Exhibit 10.1
[GRAPHIC OMITTED]
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FIVE-YEAR CREDIT AGREEMENT
dated as of
October 13, 2004
among
LIZ CLAIBORNE, INC.
The Lenders Party Hereto
BANK OF AMERICA, N.A., CITIBANK, N.A.,
SUNTRUST BANK and WACHOVIA BANK, National Association
as Syndication Agents,
and
JPMORGAN CHASE BANK,
as Administrative Agent
$750,000,000 FIVE-YEAR REVOLVING CREDIT FACILITY
X.X. XXXXXX SECURITIES, INC.,
as Sole Advisor, Lead Arranger
and Sole Bookrunner
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Table of Contents
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ARTICLE I
Definitions
SECTION 1.01. Defined Terms........................................1
SECTION 1.02. Terms Generally......................................18
SECTION 1.03. Accounting Terms; GAAP...............................18
ARTICLE II
The Credits
SECTION 2.01. Commitments..........................................18
SECTION 2.02. Loans and Borrowings.................................19
SECTION 2.03. Requests for Borrowings..............................20
SECTION 2.04. Funding of Borrowings................................21
SECTION 2.05. Interest Elections...................................22
SECTION 2.06. Termination and Reduction of Commitments.............23
SECTION 2.07. Repayment of Loans; Evidence of Debt.................24
SECTION 2.08. Prepayment of Loans..................................24
SECTION 2.09. Fees25
SECTION 2.10. Interest.............................................26
SECTION 2.11. Alternate Rate of Interest...........................26
SECTION 2.12. Increased Costs......................................27
SECTION 2.13. Break Funding Payments...............................28
SECTION 2.14. Taxes................................................28
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs.............................................30
SECTION 2.16. Mitigation Obligations; Replacement of Lenders.......31
SECTION 2.17. Source of Funds......................................32
ARTICLE III
Letters of Credit
SECTION 3.01. L/C Commitment.......................................32
SECTION 3.02. Procedure for Issuance of Letter of Credit...........33
SECTION 3.03. Fees and Other Charges...............................33
SECTION 3.04. L/C Participations...................................33
SECTION 3.05. Reimbursement Obligation of the Borrower.............34
SECTION 3.06. Obligations Absolute.................................35
SECTION 3.07. Letter of Credit Payments............................35
SECTION 3.08. Applications.........................................35
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ARTICLE IV
Representations and Warranties
SECTION 4.01. Organization; Powers.................................36
SECTION 4.02. Authorization; Enforceability........................36
SECTION 4.03. Governmental Approvals; No Conflicts.................36
SECTION 4.04. Financial Condition; No Material Adverse Change......36
SECTION 4.05. Properties; Liens....................................37
SECTION 4.06. Litigation and Environmental Matters.................37
SECTION 4.07. Compliance with Laws and Agreements..................37
SECTION 4.08. No Default...........................................37
SECTION 4.09. Investment and Holding Company Status................38
SECTION 4.10. No Burdensome Restrictions...........................38
SECTION 4.11. Taxes................................................38
SECTION 4.12. Federal Regulations..................................38
SECTION 4.13. Subsidiaries.........................................38
SECTION 4.14. ERISA................................................38
SECTION 4.15. Disclosure...........................................38
ARTICLE V
Conditions
SECTION 5.01. Effective Date.......................................39
SECTION 5.02. Each Credit Event....................................40
ARTICLE VI
Affirmative Covenants
SECTION 6.01. Financial Statements.................................41
SECTION 6.02. Certificates; Other Information......................41
SECTION 6.03. Notices of Material Events...........................42
SECTION 6.04. Existence; Conduct of Business.......................42
SECTION 6.05. Payment of Obligations...............................42
SECTION 6.06. Maintenance of Properties and Trademarks; Insurance..43
SECTION 6.07. Books and Records; Inspection Rights.................43
SECTION 6.08. Environmental Laws...................................43
SECTION 6.09. Compliance...........................................43
SECTION 6.10. Additional Subsidiaries..............................43
SECTION 6.11. Use of Proceeds......................................44
ARTICLE VII
Negative Covenants
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SECTION 7.01. Financial Covenants..................................44
SECTION 7.02. Indebtedness.........................................44
SECTION 7.03. Liens................................................45
SECTION 7.04. Fundamental Changes..................................46
SECTION 7.05. Investments, Loans, Advances, Guarantees and
Acquisitions; Hedging Agreements.....................47
SECTION 7.06. Limitation on Sale of Assets.........................48
SECTION 7.07. Restricted Payments..................................48
SECTION 7.08. Transactions with Affiliates.........................49
SECTION 7.09. Changes in Fiscal Periods............................49
SECTION 7.10. Lines of Business....................................49
ARTICLE VIII
Events of Default
ARTICLE IX
The Administrative Agent
ARTICLE X
Miscellaneous
SECTION 10.01. Notices..............................................53
SECTION 10.02. Waivers; Amendments..................................55
SECTION 10.03. Expenses; Indemnity; Damage Waiver...................56
SECTION 10.04. Successors and Assigns...............................57
SECTION 10.05. Survival.............................................60
SECTION 10.06. Counterparts; Integration; Effectiveness.............60
SECTION 10.07. Severability.........................................61
SECTION 10.08. Right of Setoff......................................61
SECTION 10.09. Governing Law; Jurisdiction; Consent to Service of
Process..............................................61
SECTION 10.10. Judgment Currency....................................62
SECTION 10.11. WAIVER OF JURY TRIAL.................................62
SECTION 10.12. Headings.............................................62
SECTION 10.13. Confidentiality......................................62
SECTION 10.14. USA PATRIOT Act......................................63
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 4.06 -- Disclosed Matters
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Schedule 4.13 -- Subsidiaries
Schedule 7.02 -- Existing Indebtedness
Schedule 7.03 -- Existing Liens
Schedule 7.05(i) -- Existing Investments
Schedule 7.05(ii) -- Borrower's Investment Policy
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B-1 -- Form of Opinion of Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP
Exhibit B-2 -- Form of Opinion of Deputy General Counsel of the Borrower
Exhibit C -- Form of Subsidiary Guarantee
Exhibit D - Form of Commitment Increase Supplement
Exhibit E - Form of Augmenting Lender Supplement
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FIVE-YEAR CREDIT AGREEMENT dated as of October 13, 2004, among
LIZ CLAIBORNE, INC., the LENDERS party hereto, BANK OF AMERICA, N.A., CITIBANK,
N.A., SUNTRUST BANK and WACHOVIA BANK, National Association, as Syndication
Agents, and JPMORGAN CHASE BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the
following terms have the meanings specified below:
"364-Day Credit Agreement" means the 364-Day Credit Agreement
dated as of October 17, 2003, (as amended, supplemented or otherwise modified
from time to time in accordance with its terms) among the Borrower, the
financial institutions party thereto, Fleet National Bank and Citibank, N.A., as
syndication agents, Bank One, NA, as documentation agent and the Administrative
Agent, providing for a 364-day credit facility in an initial aggregate amount of
$375,000,000.
"ABR", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Administrative Agent" means JPMorgan Chase Bank, in its capacity
as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"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.
"Agreement" means this Five-Year Credit Agreement, as amended,
supplemented or otherwise modified from time to time in accordance with its
terms.
"Alternate Base Rate" means, for any day, a rate per annum equal
to the greatest of (a) the Prime Rate in effect on such day, (b) the Base CD
Rate in effect on such day plus 1% and (c) 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, the Base CD Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate, the Base CD Rate or the Federal Funds Effective Rate, as applicable.
"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.
"Applicable Rate" means, for any day, with respect to any
Eurocurrency Revolving Loan, Euro Reference Rate Revolving Loan, ABR Revolving
Loan or Letter of Credit as the case may be, or with respect to the facility
fees payable hereunder, the applicable rate per annum set forth below under the
caption "Eurocurrency Spread," "ABR/Euro Reference Rate Spread," or "Facility
Fee Rate" or "Letter of Credit Fee," based upon the ratings by Xxxxx'x and S&P,
respectively, applicable on such date to the Index Debt:
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Eurocurrency Facility Utilization Letter of
Level Index Debt Rating Spread ABR/Euro Fee Fee Rate Credit Fee
Reference Rate
Rate Spread
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I > A-/A3 0.300% 0.00% 0.100% 0.125% 0.10%
-
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II BBB+/Baa1 0.375% 0.00% 0.125% 0.125% 0.15%
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III BBB/Baa2 0.475% 0.00% 0.150% 0.125% 0.20%
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IV BBB-/Baa3 0.675% 0.00% 0.200% 0.125% 0.25%
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V < BB+/Ba1 0.875% 0.025% 0.250% 0.125% 0.30%
-
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For purposes of the foregoing, (i) if the ratings established or
deemed to have been established by Xxxxx'x and S&P for the Index Debt shall fall
within different Levels, the Applicable Rate shall be based on the higher of the
two ratings (i.e., the lower Level number) unless one of the two ratings is two
or more Levels lower than the other, in which case the Applicable Rate shall be
determined by reference to the Level next below that of the higher of the two
Levels; and (ii) if the ratings established or deemed to have been established
by Xxxxx'x and S&P for the Index Debt shall be changed (other than as a result
of a change in the rating system of Xxxxx'x or S&P), such change shall be
effective as of the date on which it is first announced by the applicable rating
agency. Each change in the Applicable Rate shall apply during the period
commencing on the effective date of such change and ending on the date
immediately preceding the effective date of the next such change. If the rating
system of Xxxxx'x or S&P shall change, or if either such rating agency shall
cease to be in the business of rating corporate debt obligations, the Borrower
and the Lenders shall negotiate in good faith to amend this definition to
reflect such changed rating system or the unavailability of ratings from such
rating agency and, pending the effectiveness of any such amendment, the
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation. If, on any date, the Dollar Equivalent
of the outstanding principal amount of the Loans and L/C Obligations exceed 50%
of the aggregate amount of the Commitments (or, during the period after the
Commitments have terminated, 50% of the aggregate amount of the Commitments
immediately prior to such termination), the Eurocurrency Spread, ABR/Euro
Reference Rate Spread or Letter of Credit Fee, as the case may be, for such date
shall increase by the amount set forth in the above grid under the caption
"Utilization Fee Rate," based upon the ratings by Xxxxx'x and S&P, respectively,
applicable on such date to the Index Debt.
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"Application" means an application, in such form as the Issuing
Lender may specify from time to time, requesting the Issuing Lender to open a
Letter of Credit.
"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) an
entity or an Affiliate of an entity that administers or manages a Lender.
"Assessment Rate" means, for any day, the annual assessment rate
in effect on such day that is payable by a member of the Bank Insurance Fund
classified as "well-capitalized" and within supervisory subgroup "B" (or a
comparable successor risk classification) within the meaning of 12 C.F.R. Part
327 (or any successor provision) to the Federal Deposit Insurance Corporation
for insurance by such Corporation of time deposits made in dollars at the
offices of such member in the United States; provided that if, as a result of
any change in any law, rule or regulation, it is no longer possible to determine
the Assessment Rate as aforesaid, then the Assessment Rate shall be such annual
rate as shall be reasonably determined by the Administrative Agent to be
representative of the cost of such insurance to the Lenders.
"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 10.04), and accepted by the Administrative Agent,
in the form of Exhibit A or any other form approved by the Administrative Agent.
"Augmenting Lender" has the meaning set forth in Section 2.02(e).
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Base CD Rate" means the sum of (a) the Three-Month Secondary CD
Rate multiplied by the Statutory Reserve Rate plus (b) the Assessment Rate.
"Board" means the Board of Governors of the Federal Reserve
System of the United States of America.
"Borrower" means Liz Claiborne, Inc., a Delaware corporation.
"Borrowing" means either a Dollar Tranche Borrowing or a
Multi-Currency Tranche Borrowing.
"Borrowing Request" means a request by the Borrower for a
Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to remain closed; provided that, when used in connection with a
Eurocurrency Loan, the term "Business Day" shall
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also exclude any day on which banks are not open for dealings in dollar deposits
in the London interbank market.
"Canadian Dollars" and "C$" means dollars in the lawful currency
of Canada.
"Capital Lease Obligations" means the obligations of the Borrower
and its Subsidiaries 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 consolidated balance sheet of the Borrower
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 Section 13(d) of the Securities Exchange Act of 1934 and
the rules of the Securities and Exchange Commission thereunder as in effect on
the date hereof) of shares representing more than 33 1/3% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower; or (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower, or a committee thereof, nor
(ii) appointed by directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or
regulation after the date of this Agreement, (b) any change in any law, rule or
regulation or in the interpretation or application thereof by any Governmental
Authority after the date of this Agreement or (c) compliance by any Lender (or,
for purposes of Section 2.12(b), by any lending office of such Lender or by such
Lender'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 date of this Agreement.
"Closing Date" means the date on which the conditions precedent
set forth in Section 5.01 shall have been satisfied, which date is October 13,
2004.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Commitment" means as to any Lender, the sum of such Lender's
Dollar Tranche Commitment and Multi-Currency Tranche Commitment. The initial
amount of each Lender's Commitment is set forth on Schedule 2.01, or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Commitment, as applicable.
