has timely filed or caused to be filed all Tax returns and reports
required to have been filed and has paid or caused to be paid all Taxes required
to have been paid by it, except (a) Taxes that are being contested in good faith
by appropriate proceedings and for which the Parent, the Borrower or such
Subsidiary, as applicable, has set aside on its books adequate reserves or (b)
to the extent that the failure to do so could not reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect.
SECTION 3.11. Disclosure. The reports, financial statements,
certificates and other information furnished by or on behalf of the Parent or
the Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder (as modified or
supplemented by other information so furnished), taken as a whole, do not
contain any material misstatement of fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time.
SECTION 3.12. Subsidiaries. Schedule 3.12 sets forth the name of, and
the ownership interest of the Parent and each of its Subsidiaries in, and of the
Borrower and each of its Subsidiaries in, each Subsidiary, in each case as of
the Restatement Effective Date. Each Domestic Subsidiary is a Loan Party as of
the Restatement Effective Date.
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ARTICLE IV
Conditions
SECTION 4.01. Restatement Effective Date. Without affecting the rights
of the Borrower or any Subsidiary hereunder at all times prior to the
Restatement Effective Date, the amendment and restatement of the Original
Agreement in the form hereof and the obligations of the Lenders to make Loans
and acquire participations in Letters of Credit and Swingline Loans and of the
Issuing Banks to issue Letters of Credit hereunder shall not become effective
until the date on which each of the following conditions is satisfied (or waived
in accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on behalf of
such party or (ii) written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Restatement Effective Date) of Vorys, Xxxxx, Xxxxxxx and Xxxxx LLP, counsel for
the Borrower, acceptable to the Administrative Agent, substantially in the form
of Exhibit D, and covering such other matters relating to the Borrower, this
Agreement or the Transactions as the Required Lenders shall reasonably request.
The Borrower hereby requests such counsel to deliver such opinion.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably request
relating to the organization, existence and good standing of each Loan Party,
the authorization of the Transactions and any other legal matters relating to
the Loan Parties, this Agreement or the Transactions, all in form and substance
reasonably satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Restatement Effective Date and signed by a Financial Officer of the
Borrower, confirming compliance as of the Restatement Effective Date with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) There shall be no loans outstanding under the Original Credit
Agreement immediately prior to the Restatement Effective Date. All interest,
fees, indemnities and other amounts accrued under the Original Credit Agreement
in respect of periods prior to the Restatement Effective Date, regardless of
whether due under the Original Credit Agreement, shall have been paid by the
Borrower to the Administrative Agent for the accounts of the lenders entitled
thereto under the Original Credit Agreement. In addition, the Administrative
Agent shall have received, to the extent invoiced, reimbursement or payment of
all out-of-pocket expenses required to be reimbursed or paid by the Borrower
hereunder or under the Original Credit Agreement.
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(f) The Administrative Agent shall have received counterparts of the
Guarantee Agreement signed on behalf of the Parent and each Domestic Subsidiary.
The Administrative Agent shall notify the Borrower and the Lenders of the
Restatement Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., Cleveland time, on December
15, 2004 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Conditions to Each Credit Event. The obligation of each
Lender to make a Loan on the occasion of any Borrowing, and of the Issuing Bank
to issue, amend, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:
(a) The representations and warranties of each of the Parent and the
Borrower set forth in this Agreement shall be true and correct on and as of the
date of such Borrowing or the date of issuance, amendment, renewal or extension
of such Letter of Credit, as applicable, except to the extent any such
representation or warranty is limited to another particular date, in which
instance, such representation or warranty shall be true and correct on and as of
such other date.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by each of
the Parent and the Borrower on the date thereof as to the matters specified in
paragraphs (a) and (b) of this Section.
ARTICLE V
Affirmative Covenants
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, each of the Parent and the Borrower
covenants and agrees with the Lenders that:
SECTION 5.01. Financial Statements and Other Information. The Parent
will furnish to the Administrative Agent and each Lender:
(a) within 90 days after the end of each fiscal year of the
Parent, its audited consolidated balance sheet and related statements
of income, stockholders' equity and cash flows as of the end of and for
such year, setting forth in each case in comparative form the figures
for the previous
45
fiscal year, all reported on by PricewaterhouseCoopers LLP or other
independent public accountants of recognized national standing (without
a "going concern" or like qualification or exception and without any
qualification or exception as to the scope of such audit) to the effect
that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of
the Parent and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters of each fiscal year of the Parent, its consolidated
balance sheet as of the end of such fiscal quarter, the related
statements of income for such fiscal quarter and the then elapsed
portion of the fiscal year and the related statement of cash flows for
the then elapsed portion of the fiscal year, setting forth in each case
in comparative form the figures for the corresponding period or periods
of (or, in the case of the balance sheet, as of the end of) the
previous fiscal year, all certified by one of its Financial Officers as
presenting fairly in all material respects the financial condition and
results of operations of the Parent and its consolidated Subsidiaries
on a consolidated basis in accordance with GAAP consistently applied,
subject to normal year-end audit adjustments and the absence of
footnotes;
(c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) certifying as to whether a Default has occurred and is
continuing and, if a Default has occurred and is continuing, specifying
the details thereof and any action taken or proposed to be taken with
respect thereto, (ii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.10 and 6.11 and (iii) stating
whether any change in GAAP or in the application thereof has occurred
since the date of the previous delivery of financial statements under
clause (a) or (b) above;
(d) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials
publicly filed by the Parent, the Borrower or any Subsidiary with the
Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with
any national securities exchange, or distributed by the Parent or the
Borrower to its shareholders generally, as the case may be; and
(e) promptly following any request therefor, such other
information regarding the operations, business affairs and financial
condition of the Parent, the Borrower or any Subsidiary, or compliance
with the terms of this Agreement, as the Administrative Agent or any
Lender may reasonably request; provided that if no Loans are
outstanding hereunder, the requests of Lenders under this Section
5.01(e) shall be subject to the approval of the Administrative Agent.
