EXECUTION VERSION
===============================================================================
$150,000,000
CREDIT AGREEMENT
AMONG
TOMMY HILFIGER CORPORATION,
AS GUARANTOR,
TOMMY HILFIGER U.S.A., INC.,
AS BORROWER,
THE SEVERAL LENDERS
FROM TIME TO TIME PARTIES HERETO,
WACHOVIA BANK, NATIONAL ASSOCIATION,
AS SYNDICATION AGENT
FLEET NATIONAL BANK,
AS DOCUMENTATION AGENT
JPMORGAN CHASE BANK, N.A.
AS ADMINISTRATIVE AGENT
DATED AS OF APRIL 19, 2005
===============================================================================
J.P. MORGAN
SECURITIES INC., AS SOLE BOOKRUNNER AND SOLE LEAD ARRANGER
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TABLE OF CONTENTS
PAGE
SECTION 1.
DEFINITIONS.......................................................1
1.1.
DEFINED
TERMS......................................................1
1.2.
OTHER DEFINITIONAL
PROVISIONS.....................................10
SECTION 2. AMOUNT AND TERMS OF
COMMITMENTS..................................10
2.1.
L/C
COMMITMENT....................................................10
2.2.
PROCEDURE FOR ISSUANCE
OF LETTER OF CREDIT........................11
2.3.
FEES AND OTHER
CHARGES............................................11
2.4.
L/C
PARTICIPATIONS................................................11
2.5.
REIMBURSEMENT
OBLIGATION OF THE BORROWER..........................12
2.6.
OBLIGATIONS
ABSOLUTE..............................................12
2.7.
LETTER OF CREDIT
PAYMENTS.........................................13
2.8.
APPLICATIONS......................................................13
2.9.
COMMITMENT
FEES...................................................13
2.10.
TERMINATION OR REDUCTION OF REVOLVING
COMMITMENTS.................13
2.11.
OVERDUE
AMOUNTS...................................................13
2.12.
COMPUTATION OF INTEREST AND
FEES..................................13
2.13. PRO
RATA TREATMENT AND
PAYMENTS...................................14
2.14.
REQUIREMENTS OF
LAW...............................................14
2.15.
TAXES.............................................................15
2.16.
CHANGE OF LENDING
OFFICE..........................................16
2.17.
REPLACEMENT OF
LENDERS............................................16
2.18.
NOTICES...........................................................16
SECTION 3. REPRESENTATIONS AND
WARRANTIES...................................17
3.1.
FINANCIAL
CONDITION...............................................17
3.2.
NO
CHANGE.........................................................17
3.3.
EXISTENCE; COMPLIANCE
WITH LAW....................................17
3.4.
POWER; AUTHORIZATION;
ENFORCEABLE OBLIGATIONS.....................17
3.5.
NO LEGAL
BAR......................................................18
3.6.
LITIGATION........................................................18
3.7.
NO
DEFAULT........................................................18
3.8.
OWNERSHIP OF
PROPERTY.............................................18
3.9. INTELLECTUAL
PROPERTY.............................................18
3.10.
TAXES.............................................................18
3.11.
LABOR
MATTERS.....................................................19
3.12.
ERISA.............................................................19
3.13.
INVESTMENT COMPANY ACT; OTHER
REGULATIONS.........................19
3.14.
SUBSIDIARIES......................................................19
3.15.
ENVIRONMENTAL
MATTERS.............................................19
3.16.
ACCURACY OF INFORMATION,
ETC......................................20
3.17.
SOLVENCY..........................................................20
SECTION 4. CONDITIONS
PRECEDENT.............................................20
i
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PAGE
4.1.
CONDITIONS TO INITIAL
EXTENSION OF CREDIT.........................20
4.2.
CONDITIONS TO EACH
EXTENSION OF CREDIT............................21
SECTION 5. AFFIRMATIVE
COVENANTS............................................22
5.1.
FINANCIAL
STATEMENTS..............................................22
5.2.
CERTIFICATES; OTHER
INFORMATION...................................22
5.3.
PAYMENT OF TAX
OBLIGATIONS........................................23
5.4.
MAINTENANCE OF
EXISTENCE; COMPLIANCE..............................23
5.5.
MAINTENANCE OF
PROPERTY; INSURANCE................................23
5.6.
INSPECTION OF
PROPERTY; BOOKS AND RECORDS; DISCUSSIONS............23
5.7.
NOTICES...........................................................24
5.8.
ENVIRONMENTAL
LAWS................................................24
5.9.
USE OF LETTERS OF
CREDIT..........................................24
SECTION 6. NEGATIVE
COVENANTS...............................................25
6.1.
LIENS.............................................................25
6.2.
FUNDAMENTAL
CHANGES...............................................25
6.3.
CERTAIN
INVESTMENTS...............................................25
6.4.
MODIFICATIONS OF
SENIOR NOTES.....................................25
6.5.
LINES OF
BUSINESS.................................................25
6.6.
MATTERS RELATING TO
FINANCECO.....................................25
SECTION 7. EVENTS OF
DEFAULT................................................26
SECTION 8. THE ADMINISTRATIVE
AGENT.........................................29
8.1.
APPOINTMENT.......................................................29
8.2.
DELEGATION OF
DUTIES..............................................29
8.3. EXCULPATORY
PROVISIONS............................................29
8.4.
RELIANCE BY
ADMINISTRATIVE AGENT..................................29
8.5.
NOTICE OF
DEFAULT.................................................30
8.6.
NON-RELIANCE ON
ADMINISTRATIVE AGENT AND OTHER LENDERS............30
8.7.
INDEMNIFICATION...................................................30
8.8.
ADMINISTRATIVE AGENT
IN ITS INDIVIDUAL CAPACITY...................31
8.9.
SUCCESSOR
ADMINISTRATIVE AGENT....................................31
SECTION 9.
GUARANTEE........................................................31
9.1.
GUARANTEE.........................................................31
9.2.
NO SUBROGATION,
CONTRIBUTION, REIMBURSEMENT OR INDEMNITY..........32
9.3.
AMENDMENTS, ETC. WITH
RESPECT TO THE OBLIGATIONS..................32
9.4.
GUARANTEE ABSOLUTE AND
UNCONDITIONAL..............................32
9.5.
REINSTATEMENT.....................................................33
9.6.
PAYMENTS..........................................................33
SECTION 10.
MISCELLANEOUS...................................................33
10.1.
AMENDMENTS AND
WAIVERS...........................................33
10.2.
NOTICES..........................................................34
ii
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PAGE
10.3.
NO WAIVER; CUMULATIVE
REMEDIES...................................35
10.4.
SURVIVAL OF
REPRESENTATIONS AND WARRANTIES.......................35
10.5.
PAYMENT OF EXPENSES
AND TAXES....................................35
10.6.
SUCCESSORS AND
ASSIGNS; PARTICIPATIONS AND ASSIGNMENTS...........36
10.7.
ADJUSTMENTS;
SET-OFF.............................................38
10.8.
COUNTERPARTS.....................................................39
10.9.
SEVERABILITY.....................................................39
10.10.
INTEGRATION......................................................39
10.11.
GOVERNING
LAW....................................................39
10.12.
SUBMISSION TO JURISDICTION;
WAIVERS..............................39
10.13.
ACKNOWLEDGEMENTS.................................................40
10.14.
WAIVERS OF JURY
TRIAL............................................40
10.15.
CONFIDENTIALITY..................................................40
10.16.