"Conduit Lender" means any special purpose corporation organized
and administered by any Lender for the purpose of making Loans hereunder
otherwise required to be made by such Lender and designated by such Lender in a
written instrument, subject to the consent of the Borrower (which, in each case,
shall not be unreasonably withheld or delayed); provided, that the designation
by any Lender of a Conduit Lender shall not relieve the designating Lender of
any of its obligations to fund a Loan under this Agreement if, for any reason,
its Conduit Lender fails to fund any such Loan, and the designating Lender (and
not the Conduit Lender) shall have the sole right and responsibility to deliver
all consents and waivers required or requested under this Agreement with respect
to its Conduit Lender; and provided
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further, that no Conduit Lender shall (a) be entitled to receive any greater
amount pursuant to Section 2.12, 2.13, 2.14 or 10.03 than the designating Lender
would have been entitled to receive in respect of the extensions of credit made
by such Conduit Lender or (b) be deemed to have any Commitment hereunder.
"Consolidated EBITDA" means, for any period, Consolidated Net
Income for such period plus, without duplication and to the extent reflected as
a charge in the statement of such Consolidated Net Income for such period, the
sum of (a) income or franchise tax expense, (b) interest expense, both expensed
and capitalized, amortization or writeoff of debt discount and debt issuance
costs and commissions, discounts and other fees and charges associated with
Indebtedness (including the Loans), (c) depreciation and amortization expense,
(d) amortization of intangibles (including, but not limited to, goodwill) and
organization costs, (e) any extraordinary, unusual or non-recurring non-cash
expenses or losses (including, whether or not otherwise includable as a separate
item in the statement of such Consolidated Net Income for such period, non-cash
losses on sales of assets outside of the ordinary course of business), and (f)
any other non-cash charges, and minus, to the extent included in the statement
of such Consolidated Net Income for such period, the sum of (a) interest income,
(b) any extraordinary, unusual or non-recurring income or gains (including,
whether or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside of
the ordinary course of business) and (c) any other non-cash income, all as
determined on a consolidated basis.
"Consolidated EBITDAR" means, with respect to any period,
Consolidated EBITDA for such period plus the Consolidated Rental Expense of the
Borrower for such period.
"Consolidated Interest Expense" means, for any period, (a) the
total amount of interest expense, both expensed and capitalized, of the Borrower
and its Subsidiaries determined on a consolidated basis, without duplication, in
accordance with GAAP for such period minus (b) the amount of interest income of
the Borrower and its Subsidiaries determined on a consolidated basis in
accordance with GAAP for such period
"Consolidated Net Income" means, for any period, the consolidated
net income (or loss) of a Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of such Borrower or is merged into or consolidated with
such Borrower or any of its Subsidiaries, (b) the income (or deficit) of any
Person (other than a Subsidiary of such Borrower) in which such Borrower or any
of its Subsidiaries has an ownership interest, except to the extent that any
such income is actually received by such Borrower or such Subsidiary in the form
of dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of such Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any Contractual Obligation (other than under the
Agreement) or Requirement of Law applicable to such Subsidiary.
"Consolidated Rental Expense" means, for any period, the
aggregate amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries for such period determined on a consolidated basis in accordance
with GAAP with respect to leases of real
5
property minus the aggregate amount of rental income (including licensee related
income from licensees operating on the store premises of the Borrower and its
Subsidiaries) payable to the Borrower and its Subsidiaries for such period in
accordance with GAAP with respect to leases of real and personal property.
"Consolidated Total Debt" means, at any date, the aggregate
principal amount of the Indebtedness of the Borrower and its Subsidiaries at
such date set forth on the Borrower's consolidated balance sheet opposite the
captions "Current Portion of Long Term Borrowings," "Long Term Borrowings" and
"Short Term Borrowings," determined on a consolidated basis in accordance with
GAAP.
"Contractual Obligation" means, as to any Person, any provision
of any security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"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.
"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.
"Disclosed Matters" means the actions, suits and proceedings and
the environmental matters disclosed in Schedule 4.06.
"Dollar Equivalent" means on any date of determination, (a) with
respect to any amount expressed in Euros, the equivalent in dollars of such
amount, determined by the Administrative Agent using the Exchange Rate, (b) with
respect to any amount expressed in Canadian Dollars, the equivalent in dollars
of such amount, determined by the Administrative Agent using the Exchange Rate
or (c) with respect to any amount expressed in dollars, such amount.
"dollars" or "$" refers to lawful money of the United States of
America unless otherwise specified.
"Dollar Tranche Borrowing" means Dollar Tranche Revolving Loans
of the same Type, made, converted or continued on the same date and, in the case
of Eurocurrency Loans, as to which a single Interest Period is in effect.
"Dollar Tranche Commitment" means, with respect to each Dollar
Tranche Lender, the commitment of such Lender to make Dollar Tranche Revolving
Loans and participate in Letters of Credit, expressed as an amount representing
the maximum aggregate amount of such Lender's Dollar Tranche Revolving Credit
Exposure hereunder, as such commitment may be (a) reduced from time to time
pursuant to Section 2.06 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to Section 10.04. The initial
amount of each Dollar Tranche Lender's Commitment is set forth on Schedule
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2.01, or in the Assignment and Assumption pursuant to which such Lender shall
have assumed its Commitment, as applicable. The aggregate amount of the Dollar
Tranche Commitments on the Closing Date is $600,000,000.
"Dollar Tranche Lender" means any Lender with a Dollar Tranche
Commitment.
"Dollar Tranche Percentage" means, with respect to any Dollar
Tranche Lender, the percentage of the total Dollar Tranche Commitments
represented by such Lender's Dollar Tranche Commitment.
"Dollar Tranche Revolving Credit Exposure" means, with respect to
any Dollar Tranche Lender at any time, the sum of (i) the outstanding principal
amount of such Lender's Dollar Tranche Revolving Loans at such time and (ii)
such Lender's Dollar Tranche Percentage of the L/C Obligations then outstanding.
"Dollar Tranche Revolving Loan" means a Loan made pursuant to
Section 2.01(a).
"Effective Date" means the date on which the conditions specified
in Section 5.01 are satisfied (or waived in accordance with Section 10.02).
"EMU Legislation" means the legislative measures of the European
Union for the introduction of, changeover to or operation of the Euro in one or
more member states.
"Environmental Laws" means all applicable laws, rules,
regulations, codes, ordinances, orders, decrees, judgments, injunctions, notices
or binding agreements issued, promulgated or entered into by any Governmental
Authority, which relate in any way to the environment, preservation or
reclamation of natural resources, the management, release or threatened release
of any Hazardous Material or to human health and safety matters.
"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 or agreement pursuant to
which liability is incurred by the Borrower or any Subsidiary with respect to
any of the foregoing.
"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.
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"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.
"Euro" or "(euro)" means the lawful currency of the European
Union as constituted by the treaty establishing the European Community, being
the Treaty of Rome, as amended from time to time, as referred to in the EMU
Legislation.
"Eurocurrency", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBO Rate.
"Euro Reference Rate" means a fluctuating rate quoted by JPMorgan
Chase Bank for overnight deposits in Euros plus 300 basis points and, when used
in reference to any Loan or Borrowing, refers to whether such Loan, or the Loans
comprising such Borrowing, are bearing interest at a rate determined by
reference to the Euro Reference Rate.
"Event of Default" has the meaning assigned to such term in
Article VIII.
"Exchange Rate" means JPMorgan Chase Bank's spot rate of exchange
in the interbank market where its foreign currency exchange operations for
Euros, or Canadian Dollars, are then being conducted, at or about 12:00 noon,
local time, at such date for the purchase of dollars with Euros, or Canadian
Dollars, as the case may be, for delivery two banking days later.
"Excluded Taxes" means, with respect to the Administrative Agent,
any Lender 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 2.16(b)), any United States withholding tax that is imposed on amounts
payable to such Foreign Lender at the time such Foreign Lender becomes a party
to this
8
Agreement or at the time such Lender changes its applicable lending office or is
attributable to such Foreign Lender's failure or inability to comply with
Section 2.14(e), except to the extent that such Foreign Lender's assignor (if
any) or such Foreign Lender, in the case of a Lender that changes its applicable
lending office, was entitled, at the time of assignment or at the time of the
change in applicable lending office, to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.14(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 Senior Vice President - Chief
Financial Officer, chief financial officer, principal accounting officer,
treasurer or controller of the Borrower.
"Fixed Charge Coverage Ratio" means, as at the last day of any
period, Consolidated EBITDAR divided by the sum of Consolidated Interest Expense
plus Consolidated Rental Expense.
"Foreign Lender" means any Lender 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.
"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
9
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.
"Hazardous Materials" means all radioactive substances or wastes
and all hazardous or toxic substances, wastes or other pollutants, including
petroleum, asbestos or asbestos containing materials, polychlorinated biphenyls,
radon gas, and all other substances or wastes regulated under any Environmental
Law.
"Hedging Agreement" means any interest rate protection agreement,
foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Increasing Lender" has the meaning set forth in Section 2.02(e).
"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 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, without duplication, 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.
"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Interest Election Request" means a request by the Borrower to
convert or continue a Borrowing in accordance with Section 2.05.
"Interest Payment Date" means (a) with respect to any ABR Loan or
Euro Reference Rate Loan, the last day of each March, June, September and
December, and (b) with respect to any Eurocurrency Loan, the last day of the
Interest Period applicable to the Borrowing of which such Loan is a part and, in
the case of a Eurocurrency Borrowing with an Interest
10
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.
"Interest Period" means with respect to any Eurocurrency Loan,
the period commencing on the date of such Loan and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
(or to the extent available to all Lenders, nine or twelve months) thereafter,
as the 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 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
Eurocurrency Loan 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 or if
initially an ABR Loan or Euro Reference Rate Loan, on the date initially
converted and, in the case of a Eurocurrency Loan, thereafter shall be the
effective date of the most recent conversion or continuation of such Borrowing.
"Issuing Lender" means JPMorgan Chase Bank, Bank of America,
N.A., The Huntington National Bank or Wachovia Bank, National Association, or
any respective affiliate thereof, in its capacity as issuer of any Letter of
Credit.
"L/C Commitment" $250,000,000.
"L/C Obligations" means at any time, an amount equal to the sum
of (a) the aggregate then undrawn and unexpired amount of the then outstanding
Letters of Credit and (b) the aggregate amount of drawings under Letters of
Credit that have not then been reimbursed pursuant to Section 3.05.
"L/C Participants" means the collective reference to all the
Lenders other than the relevant Issuing Lender.
"Lender Affiliate" means, (a) with respect to any Lender, (i) an
Affiliate of such Lender or (ii) an Approved Fund.
"Lenders" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Assumption.
"Letters of Credit" means as defined in Section 3.01(a).
"Leverage Ratio" means, as at the last day of any period, the
ratio of (a) Consolidated Total Debt on such day to (b) Consolidated EBITDA for
such period.
"LIBO Rate" means, with respect to any Eurocurrency Borrowing for
any Interest Period, the rate appearing on Page 3750 of the Telerate screen (or
on any successor or substitute page of such Page, or any successor to or
substitute for such Page, providing rate quotations
11
comparable to those currently provided on such page of such Page, as determined
by the Administrative Agent from time to time for purposes of providing
quotations of interest rates applicable to deposits in the relevant currency 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 Eurocurrency Borrowing for such Interest Period shall
be the rate at which deposits in the relevant currency of $5,000,000 and for a
maturity comparable to such Interest Period are offered to the principal London
office of the Administrative Agent in immediately available funds 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, the Subsidiary Guarantee
and any Notes.
"Loan Parties" means the Borrower and each Subsidiary that is a
party to a Loan Document.
"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, operations or condition, financial or otherwise, of the
Borrower and the Subsidiaries taken as a whole, (b) the ability of 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 and the Subsidiary
Guarantee.
"Material Indebtedness" means Indebtedness (other than the
Loans), or obligations in respect of one or more Hedging Agreements, of any one
or more of the Borrower and its Subsidiaries in an aggregate principal amount
exceeding $100,000,000. For purposes of determining Material Indebtedness, the
"principal amount" of the obligations of the Borrower or any Subsidiary in
respect of any Hedging Agreement at any time shall be the maximum aggregate
amount (giving effect to any netting agreements) that the Borrower or such
Subsidiary would be required to pay if such Hedging Agreement were terminated at
such time.
"Maturity Date" means October 13, 2009.
"Moody's" means Xxxxx'x Investors Service, Inc.
12
"Multi-Currency Tranche Borrowing" means Multi-Currency Tranche
Revolving Loans of the same Type and currency, made, converted or continued on
the same date and, in the case of Eurocurrency Loans, as to which a single
Interest Period is in Effect.
"Multi-Currency Tranche Commitment" means, with respect to each
Multi-Currency Tranche Lender, the commitment of such Lender to make
Multi-Currency Tranche Revolving Loans, expressed as an amount representing the
maximum aggregate amount of such Lender's Multi-Currency Tranche Revolving
Credit Exposure hereunder, as such commitment may be reduced or increased from
time to time pursuant to assignments by or to such Lender pursuant to Section
10.04. The initial amount of each Lender's Multi-Currency Tranche Commitment is
set forth on Schedule 2.01, or in the Assignment and Assumption pursuant to
which such Lender shall have assumed its Multi-Currency Tranche Commitment. The
aggregate amount of the Multi-Currency Tranche Commitments on the Closing Date
is $150,000,000.