46
SECTION 5.02. Notices of Material Events. The Borrower will furnish to
the Administrative Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding
by or before any arbitrator or Governmental Authority against or
affecting the Borrower or any Affiliate thereof that could reasonably
be expected to be adversely determined in a manner that would result in
a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together
with any other ERISA Events that have occurred, could reasonably be
expected to result in a Material Adverse Effect; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. Existence; Conduct of Business. Each of the Parent and
the Borrower will, and will cause each of the Subsidiaries to, do or cause to be
done all things necessary to preserve, renew and keep in full force and effect
its legal existence and the rights, licenses, permits, privileges and franchises
material to the conduct of the business of the Parent, the Borrower and the
Subsidiaries, taken as a whole; provided that the foregoing shall not prohibit
any merger, consolidation, liquidation or dissolution permitted under Section
6.04.
SECTION 5.04. Payment of Obligations. Each of the Parent and the
Borrower will, and will cause each of the Subsidiaries to, pay its obligations,
including Tax liabilities, that, if not paid, could result in a Material Adverse
Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Parent, the Borrower or such Subsidiary has set aside on
its books adequate reserves with respect thereto in accordance with GAAP and (c)
the failure to make payment pending such contest could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.05. Maintenance of Properties; Insurance. Each of the Parent
and the Borrower will, and will cause each of the Subsidiaries to, (a) keep and
maintain all property material to the conduct of its business in good working
order and condition, ordinary wear and tear excepted, and (b) maintain, with
financially sound and reputable insurance companies, insurance in such amounts
and against such risks as are customarily maintained by companies engaged in the
same or similar businesses operating in the same or similar locations.
47
SECTION 5.06. Books and Records; Inspection Rights. Each of the Parent
and the Borrower will, and will cause each of the Subsidiaries to, keep proper
books of record and account in which full, true and correct entries are made of
all dealings and transactions in relation to its business and activities. Each
of the Parent and the Borrower will, and will cause each of the Subsidiaries to,
permit any representatives designated by the Administrative Agent or any Lender,
upon reasonable prior notice and at such party's expense, to visit and inspect
its properties, to examine and make extracts from its books and records, and to
discuss its affairs, finances and condition with its officers and, if an Event
of Default exists, its independent accountants. Such visits and inspections
shall be arranged through the Administrative Agent and shall not occur more than
once in any fiscal quarter unless an Event of Default shall exist.
SECTION 5.07. Compliance with Laws. Each of the Parent and the Borrower
will, and will cause each of the Subsidiaries to, comply with all laws, rules,
regulations and orders of any Governmental Authority applicable to it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse Effect.
SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of
the Loans will be used only for working capital, capital expenditures and other
general corporate purposes. No part of the proceeds of any Loan will be used,
whether directly or indirectly, for any purpose that entails a violation of any
of the Regulations of the Board, including Regulations T, U and X. Letters of
Credit will be issued only to support import or other needs in the ordinary
course of business.
SECTION 5.09. Additional Subsidiaries; Guarantee Requirement. (a) If
any additional Domestic Subsidiary is formed or acquired after the Restatement
Effective Date, the Parent or the Borrower (as the case may be) will notify the
Administrative Agent thereof within 30 days.
(b) The Parent or the Borrower (as the case may be) will promptly cause
any Domestic Subsidiary that is not then a Guarantor to become a party to the
Guarantee Agreement within 30 days of the acquisition or creation of such
Domestic Subsidiary.