DOCUMENTATION AGENT AND SYNDICATION
AGENT........................41
10.17. USA
PATRIOT ACT..................................................41
iii
SCHEDULES:
1.1 Disclosed Matters
1.2 Revolving Commitments
2.1 Existing Letters of Credit
3.14 Subsidiaries
EXHIBITS:
A-1 Form of Borrower Closing
Certificate
A-2 Form of Holdings Closing
Certificate
A-3 Form of Financeco Closing
Certificate
B Form of Assignment and
Assumption
C-1 Form of Legal Opinion of Wachtell,
Lipton, Rosen & Katz
C-2 Form of Legal Opinion of Harney,
Westwood & Riegels
C-3 Form of Legal Opinion of James
Gallagher
D Form of Subsidiary
Guarantee
iv
<PAGE>
CREDIT AGREEMENT, dated as of April 19, 2005, among TOMMY
HILFIGER
CORPORATION, a British Virgin Islands
corporation ("HOLDINGS"), TOMMY HILFIGER
U.S.A., INC., a Delaware corporation (the
"BORROWER"), the several banks and
other financial institutions or entities
from time to time parties to this
Agreement (the "LENDERS"), WACHOVIA BANK,
NATIONAL ASSOCIATION, as syndication
agent (in such capacity, the "SYNDICATION
AGENT"), FLEET NATIONAL BANK, as
documentation agent (in such capacity, the
"DOCUMENTATION AGENT"), and JPMORGAN
CHASE BANK, N.A., as administrative
agent.
The parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS
1.1. DEFINED TERMS.
As used in this
Agreement, the terms listed in
this Section 1.1 shall have the respective
meanings set forth in this Section
1.1.
"ABR": for any day, a rate per annum (rounded upwards, if
necessary,
to the next 1/16 of 1%) equal to the
greater of (a) the Prime Rate in effect on
such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2
of 1%. For purposes hereof: "PRIME RATE"
shall mean the rate of interest per
annum publicly announced from time to time
by the Reference Lender as its prime
rate in effect at its principal office in
New York City (the Prime Rate not
being intended to be the lowest rate of
interest charged by the Reference Lender
in connection with extensions of credit to
debtors). Any change in the ABR due
to a change in the Prime Rate or the
Federal Funds Effective Rate shall be
effective as of the opening of business on
the effective day of such change in
the Prime Rate or the Federal Funds
Effective Rate, respectively.
"ADDITIONAL ISSUING LENDER SUBLIMIT": with respect to each
Issuing
Lender other than JPMorgan Chase Bank, an
amount specified by the Borrower to
the Administrative Agent and such Issuing
Lender in writing on the Closing Date
or on the date such Lender becomes an
Issuing Lender (which date shall be the
first Business Day of any month), which
amount may be changed by written notice
from the Borrower to the Administrative
Agent and such Issuing Lender on the
first Business Day of any fiscal quarter
or, if such change is being made in
connection with the removal of an Issuing
Lender, on the first Business Day of
any month.
"ADMINISTRATIVE AGENT": JPMorgan Chase Bank, together with its
affiliates, as the arranger of the
Revolving Commitments and as the
administrative agent for the Lenders under
this Agreement and the other Credit
Documents, together with any of its
successors.
"AFFILIATE": as to any Person, any other Person that, directly
or
indirectly, is in control of, is controlled
by, or is under common control with,
such Person. For purposes of this
definition, "control" of a Person means the
power, directly or indirectly, either to
(a) vote 20% or more of the securities
having ordinary voting power for the
election of directors (or persons
performing similar functions) of such
Person or (b) direct or cause the
direction of the management and policies of
such Person, whether by contract or
otherwise.
"AGGREGATE EXPOSURE": with respect to any Lender at any time,
the
amount of such Lender's Revolving
Commitment then in effect or, if the Revolving
Commitments have been terminated, the
amount of such Lender's Revolving
Extensions of Credit then outstanding.
"AGGREGATE EXPOSURE PERCENTAGE": with respect to any Lender at
any
time, the ratio (expressed as a percentage)
of such Lender's Aggregate Exposure
at such time to the Aggregate Exposure of
all Lenders at such time.
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2
"AGREEMENT": this
Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"APPLICATION": an
application, in such form as the relevant
Issuing Lender may specify from time to
time, requesting such Issuing Lender
to open a Letter of Credit.
"APPROVED FUND": as
defined in Section 10.6.
"ASSIGNEE": as defined
in Section 10.6(b).
"ASSIGNMENT AND ASSUMPTION": an Assignment and Assumption,
substantially in the form of Exhibit B.
"AVAILABLE REVOLVING COMMITMENT": as to any Lender at any time,
an
amount equal to the excess, if any, of (a)
such Lender's Revolving Commitment
OVER (b) such Lender's Revolving Extensions
of Credit.
"BUSINESS": as defined
in Section 3.15.
"BUSINESS DAY": a day
other than a Saturday, Sunday or other day
on which commercial banks in New York City
are authorized or required by law
to close.
"CAPITAL LEASE OBLIGATIONS": as to any Person, the obligations
of
such Person to pay rent or other amounts
under any lease of (or other
arrangement conveying the right to use)
real or personal property, or a
combination thereof, which obligations are
required to be classified and
accounted for as capital leases on a
balance sheet of such Person under GAAP
and, for the purposes of this Agreement,
the amount of such obligations at any
time shall be the capitalized amount
thereof at such time determined in
accordance with GAAP.
"CAPITAL STOCK": any and all shares, interests, participations
or
other equivalents (however designated) of
capital stock of a corporation, any
and all equivalent ownership interests in a
Person (other than a corporation)
and any and all warrants, rights or options
to purchase any of the foregoing.
"CASH EQUIVALENTS": (a) the investments described in the
definition
of "Collateral Cash Equivalents"; (b)
commercial paper of an issuer rated at
least A-2 by Standard & Poor's Ratings
Services or P-2 by Moody's Investors
Service, Inc., or carrying an equivalent
rating by a nationally recognized
rating agency, if both of the two named
rating agencies cease publishing ratings
of commercial paper issuers generally, and
maturing within thirty days from the
date of acquisition; (c) corporate bonds
rated at least BBB by Standard & Poor's
Ratings Services or Baa2 by Moody's
Investors Service, Inc., or carrying an
equivalent rating by a nationally
recognized rating agency; and (d) money market
investment funds which invest substantially
exclusively in the types of
securities described in clauses (a) through
(c) above.
"CLO": as defined in
Section 10.6.
"CLOSING DATE": the
date on which the conditions precedent set
forth in Section 4.1 shall have been
satisfied, which date is April __, 2005.
"CODE": the Internal
Revenue Code of 1986, as amended from time to
time.
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3
"COLLATERAL": as
defined in the Subsidiary Guarantee.
"COLLATERAL ACCOUNT":
account number 020842112 established at the
office of JPMorgan Chase Bank, N.A., at 277
Park Avenue, New York, New York
10128.
"COLLATERAL BASE": an
amount equal to (a) 98% of the fair market
value of cash and Collateral Cash
Equivalents constituting Collateral minus
(b) any Tax Liability Amount.
"COLLATERAL CASH EQUIVALENTS": (a) marketable direct
obligations
issued by, or unconditionally guaranteed
by, the United States Government or
issued by any agency thereof and backed by
the full faith and credit of the
United States, in each case maturing within
one year from the date of
acquisition; (b) certificates of deposit,
time deposits, Yankee or eurodollar
time deposits, repurchase agreements,
reverse repurchase agreements or overnight
bank deposits having maturities of twelve
months or less from the date of
acquisition issued by any Lender or by any
commercial bank organized under the
laws of the United States of America or any
state thereof having combined
capital and surplus of not less than
$500,000,000; (c) bankers acceptances or
commercial paper of an issuer rated at
least A-1 by Standard & Poor's Ratings
Services or P-1 by Moody's Investors
Service, Inc., or carrying an equivalent
rating by a nationally recognized rating
agency, if both of the two named rating
agencies cease publishing ratings of
commercial paper issuers generally, and
maturing within six months from the date of
acquisition; and (d) money market
investment funds which invest substantially
exclusively in the types of
securities described in clauses (a) through
(c) above.