"Multi-Currency Tranche Lender" means any Lender with a
Multi-Currency Tranche Commitment.
"Multi-Currency Tranche Percentage" means, with respect to any
Multi-Currency Tranche Lender, the percentage of the total Multi-Currency
Tranche Commitments represented by such Lender's Multi-Currency Tranche
Commitment.
"Multi-Currency Tranche Revolving Loan" means a Loan made
pursuant to Section 2.01(b).
"Multi-Currency Tranche Revolving Credit Exposure" means, with
respect to any Multi-Currency Tranche Lender, the sum of (i) the Dollar
Equivalents of the outstanding principal amount of such Lender's Multi-Currency
Tranche Revolving Loans at such time and (ii) such Lender's Multi-Currency
Tranche Percentage of the L/C Obligations then outstanding.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Note" has the meaning set forth in Section 2.07(e).
"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 payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to
and defined in ERISA and any successor entity performing similar functions.
"Permitted Acquisition" means any acquisition by the Borrower or
any Subsidiary of any of the assets of, or capital stock in, a Person or of a
division or line of business of a Person if, immediately after giving effect
thereto, (a) no Default has occurred and is continuing or would result
therefrom, (b) the principal business of any such acquired Person, division or
line of business shall be a Permitted Line of Business, (c) all actions required
to be taken under Section 6.10 with respect to any Subsidiary acquired or newly
formed in connection with such
13
acquisition have been taken, (d) the Borrower and its Subsidiaries are in
compliance, on a pro forma basis after giving effect to such acquisition, with
the covenants contained in Section 7.01 recomputed as at the last day of the
most recently ended fiscal quarter of the Borrower for which financial
statements are available, as if such acquisition had occurred on the first day
of each relevant period for testing such compliance and (e) the Borrower has
delivered to the Administrative Agent an officers' certificate to the effect set
forth in clauses (a), (b), (c) and (d) above, together with all relevant
financial information for the Person or assets to be acquired and reasonably
detailed calculations demonstrating satisfaction of the requirement set forth in
clause (d) above.
"Permitted Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being contested in compliance with Section 6.05;
(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 6.05;
(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) Liens granted and deposits made 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; and
(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;
provided that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Lines of Business" means (a) the business of the
Borrower as conducted on the Effective Date, (b) any wholesale, retail or other
distribution of products (including catalogue and internet) or services under
any Trademark or any derivative thereof, (c) any similar business and any
business which provides a service and/or supplies products in connection with
any business described in clause (a) or (b) above or (d) any reasonable
modification or extension thereof.
"Person" means any natural person, corporation, limited liability
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
14
"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.
"Prime Rate" means the rate of interest per annum publicly
announced from time to time by the Administrative Agent as its prime rate in
effect at its principal office in New York City; each change in the Prime Rate
shall be effective from and including the date such change is publicly announced
as being effective.
"Register" has the meaning set forth in Section 10.04(c).
"Regulation U" means Regulation U of the Board as in effect from
time to time.
"Reimbursement Obligation" means the obligation of the Borrower
to reimburse the Issuing Lender pursuant to Section 3.05 for amounts drawn under
Letters of Credit.
"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.
"Required Lenders" means, at any time, Lenders having Revolving
Credit Exposures and unused Commitments representing more than 50% of the sum of
the total Revolving Credit Exposures and unused Commitments at such time.
"Requirement of Law" means, as to any Person, the Certificate of
Incorporation and By-Laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
"Responsible Officer" means the chief executive officer,
president, any vice president or Financial Officer of the Borrower, but in any
event, with respect to financial matters, a Financial Officer of the Borrower.
"Restricted Payment" means any dividend or other distribution
(whether in cash, securities or other property) with respect to any shares of
any class of capital stock of the Borrower or any Subsidiary, or any payment
(whether in cash, securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption, retirement,
acquisition, cancellation or termination of any such shares of capital stock of
the Borrower or any option, warrant or other right to acquire any such shares of
capital stock of the Borrower.
"Revolving Credit Exposure" means, with respect to any Lender at
any time, the sum of such Lender's Dollar Tranche Revolving Credit Exposure and
Multi-Currency Tranche Revolving Credit Exposure.
15
"Revolving Loan" means either a Dollar Tranche Revolving Loan or
a Multi-Currency Tranche Revolving Loan.
"S&P" means Standard & Poor's Ratings Services, a division of the
McGraw Hill Companies, Inc.
"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 (a) with respect to the Base CD Rate, for new negotiable nonpersonal
time deposits in dollars of over $100,000 with maturities approximately equal to
three months and (b) with respect to the LIBO Rate, for eurocurrency funding
(currently referred to as "Eurocurrency Liabilities" in Regulation D of the
Board). The Statutory Reserve Rate shall be adjusted automatically on and as of
the effective date of any change in any reserve percentage.
"Subordinated Indebtedness" means any Indebtedness of the
Borrower, provided that with respect to any such Indebtedness (i) no part of the
principal of such Indebtedness is stated to be payable or is required to be paid
(whether by way of mandatory sinking fund, mandatory redemption, mandatory
prepayment or otherwise) prior to the Maturity Date and the payment of principal
of which and (subject to clause (ii) below) any other obligations of the
Borrower in respect thereof are subordinated to the prior payment in full of
principal of and interest (including post-petition interest) on the Loans and
all other obligations and liabilities of the Borrower to the Administrative
Agent and the Lenders hereunder on terms and conditions first approved in
writing by the Required Lenders, (ii) no part of the interest accruing on such
Indebtedness (other than interest payable solely in kind which shall be
similarly subordinated) is payable, without the prior written consent of the
Required Lenders, after a Default or Event of Default has occurred and is
continuing, and (iii) such Indebtedness otherwise contains terms, covenants and
conditions in form and substance reasonably satisfactory to the Required
Lenders, as evidenced by their prior written approval thereof.
"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 wholly-owned subsidiary of the Borrower
and any other subsidiary of the Borrower that the Borrower and the
Administrative Agent agree in writing to designate as a "Subsidiary", it being
understood that the Borrower and the Administrative Agent have agreed to
designate each of the entities set forth on Schedule 4.13 as a Subsidiary.
16
"Subsidiary Guarantee" means the Subsidiary Guarantee,
substantially in the form of Exhibit C, among the Subsidiary Guarantors
signatories thereto and the Administrative Agent, for the benefit of the
Lenders.
"Subsidiary Guarantor" means each Subsidiary indicated on
Schedule 4.13 as being a "Subsidiary Guarantor", together with each other
Subsidiary that becomes a party to the Subsidiary Guarantee in compliance with
Section 6.10.
"Tax" or "Taxes" means any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Three-Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported as being in effect
on such day (or, if such day is not a Business Day, the next preceding Business
Day) by the Board through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under the current practices of the
Board, be published in Federal Reserve Statistical Release H.15(519) during the
week following such day) or, if such rate is not so reported on such day or such
next preceding Business Day, the average of the secondary market quotations for
three-month certificates of deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on such day (or, if
such day is not a Business Day, on the next preceding Business Day) by the
Administrative Agent from three negotiable certificate of deposit dealers of
recognized standing selected by it.
"Three-Year Credit Agreement" means the Three-Year Credit
Agreement, dated as of October 21, 2002, (as amended, supplemented or otherwise
modified from time to time in accordance with its terms) among the Borrower, the
financial institutions party thereto, Fleet National Bank and Citibank, N.A., as
syndication agents, Bank One, NA, as documentation agent, and the Administrative
Agent, providing for a three-year credit facility in an initial aggregate amount
of $375,000,000.
"Trademarks" has the meaning set forth in Section 6.06.
"Transactions" means the execution, delivery and performance by
the Borrower of this Agreement and by the Subsidiary Guarantors of the
Subsidiary Guarantee, the borrowing of Loans, the issuance of Letters of Credit
and the use of the proceeds thereof.
"Type", when used in reference to any Loan or Borrowing
denominated in (i) dollars, 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, (ii) Euros, refers to whether the rate of
interest on such Loans, or on the Loans comprising such Borrowing, is determined
by reference to the Euro Reference Rate or the LIBO Rate and (iii) Canadian
Dollars, refers to the fact that the rate of interest on such Loan, or on the
Loans comprising such Borrowing, is determined by reference to the LIBO Rate.
"UCP 500" means the Uniform Customs and Practice for Documentary
Credits (1993 Revision), International Chamber of Commerce Publication No. 500,
as the same may be amended from time to time.
17
"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. 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 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 1.03. 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 date hereof 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 Dollar Tranche Lender agrees to make revolving
credit loans in dollars ("Dollar Tranche Revolving Loans") to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that will not result in (i) such Lender's Dollar Tranche Revolving Credit
Exposure exceeding such Lender's Dollar Tranche Commitment or (ii) the sum of
the Dollar Tranche Revolving Credit Exposures exceeding the total Dollar Tranche
Commitments. Within the foregoing limits and subject to the terms and conditions
set forth herein, the Borrower may borrow, prepay and reborrow Dollar Tranche
Revolving Loans.
18
(b) Subject to the terms and conditions set forth herein, each
Multi-Currency Tranche Lender agrees to make revolving credit loans in dollars,
Euros or Canadian Dollars ("Multi-Currency Tranche 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 Multi-Currency
Tranche Revolving Credit Exposure exceeding such Lender's Multi-Currency Tranche
Commitment, or (b) the sum of the Multi-Currency Tranche Revolving Credit
Exposures exceeding the total Multi-Currency Tranche Commitments. Within the
foregoing limits and subject to the terms and conditions set forth herein, the
Borrower may borrow, prepay and reborrow Multi-Currency Tranche Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Dollar Tranche
Revolving Loan shall be made as part of a Borrowing consisting of Dollar Tranche
Revolving Loans made by the Dollar Tranche Lenders ratably in accordance with
their respective Dollar Tranche Commitments. Each Multi-Currency Tranche
Revolving Loan shall be made as part of a Borrowing consisting of Multi-Currency
Tranche Revolving Loans made by the Multi-Currency Tranche Lenders ratably in
accordance with their respective Multi-Currency Tranche 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 2.11, (i) each Borrowing denominated in
dollars shall be comprised entirely of ABR Loans or Eurocurrency Loans as the
Borrower may request in accordance herewith, (ii) each Borrowing denominated in
Euros shall be comprised entirely of Euro Reference Rate Loans or Eurocurrency
Loans as the Borrower may request in accordance herewith and (iii) each
Borrowing denominated in Canadian Dollars shall be comprised entirely of
Eurocurrency Loans. Each Lender at its option may make any Eurocurrency Loan by
causing any domestic or foreign branch or Lender 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.
(c) Subject to the second sentence hereof, at the commencement of
each Interest Period for any Eurocurrency Borrowing denominated in dollars, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$1,000,000 and not less than $5,000,000. At the commencement of each Interest
Period for any Eurocurrency Borrowing denominated in Euros, such borrowing shall
be in an aggregate amount that is an integral multiple of (euro)1,000,000 and
not less than (euro)3,000,000. At the commencement of each Interest Period for
any Eurocurrency Borrowing denominated in Canadian Dollars, such borrowing shall
be in an aggregate amount that is an integral multiple of C$1,000,000 and not
less than C$5,000,000. At the time that each ABR Borrowing is made, such
Borrowing shall be in an aggregate amount that is an integral multiple of
$500,000 and not less than $1,000,000; provided that an ABR Borrowing may be in
an aggregate amount that is equal to the entire unused balance of the Dollar
Tranche Commitments or the Multi-Currency Tranche Commitments. At the time that
each Euro Reference Rate Borrowing is made, such Borrowing shall be in an
aggregate amount that is an integral multiple of (euro)500,000 and not less than
(euro)1,000,000; provided that a Euro Reference Rate Borrowing may be in an
aggregate amount that is equal to the entire unused balance of the
Multi-Currency Tranche Commitments. Borrowings of more than one Type may be
outstanding at the
19
same time; provided that there shall not at any time be more than a total of 20
Eurocurrency 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.
(e) The Borrower may from time to time elect to increase the
Commitments in a minimum amount of $10,000,000 so long as, after giving effect
thereto, the aggregate amount of the Commitments does not exceed $1,000,000,000.
The Borrower may arrange for any such increase to be provided by one or more
Lenders (each Lender so agreeing to an increase in its Commitment, an
"Increasing Lender"), or by one or more banks, financial institutions or other
entities (each such bank, financial institution or other entity, an "Augmenting
Lender"), to increase their existing Commitments, or extend Commitments, as the
case may be, provided that (i) each Augmenting Lender, shall be subject to the
approval of the Borrower and the reasonable approval Administrative Agent and
(ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing
Lender execute an agreement substantially in the form of Exhibit D hereto, and
(y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender
execute an agreement substantially in the form of Exhibit E hereto. Increases
and new Commitments created pursuant to this clause shall become effective on
the date agreed by the Borrower, the Administrative Agent and the relevant
Lenders and the Administrative Agent shall notify each affected Lender thereof.