ARTICLE VI
Negative Covenants
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, each of the Parent and the Borrower covenants and
agrees with the Lenders that:
SECTION 6.01. Indebtedness. The Parent and the Borrower will not, and
will not permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness or Attributable Debt in respect of sale-leaseback transactions,
except:
48
(a) Indebtedness created under the Loan Documents;
(b) Indebtedness existing on the Restatement Effective Date and
(in the case of any such Indebtedness in a principal amount in excess
of $1,000,000) set forth in Schedule 6.01 and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof;
(c) Indebtedness (i) resulting from any loan or advance by a Loan
Party to another Loan Party, (ii) resulting from any loan or advance by
a Subsidiary that is not a Loan Party to a Loan Party, (iii) resulting
from any loan or advance by any Subsidiary that is not a Loan Party to
any other Subsidiary that is not a Loan Party and (iv) resulting from
any loan, advance or Guarantee by any Loan Party to or in favor of any
Subsidiary that is not a Loan Party; provided that any such loan,
advance or Guarantee made pursuant to this clause (iv) is permitted by
Section 6.05(c) or 6.05(e);
(d) Indebtedness of the Parent, the Borrower or any Domestic
Subsidiary incurred to finance the acquisition, construction or
improvement of any fixed or capital assets, including Capital Lease
Obligations and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets
prior to the acquisition thereof, and extensions, renewals and
replacements of any such Indebtedness that do not increase the
outstanding principal amount thereof; provided that such Indebtedness
is incurred prior to or within 90 days after such acquisition or the
completion of such construction or improvement;
(e) Indebtedness and Attributable Debt of the Parent, the
Borrower or any Domestic Subsidiary which (i) is secured by mortgages
on real estate assets or (ii) results from a sale-leaseback transaction
permitted by Section 6.03 (and, in each case, extensions, renewals and
replacements of such Indebtedness or Attributable Debt), provided that
the aggregate amount of Indebtedness and Attributable Debt (including
any such extensions, renewals or replacements) permitted by this clause
(e) shall not exceed $100,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after
the Restatement Effective Date; provided that (i) such Indebtedness
exists at the time such Person becomes a Subsidiary and is not created
in contemplation of or in connection with such Person becoming a
Subsidiary and (ii) the aggregate principal amount of Indebtedness
permitted by this clause (f) shall not exceed $20,000,000 at any time
outstanding;
(g) other unsecured Indebtedness of the Parent, the Borrower and
the Domestic Subsidiaries in an aggregate amount not exceeding
49
$150,000,000 at any time outstanding; provided that such Indebtedness,
as permitted under this Section 6.01(g), may not be comprised of
obligations in respect of letters of credit; and
(h) Indebtedness of Foreign Subsidiaries in an aggregate amount
not exceeding $20,000,000 at any time outstanding.
SECTION 6.02. Liens. The Parent and the Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any Lien on
any property or asset now owned or hereafter acquired by it, or assign or sell
any income or revenues (including accounts receivable) or rights in respect of
any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Parent, the Borrower
or any Subsidiary existing on the Restatement Effective Date and (in
the case of any Lien securing obligations in an aggregate amount in
excess of $1,000,000) set forth in Schedule 6.02; provided that (i)
such Lien shall not apply to any other property or asset of the Parent,
Borrower or any Subsidiary and (ii) such Lien shall secure only those
obligations which it secures on the Restatement Effective Date and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Parent, the Borrower or any Subsidiary or
existing on any property or asset of any Person that becomes a
Subsidiary after the Restatement Effective Date prior to the time such
Person becomes a Subsidiary; provided that (i) such Lien is not created
in contemplation of or in connection with such acquisition or such
Person becoming a Subsidiary, (ii) such Lien shall not apply to any
other property or assets of the Parent, the Borrower or any Subsidiary
and (iii) such Lien shall secure only those obligations which it
secures on the date of such acquisition or the date such Person becomes
a Subsidiary and extensions, renewals and replacements thereof that do
not increase the outstanding principal amount thereof;
(d) Liens on fixed or capital assets other than real estate
acquired, constructed or improved by the Parent, the Borrower or any
Subsidiary; provided that (i) such security interests secure
Indebtedness permitted by clause (d) of Section 6.01, (ii) such
security interests and the Indebtedness secured thereby are incurred
prior to or within 90 days after such acquisition or the completion of
such construction or improvement, (iii) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or
improving such fixed or capital assets and (iv) such security interests
shall not apply to any other property or assets of the Parent, the
Borrower or any Subsidiary;
50
(e) Liens on real estate assets securing Indebtedness or
Attributable Debt permitted by Section 6.01(e);
(f) Liens of sellers of goods to the Borrower and its
Subsidiaries arising under Article 2 of the Uniform Commercial Code or
similar provisions of applicable law in the ordinary course of
business, covering only the goods sold and securing only the unpaid
purchase price for such goods and related expenses;
(g) Liens on raw materials and inventory acquired in the ordinary
course of business securing obligations in respect of Trade Letters of
Credit issued hereunder; and
(h) Liens on assets of Foreign Subsidiaries securing Indebtedness
permitted by Section 6.01(h).
SECTION 6.03. Sale-Leaseback Transactions. The Parent and the Borrower
will not, and will not permit any Subsidiary to, enter into any arrangement,
directly or indirectly, with any Person whereby they shall sell or transfer any
property, real or personal, used or useful in their business, whether now owned
or hereafter acquired, and thereafter rent or lease such property or other
property which they intend to use for substantially the same purpose or purposes
as the property being sold or transferred; provided that the Borrower, Parent or
any Subsidiary may enter into a sale-leaseback transactions with respect to real
estate assets, including improved real property in Franklin County, Ohio,
provided that the Indebtedness or Attributable Debt with respect thereto is
permitted by Section 6.01(e).