"COMMONLY CONTROLLED ENTITY": an entity, whether or not
incorporated,
that is under common control with the
Borrower within the meaning of Section
4001 of ERISA or is part of a group that
includes the Borrower and that is
treated as a single employer under Section
414 of the Code.
"CONFIDENTIAL INFORMATION PACKAGE": the Confidential Information
Package dated March 2005 and furnished to
certain Lenders.
"CONTINUING DIRECTORS": the directors of Holdings on the
Closing
Date and each other director, if, in each
case, such other director's nomination
for election to the board of directors of
Holdings is recommended by at least a
majority of the then Continuing
Directors.
"CONTRACTUAL OBLIGATION": as to any Person, any provision of
any
security issued by such Person or of any
agreement, instrument or other
undertaking to which such Person is a party
or by which it or any of its
property is bound.
"CREDIT DOCUMENTS":
this Agreement and the Subsidiary Guarantee.
"CREDIT PARTIES":
Holdings, the Borrower and Financeco.
"DEFAULT": any of the
events specified in Section 7, whether or
not any requirement for the giving of
notice, the lapse of time, or both, has
been satisfied.
"DISCLOSED MATTERS":
the matters disclosed on Schedule 1.1.
"DISPOSITION": with
respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance,
transfer or other disposition thereof;
and the terms "DISPOSE" and "DISPOSED OF"
shall have correlative meanings.
"DOLLARS" and "$": dollars in lawful currency of the United States
of
America.
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4
"ENVIRONMENTAL LAWS": any and all foreign, Federal, state, local
or
municipal laws, rules, orders, regulations,
statutes, ordinances, codes,
decrees, requirements of any Governmental
Authority or other Requirements of Law
(including common law) regulating, relating
to or imposing liability or
standards of conduct concerning protection
of human health or the environment,
as now or may at any time hereafter be in
effect.
"ERISA": the Employee
Retirement Income Security Act of 1974, as
amended from time to time.
"EVENT OF DEFAULT":
any of the events specified in Section 7,
PROVIDED that any requirement for the
giving of notice, the lapse of time, or
both, has been satisfied.
"EXCHANGE ACT": as
defined in Section 7(j)(i).
"EXISTING ACCOUNT PARTIES": as defined in Section 2.1.
"EXPOSURE AMOUNT": the sum of (a) the aggregate L/C Obligations
with
respect to Letters of Credit issued by
JPMorgan Chase Bank or its Affiliates,
(b) the aggregate amount of the Additional
Issuing Lender Sublimits and (c) the
aggregate amount of accrued but unpaid fees
and interest owing hereunder.
"FEDERAL FUNDS EFFECTIVE RATE": for any day, the weighted average
of
the rates on overnight federal funds
transactions with members of the Federal
Reserve System arranged by federal funds
brokers, as published on the next
succeeding Business Day by the Federal
Reserve Bank of New York, or, if such
rate is not so published for any day that
is a Business Day, the average of the
quotations for the day of such transactions
received by the Reference Lender
from three federal funds brokers of
recognized standing selected by it.
"FINANCECO": Tommy
Hilfiger U.S.A. Guaranty LLC.
"FINANCECO ORGANIZATIONAL DOCUMENTS": the Certificate of Formation
and the Operating Agreement of
Financeco.
"FINANCIAL INSTITUTION": any Person that, in the judgment
of the
Administrative Agent, is a financial
institution or is primarily engaged in
financial activities.
"GAAP": generally accepted accounting principles in the United
States
of America as in effect from time to time
set forth in the opinions and
pronouncements of the Accounting Principles
Board and the American Institute of
Certified Public Accountants and the
statements and pronouncements of the
Financial Accounting Standards Board and
the rules and regulations of the
Securities and Exchange Commission, or in
such other statements by such other
entity as may be in general use by
significant segments of the accounting
profession, that are applicable to the
circumstances of Holdings and its
Subsidiaries as of the date of
determination.
"GOVERNMENTAL AUTHORITY": any nation or government, any state
or
other political subdivision thereof and any
entity exercising executive,
legislative, judicial, regulatory or
administrative functions of or pertaining
to government (including the National
Association of Insurance Commissioners).
"GUARANTEE OBLIGATION": as to any Person (the "GUARANTEEING
person"),
any obligation of (a) the guaranteeing
person or (b) another Person (including
any bank under any letter of credit) to
induce
<PAGE>
5
the creation of which the guaranteeing
person has issued a reimbursement,
counterindemnity or similar obligation, in
either case guaranteeing or in effect
guaranteeing any Indebtedness, leases,
dividends or other obligations (the
"PRIMARY OBLIGATIONS") of any other third
Person (the "PRIMARY OBLIGOR") in any
manner, whether directly or indirectly,
including any obligation of the
guaranteeing person, whether or not
contingent, (i) to purchase any such primary
obligation or any property constituting
direct or indirect security therefor,
(ii) to advance or supply funds (1) for the
purchase or payment of any such
primary obligation or (2) to maintain
working capital or equity capital of the
primary obligor or otherwise to maintain
the net worth or solvency of the
primary obligor, (iii) to purchase
property, securities or services primarily
for the purpose of assuring the owner of
any such primary obligation of the
ability of the primary obligor to make
payment of such primary obligation or
(iv) otherwise to assure or hold harmless
the owner of any such primary
obligation against loss in respect thereof;
PROVIDED, HOWEVER, that the term
Guarantee Obligation shall not include
endorsements of instruments for deposit
or collection in the ordinary course of
business. The amount of any Guarantee
Obligation of any guaranteeing person shall
be deemed to be the lower of (a) an
amount equal to the stated or determinable
amount of the primary obligation in
respect of which such Guarantee Obligation
is made and (b) the maximum amount
for which such guaranteeing person may be
liable pursuant to the terms of the
instrument embodying such Guarantee
Obligation, unless such primary obligation
and the maximum amount for which such
guaranteeing person may be liable are not
stated or determinable, in which case the
amount of such Guarantee Obligation
shall be such guaranteeing person's maximum
reasonably anticipated liability in
respect thereof as determined by the
Borrower in good faith.
"INDEBTEDNESS": of any Person at any date, without duplication,
(a)
all indebtedness of such Person for
borrowed money, (b) all obligations of such
Person for the deferred purchase price of
property or services (other than
current trade payables incurred in the
ordinary course of such Person's
business), (c) all obligations of such
Person evidenced by notes, bonds,
debentures or other similar instruments,
(d) all indebtedness created or arising
under any conditional sale or other title
retention agreement with respect to
property acquired by such Person (even
though the rights and remedies of the
seller or lender under such agreement in
the event of default are limited to
repossession or sale of such property), (e)
all Capital Lease Obligations of
such Person, (f) all obligations of such
Person, contingent or otherwise, as an
account party under acceptance, letter of
credit or similar facilities, (g) all
obligations of such Person, contingent or
otherwise, to purchase, redeem, retire
or otherwise acquire for value any Capital
Stock of such Person, (h) all
Guarantee Obligations of such Person in
respect of obligations of the kind
referred to in clauses (a) through (g)
above, (i) all obligations of the kind
referred to in clauses (a) through (h)
above secured by (or for which the holder
of such obligation has an existing right,
contingent or otherwise, to be secured
by) any Lien on property (including
accounts and contract rights) owned by such
Person, whether or not such Person has
assumed or become liable for the payment
of such obligation, and (j) for the
purposes of Section 7(e) only, all
obligations of such Person in respect of
Interest Rate Protection Agreements.