Notwithstanding the foregoing, no increase in the Commitments (or in the
Commitment of any Lender), shall become effective under this paragraph unless,
on the proposed date of the effectiveness of such increase, the conditions set
forth in paragraphs (a) and (b) of Section 5.02 shall be satisfied or waived by
the Required Lenders and the Administrative Agent shall have received a
certificate to that effect dated such date and executed by a Financial Officer
of the Borrower. On the effective date of any increase in the Commitments, (i)
each relevant Increasing Lender and Augmenting Lender shall make available to
the Administrative Agent such amounts in immediately available funds as the
Administrative Agent shall determine, for the benefit of the other relevant
Lenders, as being required in order to cause, after giving effect to such
increase and the use of such amounts to make payments to such other relevant
Lenders, each Lender's portion of the outstanding Loans of all the Lenders to
equal its Applicable Percentage of such outstanding Loans, and (ii) the Borrower
shall be deemed to have repaid and reborrowed all outstanding Loans as of the
date of any increase in the Commitments (with such reborrowing to consist of the
Types of Loans, with related Interest Periods if applicable, specified in a
notice delivered by the Borrower in accordance with the requirements of Section
2.03). The deemed payments made pursuant to clause (ii) of the immediately
preceding sentence in respect of each Eurodollar Loan shall be subject to
indemnification by the Borrower pursuant to the provisions of Section 2.13 if
the deemed payment occurs other than on the last day of the related Interest
Periods.
SECTION 2.03. Requests for Borrowings. To request a Borrowing,
the Borrower shall notify the Administrative Agent of such request by telephone
(a) in the case of a Eurocurrency Borrowing in dollars, not later than 11:00
a.m., New York City time, three Business Days before the date of the proposed
Borrowing, (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, on the date of the proposed Borrowing, (c) in the case of a
Eurocurrency Borrowing in Euros or a Euro Reference Rate Borrowing, not later
than
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11:00 a.m. London time, three Business Days before the date of the proposed
Borrowing and (d) in the case of a Eurocurrency Borrowing in Canadian Dollars,
not later than 11:00 a.m. London time, three Business Days before 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 denominated in Euros, Canadian
Dollars or dollars
(iv) if such Borrowing is to be denominated in dollars, whether such
Borrowing is to be an ABR Borrowing or a Eurocurrency Borrowing and if such
Borrowing is to be denominated in Euros, whether such Borrowing is to be a
Eurocurrency Borrowing or a Euro Reference Rate Borrowing;
(v) if such Borrowing is to be denominated in dollars, whether such
Borrowing is to be a Dollar Tranche Borrowing or a Multi-Currency Tranche
Borrowing;
(vi) in the case of a Eurocurrency Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(vii) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.04.
If no election as to the Type of Borrowing is specified, then the requested
Borrowing shall be an ABR Borrowing, in the case of a Borrowing in dollars and a
Euro Reference Rate Borrowing, in the case of a Borrowing in Euros. If no
Interest Period is specified with respect to any requested Eurocurrency
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 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. 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, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. 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 the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing
Request.
(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
21
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,
without duplication, 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, if such Borrowing is denominated in dollars, the Federal
Funds Effective Rate, (ii) in the case of such Lender, if such Borrowing is
denominated in Euros, the rate quoted by JPMorgan Chase Bank for overnight
deposits in Euros, (iii) in the case of such Lender, if such Borrowing is
denominated in Canadian Dollars, the rate quoted by JPMorgan Chase Bank for
overnight deposits in Canadian Dollars or (iv) in the case of the Borrower, the
interest rate otherwise applicable to such Borrowing. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing.
SECTION 2.05. Interest Elections. (a) Each Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurocurrency 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 Eurocurrency 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.
(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 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);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
22
(iii) whether the resulting Borrowing is to be an ABR Borrowing,
a Eurocurrency Borrowing, or a Euro Reference Rate Borrowing; and
(iv) if the resulting Borrowing is a Eurocurrency 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 Eurocurrency 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 Eurocurrency 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 denominated
in dollars shall be converted to an ABR Borrowing and such Borrowing denominated
in Euros shall be converted to a Euro Reference Rate 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 Borrowing may be converted to or continued as a Eurocurrency
Borrowing and (ii) unless repaid, each Eurocurrency Borrowing denominated in
dollars shall be converted to an ABR Borrowing and each Eurocurrency Borrowing
denominated in Euros shall be converted to a Euro Reference Rate Borrowing at
the end of the Interest Period applicable thereto.
SECTION 2.06. Termination and Reduction of Commitments. Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(a) The Borrower may at any time terminate, or from time to time
reduce, the Commitments without penalty; 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 $10,000,000 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 2.08, (x) the sum of the Dollar Tranche
Revolving Credit Exposures would exceed the total Dollar Tranche Commitments or
(y) the sum of the Multi-Currency Tranche Revolving Credit Exposures would
exceed the total Multi-Currency Tranche Commitments.
(b) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (a) 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
23
other credit facilities, 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 Dollar Tranche
Commitments shall be made ratably among the Dollar Tranche Lenders in accordance
with their respective Dollar Tranche Commitments and each reduction of the
Multi-Currency Tranche Commitments shall be made ratably among the
Multi-Currency Tranche Lenders in accordance with their respective
Multi-Currency Tranche Commitments.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The
Borrower hereby unconditionally promises to pay to the Administrative Agent for
the account of each Dollar Tranche Lender the then unpaid principal amount of
each Dollar Tranche Revolving Loan on the Maturity Date and the Borrower hereby
unconditionally promises to pay to the Administrative Agent for the account of
each Multi-Currency Tranche Lender the then unpaid principal amount of each
Multi-Currency Tranche Revolving Loan on the Maturity Date.
(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 currency of such
Loan, the 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 (a "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 10.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.08. Prepayment of Loans. (a) Optional.
(i) The Borrower shall have the right at any time and from time
to time to prepay any Borrowing in whole or in part without penalty,
except as provided in Section 2.13, subject to prior notice in
accordance with paragraph (b) of this Section.
24
(ii) The Borrower shall notify the Administrative Agent by
telephone (confirmed by telecopy) of any prepayment hereunder (i) in the
case of prepayment of a Eurocurrency Borrowing in dollars, not later
than 11:00 a.m., New York City time, three Business Days before the date
of prepayment, (ii) in the case of prepayment of an ABR Borrowing not
later than 11:00 a.m., New York City time, on the date of prepayment,
(iii) in the case of prepayment of a Eurocurrency Borrowing in Euros or
a Euro Reference Rate Borrowing, not later than 11:00 a.m., London time,
three Business Days before the date of prepayment or (iv) in the case of
prepayment of a Eurocurrency Borrowing in Canadian Dollars, not later
than 11:00 a.m., London time, three Business Days before 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 2.06, then such notice of
prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.06. Promptly following receipt of any such
notice relating to a Borrowing, the Administrative Agent shall advise
the Lenders of the contents thereof. Each partial prepayment of any
Borrowing, and the remainder of such Borrowing after giving effect to
such prepayment, shall be in an amount that would be permitted in the
case of an advance of a Borrowing of the same Type as provided in
Section 2.02. Each prepayment of a Dollar Tranche Borrowing shall be
applied ratably to the Dollar Tranche Revolving Loans included in the
prepaid Dollar Tranche Borrowing. Each prepayment of a Multi-Currency
Tranche Borrowing shall be prepaid in the currency in which such
Borrowing was made and such prepayment shall be applied ratably to the
Multi-Currency Revolving Loans in such currency included in the prepaid
Multi-Currency Borrowing. Prepayments shall be accompanied by accrued
interest to the extent required by Section 2.10.
(b) Mandatory. If, at any time, the sum of the Multi-Currency
Tranche Revolving Credit Exposures exceeds the total Multi-Currency Tranche
Commitments by more than 10%, by virtue of a change in the Exchange Rate, the
Borrower shall, within five Business Days, prepay outstanding Multi-Currency
Tranche Revolving Loans denominated in Euros or Canadian Dollars or otherwise in
an amount sufficient to eliminate such excess.
SECTION 2.09. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the
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 in arrears on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate, commencing on the first such date to occur after the date hereof;
provided that any facility fees 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).
25
(b) 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.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution, in
the case of facility fees and utilization fees, to the Lenders. Fees paid shall
not be refundable under any circumstances.
SECTION 2.10. Interest. (a) The Loans comprising each ABR
Borrowing shall bear interest at a rate per annum equal to the Alternate Base
Rate plus the Applicable Rate.
(b) The Loans comprising each Eurocurrency Borrowing shall bear
interest at a rate per annum equal to the LIBO Rate for the Interest Period in
effect for such Borrowing plus the Applicable Rate.
(c) The Loans comprising each Euro Reference Rate Borrowing shall
bear interest at the rate per annum equal to the Euro Reference Rate plus the
Applicable Rate.
(d) Notwithstanding the foregoing, if any principal of or
interest on any Loan or Reimbursement Obligation 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 above or (ii) in the case of any other amount, 2% plus
the rate applicable to ABR Loans as provided above.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan; 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 or Euro Reference Rate 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, (iii) in the event
of any conversion of any Eurocurrency 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 and (iv) all accrued interest shall be
payable upon termination of the Commitments.
(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 actual number of days elapsed (including
the first day but excluding the last day). The applicable Alternate Base Rate,
Euro Reference Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.
SECTION 2.11. Alternate Rate of Interest. If prior to the
commencement of any Interest Period for a Eurocurrency Borrowing:
26
(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 Borrowing to, or
continuation of any Borrowing as, a Eurocurrency Borrowing shall be ineffective,
and (ii) if any Borrowing Request requests a Eurocurrency Borrowing, such
Borrowing denominated in dollars shall be made as an ABR Borrowing, such
Borrowing denominated in Euros shall be made as a Euro Reference Rate Borrowing
and such Borrowing denominated in Canadian Dollars shall be made as an ABR
Borrowing denominated in dollars; provided that if the circumstances giving rise
to such notice affect only one Type of Borrowing, then the other Types of
Borrowing shall be permitted.
SECTION 2.12. 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 (including the type
referred to in clause (b) of the definition of "Statutory Reserve Rate"
in Section 1.01); or
(ii) impose on any Lender or the London interbank market any
other condition affecting this Agreement or Eurocurrency Loans made by
such Lender therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to reduce the amount of any sum received or
receivable by such Lender hereunder (whether of principal, interest or
otherwise), then the Borrower will pay to such Lender such additional amount or
amounts as will compensate such Lender for such additional costs incurred or
reduction suffered.
(b) If any Lender 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 capital or on the capital of such Lender's holding company, if
any, as a consequence of this Agreement or the Loans made by such Lender to a
level below that which such Lender or such Lender's holding company could have
achieved but for such Change in Law (taking into consideration such Lender's
policies and the policies of such Lender's holding company with respect to
capital adequacy), then from time to time the Borrower will pay to such Lender
such additional amount or amounts as will compensate such Lender or such
Lender's holding company for any such reduction suffered.
27
(c) A certificate of a Lender setting forth the amount or amounts
necessary to compensate such Lender or its holding company, as the case may be,
as specified in paragraph (a) or (b) of 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.
(d) Failure or delay on the part of any Lender to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the Borrower shall not
be required to compensate a Lender pursuant to this Section for any increased
costs or reductions incurred more than three months prior to the date that such
Lender notifies the Borrower of the Change in Law giving rise to such increased
costs or reductions and of such Lender'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 three-month period
referred to above shall be extended to include the period of retroactive effect
thereof.
SECTION 2.13. Break Funding Payments. The Borrower agrees to
indemnify each Lender and to hold each Lender harmless from any loss or expense
that such Lender may sustain or incur as a consequence of (a) default by the
Borrower in making a borrowing of, conversion into or continuation of
Eurocurrency Loans after the Borrower has given a notice requesting the same in
accordance with the provisions of this Agreement, (b) default by the Borrower in
making any prepayment of or conversion from Eurocurrency Loans after the
Borrower has given a notice thereof in accordance with the provisions of this
Agreement, (c) the making of a prepayment of Eurocurrency Loans on a day that is
not the last day of an Interest Period with respect thereto, (d) the assignment
of any Eurocurrency 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
2.16. Such indemnification may include an amount equal to the excess, if any, of
(i) the amount of interest that would have accrued on the amount so prepaid, or
not so borrowed, converted or continued or assigned for the period from the date
of such prepayment or of such failure to borrow, convert or continue or assign
to the last day of such Interest Period (or, in the case of a failure to borrow,
convert or continue, or assign the Interest Period that would have commenced on
the date of such failure) in each case at the applicable rate of interest for
such Loans provided for herein (excluding, however, the Applicable Rate included
therein, if any) over (ii) the amount of interest (as reasonably determined by
such Lender) that would have accrued to such Lender on such amount by placing
such amount on deposit for a comparable period with leading banks in the
interbank eurocurrency market. A certificate as to any amounts payable pursuant
to this Section submitted to the Borrower by any Lender shall be conclusive in
the absence of manifest error. This covenant shall survive the termination of
this Agreement and the payment of the Loans and all other amounts payable
hereunder.