SECTION 6.04. Fundamental Changes. (a) The Parent and the Borrower will
not, and will not permit any Subsidiary to, merge into or consolidate with any
other Person, or permit any other Person to merge into or consolidate with it,
or sell, transfer, lease or otherwise dispose of (in one transaction or in a
series of transactions) all or any substantial part of its assets, or all or
substantially all of the stock of any Subsidiary (in each case, whether now
owned or hereafter acquired), or liquidate or dissolve, except that, if at the
time thereof and immediately after giving effect thereto no Default shall have
occurred and be continuing (i) any Person may merge into the Parent or the
Borrower in a transaction in which the Parent or the Borrower, as the case may
be, is the surviving corporation, (ii) any Person may merge into any Subsidiary
in a transaction in which the surviving entity is a Subsidiary, (iii) any
Subsidiary may sell, transfer, lease or otherwise dispose of its assets to the
Parent, the Borrower or another Loan Party, (iv) any disposition of assets
constituting an investment permitted by Section 6.05(c) shall be permitted and
(v) any Subsidiary may liquidate or dissolve if the Borrower or the Parent (as
the case may be) determines in good faith that such liquidation or dissolution
is in the best interests of the Borrower or the Parent (as the case may be) and
is not materially disadvantageous to the Lenders; provided that any such merger
involving a Person that is not a wholly owned Subsidiary immediately prior to
such merger shall not be permitted unless also permitted by Section 6.05.
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(b) The Parent and the Borrower will not, and will not permit any
Subsidiary to, engage to any material extent in any business other than
businesses of the type conducted by the Parent, the Borrower and the
Subsidiaries on the date of execution of this Agreement and businesses
reasonably related or incidental thereto.
SECTION 6.05. Investments, Loans, Advances, Guarantees and
Acquisitions. The Parent and the Borrower will not, and will not permit any
Subsidiary to, purchase, hold or acquire (including pursuant to any merger with
any Person that was not a wholly owned Subsidiary prior to such merger) any
capital stock, evidences of indebtedness or other securities (including any
option, warrant or other right to acquire any of the foregoing) of, make or
permit to exist any loans or advances to, Guarantee any obligations of, or make
or permit to exist any investment or any other interest in, any other Person, or
purchase or otherwise acquire (in one transaction or a series of transactions)
any assets of any other Person constituting a business unit, except:
(a) Permitted Investments;
(b) investments by the Parent, the Borrower or any Subsidiary
that is a Guarantor in the Parent, the Borrower or any such Subsidiary;
(c) additional purchases of or investments by the Parent, the
Borrower or any Subsidiary in the capital stock of Subsidiaries,
including Foreign Subsidiaries, joint ventures or the capital stock,
assets, obligations or other securities of or interests in other
Persons, and loans and advances by the Parent, the Borrower or any
Domestic Subsidiary to or in favor of, Foreign Subsidiaries, in an
amount in the aggregate at any time outstanding which does not exceed
15% of consolidated shareholders' equity of the Parent;
(d) Indebtedness permitted by clause (c)(i), (ii), or (iii) of
Section 6.01;
(e) Guarantees of Indebtedness of any Loan Party permitted by
Section 6.01 and Guarantees of Indebtedness of Foreign Subsidiaries
permitted by Section 6.01(h);
(f) loans and advances to officers and directors of any Loan
Party (or employees thereof provided such loans and advances are
approved by an officer of a Loan Party) for travel, entertainment and
relocation expenses in the ordinary course of business in an aggregate
principal amount outstanding at any time that shall not exceed
$1,000,000; and
(g) investments of funds intended to fund deferred compensation
liabilities in an aggregate amount not to exceed $75,000,000 at any
time outstanding, provided that such investments are made pursuant to
policies approved from time to time by the Board of Directors of the
Parent and continue at all times to be assets of the Parent, the
Borrower or another Loan Party subject to the claims of its general
creditors.
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SECTION 6.06. Swap Agreements. The Borrower will not, and will not
permit any of its Subsidiaries to, enter into any Swap Agreement, except (a)
Swap Agreements entered into to hedge or mitigate risks to which the Borrower or
any Subsidiary has actual exposure (other than those in respect of Equity
Interests of the Borrower or any of its Subsidiaries), and (b) Swap Agreements
entered into in order to effectively cap, collar or exchange interest rates
(from fixed to floating rates, from one floating rate to another floating rate
or otherwise) with respect to any interest-bearing liability or investment of
the Borrower or any Subsidiary; provided that the Swap Agreements permitted by
this Section 6.06 may only be provided by (i) a domestic office of any
commercial bank organized under the laws of the United States of America or any
State thereof which has a combined capital and surplus and undivided profits of
not less than $100,000,000, (ii) any Lender or (iii) a foreign banking
institution or foreign branch of a domestic commercial bank the long-term debt
of which (or of its holding company in the case of a domestic bank) is rated at
least A- by S&P and A3 by Xxxxx'x; provided further that all Swap Agreements
permitted by this Section 6.06 must conform to the standards set forth in an
ISDA master agreement.