"INSOLVENCY": with
respect to any Multiemployer Plan, the
condition that such Plan is insolvent
within the meaning of Section 4245 of
ERISA.
"INSOLVENT":
pertaining to a condition of Insolvency.
"INTELLECTUAL PROPERTY": the collective reference to all
rights,
priorities and privileges relating to
intellectual property, whether arising
under United States, multinational or
foreign laws or otherwise, including
copyrights, copyright licenses, patents,
patent licenses, trademarks, trademark
licenses, technology, know-how and
processes, and all rights to sue at law or in
equity for any infringement or other
impairment thereof, including the right to
receive all proceeds and damages
therefrom.
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6
"INTEREST RATE PROTECTION AGREEMENT": any interest rate
protection
agreement, interest rate futures contract,
interest rate option, interest rate
cap or other interest rate hedge
arrangement, to or under which Holdings or any
of its Subsidiaries is a party or a
beneficiary on the date hereof or becomes a
party or a beneficiary after the date
hereof.
"ISSUING LENDERS": JPMorgan Chase Bank, Bank of America, N.A.,
Wachovia Bank, National Association, and/or
such other Lender or Lenders
reasonably acceptable to the Administrative
Agent as may be designated by the
Borrower, each in its capacity as issuer of
any Letter of Credit. An Issuing
Lender may, in its discretion, arrange for
one or more Letters of Credit to be
issued by Affiliates of such Issuing
Lender, in which case the term "Issuing
Lender" shall include any such Affiliate
with respect to Letters of Credit
issued by such Affiliate. If mutually
agreed by any Issuing Lender and the
Borrower, such Issuing Lender shall cease
to act in such capacity so long as no
L/C Obligations in respect of Letters of
Credit issued by such Issuing Lender
remain outstanding.
"JPMORGAN CHASE BANK": JPMorgan Chase Bank, N.A., together with
its
affiliates and any of their respective
successors.
"L/C FEE PAYMENT DATE": five Business Days after the last day of
each
March, June, September and December and the
last day of the Revolving Commitment
Period (or the date of termination of the
Revolving Commitments).
"L/C OBLIGATIONS": at any time, an amount equal to the sum of (a)
the
aggregate then undrawn and unexpired amount
of the then outstanding Letters of
Credit and (b) the aggregate amount of
drawings under Letters of Credit that
have not then been reimbursed pursuant to
Section 2.5.
"L/C PARTICIPANTS": the collective reference to all the Lenders
other
than the relevant Issuing Lender.
"LENDER": as defined
in the preamble hereto, and, for the
avoidance of doubt, including, unless the
context otherwise requires, each
Issuing Lender.
"LETTERS OF CREDIT":
as defined in Section 2.1(a).
"LIEN": any mortgage, pledge, hypothecation, assignment,
deposit
arrangement, encumbrance, lien (statutory
or other), charge or other security
interest or any preference, priority or
other security agreement or preferential
arrangement of any kind or nature
whatsoever (including any conditional sale or
other title retention agreement and any
capital lease having substantially the
same economic effect as any of the
foregoing).
"MATERIAL ADVERSE EFFECT": a material adverse effect on (a) the
business, operations, property, condition
(financial or otherwise) or prospects
of Holdings and its Subsidiaries taken as a
whole (other than any such effect
arising out of or related to the Disclosed
Matters) or (b) the validity or
enforceability of this Agreement or any of
the other Credit Documents or the
rights or remedies of the Administrative
Agent or the Lenders hereunder or
thereunder.
"MATERIAL SUBSIDIARY": the Borrower, Financeco and any other
Subsidiary, the (a) assets, (b) revenues or
(c) operating profit (excluding
intercompany receivables and revenues that
would be eliminated upon
consolidation in accordance with GAAP) of
which are, at the time of
determination (determined, in the case of
clause (a), as at the end of the most
recently concluded fiscal quarter, and, in
the case of clauses (b) and (c), in
respect of the most recent period of four
consecutive fiscal quarters of
Holdings for which the relevant financial
information is available), equal to or
greater than ten percent of
<PAGE>
7
the consolidated assets, consolidated
operating profit or consolidated revenues
(excluding intercompany receivables and
revenue that would be eliminated upon
consolidation in accordance with GAAP),
respectively, of Holdings and its
Subsidiaries at such time. Upon the
acquisition of a new Subsidiary,
qualification as a "Material Subsidiary"
shall be determined on a PRO FORMA
basis on the assumption that such
Subsidiary had been acquired at the beginning
of the relevant period of four consecutive
fiscal quarters.
"MATERIALS OF ENVIRONMENTAL CONCERN": any gasoline or petroleum
(including crude oil or any fraction
thereof) or petroleum products or any
hazardous or toxic substances, materials or
wastes, defined or regulated as such
in or under any Environmental Law,
including asbestos, polychlorinated biphenyls
and urea-formaldehyde insulation.
"MULTIEMPLOYER PLAN":
a Plan that is a multiemployer plan as
defined in Section 4001(a)(3) of ERISA.
"NON-EXCLUDED TAXES":
as defined in Section 2.15(a).
"NON-U.S. LENDER": as defined in Section 2.15(b).
"OBLIGATIONS": the unpaid principal of and interest on
(including
interest accruing after the maturity of the
Reimbursement Obligations and
interest accruing after the filing of any
petition in bankruptcy, or the
commencement of any insolvency,
reorganization or like proceeding, relating to
the Borrower, whether or not a claim for
post-filing or post-petition interest
is allowed in such proceeding) the
Reimbursement Obligations and all other
obligations and liabilities of the Borrower
to the Administrative Agent or to
any Lender, whether direct or indirect,
absolute or contingent, due or to become
due, or now existing or hereafter incurred,
which may arise under, out of, or in
connection with, this Agreement, any other
Credit Document, the Letters of
Credit or any other document made,
delivered or given in connection herewith or
therewith, whether on account of principal,
interest, reimbursement obligations,
fees, indemnities, costs, expenses
(including all fees, charges and
disbursements of counsel to the
Administrative Agent or to any Lender that are
required to be paid by the Borrower
pursuant hereto) or otherwise.
"PARTICIPANT": as
defined in Section 10.6(c).
"PAYMENT OFFICE:
JPMorgan Chase Bank, N.A., 1111 Fannin Street,
10th Floor, Houston, Texas, 77002.
"PBGC": the Pension
Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA
(or any successor).
"PERSON": an
individual, partnership, corporation, limited
liability company, business trust, joint
stock company, trust, unincorporated
association, joint venture, Governmental
Authority or other entity of
whatever nature.
"PLAN": at a particular time, any employee benefit plan that is
covered by ERISA and in respect of which
the Borrower or a Commonly Controlled
Entity is (or, if such plan were terminated
at such time, would under Section
4069 of ERISA be deemed to be) an
"employer" as defined in Section 3(5) of
ERISA.
"PROPERTIES": as
defined in Section 3.15.
<PAGE>
8
"REFERENCE LENDER":
JPMorgan Chase Bank.
"REGISTER": as defined
in Section 10.6(b).
"REIMBURSEMENT OBLIGATION": the obligation of the Borrower
to
reimburse the relevant Issuing Lender
pursuant to Section 2.5 for amounts
drawn under Letters of Credit.
"REORGANIZATION": with
respect to any Multiemployer Plan, the
condition that such plan is in
reorganization within the meaning of Section
4241 of ERISA.