SECTION 2.14. Taxes. (a) Any and all payments by or an 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 or Lender
(as the case may be) receives an amount equal to the sum it would have received
had no such
28
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 and
each Lender within 30 days after written demand therefor, for the full amount of
any Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
paid by the Administrative Agent or such Lender, as the case may be, 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. A
certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or by the Administrative Agent on its own behalf or on
behalf of a Lender, shall be conclusive absent manifest error. Each of the
Administrative Agent and each Lender agrees that it will contest such
Indemnified Taxes or Other Taxes if (i) the Borrower furnishes to it an opinion
of reputable tax counsel reasonably acceptable to the Administrative Agent or
such Lender, as the case may be, to the effect that such Indemnified Taxes or
Other Taxes were wrongfully or illegally imposed and (ii) the Administrative
Agent or such Lender, as the case may be, determines, in its sole discretion,
that it would not be disadvantaged or prejudiced in any manner whatsoever as a
result of such contest.
(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 payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law or reasonably requested by the Borrower, such properly completed and
executed documentation, including IRS Forms W-8 BEN or W-8 ECI (or successor
forms), as applicable, prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate.
(f) If any Lender or the Administrative Agent receives a refund
attributable to any Indemnified Taxes or Other Taxes paid by the Borrower or for
which the Lender or the Administrative Agent has received payment from the
Borrower hereunder, such Lender or the Administrative Agent, within 30 days of
such receipt, shall deliver to the Borrower the amount of such refund (but only
to the extent of Indemnified Taxes or Other Taxes giving rise to such refund
paid by the Borrower or for which the Lender or the Administrative Agent has
received payment from the Borrower hereunder), 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
29
Governmental Authority with respect to such refund); provided however, that the
Borrower agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to such Lender or the Administrative Agent in the event that such
Lender or the Administrative Agent is required to repay such refund to such
Governmental Authority.
SECTION 2.15. Payments Generally; Pro Rata Treatment; Sharing of
Set-offs. (a) Except as otherwise expressly provided herein, the Borrower shall
make each payment required to be made by it hereunder (whether of principal,
interest or fees, or under Section 2.12, 2.13 or 2.14, or otherwise) prior to
3:00 p.m. New York City time, on the date when due in dollars, 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 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
except that payments pursuant to Sections 2.12, 2.13, 2.14 and 10.03 shall be
made directly to the Persons entitled thereto. Notwithstanding the foregoing,
the Borrower shall make each payment with respect to any Loan denominated in (i)
Euros (including principal of or interest on any such Loan or other amounts)
hereunder without set-off or counterclaim and shall make each such payment not
later than 3:00 p.m., London time, on the date when due in Euros to the
Administrative Agent at its offices at 000 Xxxxxx Xxxx, Xxxxxx, Xxxxxx Xxxxxxx
in immediately available funds and (ii) Canadian Dollars (including principal of
or interest on any such Loan or other amounts) hereunder without set-off or
counterclaim and shall make each such payment not later than 3:00 p.m., London
time, on the date when due in Canadian Dollars to the Administrative Agent at
its offices at 000 Xxxxxx Xxxx, Xxxxxx, Xxxxxx Xxxxxxx in immediately available
funds. 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.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
interest and fees then due hereunder, such funds shall be applied (i) first, to
pay 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, to pay principal then due hereunder, ratably among the
parties entitled thereto in accordance with the amounts of principal 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 resulting in such Lender receiving
payment of a greater proportion of the aggregate amount of its Revolving 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 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; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto
30
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 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 hereunder that the Borrower
will not make such payment, the Administrative Agent may assume that the
Borrower has made such payment on such date in accordance herewith and may, in
reliance upon such assumption, distribute to the Lenders the amount due. In such
event, if the Borrower has not in fact made such payment, then each of the
Lenders severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender 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 Federal Funds
Effective Rate (or, in the case of Multi-Currency Tranche Revolving Loans
denominated in Euros, at the rate quoted by JPMorgan Chase Bank for overnight
deposits in Euros, or, in the case of Multi-Currency Tranche Revolving Loans
denominated in Canadian Dollars, at the rate quoted by JPMorgan Chase Bank for
overnight deposits in Canadian Dollars).
(e) If any Lender shall fail to make any payment required to be
made by it pursuant to 2.04(b) or 2.15(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 2.16. Mitigation Obligations; Replacement of Lenders. (a)
If any Lender requests compensation under Section 2.12, 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 2.14, 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 2.12 or 2.14, 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 2.12, 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 2.14,
or if any Lender defaults in its obligation
31
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 10.04), 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) if such assignee is not a Lender, the Borrower
shall have received the prior written consent of the Administrative Agent which
consent shall not be unreasonably withheld or delayed, (ii) such Lender shall
have received payment of an amount equal to the outstanding principal of its
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 2.12 or payments required to be made pursuant to
Section 2.14, such assignment will result in a 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 2.17. Source of Funds. None of the funds to be lent
pursuant to this Agreement are assets of an employee benefit plan or constitute
"plan assets" within the meaning of Department of Labor Regulation Section
2510.3-101.
ARTICLE III
Letters of Credit
SECTION 3.01. L/C Commitment. (a) Subject to the terms and
conditions hereof, each Issuing Lender, in reliance on the agreements of the
other Lenders set forth in Section 3.04(a), agrees to issue letters of credit
("Letters of Credit") for the account of the Borrower on any Business Day during
the Availability Period in such form as may be approved from time to time by
such Issuing Lender; provided that no Issuing Lender shall have an obligation to
issue any Letter of Credit if, after giving effect to such issuance, (i) the L/C
Obligations would exceed the L/C Commitment or (ii) the sum of the Revolving
Credit Exposures would exceed the total Commitments. Each Letter of Credit shall
be issued under the Dollar Tranche Commitments or the Multi-Currency Commitments
or a combination thereof, as determined by the Borrower in its request for the
issuance of such Letter of Credit pursuant to Section 3.02; provided no Issuing
Lender shall have an obligation to issue any Letter of Credit if, after giving
effect to such issuance, (i) the sum of the Dollar Tranche Revolving Credit
Exposures would exceed the total Dollar Tranche Commitments or (ii) the sum of
the Multi-Currency Tranche Revolving Credit Exposures would exceed the total
Multi-Currency Tranche Commitments. Each Letter of Credit shall (i) be
denominated in dollars and (ii) expire no later than the earlier of (x) 365 days
after the date of issuance and (y) the date that is five Business Days prior to
the Maturity Date; provided that any Letter of Credit with a one-year tenor may
provide for the renewal thereof for additional one-year periods (which shall in
no event extend beyond the date referenced in clause (y) above).
32
(b) Each Letter of Credit shall be subject to the UCP 500 and, to
the extent not inconsistent therewith, the laws of the State of New York.
(c) No Issuing Lender shall at any time be obligated to issue any
Letter of Credit hereunder if such issuance would conflict with, or cause such
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
applicable Requirement of Law.
SECTION 3.02. Procedure for Issuance of Letter of Credit. The
Borrower may from time to time request that an Issuing Lender issue a Letter of
Credit by delivering to such Issuing Lender at its address for notices specified
herein an Application therefor, completed to the satisfaction of such Issuing
Lender, and such other certificates, documents and other papers and information
as such Issuing Lender may reasonably request. Upon receipt of any Application,
such Issuing Lender will process such Application and the certificates,
documents and other papers and information delivered to it in connection
therewith in accordance with its customary procedures and shall promptly issue
the Letter of Credit requested thereby (but in no event shall such Issuing
Lender be required to issue any Letter of Credit earlier than one Business Day
after its receipt of the Application therefor and all such other certificates,
documents and other papers and information relating thereto) by issuing the
original of such Letter of Credit to the beneficiary thereof or as otherwise may
be agreed to by such Issuing Lender and the Borrower. Within five (5) Business
Days after the end of each month, each Issuing Lender shall furnish to the
Administrative Agent the actual daily outstandings for each day in the previous
month for all Letters of Credit issued by such Issuing Lender. Within fifteen
(15) Business Days after the end of each month, the Administrative Agent shall
report to each Lender the average daily outstandings for each day in the
previous month for all Letters of Credit.
SECTION 3.03. Fees and Other Charges. (a) The Borrower will pay a
fee on all outstanding Letters of Credit at a per annum rate equal to the
Applicable Rate then in effect, shared ratably among the Lenders and payable
quarterly in arrears after the issuance date on the last day of March, June,
September and December of each year and on the date on which the Commitments
terminate.
(b) In addition to the foregoing fees, the Borrower shall pay or
reimburse the relevant Issuing Lender for such normal and customary costs and
expenses as are incurred or charged by such Issuing Lender in issuing,
negotiating, effecting payment under, amending or otherwise administering any
Letter of Credit unless the Borrower and such Issuing Lender mutually agree that
such costs and expenses shall be paid or reimbursed by a third party.
(c) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent for distribution to the
Lenders. Fees paid shall not be refundable under any circumstances.
SECTION 3.04. L/C Participations. (a) Each Issuing Lender
irrevocably agrees to grant and hereby grants to each L/C Participant, and, to
induce each Issuing Lender to issue Letters of Credit, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from
each Issuing Lender, on the terms and conditions set forth below, for such L/C
Participant's own account and risk an undivided interest equal to (i) in the
33
case of each Letter of Credit issued under the Dollar Tranche Commitments, such
L/C Participant's Dollar Tranche Percentage in each Issuing Lender's obligations
and rights under and in respect of each Letter of Credit under the Dollar
Tranche Commitments and the amount of each draft paid by such Issuing Lender
thereunder and (ii) in the case of each Letter of Credit issued under the
Multi-Currency Tranche Commitments, such L/C Participant's Multi-Currency
Tranche Percentage in each Issuing Lender's obligations and rights under and in
respect of each Letter of Credit under the Multi-Currency Tranche Commitments
and the amount of each draft paid by such Issuing Lender thereunder. Each L/C
Participant unconditionally and irrevocably agrees with each Issuing Lender
that, if a draft is paid under any Letter of Credit for which such Issuing
Lender is not reimbursed in full by the Borrower in accordance with the terms of
this Agreement, such L/C Participant shall pay to such Issuing Lender upon
demand at such Issuing Lender's address for notices specified herein an amount
equal to such L/C Participant's Dollar Tranche Percentage or Multi-Currency
Tranche Percentage, as the case may be, of the amount of such draft, or any part
thereof, that is not so reimbursed.
(b) If any amount required to be paid by any L/C Participant to
the relevant Issuing Lender pursuant to Section 3.04(a) in respect of any
unreimbursed portion of any payment made by such Issuing Lender under any Letter
of Credit is paid to such Issuing Lender within three Business Days after the
date such payment is due, such L/C Participant shall pay to such Issuing Lender
on demand an amount equal to the product of (i) such amount, times (ii) the
daily average Federal Funds Effective Rate during the period from and including
the date such payment is required to the date on which such payment is
immediately available to such Issuing Lender, times (iii) a fraction the
numerator of which is the number of days that elapse during such period and the
denominator of which is 360. If any such amount required to be paid by any L/C
Participant pursuant to Section 3.04(a) is not made available to such Issuing
Lender by such L/C Participant within three Business Days after the date such
payment is due, such Issuing Lender shall be entitled to recover from such L/C
Participant, on demand, such amount with interest thereon calculated from such
due date at the rate per annum applicable to ABR Loans. A certificate of the
relevant Issuing Lender submitted to any L/C Participant with respect to any
amounts owing under this Section shall be conclusive in the absence of manifest
error.
(c) Whenever, at any time after the relevant Issuing Lender has
made payment under any Letter of Credit and has received from any L/C
Participant its pro rata share of such payment in accordance with Section
3.04(a), such Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, including proceeds of
collateral applied thereto by such Issuing Lender), or any payment of interest
on account thereof, such Issuing Lender will distribute to such L/C Participant
its pro rata share thereof; provided, however, that in the event that any such
payment received by such Issuing Lender shall be required to be returned by such
Issuing Lender, such L/C Participant shall return to such Issuing Lender the
portion thereof previously distributed by such Issuing Lender to it.
SECTION 3.05. Reimbursement Obligation of the Borrower. If any
draft is paid under any Letter of Credit, the Borrower shall reimburse the
relevant Issuing Lender for the amount of (a) the draft so paid and (b) any
taxes, fees, charges or other costs or expenses incurred by such Issuing Lender
in connection with such payment, not later than 12:00 Noon, New York City time,
on (i) the next succeeding Business Day following the day that the Borrower
receives notice of such draft, if such notice is received on such day prior to
10:00
34
A.M., New York City time or (ii) if clause (i) above does not apply, on
the second succeeding Business Day following the Borrower's receipt of such
notice. Each such payment shall be made to such Issuing Lender at its address
for notices referred to herein in dollars and in immediately available funds.
Interest shall be payable on any amounts remaining unpaid by the Borrower under
this Section from the date on which the relevant draft is paid until payment in
full at the rate set forth in (x) until the Business Day next succeeding the
date of the relevant notice, Section 2.10(c) and (y) thereafter, Section
2.10(d).