SECTION 6.07. Restricted Payments. The Parent and the Borrower will
not, and will not permit any Subsidiary to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except (a) the Parent and
the Borrower may declare and pay dividends with respect to its Equity Interests
payable solely in additional shares of its common stock; (b) if no Default has
occurred and is continuing, the Parent may declare and pay and, if declared when
no Default exists, the Borrower may pay, dividends in cash in a cumulative
aggregate amount for all such dividends declared after the Restatement Effective
Date not to exceed 40% of Consolidated Net Income for the period from February
1, 2004 through the end of the most recently ended fiscal quarter of the Parent
(considered as a single accounting period); (c) Subsidiaries may (i) declare and
pay dividends or make distributions ratably with respect to their Equity
Interests and (ii) may make Restricted Payments to the Parent, and other
Subsidiaries of the Parent, in amounts necessary to enable the Parent to pay the
dividends described in clause (b) above, along with standard costs associated
with such payment of dividends or distributions, and to pay taxes and operating
and professional expenses; (d) the Parent, the Borrower and the Subsidiaries may
make Restricted Payments pursuant to and in accordance with employment
contracts, stock option plans or other benefit plans or similar arrangements for
consultants, management (including directors and officers) or employees of the
Parent, the Borrower and the Subsidiaries; (e) so long as no Default or Event of
Default shall exist, the Parent and the Borrower may (i) repurchase fractional
shares of common stock of the Parent and (ii) repurchase shares of common stock
of the Parent for cash in any amount, so long as no Loans are outstanding at the
time of such repurchases or, if Loans are outstanding at the time of any
proposed repurchase during any fiscal year, repurchase additional shares of
common stock of the Parent during such fiscal year in an aggregate amount not in
excess of 40% of Consolidated Net Income for the immediately preceding fiscal
year less the aggregate amount of any repurchases previously made in such fiscal
year (it being understood that all purchases of shares of common stock on the
open market shall be subject to the limitations set out in this clause (e) and
are not separately permitted by clause (d) above); and (f) any declaration of a
dividend in connection with a stockholders' rights plan, or the issuance of
rights, stock or
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other property under any stockholders' rights plan, or the redemption or
repurchase of rights pursuant thereto.
SECTION 6.08. Transactions with Affiliates. The Parent and the Borrower
will not, and will not permit any Subsidiary to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Parent and the Borrower or
such Subsidiary than could be obtained on an arm's-length basis from unrelated
third parties, (b) transactions between or among the Parent, the Borrower and
their wholly owned Subsidiaries, not involving any other Affiliate and (c) any
Restricted Payment permitted by Section 6.07.
SECTION 6.09. Restrictive Agreements. The Parent and the Borrower will
not, and will not permit any Subsidiary to, directly or indirectly, enter into,
incur or permit to exist any agreement or other arrangement that prohibits,
restricts or imposes any condition upon (a) the ability of the Parent, the
Borrower or any Subsidiary to create, incur or permit to exist any Lien upon any
of its property or assets to secure the obligations under the Loan Documents, or
(b) the ability of any Subsidiary to pay dividends or other distributions with
respect to any shares of its capital stock or to make or repay loans or advances
to the Parent, the Borrower or any other Subsidiary or to Guarantee Indebtedness
of the Parent, the Borrower or any other Subsidiary; provided that (i) the
foregoing shall not apply to restrictions and conditions imposed by law or by
this Agreement, (ii) the foregoing shall not apply to restrictions and
conditions existing on the Restatement Effective Date identified on Schedule
6.09 (but shall apply to any amendment or modification expanding the scope of
any such restriction or condition), (iii) the foregoing shall not apply to
customary restrictions and conditions contained in agreements relating to the
sale of a Subsidiary pending such sale, provided such restrictions and
conditions apply only to the Subsidiary that is to be sold and such sale is
permitted hereunder, (iv) clause (a) of the foregoing shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted by this Agreement if such restrictions or conditions
apply only to the property or assets securing such Indebtedness and (v) clause
(a) of the foregoing shall not apply to customary provisions in leases and other
contracts restricting the assignment thereof.
SECTION 6.10. Leverage Ratio. The Parent and the Borrower will not
permit the Leverage Ratio at the end of any fiscal quarter to be greater than
3.25 to 1.00.
SECTION 6.11. Coverage Ratio. The Parent and the Borrower will not
permit the Coverage Ratio at the end of any fiscal quarter to be less 2.50 to
1.00.
SECTION 6.12. Accounting Changes. The Parent and the Borrower will not,
and will not permit any Subsidiary to, change its accounting policies or
practices from those utilized in the preparation of the financial statements
referred to in Section 3.04, except as permitted or required by GAAP
consistently applied.