"REPORTABLE EVENT":
any of the events set forth in Section 4043(b)
of ERISA, other than those events as to
which the thirty day notice period is
waived under subsections .27, .28, .29,
.30, .31, .32, .34 or .35 of PBGC
Reg. ss. 4043.
"REQUIRED LENDERS":
the holders of more than 50% of the Total
Revolving Commitments or, if the Revolving
Commitments have been terminated,
the Total Revolving Extensions of
Credit.
"REQUIREMENT OF LAW": as to any Person, the Certificate of
Incorporation and By-Laws or other
organizational or governing documents of such
Person, and any law, treaty, rule or
regulation or determination of an
arbitrator or a court or other Governmental
Authority, in each case applicable
to or binding upon such Person or any of
its property or to which such Person or
any of its property is subject.
"RESPONSIBLE OFFICER": the principal executive officer,
president,
principal financial officer or principal
accounting officer of Holdings or the
Borrower, as the case may be, but in any
event, with respect to financial
matters, the principal financial or
accounting officer of Holdings or the
Borrower, as the case may be.
"REVOLVING COMMITMENT": as to any Lender, the obligation of
such
Lender to participate in Letters of Credit,
in an aggregate face amount not to
exceed the amount set forth opposite such
Lender's name on Schedule 1.2 or set
forth in an Assignment and Assumption, as
applicable, as the same may be changed
from time to time pursuant to the terms
hereof.
"REVOLVING COMMITMENT PERIOD": the period from and including
the
Closing Date to the Revolving Termination
Date.
"REVOLVING EXTENSIONS OF CREDIT": as to any Lender at any time,
an
amount equal to such Lender's Revolving
Percentage of the L/C Obligations
then outstanding.
"REVOLVING PERCENTAGE": as to any Lender at any time, the
percentage
which such Lender's Revolving Commitment
then constitutes of the Total Revolving
Commitments (or, at any time after the
Revolving Commitments shall have expired
or terminated, the percentage which the
aggregate amount of such Lender's
Revolving Extensions of Credit then
outstanding constitutes of the aggregate
amount of the Revolving Extensions of
Credit then outstanding).
"REVOLVING
TERMINATION DATE":
April __, 2006.
"SENIOR NOTE INDENTURE": the Indenture, dated as of May 1,
1998,
entered into by Holdings and the Borrower
with JPMorgan Chase Bank, N.A. (f/k/a
The Chase Manhattan Bank), together with
all instruments and other agreements
entered into by Holdings or the Borrower in
connection therewith, as the same
may be amended, supplemented or otherwise
modified from time to time in
accordance with Section 6.4.
<PAGE>
9
"SENIOR NOTES": the
notes of the Borrower issued pursuant to the
Senior Note Indenture.
"SINGLE EMPLOYER PLAN": any Plan that is covered by Title
IV of
ERISA, but that is not a Multiemployer
Plan.
"SOLVENT": when used with respect to any Person, means that, as
of
any date of determination, (a) the amount
of the "present fair saleable value"
of the assets of such Person will, as of
such date, exceed the amount of all
"liabilities of such Person, contingent or
otherwise", as of such date, as such
quoted terms are determined in accordance
with applicable federal and state laws
governing determinations of the insolvency
of debtors, (b) the present fair
saleable value of the assets of such Person
will, as of such date, be greater
than the amount that will be required to
pay the liability of such Person on its
debts as such debts become absolute and
matured, (c) such Person will not have,
as of such date, an unreasonably small
amount of capital with which to conduct
its business, and (d) such Person will be
able to pay its debts as they mature.
For purposes of this definition, (i) "debt"
means liability on a "claim", and
(ii) "claim" means any (x) right to
payment, whether or not such a right is
reduced to judgment, liquidated,
unliquidated, fixed, contingent, matured,
unmatured, disputed, undisputed, legal,
equitable, secured or unsecured or (y)
right to an equitable remedy for breach of
performance if such breach gives rise
to a right to payment, whether or not such
right to an equitable remedy is
reduced to judgment, fixed, contingent,
matured or unmatured, disputed,
undisputed, secured or unsecured.
"SUBSIDIARY": as to any Person, a corporation, partnership,
limited
liability company or other entity of which
shares of stock or other ownership
interests having ordinary voting power
(other than stock or such other ownership
interests having such power only by reason
of the happening of a contingency) to
elect a majority of the board of directors
or other managers of such
corporation, partnership or other entity
are at the time owned, or the
management of which is otherwise
controlled, directly or indirectly through one
or more intermediaries, or both, by such
Person. Unless otherwise qualified, all
references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of Holdings
and shall include the Borrower and
its Subsidiaries.
"SUBSIDIARY GUARANTEE": the Subsidiary Guarantee and
Collateral
Agreement to be executed and delivered by
Financeco, substantially in the
form of Exhibit D.
"SUPERMAJORITY LENDERS": the holders of more than 66 ?% of
the
Total Revolving Commitments or, if the
Revolving Commitments have been
terminated, the Total Revolving Extensions
of Credit.
"TAX LIABILITY AMOUNT": as defined in Section 6.1.
"TOTAL REVOLVING COMMITMENTS": at any time, the aggregate
amount
of the Revolving Commitments then in
effect. The original
amount of the
Total Revolving Commitments is
$150,000,000.
"TOTAL REVOLVING EXTENSIONS OF CREDIT": at any time, the aggregate
amount of the Revolving Extensions of
Credit of the Lenders outstanding at
such time.
"TRANSFEREE": any
Assignee or Participant.
"UNIFORM CUSTOMS": the
Uniform Customs and Practice for
Documentary Credits (1993 Revision),
International Chamber of Commerce
Publication No. 500, as the same may be
amended from time to time.
<PAGE>
10
1.2. OTHER
DEFINITIONAL PROVISIONS. (a) Unless otherwise specified
therein, all terms defined in this
Agreement shall have the defined meanings
when used in the other Credit Documents or
any certificate or other document
made or delivered pursuant hereto or
thereto.
(b) As used herein and in the other Credit Documents, and any
certificate or other document made or
delivered pursuant hereto or thereto, (i)
accounting terms relating to Holdings and
its Subsidiaries not defined in
Section 1.1 and accounting terms partly
defined in Section 1.1, to the extent
not defined, shall have the respective
meanings given to them under GAAP, (ii)
the words "include", "includes" and
"including" shall be deemed to be followed
by the phrase "without limitation", and
(iii) the words "asset" and "property"
shall be construed to have the same meaning
and effect and to refer to any and
all tangible and intangible assets and
properties, including cash, Capital
Stock, securities, accounts, leasehold
interests and contract rights.
(c) The words "hereof", "herein" and "hereunder" and words of
similar
import when used in this Agreement shall
refer to this Agreement as a whole and
not to any particular provision of this
Agreement, and Section, Schedule and
Exhibit references are to this Agreement
unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural
forms of such terms.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1. L/C COMMITMENT. (a) Subject to the terms and conditions
hereof,
each Issuing Lender, in reliance on the
agreements of the other Lenders set
forth in Section 2.4(a), agrees toissue
letters of credit ("LETTERS OF CREDIT")
for the account of the Borrower(and for the
benefit of the Borrower, Holdings or
anySubsidiary of Holdings) on any Business
Day during the Revolving Commitment
Period in such form as may be approved from
time to time by such Issuing Lender;
PROVIDED that no Issuing Lender shall issue
any Letter of Credit if, after
giving effect to such issuance, (i) the
Total Revolving Extensions of Credit
would exceed the Total Revolving
Commitments, (ii) the Exposure Amount would
exceed the Collateral Base, (iii) the
aggregate amount of L/C Obligations with
respect to Letters of Credit issued by any
Issuing Lender other than JPMorgan
Chase Bank or its Affiliates would exceed
such Issuing Lender's Additional
Issuing Lender Sublimit or (iv) the
aggregate amount of L/C Obligations with
respect to standby letters of credit (other
than any standby letter of credit
supporting letters of creditreferred to in
the second sentence of Section
4.1(f)) would exceed $20,000,000. Each
letter of credit outstanding on the
Closing Date and listed on Schedule 2.1
shall constitute a "Letter of Credit"
for the purposes of this Agreement,
PROVIDED, that if the account party in
respect of any such letter of credit is not
the Borrower (any such account
party, an "EXISTING ACCOUNT PARTY"), the
Borrower and the relevant Existing
Account Party shall be jointly and
severally liable for all obligations
(including reimbursement obligations)
applicable thereto. Each Letter of Credit
shall expire no later than the date that is
five Business Days prior to the
Revolving Termination Date (or, in the case
of commercial Letters of Credit, if
earlier, 180 days after the date of
issuance).