SECTION 3.06. Obligations Absolute. The Borrower's obligations
under this Section 3 shall be absolute and unconditional under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
that the Borrower may have or have had against the relevant Issuing Lender, any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees
with each Issuing Lender that no Issuing Lender shall be responsible for, and
the Borrower's Reimbursement Obligations under Section 3.05 shall not be
affected by, among other things, any lack of validity or enforceability of any
Letter of Credit or any other agreement or instrument relating thereto, the
validity or genuineness of documents or of any endorsements thereon, even though
such documents shall in fact prove to be invalid, fraudulent or forged, or any
dispute between or among the Borrower and any beneficiary of any Letter of
Credit or any other party to which such Letter of Credit may be transferred or
any claims whatsoever of the Borrower against any beneficiary of such Letter of
Credit or any such transferee. No Issuing Lender shall be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any
message or advice, however transmitted, in connection with any Letter of Credit,
except for errors or omissions found by a final and nonappealable decision of a
court of competent jurisdiction to have resulted from the gross negligence or
willful misconduct of the Issuing Lender. The Borrower agrees that any action
taken or omitted by the relevant Issuing Lender under or in connection with any
Letter of Credit or the related drafts or documents, if done in the absence of
gross negligence or willful misconduct and in accordance with the standards of
care specified in the Uniform Commercial Code of the State of New York, shall be
binding on the Borrower and shall not result in any liability of such Issuing
Lender to the Borrower.
SECTION 3.07. Letter of Credit Payments. If any draft shall be
presented for payment under any Letter of Credit, the relevant Issuing Lender
shall promptly notify the Borrower of the date and amount thereof. The
responsibility of the relevant Issuing Lender to the Borrower in connection with
any draft presented for payment under any Letter of Credit shall, in addition to
any payment obligation expressly provided for in such Letter of Credit, be
limited to determining that the documents (including each draft) delivered under
such Letter of Credit in connection with such presentment are substantially in
conformity with such Letter of Credit.
SECTION 3.08. Applications. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent with the
provisions of this Section 3, the provisions of this Section 3 shall apply.
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ARTICLE IV
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 4.01. Organization; Powers. Each of the Borrower and its
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 4.02. Authorization; Enforceability. The Transactions are
within the Borrower'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 the Borrower and constitutes a legal, valid
and binding obligation of the Borrower, 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 4.03. 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 the Borrower or any of its Subsidiaries or any order
of any Governmental Authority, (c) will not violate or result in a default under
any indenture, agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries in a manner
which could reasonably be expected to have a Material Adverse Effect, and (d)
will not result in the creation or imposition of any material Lien on any asset
of the Borrower or any of its Subsidiaries.
SECTION 4.04. Financial Condition; No Material Adverse Change.
(a) The Borrower 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 January 3, 2004, reported on by Deloitte &
Touche LLP, independent public accountants, and (ii) as of and for the fiscal
quarter and the portion of the fiscal year ended July 3, 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 Borrower 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. The Borrower and its Subsidiaries do not have any material
Guarantees, contingent liabilities and liabilities for taxes, or any long-term
leases or unusual forward or long-term commitments, including any interest rate
or foreign currency swap or exchange transaction or other obligation in respect
of derivatives, that are not reflected in the financial statements referred to
in this paragraph or in the notes thereto (and, in the case of such lease or
commitment,
36
which is required in accordance with GAAP to be reflected in such
statements or notes) or which has not otherwise been disclosed to the Lenders in
writing.
(b) Since July 3, 2004, there has been no development, event or
circumstance that has had or could reasonably be expected to have a Material
Adverse Effect.
SECTION 4.05. Properties; Liens. (a) Each of the Borrower and its
Subsidiaries has good title to, or valid leasehold interests in, all its real
and personal property material to its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes,
and none of such property is subject to any Lien, except as permitted by Section
7.03.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed to use, all trademarks, tradenames, copyrights, patents and other
intellectual property material to its business, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.06. 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 the Borrower or any of its 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 involve this Agreement, any other Loan Document 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, neither the Borrower nor any
of its Subsidiaries (i) has failed to comply with any Environmental Law, (ii) is
subject to any Environmental Liability, (iii) has received any written notice of
any claim with respect to any Environmental Liability or (iv) has knowledge of
any reason to reasonably conclude that Environmental Liability will be incurred.
(c) Since the date of this Agreement, 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 4.07. Compliance with Laws and Agreements. Each of the
Borrower and its 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.
SECTION 4.08. No Default. Neither the Borrower nor any of its
Subsidiaries is in default under or with respect to any Contractual Obligation
or any order, award or decree of any Governmental Authority or arbitrator
binding upon it or its properties in any respect which could reasonably be
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred and is continuing.
37
SECTION 4.09. Investment and Holding Company Status. Neither the
Borrower nor any of its Subsidiaries 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 4.10. No Burdensome Restrictions. Neither the Borrower
nor any Subsidiary is a party to any indenture, agreement, lease or other
instrument which is so unusual or burdensome such that it could be reasonably
expected to have a Material Adverse Effect.
SECTION 4.11. Taxes. Each of the Borrower and its Subsidiaries
has timely filed or caused to be filed all Tax returns and reports required to
have been filed and have 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 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 4.12. Federal Regulations. No part of the proceeds of any
Loans hereunder will be used, directly or indirectly, for "buying" or "carrying"
any "margin stock" within the respective meanings of each of the quoted terms
under Regulation U of the Board as now and from time to time hereafter in effect
or for any purpose which violates, or which would be inconsistent with, the
provisions of the Regulations of such Board. If requested by the Agent or any
Lender, the Borrower will furnish to the Agent and each Lender a statement to
the foregoing effect in conformity with the requirements of FR Form G-3 or FR
Form U-1, as applicable, referred to in said Regulation U.
SECTION 4.13. Subsidiaries. Schedule 4.13 sets forth as of the
date hereof the name, and, where applicable, the jurisdiction of organization,
number of authorized and issued shares and ownership of each Subsidiary of the
Borrower.
SECTION 4.14. 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. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan, except to the extent any such excess
(individually or in the aggregate) could not reasonably be expected to have a
Material Adverse Effect, and the present value of all accumulated benefit
obligations of all underfunded Plans (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Plans except to the extent
any such excess (individually or in the aggregate) could not reasonably be
expected to have a Material Adverse Effect.
SECTION 4.15. Disclosure. None of the reports, financial
statements, certificates or other information furnished by or on behalf of the
Borrower to the Administrative Agent or any Lender in connection with the
negotiation of this Agreement or delivered hereunder
38
(as modified or supplemented by other information so furnished) 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.
ARTICLE V
Conditions
----------
SECTION 5.01. Effective Date. The obligations of the Lenders to
make Loans and of the Issuing Lenders 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 10.02):
(a) The Administrative Agent (or its counsel) shall have received
(i) either (A) a counterpart of this Agreement, executed and delivered by a duly
authorized officer of the Borrower or (B) 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 and (ii) a counterpart of the Subsidiary Guarantee, executed and
delivered by a duly authorized officer of each Subsidiary Guarantor.
(b) The Administrative Agent shall have received favorable
written opinions (addressed to the Administrative Agent and the Lenders and
dated the Effective Date) of (i) Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP, counsel
for the Borrower, substantially in the form of Exhibit B-1, and (ii) Xxxxxxxx X.
Xxxxxx, Deputy General Counsel of the Borrower, substantially in the form of
Exhibit B-2, and each opinion 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 all government
approvals necessary or, in the discretion of the Administrative Agent, advisable
in connection with the financing contemplated hereby and the continuing
operations of the Borrower and its Subsidiaries, and such approvals shall be in
full force and effect.
(d) 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 the
Borrower and its Subsidiaries, the authorization of the Transactions and any
other legal matters relating to the Borrower, this Agreement or the
Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(e) The Administrative Agent shall have received (i) audited
consolidated financial statements of the Borrower for the two most recent fiscal
years ended prior to the Effective Date as to which such financial statements
are available and (ii) unaudited interim
39
consolidated financial statements of the Borrower for each quarterly period
ended subsequent to the date of the latest financial statements delivered
pursuant to clause (i) of this paragraph as to which such financial statements
are available.
(f) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the president, a vice president or a
Financial Officer of the Borrower, confirming compliance with the conditions set
forth in paragraphs (a) and (b) of Section 5.02 (with such paragraph (a) being
deemed for this purpose not to include the parenthetical clause included
therein).
(g) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
(h) The Administrative Agent shall have received satisfactory
evidence that the 364-Day Credit Agreement and the Three-Year Credit Agreement
shall have been terminated and all amounts thereunder shall have been paid in
full.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans hereunder shall not
become effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 10.02) at or prior to 3:00 p.m., New York City time, on
October 15, 2004 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).
SECTION 5.02. Each Credit Event. The obligation of each Lender to
make a Loan and of each Issuing Lender to issue a Letter of Credit on the
occasion of any Borrowing is subject to the satisfaction of the following
conditions:
(a) The representations and warranties of the Borrower set forth
in this Agreement (except the representations set forth in Section 4.04(b),
Section 4.06 and the first sentence of Section 4.08) shall be true and correct
in all material respects on and as of the date of such Borrowing, except for
representations and warranties which are made as of a specific date which shall
be true and correct as of such date.
(b) Immediately after giving effect to such Borrowing, no Default
shall have occurred and be continuing.
Each Borrowing shall be deemed to constitute a representation and warranty by
the Borrower on the date thereof as to the matters specified in paragraphs (a)
and (b) of this Section.
40
ARTICLE VI
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, the Borrower covenants and agrees with the Lenders that:
SECTION 6.01. Financial Statements. The Borrower will furnish to
the Administrative Agent and each Lender:
(a) as soon as available, but in any event within 2 Business Days
after the end of 90 days following the end of each fiscal year of the Borrower,
a copy of the audited consolidated balance sheet of the Borrower and its
consolidated subsidiaries as at the end of such year and the related audited
consolidated statements of income and of cash flows for such year, setting forth
in each case in comparative form the figures for the previous year, reported on
without a "going concern" or like qualification or exception, or qualification
arising out of the scope of the audit, by Deloitte & Touche LLP or other
independent certified public accountants of nationally recognized standing; and
(b) as soon as available, but in any event within 2 Business Days
after the end of 45 days following the end of each of the first three quarterly
periods of each fiscal year of the Borrower, the unaudited consolidated balance
sheet of the Borrower and its consolidated subsidiaries as at the end of such
quarter and the related unaudited consolidated statements of income and of cash
flows for such quarter and the portion of the fiscal year through the end of
such quarter, setting forth in each case in comparative form the figures for the
previous year, signed by a Responsible Officer (subject to normal year-end audit
adjustments).
All such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
SECTION 6.02. Certificates; Other Information. The Borrower will
furnish to the Administrative Agent and each Lender (or, in the case of clause
(d), to the relevant Lender):
(a) concurrently with the delivery of the financial statements
referred to in Section 6.01(a), a certificate of the independent certified
public accountants reporting on such financial statements stating that in making
the examination necessary therefor no knowledge was obtained that caused it to
believe that the Borrower failed to comply with the terms of Section 7.01(a) and
(b) and clauses (a) and (b) of Article VIII, except as specified in such
certificate;
(b) concurrently with the delivery of any financial statements
pursuant to Section 6.01, (i) a certificate of a Responsible Officer stating
that, to the best of each such Responsible Officer's knowledge, each Loan Party
during such period has observed or performed all of its covenants and other
agreements, and satisfied every condition, contained in this Agreement and the
other Loan Documents to which it is a party to be observed, performed or
satisfied by it, that such Responsible Officer has obtained no knowledge of any
Default or Event
41
of Default except as specified in such certificate and (ii) in the case of
quarterly or annual financial statements, a Certificate containing all
information and calculations necessary for determining compliance by the
Borrower and its Subsidiaries with the provisions of this Agreement referred to
therein as of the last day of the fiscal quarter or fiscal year of the Borrower,
as the case may be;
(c) within five days after the same are sent, copies of all
financial statements and reports that the Borrower sends to the holders of any
class of its debt securities or public equity securities and, within five days
after the same are filed, copies of all financial statements and reports that
the Borrower may make to, or file with, the Securities and Exchange Commission,
or any Governmental Authority; and
(d) promptly, such additional financial and other information as
any Lender may from time to time reasonably request.
SECTION 6.03. Notices of Material Events. The Borrower will
promptly (and in any event within five days after the Borrower knows of the
following events) furnish to the Administrative Agent and each Lender 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 as to which there is a reasonable possibility
of an adverse determination and that, if adversely determined, could reasonably
be expected to 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
have 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 Responsible Officer 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 6.04. Existence; Conduct of Business. The Borrower will,
and will cause each of its 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 Permitted Lines of Business; provided that the foregoing shall
not prohibit any merger, consolidation, liquidation or dissolution permitted
under Section 7.04.
SECTION 6.05. Payment of Obligations. The Borrower will, and will
cause each of its 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 and
42
(b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP.
SECTION 6.06. Maintenance of Properties and Trademarks;
Insurance. The Borrower will, and will cause each of its 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, provided that the
Borrower shall, in good faith, determine when to repair any property, (b) take
all action reasonably necessary or desirable in accordance with good business
practices to (i) maintain in full force and effect such domestic and foreign
patents, trademarks, service marks, trade names, copyrights and licenses and
such material rights with respect to the foregoing, now or hereafter acquired,
in each case necessary for the conduct of its business (collectively, the
"Trademarks") and (ii) protect all material domestic and foreign Trademarks
against infringement by third parties and (c) maintain, with financially sound
and reputable insurance companies, insurance in such amounts and against such
risks as a prudent Person engaged in the same or similar business of a similar
size and otherwise similarly situated would maintain.