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ARTICLE VII
Events of Default
If any of the following events ("Events of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment thereof or otherwise;
(b) the Borrower shall fail to pay any interest on any Loan or any fee
or any other amount (other than an amount referred to in clause (a) of this
Article) payable under this Agreement, when and as the same shall become due and
payable, and such failure shall continue unremedied for a period of three
Business Days;
(c) any representation or warranty made or deemed made by or on behalf
of the Parent, the Borrower or any Subsidiary in this Agreement or any amendment
or modification hereof or waiver hereunder, or in any report, certificate,
financial statement or other document furnished pursuant to this Agreement or
any amendment or modification hereof or waiver hereunder, shall prove to have
been incorrect in any material respect when made or deemed made;
(d) the Parent or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in Section 5.02(a), 5.03 (with
respect to the Borrower's existence) or 5.08 or in Article VI;
(e) the Parent or the Borrower shall fail to observe or perform any
covenant, condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the request
of any Lender);
(f) any Loan Party shall fail to make any payment (whether of principal
or interest and regardless of amount) in respect of any Material Indebtedness,
when and as the same shall become due and payable and after giving effect to up
to the first 30 days of any grace periods applicable thereto;
(g) any event or condition occurs that results in any Material
Indebtedness becoming due prior to its scheduled maturity or that enables or
permits the holder or holders of any Material Indebtedness or any trustee or
agent on its or their behalf to cause any Material Indebtedness to become due,
or to require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (g) shall not apply
to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other relief
in respect of the Parent, the Borrower or any Material Subsidiary or its debts,
or of a substantial part of
55
its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for the Parent, the Borrower or any Material Subsidiary or for a substantial
part of its assets, and, in any such case, such proceeding or petition shall
continue undismissed for 60 days or an order or decree approving or ordering any
of the foregoing shall be entered;
(i) the Parent, the Borrower or any Material Subsidiary shall (i)
voluntarily commence any proceeding or file any petition seeking liquidation,
reorganization or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii) consent
to the institution of any proceeding or petition described in clause (h) of this
Article, (iii) apply for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for the Parent, the
Borrower or any Material Subsidiary or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit
of creditors or (vi) take any corporate action for the purpose of effecting any
of the foregoing;
(j) the Parent, the Borrower or any Material Subsidiary shall become
unable, admit in writing or fail generally to pay its debts as they become due;
(k) one or more judgments for the payment of money in an aggregate
amount in excess of $10,000,000 (net of any insurance coverage available
therefor from a responsible insurance company that is not denying its liability
with respect thereto) shall be rendered against the Parent, the Borrower, any
Subsidiary or any combination thereof and the same shall remain undischarged for
a period of 30 consecutive days during which execution shall not be effectively
stayed, or any action shall be legally taken by a judgment creditor to attach or
levy upon any assets of the Parent, the Borrower or any Subsidiary to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse Effect;
(m) any Guarantee of any Guarantor under the Guarantee Agreement shall
cease to be (other than pursuant to the terms of the Guarantee Agreement), or
shall be asserted by any Loan Party not to be, a legal, valid and binding
obligation of such Guarantor, other than as a result of an event generally
described in any of clauses (h), (i) or (j) above with respect to a Subsidiary
that is not a Material Subsidiary; or
(n) a Change in Control shall occur;
then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable
56
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower described in
clause (h) or (i) of this Article, the Commitments shall automatically terminate
and the principal of the Loans then outstanding, together with accrued interest
thereon and all fees and other obligations of the Borrower accrued hereunder,
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
The Administrative Agent
Each of the Lenders and the Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Parent, the Borrower or any of the Subsidiaries that is communicated to or
obtained by the bank serving as Administrative Agent or any of its Affiliates in
any capacity. The Administrative Agent shall not be liable for any action taken
or not taken by it with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary under
the circumstances as provided in Section 9.02) or in the absence of its own
gross negligence or wilful misconduct. The Administrative Agent shall be deemed
not to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
57
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness or
genuineness of this Agreement or any other agreement, instrument or document, or
(v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all of its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all of its duties and exercise its rights and
powers through their respective Related Parties. The exculpatory provisions of
the preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders, the Issuing Bank and the Borrower. Upon any such
resignation, the Required Lenders shall have the right, in consultation with the
Borrower, to appoint a successor. If no successor shall have been so appointed
by the Required Lenders and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of its resignation, then
the retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same as
those payable to its predecessor unless otherwise agreed between the Borrower
and such successor. After the Administrative Agent's resignation hereunder, the
provisions of this Article and Section 9.03 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their
respective Related Parties in respect of any actions taken or omitted to be
taken by any of them while it was acting as Administrative Agent.
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Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon this Agreement,
any related agreement or any document furnished hereunder or thereunder.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
shall be in writing and shall be delivered by hand or overnight courier service,
mailed by certified or registered mail or sent by telecopy, as follows:
(i) if to the Borrower, to it at Abercrombie & Fitch Management
Co., 0000 Xxxxx Xxxx, Xxx Xxxxxx, Xxxx 00000, Attention of Xxxxx Xxxx,
Treasurer (Telecopy No. (000) 000-0000);
(ii) if to the Administrative Agent or the Swingline Lender, to
National City Bank, Agent Services Group, 000 Xxxxxx Xxxxxx, Xxxxxx
Xxxxx, Xxxxxxxxx, Xxxx 00000, Attention of Xxxxx X. Xxxxxxx, Senior
Vice President (Telecopy No. 216 222-0103), with a copy to National
City Bank, National Retailer Group, 000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxx 00000 (Telecopy No. 614 463-8572); and
(iii) if to an Issuing Bank or any other Lender, to it at its
address (or telecopy number) set forth in its Administrative
Questionnaire.