(b) Each Letter of Credit shall be subject to the Uniform
Customs
and, to the extent not inconsistent
therewith, the laws of the State of New
York.
(c) No Issuing Lender shall at any time be obligated to issue
any
Letter of Credit hereunder if such issuance
would conflict with, or cause such
Issuing Lender or any L/C Participant to
exceed any limits imposed by, any
applicable Requirement of Law.
<PAGE>
11
2.2. PROCEDURE FOR ISSUANCE OF LETTER OF CREDIT. The Borrower may
from
time to time request that an Issuing Lender
issue or amend a Letter of Credit by
delivering to such Issuing Lender at its
address for notices specified herein an
Application therefor, completed to the
satisfaction of such Issuing Lender, and
such other certificates, documents and
other papers and information as such
Issuing Lender may request. Upon receipt of
any Application, such Issuing Lender
will process such Application and the
certificates, documents and other papers
and information delivered to it in
connection therewith in accordance with its
customary procedures and shall promptly
issue the Letter of Credit requested
thereby (but in no event shall such Issuing
Lender be required to issue any
Letter of Credit earlier than three
Business Days after its receipt of the
Application therefor and all such other
certificates, documents and other papers
and information relating thereto) by
issuing the original of such Letter of
Credit to the beneficiary thereof or as
otherwise may be agreed to by such
Issuing Lender and the Borrower. Each
Issuing Lender shall furnish (a) monthly
reports to the Administrative Agent
describing the Letters of Credit issued by
it that were outstanding during such month
in a format reasonably satisfactory
to the Administrative Agent and (b) a copy
of, or other evidence of the issuance
of, each relevant Letter of Credit to the
Borrower promptly following the
issuance thereof and to the Administrative
Agent promptly upon its request.
2.3. FEES AND OTHER CHARGES. (a) The Borrower will pay a fee on
the
face amount of all outstanding standby
Letters of Credit at a per annum rate
equal to 0.12%. Such fee shall be payable
to the Administrative Agent quarterly
in arrears on each L/C Fee Payment Date,
and shall be shared ratably among the
Lenders.
(b) The Borrower will pay a fee on the face amount of all
outstanding
commercial Letters of Credit at a per annum
rate equal to 0.08%. Such fee shall
be payable to the Administrative Agent
quarterly in arrears on each L/C Fee
Payment Date, and shall be shared ratably
among the Lenders.
(c) In addition to the foregoing fees, the Borrower shall pay
(or
shall cause the applicable beneficiary to
pay) each Issuing Lender any standby
Letter of Credit fronting fee separately
agreed upon with such Issuing Lender.
(d) Fees paid pursuant to this Section 2.3 for the ratable benefit
of
the Lenders shall be distributed to the
Lenders by the Administrative Agent on
each L/C Fee Payment Date. Fees paid
pursuant to this Section 2.3 shall be
nonrefundable.
2.4. L/C PARTICIPATIONS. (a) Each Issuing Lender irrevocably agrees
to
grant and hereby grants to each L/C
Participant, and, to induce each Issuing
Lender to issue Letters of Credit
hereunder, each L/C Participant irrevocably
agrees to accept and purchase and hereby
accepts and purchases from each Issuing
Lender, on the terms and conditions
hereinafter stated, for such L/C
Participant's own account and risk an
undivided interest equal to such L/C
Participant's Revolving Percentage in each
Issuing Lender's obligations and
rights under each Letter of Credit issued
hereunder and the amount of each draft
paid by such Issuing Lender thereunder.
Each L/C Participant unconditionally and
irrevocably agrees with each Issuing Lender
that, if a draft is paid under any
Letter of Credit for which such Issuing
Lender is not reimbursed in full by the
Borrower in accordance with the terms of
this Agreement, such L/C Participant
shall pay to such Issuing Lender upon
demand at such Issuing Lender's address
for notices specified herein an amount
equal to such L/C Participant's Revolving
Percentage of the amount of such draft, or
any part thereof, that is not so
reimbursed.
(b) If any amount required to be paid by any L/C Participant to
the
relevant Issuing Lender pursuant to Section
2.4(a) in respect of any
unreimbursed portion of any payment made by
such Issuing Lender under any Letter
of Credit is paid to such Issuing Lender
within three Business Days after the
date such payment is due, such L/C
Participant shall pay to such Issuing Lender
on demand an amount
<PAGE>
12
equal to the product of (i) such amount,
times (ii) the daily average Federal
Funds Effective Rate during the period from
and including the date such payment
is required to the date on which such
payment is immediately available to such
Issuing Lender, times (iii) a fraction the
numerator of which is the number of
days that elapse during such period and the
denominator of which is 360. If any
such amount required to be paid by any L/C
Participant pursuant to Section
2.4(a) is not made available to such
Issuing Lender by such L/C Participant
within three Business Days after the date
such payment is due, such Issuing
Lender shall be entitled to recover from
such L/C Participant, on demand, such
amount with interest thereon calculated
from such due date at a per annum rate
equal to the ABR plus 2%. A certificate of
the relevant Issuing Lender submitted
to any L/C Participant with respect to any
amounts owing under this Section
shall be conclusive in the absence of
manifest error.
(c) Whenever, at any time after the relevant Issuing Lender has
made
payment under any Letter of Credit and has
received from any L/C Participant its
PRO RATA share of such payment in
accordance with Section 2.4(a), such Issuing
Lender receives any payment related to such
Letter of Credit (whether directly
from the Borrower or otherwise, including
proceeds of collateral applied thereto
by such Issuing Lender), or any payment of
interest on account thereof, such
Issuing Lender will distribute to such L/C
Participant its PRO RATA share
thereof; PROVIDED, HOWEVER, that in the
event that any such payment received by
such Issuing Lender shall be required to be
returned by such Issuing Lender,
such L/C Participant shall return to such
Issuing Lender the portion thereof
previously distributed by such Issuing
Lender to it.
2.5. REIMBURSEMENT OBLIGATION OF THE BORROWER. The Borrower agrees
to
reimburse the relevant Issuing Lender on
each date on which such Issuing Lender
notifies the Borrower of the date and
amount of a draft presented under any
Letter of Credit and paid by such Issuing
Lender for the amount of (a) such
draft so paid and (b) any taxes, fees,
charges or other costs or expenses
incurred by such Issuing Lender in
connection with such payment; PROVIDED that
if such Issuing Lender notifies the
Borrower of the presentment of a draft after
10:00 A.M. New York City time on any day,
such reimbursement shall be made on
the next Business Day; and PROVIDED,
FURTHER that, if so agreed by the Borrower
and the applicable Issuing Lender, such
reimbursement may be effected by debit
of a bank account of the Borrower held with
the applicable Issuing Lender. Each
such payment shall be made to such Issuing
Lender at its address for notices
specified herein in lawful money of the
United States of America and in
immediately available funds, or at such
other address and in such other manner
as may be agreed upon by the Borrower and
such Issuing Lender. Interest shall be
payable on any and all amounts remaining
unpaid by the Borrower under this
Section from the date such amounts become
payable (whether at stated maturity,
by acceleration or otherwise) until payment
in full at the rate set forth in
Section 2.11.
