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EXECUTION VERSION
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$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
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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
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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
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