(b) Notices and other communications to the Lenders hereunder may be
delivered or furnished by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties
hereto. All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
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SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, the Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Bank and the Lenders
hereunder are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Except as expressly provided in paragraph (c) of this Section,
neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into
by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the scheduled date of payment of the principal amount of any Loan
or LC Disbursement, or any interest thereon, or any fees payable hereunder, or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date of expiration of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.17(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) release Parent or any Material Subsidiary
from its Guarantee under the Guarantee Agreement, without the written consent of
each Lender or (vi) change any of the provisions of this Section or the
definition of "Required Lenders" or any other provision hereof specifying the
number or percentage of Lenders required to waive, amend or modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender; provided further that no such agreement shall
amend, modify or otherwise affect the rights or duties of the Administrative
Agent, the Issuing Bank or the Swingline Lender hereunder without the prior
written consent of the Administrative Agent the Issuing Bank or the Swingline
Lender, as the case may be.
(c) Notwithstanding anything in paragraph (b) of this Section to the
contrary, this Agreement and the other Loan Documents may be amended at any time
prior to the Maturity Date to increase the aggregate Commitments pursuant to
Section 2.19 of this Agreement.
SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and
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disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation,
execution and delivery and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii)
reasonable all out-of-pocket expenses incurred by the Administrative Agent, the
Issuing Bank or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, the Issuing Bank or any Lender, in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout or restructuring, or
negotiations in respect thereof, of such Loans or Letters of Credit and
documentary taxes associated with this Agreement.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "Indemnitee") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of any actual or prospective
claim, litigation, investigation or proceedings relating to (i) the execution or
delivery of this Agreement or any agreement or instrument contemplated hereby,
the performance by the parties hereto of their respective obligations hereunder
or the consummation of the Transactions or any other transactions contemplated
hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by the Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, whether based on contract, tort or any other theory and regardless
of whether any Indemnitee is a party thereto; provided that such indemnity shall
not, as to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from the gross
negligence or wilful misconduct of such Indemnitee.
(c) To the extent that the Borrower fails to pay any amount required to
be paid by it to the Administrative Agent, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as
the case may be, such Lender's Applicable Percentage (determined as of the time
that the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability,
61
for special, indirect, consequential or punitive damages (as opposed to direct
or actual damages) arising out of, in connection with, or as a result of, this
Agreement or any agreement or instrument contemplated hereby, the Transactions,
any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of the Issuing Bank that issues any Letter of Credit), except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender may assign or otherwise transfer its rights or
obligations hereunder except in accordance with this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby (including any Affiliate of the Issuing Bank that issues any
Letter of Credit), Participants (to the extent provided in paragraph (c) of this
Section) and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent, the Issuing Bank and the Lenders) any legal
or equitable right, remedy or claim under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it), with the prior written
consent (such consent not to be unreasonably withheld) of:
(A) the Borrower, provided that no consent of the Borrower shall
be required for an assignment to a Lender or an Affiliate of a Lender,
or, if an Event of Default under clause (a), (b), (h) or (i) of Article
VII has occurred and is continuing, any other assignee; and
(B) the Administrative Agent (and, in the case of an assignment
of all or a portion of any Lender's obligations in respect of its LC
Exposure, the Issuing Bank), provided that no consent of the
Administrative Agent or Issuing Bank, as the case may be, shall be
required for an assignment to an assignee that is a Lender immediately
prior to giving effect to such assignment.
(ii) Assignments shall be subject to the following conditions:
(A) except in the case of an assignment to a Lender, an Affiliate
of a Lender or an Approved Fund or an assignment of the entire
remaining amount of the assigning Lender's Commitment, the amount of
the Commitment of the assigning Lender subject to each such assignment
62
(determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent) shall not
be less than $2,500,000 unless each of the Borrower and the
Administrative Agent otherwise consent, provided that no such consent
of the Borrower shall be required if an Event of Default under clause
(a), (b), (h) or (i) of Article VII has occurred and is continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement;
(C) the parties to each assignment shall execute and deliver to
the Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500; and
(D) the assignee, if it shall not be a Lender, shall deliver to
the Administrative Agent an Administrative Questionnaire
(iii) Subject to acceptance and recording thereof pursuant to paragraph
(b)(iv) of this Section, from and after the effective date specified in each
Assignment and Assumption the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.14, 2.15, 2.16 and 9.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this Section 9.04
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time, which register shall indicate that each lender is entitled to
interest paid with respect to such Loans and LC Disbursements (the "Register").
The entries in the Register shall, in the absence of manifest error, be
conclusive, and the Borrower, the Administrative Agent, the Issuing Bank and the
Lenders may treat each Person whose name is recorded in the Register pursuant to
the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower, the Issuing Bank and any Lender, at any reasonable
time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
63
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent, the Issuing Bank or the Swingline Lender, sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and obligations under this Agreement
(including all or a portion of its Commitment and the Loans owing to it);
provided that (A) such Lender's obligations under this Agreement shall remain
unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrower, the
Administrative Agent, the Issuing Bank and the other Lenders shall continue to
deal solely and directly with such Lender in connection with such Lender's
rights and obligations under this Agreement. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce this Agreement and to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such agreement or instrument may provide that such Lender will not, without
the consent of the Participant, agree to any amendment, modification or waiver
described in the first proviso to Section 9.02(b) that affects such Participant.