2.6. OBLIGATIONS ABSOLUTE. The Borrower's obligations under
Section
2.5 shall be absolute and unconditional
under any and all circumstances and
irrespective of any setoff, counterclaim or
defense to payment that the Borrower
may have or have had against the relevant
Issuing Lender, any beneficiary of a
Letter of Credit or any other Person. The
Borrower also agrees with each Issuing
Lender that no Issuing Lender shall be
responsible for, and the Borrower's
Reimbursement Obligations under Section 2.5
shall not be affected by, among
other things, the validity or genuineness
of documents or of any endorsements
thereon, even though such documents shall
in fact prove to be invalid,
fraudulent or forged, or any dispute
between or among the Borrower and any
beneficiary of any Letter of Credit or any
other party to which such Letter of
Credit may be transferred or any claims
whatsoever of the Borrower against any
beneficiary of such Letter of Credit or any
such transferee. No Issuing Lender
shall be liable for any error, omission,
interruption or delay in transmission,
dispatch or delivery of any message or
advice, however transmitted, in
connection with any Letter of Credit,
except for errors or omissions found by a
final and nonappealable decision of a court
of competent jurisdiction to have
resulted from the gross negligence or
willful misconduct of such Issuing Lender.
The Borrower and the Lenders each agree
that any action taken or omitted by the
relevant Issuing Lender under or in
connection with any Letter of
<PAGE>
13
Credit or the related drafts or documents,
if done in the absence of gross
negligence or willful misconduct and in
accordance with the standards of care
specified in the Uniform Commercial Code of
the State of New York, shall be
binding on the Borrower and shall not
result in any liability of such Issuing
Lender to the Borrower or any Lender.
2.7. LETTER OF CREDIT PAYMENTS. If any draft shall be presented
for
payment under any Letter of Credit, the
relevant Issuing Lender shall promptly
notify the Borrower of the date and amount
thereof. The responsibility of the
relevant Issuing Lender to the Borrower in
connection with any draft presented
for payment under any Letter of Credit
shall, in addition to any payment
obligation expressly provided for in such
Letter of Credit, be limited to
determining that the documents (including
each draft) delivered under such
Letter of Credit in connection with such
presentment are substantially in
conformity with such Letter of Credit. On
the last day of each month (or more
frequently if requested by the
Administrative Agent), each Issuing Lender which
had any Letters of Credit outstanding
during such month shall notify the
Administrative Agent of the dates and
amounts of all drafts presented for
payment under such Letters of Credit during
the such month and such other
information as is necessary for the
Administrative Agent to calculate the
commitment fee.
2.8. APPLICATIONS. To the extent that any provision of any
Application
related to any Letter of Credit is
inconsistent with the provisions of this
Section 2, the provisions of this Section 2
shall apply.
2.9. COMMITMENT FEES. The Borrower agrees to pay to the
Administrative
Agent for the account of each Lender a
commitment fee for the period from and
including the Closing Date to the last day
of the Revolving Commitment Period,
computed at a per annum rate equal to 0.08%
on the average daily amount of the
Available Revolving Commitment of such
Lender during the period for which
payment is made, payable quarterly in
arrears five Business Days after the last
day of each March, June, September and
December and on the Revolving Termination
Date, commencing on the first of such dates
to occur after the date hereof.
2.10. TERMINATION OR REDUCTION OF REVOLVING COMMITMENTS. The
Borrower
shall have the right, upon not less than
three Business Days' notice to the
Administrative Agent, to terminate the
Revolving Commitments or, from time to
time, to reduce the amount of the Revolving
Commitments; PROVIDED that no such
termination or reduction of Revolving
Commitments shall be permitted if, after
giving effect thereto, the Total Revolving
Extensions of Credit would exceed the
Total Revolving Commitments. Any such
reduction shall be in an amount equal to
$1,000,000, or a whole multiple thereof,
and shall reduce permanently the
Revolving Commitments then in effect.
2.11. OVERDUE AMOUNTS. If any Reimbursement Obligation, letter
of
credit fee, commitment fee or other amount
payable hereunder shall not be paid
when due (whether at the stated maturity,
by acceleration or otherwise), such
overdue amount shall bear interest at a
rate per annum equal to the ABR PLUS 2%,
in each case from and including the date of
such non-payment until but excluding
the date such amount is paid in full (as
well after as before judgment). Such
interest shall be payable from time to time
on demand.
2.12. COMPUTATION OF INTEREST AND FEES. Interest and fees
payable
pursuant hereto shall be calculated on the
basis of a 360-day year for the
actual days elapsed, except that, with
respect to any interest calculated on the
basis of the Prime Rate, such interest
shall be calculated on the basis of a
365- (or 366-, as the case may be) day year
for the actual days elapsed. Any
change in the interest rate resulting from
a change in the ABR shall become
effective as of the opening of business on
the day on which such change becomes
effective. Each determination of an
interest rate by the Administrative Agent
<PAGE>
14
pursuant to any provision of this Agreement
shall be conclusive and binding on
the Borrower and the Lenders in the absence
of manifest error.
2.13. PRO RATA TREATMENT AND PAYMENTS. (a) Each payment by the
Borrower on account of any commitment fee
and any reduction of the Revolving
Commitments of the Lenders shall be made
PRO RATA according to the Revolving
Percentages of the Lenders.
(b) All payments (including prepayments) to be made by the
Borrower
hereunder, whether on account of fees,
interest or otherwise, shall be made
without setoff or counterclaim and shall be
made prior to 12:00 Noon, New York
City time, on the due date thereof to the
Administrative Agent, for the account
of the Lenders, at the Payment Office, in
Dollars and in immediately available
funds. The Administrative Agent may effect
any such payment by debiting any
account maintained by the Borrower with the
Administrative Agent. The
Administrative Agent shall distribute such
payments to the Lenders promptly upon
receipt in like funds as received. If any
payment hereunder becomes due and
payable on a day other than a Business Day,
such payment shall be extended to
the next succeeding Business Day. In the
case of any extension of any payment of
any Reimbursement Obligation pursuant to
the preceding two sentences, interest
thereon shall be payable at the then
applicable rate during such extension.
2.14. REQUIREMENTS OF LAW. (a) If the adoption of or any change in
any
Requirement of Law or in the interpretation
or application thereof or compliance
by any Lender with any request or directive
(whether or not having the force of
law) from any central bank or other
Governmental Authority made subsequent to
the date hereof:
(i) shall subject any Lender to any tax of any kind whatsoever
with
respect to this
Agreement, any Letter of Credit or any Application, or
change the basis
of taxation of payments to such Lender in respect thereof
(except for
Non-Excluded Taxes covered by Section 2.15 and changes in the
rate of tax on
the overall net income of such Lender);
(ii) shall impose, modify or hold applicable any reserve,
special
deposit,
compulsory loan or similar requirement against assets held by,
deposits or
other liabilities in or for the account of, advances, loans or
other extensions
of credit by, or any other acquisition of funds by, any
office of such
Lender; or
(iii) shall impose on such Lender any other condition;
and the result of any of the foregoing is
to increase the cost to such Lender,
by an amount that such Lender deems to be
material, of issuing or participating
in Letters of Credit, or to reduce any
amount receivable hereunder in respect
thereof, then, in any such case, the
Borrower shall promptly pay such Lender,
upon its demand, any additional amounts
necessary to compensate such Lender for
such increased cost or reduced amount
receivable. If any Lender becomes entitled
to claim any additional amounts pursuant to
this Section 2.14, it shall promptly
notify the Borrower (with a copy to the
Administrative Agent) of the event by
reason of which it has become so
entitled.