SECTION 6.07. Books and Records; Inspection Rights. The Borrower
will, and will cause each of its Subsidiaries to, keep proper books of record
and account in which full, true and correct entries in conformity with GAAP are
made of all dealings and transactions in relation to its business and
activities. The Borrower will, and will cause each of its Subsidiaries to,
permit on an annual basis (or at any time and from time to time after the
occurrence and during the continuance of a Default or Event of Default) any
representatives designated by the Administrative Agent or any Lender, upon
reasonable prior notice, 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 independent accountants, all at such
reasonable times and as often as reasonably requested.
SECTION 6.08. Environmental Laws. The Borrower will, and will use
reasonable best efforts to cause each of its Subsidiaries to:
(a) Comply in all material respects with, and use reasonable best
efforts to ensure compliance in all material respects by their tenants and
subtenants, if any, with, all applicable Environmental Laws, except for such
matters of noncompliance which could not reasonably be expected, individually or
in the aggregate, to result in a Material Adverse Effect.
(b) Except to the extent being contested in good faith, conduct
and complete all investigations, studies, sampling and testing, and all
remedial, removal and other actions required under Environmental Laws or by
Governmental Authorities.
SECTION 6.09. Compliance. The Borrower will, and will cause each
of its Subsidiaries to, comply with all Contractual Obligations and Requirements
of Law except to the extent that failure to comply therewith could not, in the
aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 6.10. Additional Subsidiaries. The Borrower will, with
respect to any Person that, subsequent to the Effective Date, becomes a
Subsidiary organized in a jurisdiction
43
within the United States (other than Puerto Rico or any other U.S. possession)
which is not owned by a controlled foreign entity of the Borrower, promptly
cause such new Subsidiary to become a party to the Subsidiary Guarantee pursuant
to documentation which is in form and substance satisfactory to the
Administrative Agent; provided that the Administrative Agent and the Borrower
may agree in writing that any non-material or less than wholly-owned Subsidiary
need not become a Subsidiary Guarantor.
SECTION 6.11. Use of Proceeds. The proceeds of the Loans and the
Letters of Credit, will be used only to refinance existing debt, provide working
capital and for other general corporate purposes of the Borrower, including,
without limitation, capital expenditures, stock repurchases, Permitted
Acquisitions and support of its commercial paper facility. 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 U and X.
ARTICLE VII
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, the Borrower covenants and agrees with the Lenders that:
SECTION 7.01. Financial Covenants.
(a) Leverage Ratio. The Borrower will not permit the Leverage
Ratio as at the last day of any period of four consecutive fiscal quarters of
the Borrower to exceed 2.75 to 1.00.
(b) Fixed Charge Coverage Ratio. The Borrower will not permit the
Fixed Charge Coverage Ratio for any period of four consecutive fiscal quarters
of the Borrower to be less than 2.50 to 1.00.
SECTION 7.02. Indebtedness. The Borrower will not, and will not
permit any Subsidiary to, create, incur, assume or permit to exist any
Indebtedness, except:
(a) Indebtedness created hereunder or under the Subsidiary
Guarantees;
(b) Indebtedness existing on the date hereof and set forth in
Schedule 7.02;
(c) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary
and by any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
(e) Indebtedness of the Borrower or any 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
44
or secured by a Lien on any such assets prior to the acquisition thereof,
provided that (i) such Indebtedness is incurred prior to or within 90 days after
such acquisition or the completion of such construction or improvement and (ii)
the aggregate principal amount of Indebtedness permitted by this clause (e)
shall not exceed $250,000,000 at any time outstanding;
(f) Indebtedness of any Person that becomes a Subsidiary after
the date hereof; provided that (i) such Indebtedness exists or is committed 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 Borrower
and its Subsidiaries are in compliance, on a pro forma basis after giving effect
to such acquisition, with the covenants contained in Section 7.01 recomputed as
at the last day of the most recently ended fiscal quarter of the Borrower for
which financial statements are available, as if such acquisition had occurred on
the first day of each relevant period for testing such compliance;
(g) Indebtedness of the Borrower or any Subsidiary incurred (a)
as an account party in respect of trade letters of credit issued in the ordinary
course of business and (b) in connection with standby letters of credit in an
aggregate principal amount not exceeding $60,000,000 at any time outstanding;
(h) Indebtedness of the Borrower or any Subsidiary in respect of
commercial paper; provided that the aggregate amount of such Indebtedness, when
added to the aggregate amount of outstanding Loans and L/C Obligations, shall
not exceed the aggregate amount of the Commitments;
(i) Subordinated Indebtedness;
(j) any refinancings, refundings, renewals or extensions of
Indebtedness permitted hereunder that do not increase the outstanding principal
amount of such Indebtedness;
(k) additional Indebtedness not otherwise permitted hereunder
secured by Liens and not exceeding $150,000,000 in aggregate principal amount at
any time outstanding; and
(l) Indebtedness not otherwise permitted hereunder, not secured
by any Lien and incurred after the date hereof; provided that the Borrower and
its Subsidiaries are in compliance, on a pro forma basis after giving effect to
such Indebtedness, with the covenants contained in Section 7.01 recomputed as at
the last day of the most recently ended fiscal quarter of the Borrower for which
financial statements are available, as if such Indebtedness had been incurred on
the first day of each relevant period for testing such compliance.
SECTION 7.03. Liens. 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 Borrower or any
Subsidiary existing on the date hereof and set forth in Schedule 7.03; provided
that (i) such Lien shall not apply to
45
any other property or asset of the Borrower or any Subsidiary and (ii) such Lien
shall secure only those obligations which it secures on the date hereof and
extensions, renewals and replacements thereof that do not increase the
outstanding principal amount thereof;
(c) Liens arising by the terms of letters of credit entered into
in the ordinary course of business to secure reimbursement obligations and other
obligations in connection therewith;
(d) Liens solely constituting the right of any other Person to a
share of any licensing royalties (pursuant to a licensing agreement or other
related agreement entered into by the Borrower or any of its Subsidiaries with
such Person in the ordinary course of the Borrower's or such Subsidiary's
business) otherwise payable to the Borrower or any of its Subsidiaries, provided
that such right shall have been conveyed to such Person for consideration
received by the Borrower or such Subsidiary on an arm's-length basis;
(e) Liens arising by reason of any judgment, decree or order of
any court or other Governmental Authority for the payment of money in aggregate
amount not to exceed $35,000,000 in any fiscal year at any time outstanding;
(f) Liens arising in connection with factoring accounts
receivable related to any acquired Subsidiary; provided that such factoring
shall not continue for a period longer than one year from the date such
Subsidiary is acquired;
(g) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Subsidiary or existing on any
property or asset of any Person that becomes a Subsidiary after the date hereof
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, as the case may be, (ii) such Lien shall not
apply to any other property or assets of 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, as the case
may be and extensions, renewals and replacements thereof that do not increase
the outstanding principal amount thereof;
(h) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary; provided that (i) such security
interests secure Indebtedness permitted by clause (e) of Section 7.02, (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 100% of 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 Borrower or any Subsidiary; and
(i) Liens securing Indebtedness permitted under Sections 7.02(j)
and 7.02(k); provided that with respect to Indebtedness incurred pursuant to
Section 7.02(j) no such Lien is spread to cover additional property.
SECTION 7.04. Fundamental Changes. Except in connection with
transactions otherwise permitted pursuant to Section 7.05 or 7.06, 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
46
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 substantially all
of its assets, or all or substantially all of the stock of any of its
Subsidiaries (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 Borrower in a transaction in which the Borrower is the
surviving corporation, (ii) any Person may merge into any Subsidiary in a
transaction in which the surviving entity is a Subsidiary and, if required to be
so under Section 6.10, a Subsidiary Guarantor, (iii) any Subsidiary may sell,
transfer, lease or otherwise dispose of its assets to the Borrower or to another
Subsidiary which is a Subsidiary Guarantor and (iv) any Subsidiary may liquidate
or dissolve if the Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the Borrower 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 7.05.
SECTION 7.05. Investments, Loans, Advances, Guarantees and
Acquisitions; Hedging Agreements. (a) The Borrower will not, and will not permit
any of its Subsidiaries 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:
(i) existing investments not otherwise permitted under this
Agreement and described in Schedule 7.05(i) hereto;
(ii) investments made in accordance with the investment policy of
the Borrower as set forth on Schedule 7.05(ii) hereto; as provided that
any material amendment or other material modification to such policy is
subject to the approval of the Administrative Agent in its reasonable
discretion;
(iii) investments by the Borrower in the capital stock of its
Subsidiaries;
(iv) Permitted Acquisitions;
(v) investments received in connection with the bona fide
settlement of any defaulted Indebtedness or other liability owed to the
Borrower or any Subsidiary;
(vi) advances or loans made in the ordinary course of business to
employees of the Borrower or any of its Subsidiaries in an aggregate
amount not to exceed $10,000,000 at any time outstanding;
(vii) loans or advances to third party contractors, suppliers or
customers in the ordinary course of business and consistent with past
practice;
47
(viii) loans or advances made by the Borrower to any Subsidiary
and made by any Subsidiary to the Borrower or any other Subsidiary;
(ix) guarantees by the Borrower or any Subsidiary of obligations
of the Borrower or any other Subsidiary which do not constitute
Indebtedness;
(x) Guarantees constituting Indebtedness permitted by Section
7.02; and
(xi) any other investments in, advances or loans to or Guarantees
of, any Person in an aggregate amount not to exceed $300,000,000 at any
time outstanding;
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, enter into any Hedging Agreement, other than Hedging Agreements
entered into in the ordinary course of business (including, without limitation,
Hedging Agreements in connection with the Borrower's stock repurchase program)
to hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities.
SECTION 7.06. Limitation on Sale of Assets. Except in the
ordinary course of business, the Borrower will not, and will not permit any of
its Subsidiaries to, sell, convey, lease, transfer or otherwise dispose of
(other than as otherwise permitted by Section 7.04 or 7.05) all or any
substantial part of its assets; provided that the foregoing shall not prohibit
any such sale, conveyance, lease, transfer or disposition (i) which (x) is for a
price not materially less than the fair market value of such assets of the
Borrower or such Subsidiary, (y) would not materially impair the ability of the
Borrower to perform its obligations under this Agreement and (z) together with
all other such sales, conveyances, leases, transfers and dispositions, would
have no Material Adverse Effect, (ii) of assets that individually or in the
aggregate constitute less than 15% of the total assets of the Borrower and its
Subsidiaries taken as a whole or (iii) of assets in connection with factoring
arrangements with respect to any acquired Subsidiary, provided that such
factoring arrangements do not continue longer than a year after such Subsidiary
is acquired by the Borrower.
SECTION 7.07. Restricted Payments. The Borrower will not, and
will not permit any of its Subsidiaries to, declare or make, or agree to pay or
make, directly or indirectly, any Restricted Payment, except (a) the Borrower
may declare and pay dividends with respect to its capital stock payable solely
in additional shares of its common stock, (b) so long as no Default or Event of
Default has occurred and is continuing, the Borrower may declare and pay
dividends with respect to its capital stock, (c) any Subsidiary may declare and
pay dividends to the Borrower or, in the case of any Subsidiary that is wholly
owned by another Subsidiary, to such other Subsidiary, (d) the Borrower may make
Restricted Payments pursuant to and in accordance with stock option plans or
other benefit plans for management or employees of the Borrower and its
Subsidiaries, (e) so long as no Default or Event of Default has occurred and is
continuing, the Borrower may repurchase its capital stock pursuant to its stock
repurchase program and (f) so long as no Default or Event of Default has
occurred and is continuing, the Borrower may make Restricted Payments in
connection with the repurchase of the Capital Stock of Lucky Brands, Inc. and
Segrets, Inc.
48
SECTION 7.08. Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries 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 Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and its Subsidiaries not
involving any other Affiliate and (c) any Restricted Payment permitted by
Section 7.07.
SECTION 7.09. Changes in Fiscal Periods. The Borrower will not,
and will not permit any of its Subsidiaries to, permit the fiscal year of such
Borrower to end on a day other than the last Saturday closest to December 31 or
change such Borrower's method of determining fiscal quarters.
SECTION 7.10. Lines of Business. The Borrower will not, and will
not permit any of its Subsidiaries to, enter into any business, either directly
or through any Subsidiary, except for Permitted Lines of Business.