Subject to paragraph (c)(ii) of this Section, the Borrower agrees that each
Participant shall be entitled to the benefits of Sections 2.14, 2.15 and 2.16 to
the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section; provided that Section
2.18(b) shall apply to any Participant to such extent. To the extent permitted
by law, each Participant also shall be entitled to the benefits of Section 9.08
as though it were a Lender, provided such Participant agrees to be subject to
Section 2.17(c) as though it were a Lender.
(ii) A Participant shall not be entitled to receive any greater payment
under Section 2.14 or 2.16 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of Section 2.16 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with Section 2.16(e) as
though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
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SECTION 9.05. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, the Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.03 and Article
VIII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent or the Issuing Bank constitute the entire contract among the parties
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by the Administrative Agent and when
the Administrative Agent shall have received counterparts hereof which, when
taken together, bear the signatures of each of the other parties hereto, and
thereafter shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns. Delivery of an executed counterpart
of a signature page of this Agreement by telecopy shall be effective as delivery
of a manually executed counterpart of this Agreement.
SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 9.08. Right of Setoff. If (i) an Event of Default shall have
occurred and be continuing and (ii) the Required Lenders shall have requested
the Administrative Agent to declare the Loans to be immediately due and payable
pursuant to Article VII, or the Loans have become immediately due and payable
without notice as provided in Article VII, each Lender and each of its
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held and
other obligations at any time owing by such Lender or Affiliate to or for the
credit or
65
the account of the Borrower against any of and all the obligations of the
Borrower now or hereafter existing under this Agreement held by such Lender,
irrespective of whether or not such Lender shall have made any demand under this
Agreement and although such obligations may be unmatured. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 9.09. Governing Law; Submission to Jurisdiction; Venue; Consent
to Service of Process. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE
RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE
CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAW OF THE STATE OF OHIO, TO
THE FULLEST EXTENT PERMITTED BY LAW, THE BORROWER HEREBY UNCONDITIONALLY AND
IRREVOCABLY WAIVES ANY CLAIM TO ASSERT THAT THE LAW OF ANY JURISDICTION OTHER
THAN THE STATE OF OHIO GOVERNS THIS AGREEMENT OR ANY OF THE OTHER CREDIT
DOCUMENTS. Any legal action or proceeding with respect to this Agreement or any
other Loan Document may be brought in the Court of Common Pleas of Cuyahoga
County, Ohio, or of the United States for the Northern District of Ohio, and, by
execution and delivery of this Agreement, the Borrower hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The Borrower hereby
further irrevocably consents to the service of process out of any of the
aforementioned courts in any such action or proceeding by the mailing of copies
thereof by registered or certified mail, postage prepaid, to such Borrower at
its address for notices pursuant to section 9.01, such service to become
effective 30 days after such mailing or at such earlier time as may be provided
under applicable law. Nothing herein shall affect the right of the
Administrative Agent or any Lender to serve process in any other manner
permitted by law or to commence legal proceedings or otherwise proceed against
any Borrower in any other jurisdiction.
(b) The Borrower hereby irrevocably waives any objection which it may
now or hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement or any other
Loan Document brought in the courts referred to in paragraph (a) above and
hereby further irrevocably waives and agrees not to plead or claim in any such
court that any such action or proceeding brought in any such court has been
brought in an inconvenient forum. Each party to this Agreement irrevocably
consents to service of process in the manner provided for notices in Section
9.01. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR
66
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES
HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. Confidentiality. Each of the Administrative Agent, the
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all information
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent, the Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 9.13. Interest Rate Limitation. Notwithstanding anything herein
to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all Charges payable in respect thereof, shall be limited to the
Maximum Rate and, to the extent lawful, the interest and Charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and Charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not
67
above the Maximum Rate therefor) until such cumulated amount, together with
interest thereon at the Federal Funds Effective Rate to the date of repayment,
shall have been received by such Lender.
SECTION 9.14. USA Patriot Act. Each Lender hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub. L.
107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other information
that will allow such Lender to identify the Borrower in accordance with the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
ABERCROMBIE & FITCH MANAGEMENT CO.
by
/s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
and Chief Financial Officer
ABERCROMBIE & FITCH CO.,
by
/s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
and Chief Financial Officer
NATIONAL CITY BANK, individually and as
Administrative Agent,
by
/s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President
JPMORGAN CHASE BANK, N.A., individually
and as Syndication Agent,
by
/s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.,
by
/s/ Xxx Honey
--------------------------------
Name: Xxx Honey
Title: Vice President
00
XXX XXXX XX XXX XXXX,
by
/s/ Xxxxxxxx X. X. Xxxxxxx
--------------------------------
Name: Xxxxxxxx X. X. Xxxxxxx
Title: Vice President
FIFTH THIRD BANK (CENTRAL OHIO),
by
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
THE HUNTINGTON NATIONAL BANK,
by
/s/ Xxxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: Senior Vice President
LASALLE BANK NATIONAL ASSOCIATION,
by
/s/ Xxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION,
by
/s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
THE NORINCHUKIN BANK,
by
/s/ Toshifumi Tsukitani
--------------------------------
Name: Toshifumi Tsukitani
Title: General Manager
70
U.S. BANK NATIONAL ASSOCIATION,
by
/s/ Xxxxxxxx Xxxxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Assistant Vice President