(b) if any Lender shall have determined that the adoption of or
any
change in any Requirement of Law regarding
capital adequacy or in the
interpretation or application thereof or
compliance by such Lender or any
corporation controlling such Lender with
any request or directive regarding
capital adequacy (whether or not having the
force of law) from any Governmental
Authority made subsequent to the date
hereof shall have the effect of reducing
the rate of return on such Lender's or such
corporation's capital as a
consequence of its obligations hereunder or
under or in respect of any Letter of
Credit to a level below that which such
Lender or such corporation could have
achieved but for such adoption, change or
compliance (taking into consideration
such Lender's or such corporation's
<PAGE>
15
policies with respect to capital adequacy)
by an amount deemed by such Lender to
be material, then from time to time, after
submission by such Lender to the
Borrower (with a copy to the Administrative
Agent) of a written request
therefor, the Borrower shall pay to such
Lender such additional amount or
amounts as will compensate such Lender for
such reduction; PROVIDED that the
Borrower shall not be required to
compensate a Lender pursuant to this paragraph
for any amounts incurred more than six
months prior to the date that such Lender
notifies the Borrower of such Lender's
intention to claim compensation therefor;
and PROVIDED FURTHER that, if the
circumstances giving rise to such claim have a
retroactive effect, then such six-month
period shall be extended to include the
period of such retroactive effect.
(c) A certificate as to any additional amounts payable pursuant
to
this Section 2.14 submitted by any Lender
to the Borrower (with a copy to the
Administrative Agent) shall be conclusive
in the absence of manifest error. The
obligations of the Borrower pursuant to
this Section 2.14 shall survive the
termination of this Agreement, the
termination or expiration of the Letters of
Credit and the payment of all amounts
payable hereunder.
2.15. TAXES. (a) All payments made by the Borrower under this
Agreement shall be made free and clear of,
and without deduction or withholding
for or on account of, any present or future
income, stamp or other taxes,
levies, imposts, duties, charges, fees,
deductions or withholdings, now or
hereafter imposed, levied, collected,
withheld or assessed by any Governmental
Authority, excluding net income taxes and
franchise taxes (imposed in lieu of
net income taxes) imposed on the
Administrative Agent or any Lender as a result
of a present or former connection between
the Administrative Agent or such
Lender and the jurisdiction of the
Governmental Authority imposing such tax or
any political subdivision or taxing
authority thereof or therein (other than any
such connection arising solely from the
Administrative Agent or such Lender
having executed, delivered or performed its
obligations or received a payment
under, or enforced, this Agreement or any
other Credit Document). If any such
non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or
withholdings ("NON-EXCLUDED TAXES") are
required to be withheld from any amounts
payable to the Administrative Agent or any
Lender hereunder, the amounts so
payable to the Administrative Agent or such
Lender shall be increased to the
extent necessary to yield to the
Administrative Agent or such Lender (after
payment of all Non-Excluded Taxes) interest
or any such other amounts payable
hereunder at the rates or in the amounts
specified in this Agreement, PROVIDED,
HOWEVER, that the Borrower shall not be
required to increase any such amounts
payable to any Lender that is not organized
under the laws of the United States
of America or a state thereof to the extent
such Lender's compliance with the
requirements of Section 2.15(b) at the time
such Lender becomes a party to this
Agreement fails to establish a complete
exemption from such withholding.
Whenever any Non-Excluded Taxes are payable
by the Borrower, as promptly as
possible thereafter the Borrower shall send
to the Administrative Agent for its
own account or for the account of such
Lender, as the case may be, a certified
copy of an original official receipt
received by the Borrower showing payment
thereof. If the Borrower fails to pay any
Non-Excluded Taxes when due to the
appropriate taxing authority or fails to
remit to the Administrative Agent the
required receipts or other required
documentary evidence, the Borrower shall
indemnify the Administrative Agent and the
Lenders for any incremental taxes,
interest or penalties that may become
payable by the Administrative Agent or any
Lender as a result of any such failure. The
agreements in this Section 2.15
shall survive the termination of this
Agreement, the termination or expiration
of the Letters of Credit and the payment of
all amounts payable hereunder.
(b) Each Lender (or Transferee) that is not a citizen or resident
of
the United States of America, a
corporation, partnership or other entity created
or organized in or under the laws of the
United States of America (or any
jurisdiction thereof), or any estate or
trust that is subject to federal income
taxation regardless of the source of its
income (a "NON-U.S. LENDER") shall
deliver to the Borrower and the
Administrative Agent (or, in the case of a
Participant, to the Lender from which the
related participation shall have been
purchased) two copies of either U.S.
Internal Revenue Service Form W-
<PAGE>
16
8BEN or Form W-8ECI, or, in the case of a
Non-U.S. Lender claiming exemption
from U.S. federal withholding tax under
Section 871(h) or 881(c) of the Code
with respect to payments of "portfolio
interest", a Form W-8, or any subsequent
versions thereof or successors thereto
(and, if such Non-U.S. Lender delivers a
Form W-8, an annual certificate
representing that such Non-U.S. Lender is not a
"bank" for purposes of Section 881(c) of
the Code, is not a 10-percent
shareholder (within the meaning of Section
871(h)(3)(B) of the Code) of the
Borrower and is not a controlled foreign
corporation related to the Borrower
(within the meaning of Section 864(d)(4) of
the Code)), properly completed and
duly executed by such Non-U.S. Lender
claiming complete exemption from, or a
reduced rate of, U.S. federal withholding
tax on all payments by the Borrower
under this Agreement and the other Credit
Documents. Such forms shall be
delivered by each Non-U.S. Lender on or
before the date it becomes a party to
this Agreement (or, in the case of any
Participant, on or before the date such
Participant purchases the related
participation). In addition, each Non-U.S.
Lender shall deliver such forms promptly
upon the obsolescence or invalidity of
any form previously delivered by such
Non-U.S. Lender. Each Non-U.S. Lender
shall promptly notify the Borrower at any
time it determines that it is no
longer in a position to provide any
previously delivered certificate to the
Borrower (or any other form of
certification adopted by the U.S. taxing
authorities for such purpose).
Notwithstanding any other provision of this
Section 2.15(b), a Non-U.S. Lender shall
not be required to deliver any form
pursuant to this Section 2.15(b) that such
Non-U.S. Lender is not legally able
to deliver.
2.16. CHANGE OF LENDING OFFICE. Each Lender agrees that, upon
the
occurrence of any event giving rise to the
operation of Section 2.14 or 2.15(a)
with respect to such Lender, it will, if
requested by the Borrower, use
reasonable efforts (subject to overall
policy considerations of such Lender) to
designate another lending office for any
Letters of Credit affected by such
event with the object of avoiding the
consequences of such event; PROVIDED, that
such designation is made on terms that, in
the sole judgment of such Lender,
cause such Lender and its lending office(s)
to suffer no economic, legal or
regulatory disadvantage, and PROVIDED,
FURTHER, that nothing in this Section
2.16 shall affect or postpone any of the
obligations of any Borrower or the
rights of any Lender pursuant to Section
2.14 or 2.15(a).
2.17. REPLACEMENT