ARTICLE VIII
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
Reimbursement Obligation 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
Reimbursement Obligation 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 five days;
(c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this Agreement
or any amendment or modification hereof, or in any report, certificate,
financial statement or other document furnished pursuant to or in connection
with this Agreement or any amendment or modification hereof, shall prove to have
been materially incorrect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 6.04 (with respect to the Borrower's
existence) or 6.11 or in Article VII;
(e) 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
49
Article), and such failure shall continue unremedied for a period of 30 days
after notice thereof from the Administrative Agent (given at the request of any
Lender) to the Borrower;
(f) the Borrower or any Subsidiary 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 (after
giving effect to any applicable period of grace);
(g) any default or any event of default with respect to any
Material Indebtedness which results in such Material Indebtedness becoming due
prior to its scheduled maturity or that enables or permits (with or without the
giving of notice, the lapse of time or both) 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;
(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 Borrower or any Subsidiary or its debts, or of a
substantial part of 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 Borrower or any 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 Borrower or any 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,
or fail to contest in a timely and appropriate manner, 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 Borrower or any 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 action for the purpose of effecting any of
the foregoing;
(j) the Borrower or any 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 $35,000,000 in any fiscal year shall be rendered
against 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 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;
or
50
(m) 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 with the consent
of the Required Lenders 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 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 (including all amounts of L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of
Credit shall have presented the documents required thereunder), shall 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 (including all amounts of
L/C Obligations, whether or not the beneficiaries of the then outstanding
Letters of Credit shall have presented the documents required thereunder), shall
automatically become due and payable, without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower. With
respect to all Letters of Credit with respect to which presentment for honor
shall not have occurred at the time of an acceleration pursuant to this
paragraph, the Borrower shall at such time deposit in a cash collateral account
opened by the Administrative Agent an amount equal to the aggregate then undrawn
and unexpired amount of such Letters of Credit. Amounts held in such cash
collateral account shall be applied by the Administrative Agent to the payment
of drafts drawn under such Letters of Credit, and the unused portion thereof
after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay other obligations of the Borrower hereunder and
under the other Loan Documents. After all such Letters of Credit shall have
expired or been fully drawn upon, all Reimbursement Obligations shall have been
satisfied and all other obligations of the Borrower hereunder and under the
other Loan Documents shall have been paid in full, the balance, if any, in such
cash collateral account shall be returned to the Borrower (or such other Person
as may be lawfully entitled thereto). Except as expressly provided above in this
Section, presentment, demand, protest and all other notices of any kind are
hereby expressly waived by the Borrower.
ARTICLE IX
The Administrative Agent
------------------------
Each of the Lenders 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.
51
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 by the Required Lenders, 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 Borrower or any of its 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
in the absence of its own gross negligence or willful 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 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 V 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 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 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
52
activities in connection with the syndication of the credit facility 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 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, appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. 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 10.03 shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Administrative Agent.
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.
The Syndication Agents shall not have any duties or
responsibilities hereunder in their capacity as such.
ARTICLE X
Miscellaneous
-------------
SECTION 10.01. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, 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 facsimile, as follows:
(a) if to the Borrower, to it at:
Liz Claiborne, Inc.,
Xxx Xxxxxxxxx Xxxxxx,
00
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Attention of Xxxxxx Xxxx
(Facsimile No. (000) 000-0000)
With a copy to:
Liz Claiborne, Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
Attention of General Counsel
(Facsimile No. (000) 000-0000)
(b) if to the Administrative Agent with respect to Borrowings
and payments in dollars:
JPMorgan Chase Bank, Loan and Agency Services Group
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention of Xxxxxx Xxxxx
(Facsimile No. (000) 000-0000)
with a copy to:
JPMorgan Chase Bank
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000,
Attention of Liz Claiborne Relationship Manager
(Facsimile No. (000) 000-0000)
if to the Administrative Agent with respect to Borrowings
and payments in Euros:
JPMorgan Chase Bank
000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Attention of Xxxxx Xxxxxx
(Facsimile No. 00-00-000-0000)
54
if to the Administrative Agent with respect to Borrowings
and payments in Canadian Dollars:
JPMorgan Chase Bank
000 Xxxxxx Xxxx
Xxxxxx, Xxxxxxx XX0X 0XX
Attention of Xxxxx Xxxxxx
(Facsimile No. 00-00-000-0000)
(c) if to any other Lender or Issuing Lender, to it at its
address (or number) set forth in its Administrative Questionnaire.
Any party hereto may change its address or facsimile 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.
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 Section 2 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.
SECTION 10.02. Waivers; Amendments. (a) No failure or delay by
the Administrative Agent 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 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 shall not
be construed as a waiver of any Default, regardless of whether the
Administrative Agent or any Lender may have had notice or knowledge of such
Default at the time.
(b) 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 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 any interest
thereon, or any fees payable
55
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 2.15(b) or (c) in a
manner that would alter the pro rata sharing of payments required thereby,
without the written consent of each Lender adversely affected thereby, (v)
except in connection with transactions otherwise permitted pursuant to Section
7.04, 7.05 or 7.06, release all or substantially all of the Subsidiary
Guarantors from their obligations under the Subsidiary Guarantee, without the
written consent of each Lender, (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 or (vii) amend, modify or
waive any provision of Section 3 without the written consent of the Issuing
Lender; provided further that no such agreement shall amend, modify or otherwise
affect the rights or duties of the Administrative Agent hereunder without the
prior written consent of the Administrative Agent.
SECTION 10.03. Expenses; Indemnity; Damage Waiver. (a) The
Borrower shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and Chase Securities Inc., including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent, in connection
with the syndication of the credit facility provided for herein, the preparation
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) all out-of-pocket expenses incurred by
any Administrative Agent or any Lender, including the reasonable fees, charges
and disbursements of any counsel for the Administrative Agent 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 hereunder, including in connection with any workout,
restructuring or negotiations in respect thereof.
(b) The Borrower shall indemnify the Administrative Agent 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 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 (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 the
use of the proceeds therefrom, (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, or (iv) any actual
or prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, 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 willful misconduct of such Indemnitee.
56
(c) To the extent that the Borrower fails to pay any amount
required to be paid by it to the Administrative Agent under paragraph (a) or (b)
of this Section, each Lender severally agrees to pay to the Administrative Agent
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 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, 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 or any Loan or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly
no later than seven (7) days after written demand therefor.
SECTION 10.04. 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 Lender that issues any Letter of Credit), except that
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). 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 and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent 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
Commitments 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, an Affiliate of a Lender other
than a Conduit Lender, an Approved Fund or, if
an Event of Default under clause (a), (b), (h)
or (i) of Article VIII has occurred and is
continuing;
(B) the Administrative Agent; and
(C) the Issuing Lenders.
(ii) Assignments shall be subject to the following additional conditions:
(A) except in the case of an assignment to a
Lender, an Affiliate of a Lender or an
Approved Fund or an assignment of the
57
entire remaining amount of the assigning
Lender's Commitment or Loans, the amount of
the Commitments or Loans of the assigning
Lender subject to each such assignment
(determined as of the date the Assignment and
Assumption with respect to such assignment is
delivered to the Administrative Agent) shall
not be less than $10,000,000 unless each of
the Borrower and the Administrative Agent
otherwise consent, provided that (1) no such
consent of the Borrower shall be required if
an Event of Default under clause (a), (b), (h)
or (i) of Article VIII has occurred and is
continuing and (2) such amounts shall be
aggregated in respect of each Lender and its
affiliates or Approved Funds, if any;
(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) Upon acceptance and recording pursuant to paragraph (d) 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, (with respect to the
period prior to such assignment ) to the benefits of Sections 2.12,
2.13, 2.14 and 10.03). Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this
paragraph 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 (e) of this Section. Notwithstanding the
foregoing, any Conduit Lender may assign at any time to its designating
Lender hereunder with the consent of the Borrower, any or all Loans it
may have funded hereunder and pursuant to its designation agreement.
(iv) The Administrative Agent, acting for this purpose as an
agent of the Borrower, shall maintain at one of its offices in The City
of New York 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
58
Loans and L/C Obligations owing to each Lender pursuant to the terms hereof from
time to time (the "Register"). The entries in the Register shall be conclusive,
and the Borrower, the Administrative Agent, the Issuing Lender 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 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 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 or
the Administrative Agent, sell participations to one or more banks or other
entities (a "Participant") in all or a portion of such Lender's rights and/or
obligations under this Agreement (including all or a portion of its Commitment
and the Loans owing to it); provided that (i) such Lender's obligations under
this Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the Borrower, the Administrative Agent, the Issuing Lender 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 and
(iv) all Participants shall represent, for the benefit of Borrower, that none of
the participation interests are being acquired with assets of an employee
benefit plan or with assets that constitute "plan assets" under Department of
Labor Regulation Section 2510.3-101. 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 10.02(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 2.12, 2.13
and 2.14 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to paragraph (b) of this Section.
(ii) A Participant shall not be entitled to receive any greater
payment under Sections 2.12, 2.13 or 2.14 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 2.14 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 2.14(e) as though it were a Lender.
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(d) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including any such pledge or assignment 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 assignee for such Lender as a party hereto.
(e) Each of the Borrower, the Subsidiary Guarantors and each
Lender hereby confirms that it will not institute against a Conduit Lender or
join any other Person in instituting against a Conduit Lender any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding under any
state bankruptcy or similar law, for one year and one day after the payment in
full of the latest maturing commercial paper note issued by such Conduit Lender;
provided, however, that each Lender designating any Conduit Lender hereby agrees
to indemnify, save and hold harmless each other party hereto for any loss, cost,
damage or expense arising out of its inability to institute such a proceeding
against such Conduit Lender during such period of forbearance.
SECTION 10.05. 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, regardless of any investigation made by any such other
party or on its behalf and notwithstanding that the Administrative Agent 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 and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.12, 2.13, 2.14 and 10.03 and
Article IX 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 Commitments or the termination of
this Agreement or any provision hereof.
SECTION 10.06. 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 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 5.01, 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.
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SECTION 10.07. 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 10.08. Right of Setoff. If an Event of Default shall have
occurred and be continuing, each Lender is hereby authorized at any time and
from time to time, to the fullest extent permitted by law, to set off and apply
any and all deposits (general or special, time or demand, provisional or final)
at any time held and other indebtedness at any time owing by such Lender to or
for the credit or 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
provided that such Lender shall promptly notify the Borrower of such setoff. 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 10.09. Governing Law; Jurisdiction; Consent to Service of
Process.
(a) This Agreement shall be construed in accordance with and
governed by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme
Court of the State of New York sitting in New York County and of the United
States District Court of the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such New York State or, to the extent permitted by law, in such Federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that the Administrative Agent
or any Lender may otherwise have to bring any action or proceeding relating to
this Agreement against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives,
to the fullest extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service
of process in the manner provided for notices in Section 10.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
61
SECTION 10.10. Judgment Currency. If, for the purpose of
obtaining judgment in any court, it is necessary to convert a sum due from the
Borrower hereunder in the currency expressed to be payable herein (the
"specified currency") into another currency, the parties hereto agree, to the
fullest extent that they may effectively do so, that the rate of exchange used
shall be that at which in accordance with normal banking procedures the
Administrative Agent could purchase the specified currency with such other
currency on any Business Day preceding that on which the final judgment is
given. The obligations of the Borrower, as applicable, in respect of any sum due
to any Lender, or the Administrative Agent hereunder shall, notwithstanding any
judgment in a currency other than the specified currency, be discharged only to
the extent that on the Business Day, following receipt by such Lender or the
Administrative Agent, as the case may be, of any sum adjudged to be so due in
such other currency such Lender or the Administrative Agent, as the case may be,
may in accordance with normal banking procedures purchase the specified currency
with such other currency. If the amount of the specified currency so purchased
is less than the sum originally due to such Lender or the Administrative Agent,
as the case may be, in the specified currency, the Borrower, agrees, to the
fullest extent that it may effectively do so, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or the
Administrative Agent, as the case may be, against such loss, and if the amount
of the specified currency so purchased exceeds the sum originally due to any
Lender or the Administrative Agent, as the case may be, in the specified
currency, such Lender or the Administrative Agent, as the case may be, agrees to
remit such excess to the Borrower.
SECTION 10.11. 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 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 10.12. 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 10.13. Confidentiality. Each of the Administrative Agent
and the Lenders expressly 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 required by any regulatory authority, (c) to
the extent required by applicable
62
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 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 or any Lender on a nonconfidential basis prior to
disclosure by the Borrower; provided that, in the case of information received
from the Borrower after the date hereof, such information is clearly identified
at the time of delivery as confidential. 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, provided, however, in
no event less than reasonable care.
SECTION 10.14. 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.
LIZ CLAIBORNE, INC.
by
---------------------------
Name:
Title:
JPMORGAN CHASE BANK, as Administrative
Agent and a Lender
by
---------------------------
Name:
Title:
BANK OF AMERICA, N.A., as Syndication
Agent and a Lender
by
---------------------------
Name:
Title:
CITIBANK, N.A., as Syndication Agent and
a Lender
by
---------------------------
Name:
Title:
SUNTRUST BANK, as Syndication Agent
and a Lender
by
---------------------------
Name:
Title:
WACHOVIA BANK, National Association, as
Syndication Agent and a Lender
by
---------------------------
Name:
Title:
HSBC Bank USA, N.A., as a Lender
by
---------------------------
Name:
Title:
Fortis Capital Corporation, as a Lender
by
---------------------------
Name:
Title:
ING Bank N.V., as a Lender
by
---------------------------
Name:
Title:
The Bank of New York, as a Lender
by
---------------------------
Name:
Title:
U.S. Bank National Association, as
a Lender
by
---------------------------
Name:
Title:
Comerica Bank, as a Lender
by
---------------------------
Name:
Title:
The Huntington National Bank, as a Lender
by
---------------------------
Name:
Title:
Union Bank of California, N.A., as
a Lender
by
---------------------------
Name:
Title:
Banque Artesia Nederland N.V., as
a Lender
by
---------------------------
Name:
Title:
Israel Discount Bank of New York, as
a Lender
by
---------------------------
Name:
Title:
