Exhibit 10(q)
JP Morgan
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364-DAY CREDIT AGREEMENT
dated as of
October 17, 2003
among
LIZ CLAIBORNE, INC.
The Lenders Party Hereto
Fleet National Bank and Citibank, N.A.,
as Syndication Agents
Bank One, NA,
as Documentation Agent
and
JPMORGAN CHASE BANK,
as Administrative Agent
$375,000,000 364-DAY REVOLVING CREDIT FACILITY
J.P. MORGAN SECURITIES, INC.,
as Sole Advisor, Lead Arranger
and Sole Bookrunner
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<PAGE>
TABLE OF CONTENTS
Page
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ARTICLE I
Definitions
SECTION 1.01. Defined
Terms....................................................1
SECTION 1.02. Terms
Generally.................................................15
SECTION 1.03. Accounting Terms;
GAAP..........................................16
ARTICLE II
The Credits
SECTION 2.01.
Commitments.....................................................16
SECTION 2.02. Loans and
Borrowings............................................16
SECTION 2.03. Requests for
Borrowings.........................................17
SECTION 2.04. Funding of
Borrowings...........................................18
SECTION 2.05. Interest
Elections..............................................18
SECTION 2.06. Termination and Reduction of
Commitments........................19
SECTION 2.07. Repayment of Loans; Evidence
of Debt............................20
SECTION 2.08. Optional Prepayment of
Loans....................................20
SECTION 2.09. Fees
...........................................................21
SECTION 2.10.
Interest........................................................21
SECTION 2.11. Alternate Rate of
Interest......................................22
SECTION 2.12. Increased
Costs.................................................23
SECTION 2.13. Break Funding
Payments..........................................24
SECTION 2.14.
Taxes...........................................................24
SECTION 2.15. Payments Generally; Pro Rata
Treatment; Sharing of Set-offs.....25
SECTION 2.16. Mitigation Obligations;
Replacement of Lenders..................26
SECTION 2.17. Source of
Funds.................................................27
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization;
Powers............................................27
SECTION 3.02. Authorization;
Enforceability...................................28
SECTION 3.03. Governmental Approvals; No
Conflicts............................28
SECTION 3.04. Financial Condition; No
Material Adverse Change.................28
SECTION 3.05. Properties;
Liens...............................................28
SECTION 3.06. Litigation and Environmental
Matters............................29
SECTION 3.07. Compliance with Laws and
Agreements.............................29
SECTION 3.08. No
Default......................................................29
SECTION 3.09. Investment and Holding
Company Status...........................29
i
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Page
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SECTION 3.10. No Burdensome
Restrictions......................................29
SECTION 3.11.
Taxes...........................................................29
SECTION 3.12. Federal
Regulations.............................................30
SECTION 3.13.
Subsidiaries....................................................30
SECTION 3.14.
ERISA...........................................................30
SECTION 3.15.
Disclosure......................................................30
ARTICLE IV
Conditions
SECTION 4.01. Effective
Date..................................................31
SECTION 4.02. Each Credit
Event...............................................32
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial
Statements............................................32
SECTION 5.02. Certificates; Other
Information.................................33
SECTION 5.03. Notices of Material
Events......................................33
SECTION 5.04. Existence; Conduct of
Business..................................34
SECTION 5.05. Payment of
Obligations..........................................34
SECTION 5.06. Maintenance of Properties and
Trademarks; Insurance.............34
SECTION 5.07. Books and Records; Inspection
Rights............................34
SECTION 5.08. Environmental
Laws..............................................35
SECTION 5.09.
Compliance......................................................35
SECTION 5.10. Additional
Subsidiaries.........................................35
SECTION 5.11. Use of
Proceeds.................................................35
ARTICLE VI
Negative Covenants
SECTION 6.01. Financial
Covenants.............................................36
SECTION 6.02.
Indebtedness....................................................36
SECTION 6.03.
Liens...........................................................37
SECTION 6.04. Fundamental
Changes.............................................38
SECTION 6.05. Investments, Loans, Advances,
Guarantees and Acquisitions;
Hedging
Agreements..............................................39
SECTION 6.06. Limitation on Sale of
Assets....................................40
SECTION 6.07. Restricted
Payments.............................................40
SECTION 6.08. Transactions with
Affiliates....................................40
SECTION 6.09. Changes in Fiscal
Periods.......................................41
SECTION 6.10. Lines of
Business...............................................41
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Page
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ARTICLE VII
Events of Default
ARTICLE VIII
The Administrative Agent
ARTICLE IX
Miscellaneous
SECTION 9.01.
Notices.........................................................45
SECTION 9.02. Waivers;
Amendments.............................................46
SECTION 9.03. Expenses; Indemnity; Damage
Waiver..............................46
SECTION 9.04. Successors and
Assigns..........................................47
SECTION 9.05.
Survival........................................................51
SECTION 9.06. Counterparts; Integration;
Effectiveness........................51
SECTION 9.07.
Severability....................................................51
SECTION 9.08. Right of
Setoff.................................................51
SECTION 9.09. Governing Law; Jurisdiction;
Consent to Service of Process......52
SECTION 9.10. WAIVER OF JURY
TRIAL............................................52
SECTION 9.11.
Headings........................................................52
SECTION 9.12.
Confidentiality.................................................53
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 3.06 -- Disclosed Matters
Schedule 3.13 -- Subsidiaries
Schedule 6.02 -- Existing Indebtedness
Schedule 6.03 -- Existing Liens
Schedule 6.05(i) -- Existing
Investments
Schedule 6.05(ii) -- Borrower's Investment
Policy
EXHIBITS:
Exhibit A -- Form of Assignment and
Acceptance
Exhibit B-1 -- Form of Opinion of Kramer
Levin Naftalis & Frankel LLP
Exhibit B-2 -- Form of Opinion of Deputy
General Counsel of the Borrower
Exhibit C -- Form of Subsidiary
Guarantee
iii
<PAGE>
364-DAY CREDIT
AGREEMENT dated as of October 17, 2003, among LIZ CLAIBORNE,
INC., the LENDERS party hereto, FLEET
NATIONAL BANK and CITIBANK, N.A., as
Syndication Agents, BANK ONE, NA, as
Documentation Agent and JPMORGAN CHASE
BANK, as Administrative Agent.
The parties
hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01.
Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR", when used
in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such
Borrowing, are bearing interest at a
rate determined by reference to the
Alternate Base Rate.
"Administrative
Agent" means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders
hereunder.
"Administrative
Questionnaire" means an Administrative Questionnaire in a
form supplied by the Administrative
Agent.
"Affiliate"
means, with respect to a specified Person, another Person that
directly, or indirectly through one or more
intermediaries, Controls or is
Controlled by or is under common Control
with the Person specified.
"Agreement"
means this 364-Day Credit Agreement, as amended, supplemented
or otherwise modified from time to time in
accordance with its terms.
"Alternate Base
Rate" means, for any day, a rate per annum equal to the
greatest of (a) the Prime Rate in effect on
such day, (b) the Base CD Rate in
effect on such day plus 1% and (c) the
Federal Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change
in the Prime Rate, the Base CD Rate or the
Federal Funds Effective Rate shall be
effective from and including the effective
date of such change in the Prime
Rate, the Base CD Rate or the Federal Funds
Effective Rate, as applicable.
"Applicable
Percentage" means, with respect to any Lender, the percentage
of the total Commitments represented by
such Lender's Commitment. If the
Commitments have terminated or expired, the
Applicable Percentages shall be
determined based upon the Commitments most
recently in effect, giving effect to
any assignments.
"Applicable
Rate" means, for any day, with respect to any Eurocurrency
Revolving Loan or ABR Revolving Loan, as
the case may be, or with respect to the
facility fees payable hereunder, the
applicable rate per annum set forth below
under the caption
<PAGE>
"Eurocurrency Spread," "ABR Spread" or
"Facility Fee Rate," based upon the
ratings by Moody's and S&P,
respectively, applicable on such date to the Index
Debt:
<TABLE>
<CAPTION>
====================================================================================================================
Eurocurrency
Facility Fee
Utilization
Level
Index Debt Rating
Spread
ABR Spread
Rate
Fee Rate
--------------------------------------------------------------------------------------------------------------------
<S>
<C>
<C>
<C>
<C>
<C>
I
>= A-/A3
0.35%
0.00%
0.10%
0.125%
--------------------------------------------------------------------------------------------------------------------
II
BBB+/Baa1
0.50%
0.00%
0.125%
0.125%
--------------------------------------------------------------------------------------------------------------------
III
BBB/Baa2
0.60%
0.00%
0.15%
0.125%
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IV
BBB-/Baa3
0.80%
0.00%
0.20%
0.25%
--------------------------------------------------------------------------------------------------------------------
V
<= BB+/Ba1
1.075%
0.025%
0.25%
0.25%
====================================================================================================================
</TABLE>
For purposes of
the foregoing, (i) if the ratings established or deemed to
have been established by Moody's and
S&P for the Index Debt shall fall within
different Levels, the Applicable Rate shall
be based on the higher of the two
ratings (i.e., the lower Level number)
unless one of the two ratings is two or
more Levels lower than the other, in which
case the Applicable Rate shall be
determined by reference to the Level next
below that of the higher of the two
Levels; and (ii) if the ratings established
or deemed to have been established
by Moody's and S&P for the Index Debt
shall be changed (other than as a result
of a change in the rating system of Moody's
or S&P), such change shall be
effective as of the date on which it is
first announced by the applicable rating
agency. Each change in the Applicable Rate
shall apply during the period
commencing on the effective date of such
change and ending on the date
immediately preceding the effective date of
the next such change. If the rating
system of Moody's or S&P shall change,
or if either such rating agency shall
cease to be in the business of rating
corporate debt obligations, the Borrower
and the Lenders shall negotiate in good
faith to amend this definition to
reflect such changed rating system or the
unavailability of ratings from such
rating agency and, pending the
effectiveness of any such amendment, the
Applicable Rate shall be determined by
reference to the rating most recently in
effect prior to such change or cessation.
If, on any date, the Loans or the
"Dollar Equivalent" of the outstanding
principal amount of the "Loans" and "L/C
Obligations" under the Three-Year Credit
Agreement exceed 50% of the aggregate
amount of the Commitments or the
"Commitments" under the Three-Year Credit
Agreement, as the case may be (or, during
the period after the Commitments or
such "Commitments", as the case may be,
have terminated, 50% of the aggregate
amount of the Commitments or such
"Commitments", as the case may be, immediately
prior to such termination), the
Eurocurrency Spread or ABR Spread, as the case
may be, for such date shall increase by the
amount set forth in the above grid
under the caption "Utilization Fee Rate,"
based upon the ratings by Moody's and
S&P, respectively, applicable on such
date to the Index Debt.
"Approved Fund"
means (a) a CLO and (b) with respect to any Lender that is
a fund which invests in bank loans and
similar extensions of credit, any other
fund that invests in bank loans and similar
extensions of credit and is managed
by the same investment advisor as such
Lender or by an Affiliate of such
investment advisor.
2
<PAGE>
"Assessment
Rate" means, for any day, the annual assessment rate in effect
on such day that is payable by a member of
the Bank Insurance Fund classified as
"well-capitalized" and within supervisory
subgroup "B" (or a comparable
successor risk classification) within the
meaning of 12 C.F.R. Part 327 (or any
successor provision) to the Federal Deposit
Insurance Corporation for insurance
by such Corporation of time deposits made
in dollars at the offices of such
member in the United States; provided that
if, as a result of any change in any
law, rule or regulation, it is no longer
possible to determine the Assessment
Rate as aforesaid, then the Assessment Rate
shall be such annual rate as shall
be reasonably determined by the
Administrative Agent to be representative of the
cost of such insurance to the Lenders.
"Assignment and
Acceptance" means an assignment and acceptance entered into
by a Lender and an assignee (with the
consent of any party whose consent is
required by Section 9.04), and accepted by
the Administrative Agent, in the form
of Exhibit A or any other form approved by
the Administrative Agent.
"Availability
Period" means the period from and including the Effective
Date to but excluding the earlier of the
Maturity Date and the date of
termination of the Commitments.
"Base CD Rate"
means the sum of (a) the Three-Month Secondary CD Rate
multiplied by the Statutory Reserve Rate
plus (b) the Assessment Rate.
"Board" means
the Board of Governors of the Federal Reserve System of the
United States of America.
"Borrower" means
Liz Claiborne, Inc., a Delaware corporation.
"Borrowing"
means Revolving Loans of the same Type, made, converted or
continued on the same date and, in the case
of Eurocurrency Loans, as to which a
single Interest Period is in effect.
"Borrowing
Request" means a request by the Borrower for a Borrowing in
accordance with Section 2.03.
"Business Day"
means any day that is not a Saturday, Sunday or other day on
which commercial banks in New York City are
authorized or required by law to
remain closed; provided that, when used in
connection with a Eurocurrency Loan,
the term "Business Day" shall also exclude
any day on which banks are not open
for dealings in dollar deposits in the
London interbank market.
"Capital Lease
Obligations" means the obligations of the Borrower and its
Subsidiaries to pay rent or other amounts
under any lease of (or other
arrangement conveying the right to use)
real or personal property, or a
combination thereof, which obligations are
required to be classified and
accounted for as capital leases on a
consolidated balance sheet of the Borrower
under GAAP, and the amount of such
obligations shall be the capitalized amount
thereof determined in accordance with
GAAP.
3
<PAGE>
"Change in
Control" means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by
any Person or group (within the
meaning of Section 13(d) of the Securities
Exchange Act of 1934 and the rules of
the Securities and Exchange Commission
thereunder as in effect on the date
hereof) of shares representing more than 33
1/3% of the aggregate ordinary
voting power represented by the issued and
outstanding capital stock of the
Borrower; or (b) occupation of a majority
of the seats (other than vacant seats)
on the board of directors of the Borrower
by Persons who were neither (i)
nominated by the board of directors of the
Borrower nor (ii) appointed by
directors so nominated.
"Change in Law"
means (a) the adoption of any law, rule or regulation after
the date of this Agreement, (b) any change
in any law, rule or regulation or in
the interpretation or application thereof
by any Governmental Authority after
the date of this Agreement or (c)
compliance by any Lender (or, for purposes of
Section 2.12(b), by any lending office of
such Lender or by such Lender's
holding company, if any) with any request,
guideline or directive (whether or
not having the force of law) of any
Governmental Authority made or issued after
the date of this Agreement.
"CLO" means any
entity (whether a corporation, partnership, trust or
otherwise) that is engaged in making,
purchasing, holding or otherwise investing
in bank loans and similar extensions of
credit in the ordinary course of its
business and is administered or managed by
a Lender or an Affiliate of such
Lender.
"Closing Date"
means the date on which the conditions precedent set forth
in Section 4.01 shall have been satisfied,
which date is October 17, 2003.
"Code" means the
Internal Revenue Code of 1986, as amended from time to
time.
"Commitment"
means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans, expressed
as an amount representing the maximum
aggregate amount of such Lender's Revolving
Credit Exposure hereunder, as such
commitment may be (a) reduced from time to
time pursuant to Section 2.06 and (b)
reduced or increased from time to time
pursuant to assignments by or to such
Lender pursuant to Section 9.04. The
initial amount of each Lender's Commitment
is set forth on Schedule 2.01, or in the
Assignment and Acceptance pursuant to
which such Lender shall have assumed its
Commitment, as applicable. The
aggregate amount of the Commitments on the
Closing Date is $375,000,000.
"Conduit Lender"
means any special purpose corporation organized and
administered by any Lender for the purpose
of making Loans hereunder otherwise
required to be made by such Lender and
designated by such Lender in a written
instrument, subject to the consent of the
Borrower (which, in each case, shall
not be unreasonably withheld or delayed);
provided, that the designation by any
Lender of a Conduit Lender shall not
relieve the designating Lender of any of
its obligations to fund a Loan under this
Agreement if, for any reason, its
Conduit Lender fails to fund any such Loan,
and the designating Lender (and not
the Conduit Lender) shall have the sole
right and responsibility to deliver all
consents and waivers required or requested
under this Agreement with respect to
its Conduit Lender; and provided further,
that no Conduit Lender shall (a) be
entitled to receive any greater amount
pursuant to Section 2.12, 2.13, 2.14 or
9.03 than the designating Lender would have
been entitled to receive
4
<PAGE>
in respect of the extensions of credit made
by such Conduit Lender or (b) be
deemed to have any Commitment
hereunder.
"Consolidated
EBITDA" means, for any period, Consolidated Net Income for
such period plus, without duplication and
to the extent reflected as a charge in
the statement of such Consolidated Net
Income for such period, the sum of (a)
income or franchise tax expense, (b)
interest expense, both expensed and
capitalized, amortization or writeoff of
debt discount and debt issuance costs
and commissions, discounts and other fees
and charges associated with
Indebtedness (including the Loans), (c)
depreciation and amortization expense,
(d) amortization of intangibles (including,
but not limited to, goodwill) and
organization costs, (e) any extraordinary,
unusual or non-recurring non-cash
expenses or losses (including, whether or
not otherwise includable as a separate
item in the statement of such Consolidated
Net Income for such period, non-cash
losses on sales of assets outside of the
ordinary course of business), and (f)
any other non-cash charges, and minus, to
the extent included in the statement
of such Consolidated Net Income for such
period, the sum of (a) interest income,
(b) any extraordinary, unusual or
non-recurring income or gains (including,
whether or not otherwise includable as a
separate item in the statement of such
Consolidated Net Income for such period,
gains on the sales of assets outside of
the ordinary course of business) and (c)
any other non-cash income, all as
determined on a consolidated basis.
"Consolidated
EBITDAR" means, with respect to any period, Consolidated
EBITDA for such period plus the
Consolidated Rental Expense of the Borrower for
such period.
"Consolidated
Interest Expense" means, for any period, (a) the total amount
of interest expense, both expensed and
capitalized, of the Borrower and its
Subsidiaries determined on a consolidated
basis, without duplication, in
accordance with GAAP for such period minus
(b) the amount of interest income of
the Borrower and its Subsidiaries
determined on a consolidated basis in
accordance with GAAP for such period
"Consolidated
Net Income" means, for any period, the consolidated net
income (or loss) of a Borrower and its
Subsidiaries, determined on a
consolidated basis in accordance with GAAP;
provided that there shall be
excluded (a) the income (or deficit) of any
Person accrued prior to the date it
becomes a Subsidiary of such Borrower or is
merged into or consolidated with
such Borrower or any of its Subsidiaries,
(b) the income (or deficit) of any
Person (other than a Subsidiary of such
Borrower) in which such Borrower or any
of its Subsidiaries has an ownership
interest, except to the extent that any
such income is actually received by such
Borrower or such Subsidiary in the form
of dividends or similar distributions and
(c) the undistributed earnings of any
Subsidiary of such Borrower to the extent
that the declaration or payment of
dividends or similar distributions by such
Subsidiary is not at the time
permitted by the terms of any Contractual
Obligation (other than under the
Agreement) or Requirement of Law applicable
to such Subsidiary.
"Consolidated
Rental Expense" means, for any period, the aggregate amount
of fixed and contingent rentals payable by
the Borrower and its Subsidiaries for
such period determined on a consolidated
basis in accordance with GAAP with
respect to leases of real property minus
the aggregate amount of rental income
(including licensee related income from
licensees operating on the store
premises of the Borrower and its
Subsidiaries) payable to the
5
<PAGE>
Borrower and its Subsidiaries for such
period in accordance with GAAP with
respect to leases of real and personal
property.
"Consolidated
Total Debt" means, at any date, the aggregate principal
amount of the Indebtedness of the Borrower
and its Subsidiaries at such date set
forth on the Borrower's consolidated
balance sheet opposite the captions
"Current Portion of Long Term Borrowings,"
"Long Term Borrowings" and "Short
Term Borrowings," determined on a
consolidated basis in accordance with GAAP.
"Contractual
Obligation" means, as to any Person, any provision of any
security issued by such Person or of any
agreement, instrument or other
undertaking to which such Person is a party
or by which it or any of its
property is bound.
"Control" means
the possession, directly or indirectly, of the power to
direct or cause the direction of the
management or policies of a Person, whether
through the ability to exercise voting
power, by contract or otherwise.
"Controlling" and "Controlled" have
meanings correlative thereto.
"Default" means
any event or condition which constitutes an Event of
Default or which upon notice, lapse of time
or both would, unless cured or
waived, become an Event of Default.
"Disclosed
Matters" means the actions, suits and proceedings and the
environmental matters disclosed in Schedule
3.06.
"dollars" or "$"
refers to lawful money of the United States of America
unless otherwise specified.
"Documentation
Agent" means Bank One, NA.
"Effective Date"
means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in
accordance with Section 9.02).
"Environmental
Laws" means all applicable laws, rules, regulations, codes,
ordinances, orders, decrees, judgments,
injunctions, notices or binding
agreements issued, promulgated or entered
into by any Governmental Authority,
which relate in any way to the environment,
preservation or reclamation of
natural resources, the management, release
or threatened release of any
Hazardous Material or to human health and
safety matters.
"Environmental
Liability" means any liability, contingent or otherwise
(including any liability for damages, costs
of environmental remediation, fines,
penalties or indemnities), of the Borrower
or any Subsidiary, directly or
indirectly, resulting from or based upon
(a) violation of any Environmental Law,
(b) the generation, use, handling,
transportation, storage, treatment or
disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials,
(d) the release or threatened release of
any Hazardous Materials into the
environment or (e) any contract or
agreement pursuant to which liability is
incurred by the Borrower or any Subsidiary
with respect to any of the foregoing.
6
<PAGE>
"ERISA" means
the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA
Affiliate" means any trade or business (whether or not
incorporated)
that, together with the Borrower, is
treated as a single employer under Section
414(b) or (c) of the Code or, solely for
purposes of Section 302 of ERISA and
Section 412 of the Code, is treated as a
single employer under Section 414 of
the Code.
"ERISA Event"
means (a) any "reportable event", as defined in Section 4043
of ERISA or the regulations issued
thereunder with respect to a Plan (other than
an event for which the 30-day notice period
is waived); (b) the existence with
respect to any Plan of an "accumulated
funding deficiency" (as defined in
Section 412 of the Code or Section 302 of
ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the
Code or Section 303(d) of ERISA of an
application for a waiver of the minimum
funding standard with respect to any
Plan; (d) the incurrence by the Borrower or
any of its ERISA Affiliates of any
liability under Title IV of ERISA with
respect to the termination of any Plan;
(e) the receipt by the Borrower or any
ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an
intention to terminate any Plan or
Plans or to appoint a trustee to administer
any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of
any liability with respect to the
withdrawal or partial withdrawal from any
Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA
Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or
any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal
Liability or a determination that a
Multiemployer Plan is, or is expected to
be, insolvent or in reorganization,
within the meaning of Title IV of
ERISA.
"Eurocurrency",
when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising
such Borrowing, are bearing interest
at a rate determined by reference to the
LIBO Rate.
"Event of
Default" has the meaning assigned to such term in Article VII.
"Excluded Taxes"
means, with respect to the Administrative Agent, any
Lender or any other recipient of any
payment to be made by or on account of any
obligation of the Borrower hereunder, (a)
income or franchise taxes imposed on
(or measured by) its net income by the
United States of America, or by the
jurisdiction under the laws of which such
recipient is organized or in which its
principal office is located or, in the case
of any Lender, in which its
applicable lending office is located, (b)
any branch profits taxes imposed by
the United States of America or any similar
tax imposed by any other
jurisdiction in which the Borrower is
located and (c) in the case of a Foreign
Lender (other than an assignee pursuant to
a request by the Borrower under
Section 2.16(b)), any United States
withholding tax that is imposed on amounts
payable to such Foreign Lender at the time
such Foreign Lender becomes a party
to this Agreement or at the time such
Lender changes its applicable lending
office or is attributable to such Foreign
Lender's failure or inability to
comply with Section 2.14(e), except to the
extent that such Foreign Lender's
assignor (if any) or such Foreign Lender,
in the case of a Lender that changes
its applicable lending office, was
entitled, at the time of assignment or at the
time of the change in applicable lending
office, to receive additional amounts
from the Borrower with respect to such
withholding tax pursuant to Section
2.14(a).
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"Extended
Maturity Date" has the meaning set forth in Section 2.07.
"Federal Funds
Effective Rate" means, for any day, the weighted average
(rounded upwards, if necessary, to the next
1/100 of 1%) of the rates on
overnight Federal funds transactions with
members of the Federal Reserve System
arranged by Federal funds brokers, as
published on the next succeeding Business
Day by the Federal Reserve Bank of New
York, or, if such rate is not so
published for any day that is a Business
Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the
quotations for such day for such
transactions received by the Administrative
Agent from three Federal funds
brokers of recognized standing selected by
it.
"Financial
Officer" means the Senior Vice President - Chief Financial
Officer, chief financial officer, principal
accounting officer, treasurer or
controller of the Borrower.
"Fixed Charge
Coverage Ratio" means, as at the last day of any period,
Consolidated EBITDAR divided by the sum of
Consolidated Interest Expense plus
Consolidated Rental Expense.
"Foreign Lender"
means any Lender that is organized under the laws of a
jurisdiction other than that in which the
Borrower is located. For purposes of
this definition, the United States of
America, each State thereof and the
District of Columbia shall be deemed to
constitute a single jurisdiction.
"GAAP" means
generally accepted accounting principles in the United States
of America.
"Governmental
Authority" means the government of the United States of
America, any other nation or any political
subdivision thereof, whether state or
local, and any agency, authority,
instrumentality, regulatory body, court,
central bank or other entity exercising
executive, legislative, judicial,
taxing, regulatory or administrative powers
or functions of or pertaining to
government.
"Guarantee" of
or by any Person (the "guarantor") means any obligation,
contingent or otherwise, of the guarantor
guaranteeing or having the economic
effect of guaranteeing any Indebtedness or
other obligation of any other Person
(the "primary obligor") in any manner,
whether directly or indirectly, and
including any obligation of the guarantor,
direct or indirect, (a) to purchase
or pay (or advance or supply funds for the
purchase or payment of) such
Indebtedness or other obligation or to
purchase (or to advance or supply funds
for the purchase of) any security for the
payment thereof, (b) to purchase or
lease property, securities or services for
the purpose of assuring the owner of
such Indebtedness or other obligation of
the payment thereof, (c) to maintain
working capital, equity capital or any
other financial statement condition or
liquidity of the primary obligor so as to
enable the primary obligor to pay such
Indebtedness or other obligation or (d) as
an account party in respect of any
letter of credit or letter of guaranty
issued to support such Indebtedness or
obligation; provided, that the term
Guarantee shall not include endorsements for
collection or deposit in the ordinary
course of business.
8
<PAGE>
"Hazardous
Materials" means all radioactive substances or wastes and all
hazardous or toxic substances, wastes or
other pollutants, including petroleum,
asbestos or asbestos containing materials,
polychlorinated biphenyls, radon gas,
and all other substances or wastes
regulated under any Environmental Law.
"Hedging
Agreement" means any interest rate protection agreement,
foreign
currency exchange agreement, commodity
price protection agreement or other
interest or currency exchange rate or
commodity price hedging arrangement.
"Indebtedness"
of any Person means, without duplication, (a) all
obligations of such Person for borrowed
money, (b) all obligations of such
Person evidenced by bonds, debentures,
notes or similar instruments, (c) all
obligations of such Person under
conditional sale or other title retention
agreements relating to property acquired by
such Person, (d) all obligations of
such Person in respect of the deferred
purchase price of property or services
(excluding accounts payable incurred in the
ordinary course of business), (e)
all Indebtedness of others secured by (or
for which the holder of such
Indebtedness has an existing right,
contingent or otherwise, to be secured by)
any Lien on property owned or acquired by
such Person, whether or not the
Indebtedness secured thereby has been
assumed, (f) all Guarantees by such Person
of Indebtedness of others, (g) all Capital
Lease Obligations of such Person, (h)
all obligations, contingent or otherwise,
of such Person as an account party in
respect of letters of credit and letters of
guaranty and (i) all obligations,
contingent or otherwise, of such Person in
respect of bankers' acceptances. The
Indebtedness of any Person shall include,
without duplication, the Indebtedness
of any other entity (including any
partnership in which such Person is a general
partner) to the extent such Person is
liable therefor as a result of such
Person's ownership interest in or other
relationship with such entity, except to
the extent the terms of such Indebtedness
provide that such Person is not liable
therefor.
"Indemnified
Taxes" means Taxes other than Excluded Taxes.
"Index Debt"
means senior, unsecured, long-term indebtedness for borrowed
money of the Borrower that is not
guaranteed by any other Person or subject to
any other credit enhancement.
"Interest
Election Request" means a request by the Borrower to convert or
continue a Borrowing in accordance with
Section 2.05.
"Interest
Payment Date" means (a) with respect to any ABR Loan, the last
day of each March, June, September and
December, and (b) with respect to any
Eurocurrency Loan, the last day of the
Interest Period applicable to the
Borrowing of which such Loan is a part and,
in the case of a Eurocurrency
Borrowing with an Interest Period of more
than three months' duration, each day
prior to the last day of such Interest
Period that occurs at intervals of three
months' duration after the first day of
such Interest Period.
"Interest
Period" means with respect to any Eurocurrency Loan, the period
commencing on the date of such Loan and
ending on the numerically corresponding
day in the calendar month that is one, two,
three or six months (or to the
extent available to all Lenders, nine or
twelve months) thereafter, as the
Borrower may elect; provided, that (i) if
any Interest
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<PAGE>
Period would end on a day other than a
Business Day, such Interest Period shall
be extended to the next succeeding Business
Day unless such next succeeding
Business Day would fall in the next
calendar month, in which case such Interest
Period shall end on the next preceding
Business Day and (ii) any Interest Period
pertaining to a Eurocurrency Loan that
commences on the last Business Day of a
calendar month (or on a day for which there
is no numerically corresponding day
in the last calendar month of such Interest
Period) shall end on the last
Business Day of the last calendar month of
such Interest Period. For purposes
hereof, the date of a Borrowing initially
shall be the date on which such
Borrowing is made or if initially an ABR
Loan, on the date initially converted
and, in the case of a Eurocurrency Loan,
thereafter shall be the effective date
of the most recent conversion or
continuation of such Borrowing.
"Lender
Affiliate" means, (a) with respect to any Lender, (i) an
Affiliate
of such Lender or (ii) an Approved
Fund.
"Lenders" means
the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto
pursuant to an Assignment and Acceptance,
other than any such Person that ceases to
be a party hereto pursuant to an
Assignment and Acceptance.
"Leverage Ratio"
means, as at the last day of any period, the ratio of (a)
Consolidated Total Debt on such day to (b)
Consolidated EBITDA for such period.
"LIBO Rate"
means, with respect to any Eurocurrency Borrowing for any
Interest Period, the rate appearing on Page
3750 of the Telerate screen (or on
any successor or substitute page of such
Page, or any successor to or substitute
for such Page, providing rate quotations
comparable to those currently provided
on such page of such Page, as determined by
the Administrative Agent from time
to time for purposes of providing
quotations of interest rates applicable to
deposits in the relevant currency in the
London interbank market) at
approximately 11:00 a.m., London time, two
Business Days prior to the
commencement of such Interest Period, as
the rate for dollar deposits with a
maturity comparable to such Interest
Period. In the event that such rate is not
available at such time for any reason, then
the "LIBO Rate" with respect to such
Eurocurrency Borrowing for such Interest
Period shall be the rate at which
deposits in the relevant currency of
$5,000,000 and for a maturity comparable to
such Interest Period are offered to the
principal London office of the
Administrative Agent in immediately
available funds in the London interbank
market at approximately 11:00 a.m., London
time, two Business Days prior to the
commencement of such Interest Period.
"Lien" means,
with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance,
charge or security interest in, on or
of such asset, (b) the interest of a vendor
or a lessor under any conditional
sale agreement, capital lease or title
retention agreement (or any financing
lease having substantially the same
economic effect as any of the foregoing)
relating to such asset and (c) in the case
of securities, any purchase option,
call or similar right of a third party with
respect to such securities.
"Loan Documents"
means this Agreement, the Subsidiary Guarantee and any
Notes.
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<PAGE>
"Loan Parties"
means the Borrower and each Subsidiary that is a party to a
Loan Document.
"Loans" means
the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"Material
Adverse Effect" means a material adverse effect on (a) the
business, assets, operations or condition,
financial or otherwise, of the
Borrower and the Subsidiaries taken as a
whole, (b) the ability of the Borrower
to perform any of its obligations under
this Agreement or (c) the rights of or
benefits available to the Lenders under
this Agreement and the Subsidiary
Guarantee.
"Material
Indebtedness" means Indebtedness (other than the Loans), or
obligations in respect of one or more
Hedging Agreements, of any one or more of
the Borrower and its Subsidiaries in an
aggregate principal amount exceeding
$50,000,000. For purposes of determining
Material Indebtedness, the "principal
amount" of the obligations of the Borrower
or any Subsidiary in respect of any
Hedging Agreement at any time shall be the
maximum aggregate amount (giving
effect to any netting agreements) that the
Borrower or such Subsidiary would be
required to pay if such Hedging Agreement
were terminated at such time.
"Maturity Date"
means October 15, 2004.
"Moody's" means
Moody's Investors Service, Inc.
"Multiemployer
Plan" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
"Note" has the
meaning set forth in Section 2.07(e).
"Other Taxes"
means any and all present or future stamp or documentary
taxes or any other excise or property
taxes, charges or similar levies arising
from any payment made hereunder or from the
execution, delivery or enforcement
of, or otherwise with respect to, this
Agreement.
"PBGC" means the
Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity
performing similar functions.
"Permitted
Acquisition" means any acquisition by the Borrower or any
Subsidiary of any of the assets of, or
capital stock in, a Person or of a
division or line of business of a Person
if, immediately after giving effect
thereto, (a) no Default has occurred and is
continuing or would result
therefrom, (b) the principal business of
any such acquired Person, division or
line of business shall be a Permitted Line
of Business, (c) all actions required
to be taken under Section 5.10 with respect
to any Subsidiary acquired or newly
formed in connection with such acquisition
have been taken, (d) the Borrower and
its Subsidiaries are in compliance, on a
pro forma basis after giving effect to
such acquisition, with the covenants
contained in Section 6.01 recomputed as at
the last day of the most recently ended
fiscal quarter of the Borrower for which
financial statements are available, as if
such acquisition had occurred on the
first day of each relevant period for
testing such compliance and (e) the
Borrower has delivered to the
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Administrative Agent an officers'
certificate to the effect set forth in clauses
(a), (b), (c) and (d) above, together with
all relevant financial information
for the Person or assets to be acquired and
reasonably detailed calculations
demonstrating satisfaction of the
requirement set forth in clause (d) above.
"Permitted
Encumbrances" means:
(a) Liens imposed by law for taxes that are not yet due or are
being
contested in
compliance with Section 5.05;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's
and other like
Liens imposed by law, arising in the ordinary course of
business and
securing obligations that are not overdue by more than 30 days
or are being
contested in compliance with Section 5.05;
(c) pledges and deposits made in the ordinary course of business
in
compliance with
workers' compensation, unemployment insurance and other
social security
laws or regulations;
(d) Liens granted and deposits made to secure the performance of
bids,
trade contracts,
leases, statutory obligations, surety and appeal bonds,
performance
bonds and other obligations of a like nature, in each case in
the ordinary
course of business; and
(e) easements, zoning restrictions, rights-of-way and similar
encumbrances on
real property imposed by law or arising in the ordinary
course of
business that do not secure any monetary obligations and do not
materially
detract from the value of the affected property or interfere
with the
ordinary conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted
Encumbrances" shall not include any Lien
securing Indebtedness.
"Permitted Lines
of Business" means (a) the business of the Borrower as
conducted on the Effective Date, (b) any
wholesale, retail or other distribution
of products (including catalogue and
internet) or services under any Trademark
or any derivative thereof, (c) any similar
business and any business which
provides a service and/or supplies products
in connection with any business
described in clause (a) or (b) above or (d)
any reasonable modification or
extension thereof.
"Person" means
any natural person, corporation, limited liability company,
trust, joint venture, association, company,
partnership, Governmental Authority
or other entity.
"Plan" means any
employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV
of ERISA or Section 412 of the Code
or Section 302 of ERISA, and in respect of
which the Borrower or any ERISA
Affiliate is (or, if such plan were
terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as
defined in Section 3(5) of ERISA.
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<PAGE>
"Prime Rate"
means the rate of interest per annum publicly announced from
time to time by the Administrative Agent as
its prime rate in effect at its
principal office in New York
City; each change in the Prime Rate shall
be effective from and including the
date such change is publicly announced as
being effective.
"Register" has
the meaning set forth in Section 9.04(c).
"Regulation U"
means Regulation U of the Board as in effect from time to
time.
"Related
Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective
directors, officers, employees, agents
and advisors of such Person and such
Person's Affiliates.
"Required
Lenders" means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments
representing more than 50% of the sum of the
total Revolving Credit Exposures and unused
Commitments at such time.
"Requirement of
Law" means, as to any Person, the Certificate of
Incorporation and By-Laws or other
organizational or governing documents of such
Person, and any law, treaty, rule or
regulation or determination of an
arbitrator or a court or other Governmental
Authority, in each case applicable
to or binding upon such Person or any of
its property or to which such Person or
any of its property is subject.
"Responsible
Officer" means the chief executive officer, president, any
vice president or Financial Officer of the
Borrower, but in any event, with
respect to financial matters, a Financial
Officer of the Borrower.
"Restricted
Payment" means any dividend or other distribution (whether in
cash, securities or other property) with
respect to any shares of any class of
capital stock of the Borrower or any
Subsidiary, or any payment (whether in
cash, securities or other property),
including any sinking fund or similar
deposit, on account of the purchase,
redemption, retirement, acquisition,
cancellation or termination of any such
shares of capital stock of the Borrower
or any option, warrant or other right to
acquire any such shares of capital
stock of the Borrower.
"Revolving
Credit Exposure" means, with respect to any Lender at any time,
the sum of the outstanding principal amount
of such Lender's Revolving Loans at
such time.
"Revolving Loan"
means a Loan made pursuant to Section 2.01.
"S&P" means
Standard & Poor's Ratings Services, a division of the
McGraw
Hill Companies, Inc.
"Statutory
Reserve Rate" means a fraction (expressed as a decimal), the
numerator of which is the number one and
the denominator of which is the number
one minus the aggregate of the maximum
reserve percentages (including any
marginal, special, emergency or
supplemental reserves) expressed as a decimal
established by the Board to which the
Administrative Agent is subject (a) with
respect to the Base CD Rate, for new
negotiable
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nonpersonal time deposits in dollars of
over $100,000 with maturities
approximately equal to three months and (b)
with respect to the LIBO Rate, for
eurocurrency funding (currently referred to
as "Eurocurrency Liabilities" in
Regulation D of the Board). The Statutory
Reserve Rate shall be adjusted
automatically on and as of the effective
date of any change in any reserve
percentage.
"Subordinated
Indebtedness" means any Indebtedness of the Borrower,
provided that with respect to any such
Indebtedness (i) no part of the principal
of such Indebtedness is stated to be
payable or is required to be paid (whether
by way of mandatory sinking fund, mandatory
redemption, mandatory prepayment or
otherwise) prior to the Maturity Date or,
if such Maturity Date is extended
pursuant to Section 2.07, the Extended
Maturity Date and the payment of
principal of which and (subject to clause
(ii) below) any other obligations of
the Borrower in respect thereof are
subordinated to the prior payment in full of
principal of and interest (including
post-petition interest) on the Loans and
all other obligations and liabilities of
the Borrower to the Administrative
Agent and the Lenders hereunder on terms
and conditions first approved in
writing by the Required Lenders, (ii) no
part of the interest accruing on such
Indebtedness (other than interest payable
solely in kind which shall be
similarly subordinated) is payable, without
the prior written consent of the
Required Lenders, after a Default or Event
of Default has occurred and is
continuing, and (iii) such Indebtedness
otherwise contains terms, covenants and
conditions in form and substance reasonably
satisfactory to the Required
Lenders, as evidenced by their prior
written approval thereof.
"subsidiary"
means, with respect to any Person (the "parent") at any date,
any corporation, limited liability company,
partnership, association or other
entity the accounts of which would be
consolidated with those of the parent in
the parent's consolidated financial
statements if such financial statements were
prepared in accordance with GAAP as of such
date, as well as any other
corporation, limited liability company,
partnership, association or other entity
(a) of which securities or other ownership
interests representing more than 50%
of the equity or more than 50% of the
ordinary voting power or, in the case of a
partnership, more than 50% of the general
partnership interests are, as of such
date, owned, controlled or held, or (b)
that is, as of such date, otherwise
Controlled, by the parent or one or more
subsidiaries of the parent or by the
parent and one or more subsidiaries of the
parent.
"Subsidiary"
means any wholly-owned subsidiary of the Borrower and any
other subsidiary of the Borrower that the
Borrower and the Administrative Agent
agree in writing to designate as a
"Subsidiary", it being understood that the
Borrower and the Administrative Agent have
agreed to designate each of the
entities set forth on Schedule 3.13 as a
Subsidiary.
"Subsidiary
Guarantee" means the Subsidiary Guarantee, substantially in the
form of Exhibit C, among the Subsidiary
Guarantors signatories thereto and the
Administrative Agent, for the benefit of
the Lenders.
"Subsidiary
Guarantor" means each Subsidiary indicated on Schedule 3.13 as
being a "Subsidiary Guarantor", together
with each other Subsidiary that becomes
a party to the Subsidiary Guarantee in
compliance with Section 5.10.
"Syndication
Agents" means Fleet National Bank and Citibank, N.A.
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"Taxes" means
any and all present or future taxes, levies, imposts, duties,
deductions, charges or withholdings imposed
by any Governmental Authority.
"Term-Out
Applicable Rate" means the Applicable Rate plus 0.25%.
"Term-Out
Period" means the period from but excluding the Maturity Date
to
and including the Extended Maturity
Date.
"Three-Month
Secondary CD Rate" means, for any day, the secondary market
rate for three-month certificates of
deposit reported as being in effect on such
day (or, if such day is not a Business Day,
the next preceding Business Day) by
the Board through the public information
telephone line of the Federal Reserve
Bank of New York (which rate will, under
the current practices of the Board, be
published in Federal Reserve Statistical
Release H.15(519) during the week
following such day) or, if such rate is not
so reported on such day or such next
preceding Business Day, the average of the
secondary market quotations for
three-month certificates of deposit of
major money center banks in New York City
received at approximately 10:00 a.m., New
York City time, on such day (or, if
such day is not a Business Day, on the next
preceding Business Day) by the
Administrative Agent from three negotiable
certificate of deposit dealers of
recognized standing selected by it.
"Three-Year
Credit Agreement" means the Three-Year Credit Agreement dated
as of October 21, 2002, (as amended,
supplemented or otherwise modified from
time to time in accordance with its terms)
among the Borrower, the financial
institutions party thereto, Fleet National
Bank and Citibank, N.A., as
syndication agents, Bank One, NA, as
documentation agent and the Administrative
Agent, providing for a three-year credit
facility in an initial aggregate amount
of $375,000,000.
"Trademarks" has
the meaning set forth in Section 5.06.
"Transactions"
means the execution, delivery and performance by the
Borrower of this Agreement and by the
Subsidiary Guarantors of the Subsidiary
Guarantee, the borrowing of Loans and the
use of the proceeds thereof.
"Type", when
used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on
the Loans comprising such Borrowing, is
determined by reference to the LIBO Rate or
the Alternate Base Rate.
"Withdrawal
Liability" means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from
such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of
Title IV of ERISA.
SECTION 1.02.
Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of
the terms defined. Whenever the
context may require, any pronoun shall
include the corresponding masculine,
feminine and neuter forms. The words
"include," "includes" and "including" shall
be deemed to be followed by the phrase
"without limitation." The word "will"
shall be construed to have the same meaning
and effect as the word "shall."
Unless the context requires otherwise (a)
any definition of or reference to any
agreement, instrument or other document
herein shall be construed as referring
to such
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agreement, instrument or other document as
from time to time amended,
supplemented or otherwise modified (subject
to any restrictions on such
amendments, supplements or modifications
set forth herein), (b) any reference
herein to any Person shall be construed to
include such Person's successors and
assigns, (c) the words "herein," "hereof"
and "hereunder," and words of similar
import, shall be construed to refer to this
Agreement in its entirety and not to
any particular provision hereof, (d) all
references herein to Articles,
Sections, Exhibits and Schedules shall be
construed to refer to Articles and
Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words
"asset" and "property" shall be construed
to have the same meaning and effect
and to refer to any and all tangible and
intangible assets and properties,
including cash, securities, accounts and
contract rights.
SECTION 1.03.
Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting
or financial nature shall be
construed in accordance with GAAP, as in
effect from time to time; provided
that, if the Borrower notifies the
Administrative Agent that the Borrower
requests an amendment to any provision
hereof to eliminate the effect of any
change occurring after the date hereof in
GAAP or in the application thereof on
the operation of such provision (or if the
Administrative Agent notifies the
Borrower that the Required Lenders request
an amendment to any provision hereof
for such purpose), regardless of whether
any such notice is given before or
after such change in GAAP or in the
application thereof, then such provision
shall be interpreted on the basis of GAAP
as in effect and applied immediately
before such change shall have become
effective until such notice shall have been
withdrawn or such provision amended in
accordance herewith.
ARTICLE II
The Credits
SECTION 2.01.
Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make
revolving credit loans in dollars ("Revolving
Loans") to the Borrower from time to time
during the Availability Period in an
aggregate principal amount that will not
result in (i) such Lender's Revolving
Credit Exposure exceeding such Lender's
Commitment or (ii) the sum of the
Revolving Credit Exposures exceeding the
total Commitments. Within the foregoing
limits and subject to the terms and
conditions set forth herein, the Borrower
may borrow, prepay and reborrow Revolving
Loans.
SECTION 2.02.
Loans and Borrowings. (a) Each Revolving Loan shall be made
as part of a Borrowing consisting of
Revolving Loans made by the Lenders ratably
in accordance with their respective
Commitments. The failure of any Lender to
make any Loan required to be made by it
shall not relieve any other Lender of
its obligations hereunder; provided that
the Commitments of the Lenders are
several and no Lender shall be responsible
for any other Lender's failure to
make Loans as required.
(b) Subject to
Section 2.11, each Borrowing shall be comprised entirely of
ABR Loans or Eurocurrency Loans as the
Borrower may request in accordance
herewith. Each Lender at its option may
make any Eurocurrency Loan by causing
any domestic or foreign branch or Lender
Affiliate of such Lender to make such
Loan; provided that any exercise of
such
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option shall not affect the obligation of
the Borrower to repay such Loan in
accordance with the terms of this
Agreement.
(c) At the
commencement of each Interest Period for any Eurocurrency
Borrowing, such Borrowing shall be in an
aggregate amount that is an integral
multiple of $1,000,000 and not less than
$5,000,000. At the time that each ABR
Borrowing is made, such Borrowing shall be
in an aggregate amount that is an
integral multiple of $500,000 and not less
than $1,000,000; provided that an ABR
Borrowing may be in an aggregate amount
that is equal to the entire unused
balance of the Commitments. Borrowings of
more than one Type may be outstanding
at the same time; provided that there shall
not at any time be more than a total
of 20 Eurocurrency Borrowings
outstanding.
(d)
Notwithstanding any other provision of this Agreement, the
Borrower
shall not be entitled to request, or to
elect to convert or continue, any
Borrowing if the Interest Period requested
with respect thereto would end after
the Maturity Date unless such Maturity Date
is extended pursuant to Section
2.07, in which case such Interest Period
shall not be permitted to end after the
Extended Maturity Date.
SECTION 2.03.
Requests for Borrowings. To request a Borrowing, the Borrower
shall notify the Administrative Agent of
such request by telephone (a) in the
case of a Eurocurrency Borrowing, not later
than 11:00 a.m., New York City time,
three Business Days before the date of the
proposed Borrowing and (b) in the
case of an ABR Borrowing, not later than
11:00 a.m., New York City time, on the
date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be
irrevocable and shall be confirmed promptly
by hand delivery or telecopy to the
Administrative Agent of a written Borrowing
Request in a form approved by the
Administrative Agent and signed by the
Borrower. Each such telephonic and
written Borrowing Request shall specify the
following information in compliance
with Section 2.02:
(i) the
aggregate amount of the requested Borrowing;
(ii) the date of
such Borrowing, which shall be a Business Day;
(iii) whether
such Borrowing is to be an ABR Borrowing or a Eurocurrency
Borrowing;
(iv) in the case
of a Eurocurrency Borrowing, the initial Interest Period
to be applicable thereto, which shall be a
period contemplated by the definition
of the term "Interest Period"; and
(v) the location
and number of the Borrower's account to which funds are to
be disbursed, which shall comply with the
requirements of Section 2.04.
If no election as to the Type of Borrowing
is specified, then the requested
Borrowing shall be an ABR Borrowing. If no
Interest Period is specified with
respect to any requested Eurocurrency
Borrowing, then the Borrower shall be
deemed to have selected an Interest Period
of one month's duration. Promptly
following receipt of a Borrowing Request in
accordance with this
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Section, the Administrative Agent shall
advise each Lender of the details
thereof and of the amount of such Lender's
Loan to be made as part of the
requested Borrowing.
SECTION 2.04.
Funding of Borrowings. (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed
date thereof by wire transfer of
immediately available funds by 12:00 noon,
New York City time, to the account of
the Administrative Agent most recently
designated by it for such purpose by
notice to the Lenders. The Administrative
Agent will make such Loans available
to the Borrower by promptly crediting the
amounts so received, in like funds, to
an account of the Borrower maintained with
the Administrative Agent in New York
City and designated by the Borrower in the
applicable Borrowing Request.
(b) Unless the
Administrative Agent shall have received notice from a
Lender prior to the proposed date of any
Borrowing that such Lender will not
make available to the Administrative Agent
such Lender's share of such
Borrowing, the Administrative Agent may
assume that such Lender has made such
share available on such date in accordance
with paragraph (a) of this Section
and may, in reliance upon such assumption,
make available to the Borrower a
corresponding amount. In such event, if a
Lender has not in fact made its share
of the applicable Borrowing available to
the Administrative Agent, then the
applicable Lender and the Borrower
severally agree to pay to the Administrative
Agent forthwith on demand, without
duplication such corresponding amount with
interest thereon, for each day from and
including the date such amount is made
available to the Borrower to but excluding
the date of payment to the
Administrative Agent, at (i) in the case of
such Lender, the Federal Funds
Effective Rate or (ii) in the case of the
Borrower, the interest rate otherwise
applicable to such Borrowing. If such
Lender pays such amount to the
Administrative Agent, then such amount
shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.05.
Interest Elections. (a) Each Borrowing initially shall be of
the Type specified in the applicable
Borrowing Request and, in the case of a
Eurocurrency Borrowing, shall have an
initial Interest Period as specified in
such Borrowing Request. Thereafter, the
Borrower may elect to convert such
Borrowing to a different Type or to
continue such Borrowing and, in the case of
a Eurocurrency Borrowing, may elect
Interest Periods therefor, all as provided
in this Section. The Borrower may elect
different options with respect to
different portions of the affected
Borrowing, in which case each such portion
shall be allocated ratably among the
Lenders holding the Loans comprising such
Borrowing, and the Loans comprising each
such portion shall be considered a
separate Borrowing.
(b) To make an
election pursuant to this Section, the Borrower shall notify
the Administrative Agent of such election
by telephone by the time that a
Borrowing Request would be required under
Section 2.03 if the Borrower were
requesting a Borrowing of the Type
resulting from such election to be made on
the effective date of such election. Each
such telephonic Interest Election
Request shall be irrevocable and shall be
confirmed promptly by hand delivery or
telecopy to the Administrative Agent of a
written Interest Election Request in a
form approved by the Administrative Agent
and signed by the Borrower.
(c) Each
telephonic and written Interest Election Request shall specify
the
following information in compliance with
Section 2.02:
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(i) the
Borrowing to which such Interest Election Request applies and,
if
different options are being elected with
respect to different portions thereof,
the portions thereof to be allocated to
each resulting Borrowing (in which case
the information to be specified pursuant to
clauses (iii) and (iv) below shall
be specified for each resulting
Borrowing);
(ii) the
effective date of the election made pursuant to such Interest
Election Request, which shall be a Business
Day;
(iii) whether
the resulting Borrowing is to be an ABR Borrowing or a
Eurocurrency Borrowing; and
(iv) if the
resulting Borrowing is a Eurocurrency Borrowing, the Interest
Period to be applicable thereto after
giving effect to such election, which
shall be a period contemplated by the
definition of the term "Interest Period".
If any such Interest Election Request
requests a Eurocurrency Borrowing but does
not specify an Interest Period, then the
Borrower shall be deemed to have
selected an Interest Period of one month's
duration.
(d) Promptly
following receipt of an Interest Election Request, the
Administrative Agent shall advise each
Lender of the details thereof and of such
Lender's portion of each resulting
Borrowing.
(e) If the
Borrower fails to deliver a timely Interest Election Request
with respect to a Eurocurrency Borrowing
prior to the end of the Interest Period
applicable thereto, then, unless such
Borrowing is repaid as provided herein, at
the end of such Interest Period such
Borrowing shall be converted to an ABR
Borrowing. Notwithstanding any contrary
provision hereof, if an Event of Default
has occurred and is continuing and the
Administrative Agent, at the request of
the Required Lenders, so notifies the
Borrower, then, so long as an Event of
Default is continuing (i) no outstanding
Borrowing may be converted to or
continued as a Eurocurrency Borrowing and
(ii) unless repaid, each Eurocurrency
Borrowing shall be converted to an ABR
Borrowing at the end of the Interest
Period applicable thereto.
SECTION 2.06.
Termination and Reduction of Commitments. Unless previously
terminated, the Commitments shall terminate
on the Maturity Date.
(a) The Borrower
may at any time terminate, or from time to time reduce,
the Commitments without penalty; provided
that (i) each reduction of the
Commitments shall be in an amount that is
an integral multiple of $1,000,000 and
not less than $10,000,000 and (ii) the
Borrower shall not terminate or reduce
the Commitments if, after giving effect to
any concurrent prepayment of the
Loans in accordance with Section 2.08, the
sum of the Revolving Credit Exposures
would exceed the total Commitments.
(b) The Borrower
shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under
paragraph (a) of this Section at least
three Business Days prior to the effective
date of such termination or
reduction, specifying such election and the
effective date thereof. Promptly
following receipt of any notice, the
Administrative Agent shall advise the
Lenders of the contents thereof. Each
notice delivered by the Borrower pursuant
to
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<PAGE>
this Section shall be irrevocable; provided
that a notice of termination of the
Commitments delivered by the Borrower may
state that such notice is conditioned
upon the effectiveness of other credit
facilities, in which case such notice may
be revoked by the Borrower (by notice to
the Administrative Agent on or prior to
the specified effective date) if such
condition is not satisfied. Any
termination or reduction of the Commitments
shall be permanent. Each reduction
of the Commitments shall be made ratably
among the Lenders in accordance with
their respective Commitments.
SECTION 2.07.
Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay to the
Administrative Agent for the account of
each Lender the then unpaid principal
amount of each Revolving Loan on the
Maturity Date. Notwithstanding the
foregoing, the Borrower may request, in a
notice provided to the Administrative Agent
not less than 30 nor more than 60
days prior to the Maturity Date, that the
Revolving Loans comprising any
Borrowing outstanding on the Maturity Date
mature on the date one year after the
Maturity Date (such later date, the
"Extended Maturity Date"), and the unpaid
principal amount of such Revolving Loans
shall then be due and payable on such
date. The Administrative Agent shall
promptly notify each relevant Lender of
such request.
(b) Each Lender
shall maintain in accordance with its usual practice an
account or accounts evidencing the
indebtedness of the Borrower to such Lender
resulting from each Loan made by such
Lender, including the amounts of principal
and interest payable and paid to such
Lender from time to time hereunder.
(c) The
Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made
hereunder, the currency of such Loan,
the Type thereof and the Interest Period
applicable thereto, (ii) the amount of
any principal or interest due and payable
or to become due and payable from the
Borrower to each Lender hereunder and (iii)
the amount of any sum received by
the Administrative Agent hereunder for the
account of the Lenders and each
Lender's share thereof.
(d) The entries
made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie
evidence of the existence and
amounts of the obligations recorded
therein; provided that the failure of any
Lender or the Administrative Agent to
maintain such accounts or any error
therein shall not in any manner affect the
obligation of the Borrower to repay
the Loans in accordance with the terms of
this Agreement.
(e) Any Lender
may request that Loans made by it be evidenced by a
promissory note (a "Note"). In such event,
the Borrower shall prepare, execute
and deliver to such Lender a promissory
note payable to the order of such Lender
(or, if requested by such Lender, to such
Lender and its registered assigns) and
in a form approved by the Administrative
Agent. Thereafter, the Loans evidenced
by such promissory note and interest
thereon shall at all times (including after
assignment pursuant to Section 9.04) be
represented by one or more promissory
notes in such form payable to the order of
the payee named therein (or, if such
promissory note is a registered note, to
such payee and its registered assigns).
SECTION 2.08.
Optional Prepayment of Loans. (a) The Borrower shall have the
right at any time and from time to time to
prepay any Borrowing in whole or in
part without
20
<PAGE>
penalty, except as provided in Section
2.13, subject to prior notice in
accordance with paragraph (b) of this
Section.
(b) The Borrower
shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment
hereunder (i) in the case of
prepayment of a Eurocurrency Borrowing, not
later than 11:00 a.m., New York City
time, three Business Days before the date
of prepayment or (ii) in the case of
prepayment of an ABR Borrowing not later
than 11:00 a.m., New York City time, on
the date of prepayment. Each such notice
shall be irrevocable and shall specify
the prepayment date and the principal
amount of each Borrowing or portion
thereof to be prepaid; provided that, if a
notice of prepayment is given in
connection with a conditional notice of
termination of the Commitments as
contemplated by Section 2.06, then such
notice of prepayment may be revoked if
such notice of termination is revoked in
accordance with Section 2.06. Promptly
following receipt of any such notice
relating to a Borrowing, the Administrative
Agent shall advise the Lenders of the
contents thereof. Each partial prepayment
of any Borrowing, and the remainder of such
Borrowing after giving effect to
such prepayment, shall be in an amount that
would be permitted in the case of an
advance of a Borrowing of the same Type as
provided in Section 2.02. Each
prepayment of a Borrowing shall be applied
ratably to the Revolving Loans
included in the prepaid Borrowing.
Prepayments shall be accompanied by accrued
interest to the extent required by Section
2.10.
SECTION 2.09.
Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a
facility fee, which shall accrue at the
Applicable Rate on the daily amount of the
Commitment of such Lender (whether
used or unused) during the period from and
including the Effective Date to but
excluding the date on which such Commitment
terminates; provided that, if such
Lender continues to have any Revolving
Credit Exposure after its Commitment
terminates, then such facility fee shall
continue to accrue on the daily amount
of such Lender's Revolving Credit Exposure
from and including the date on which
its Commitment terminates to but excluding
the date on which such Lender ceases
to have any Revolving Credit Exposure.
Accrued facility fees shall be payable in
arrears on the last day of March, June,
September and December of each year and
on the date on which the Commitments
terminate, commencing on the first such
date to occur after the date hereof;
provided that any facility fees accruing
after the date on which the Commitments
terminate shall be payable on demand.
All facility fees shall be computed on the
basis of a year of 360 days and shall
be payable for the actual number of days
elapsed (including the first day but
excluding the last day).
(b) The Borrower
agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at
the times separately agreed upon
between the Borrower and the Administrative
Agent.
(c) All fees
payable hereunder shall be paid on the dates due, in
immediately available funds, to the
Administrative Agent for distribution, in
the case of facility fees and utilization
fees, to the Lenders. Fees paid shall
not be refundable under any
circumstances.
SECTION 2.10.
Interest. (a) The Loans comprising each ABR Borrowing shall
bear interest at a rate per annum equal to
the Alternate Base Rate plus (i) the
Applicable Rate, during the period from but
excluding the Effective Date to and
including the Maturity Date or (ii) the
Term-Out Applicable Rate, during the
Term-Out Period, if it occurs.
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(b) The Loans
comprising each Eurocurrency Borrowing shall bear interest at
a rate per annum equal to the LIBO Rate for
the Interest Period in effect for
such Borrowing plus (i) the Applicable
Rate, during the period from but
excluding the Effective Date to and
including the Maturity Date or (ii) the
Term-Out Applicable Rate, during the
Term-Out Period, if it occurs.
(c)
Notwithstanding the foregoing, if any principal of or interest on
any
Loan or any fee or other amount payable by
the Borrower hereunder is not paid
when due, whether at stated maturity, upon
acceleration or otherwise, such
overdue amount shall bear interest, after
as well as before judgment, at a rate
per annum equal to (i) in the case of
overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as
provided above or (ii) in the case of
any other amount, 2% plus the rate
applicable to ABR Loans as provided above.
(d) Accrued
interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan;
provided that (i) interest accrued pursuant
to paragraph (c) of this Section shall be
payable on demand, (ii) in the event
of any repayment or prepayment of any Loan
(other than a prepayment of an ABR
Revolving Loan prior to the end of the
Availability Period), accrued interest on
the principal amount repaid or prepaid
shall be payable on the date of such
repayment or prepayment, (iii) in the event
of any conversion of any
Eurocurrency Revolving Loan prior to the
end of the current Interest Period
therefor, accrued interest on such Loan
shall be payable on the effective date
of such conversion and (iv) all accrued
interest shall be payable upon
termination of the Commitments unless the
Maturity Date has been extended
pursuant to Section 2.07, in which case
interest shall continue to be payable in
arrears on each applicable Interest Payment
Date.
(e) All interest
hereunder shall be computed on the basis of a year of 360
days, except that interest computed by
reference to the Alternate Base Rate at
times when the Alternate Base Rate is based
on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366
days in a leap year), and in each
case shall be payable for the actual number
of days elapsed (including the first
day but excluding the last day). The
applicable Alternate Base Rate or LIBO Rate
shall be determined by the Administrative
Agent, and such determination shall be
conclusive absent manifest error.
SECTION 2.11.
Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurocurrency
Borrowing:
(a) the Administrative Agent determines (which determination shall
be
conclusive
absent manifest error) that adequate and reasonable means do
not
exist for
ascertaining the LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders
that
the LIBO Rate
for such Interest Period will not adequately and fairly
reflect the cost
to such Lenders (or Lender) of making or maintaining their
Loans (or its
Loan) included in such Borrowing for such Interest Period;
then the Administrative Agent shall give
notice thereof to the Borrower and the
Lenders by telephone or telecopy as
promptly as practicable thereafter and,
until the Administrative Agent notifies the
Borrower and the Lenders that the
circumstances giving rise to such notice no
longer
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<PAGE>
exist, (i) any Interest Election Request
that requests the conversion of any
Borrowing to, or continuation of any
Borrowing as, a Eurocurrency Borrowing
shall be ineffective, and (ii) if any
Borrowing Request requests a Eurocurrency
Borrowing, such Borrowing shall be made as
an ABR Borrowing; provided that if
the circumstances giving rise to such
notice affect only one Type of Borrowing,
then the other Types of Borrowing shall be
permitted.
SECTION 2.12.
Increased Costs. (a) If any Change in Law shall:
(i) impose,
modify or deem applicable any reserve, special deposit or
similar requirement against assets of,
deposits with or for the account of, or
credit extended by, any Lender (including
the type referred to in clause (b) of
the definition of "Statutory Reserve Rate"
in Section 1.01); or
(ii) impose on
any Lender or the London interbank market any other
condition affecting this Agreement or
Eurocurrency Loans made by such Lender
therein;
and the result of any of the foregoing
shall be to increase the cost to such
Lender of making or maintaining any
Eurocurrency Loan (or of maintaining its
obligation to make any such Loan) or to
reduce the amount of any sum received or
receivable by such Lender hereunder
(whether of principal, interest or
otherwise), then the Borrower will pay to
such Lender such additional amount or
amounts as will compensate such Lender for
such additional costs incurred or
reduction suffered.
(b) If any
Lender determines that any Change in Law regarding capital
requirements has or would have the effect
of reducing the rate of return on such
Lender's capital or on the capital of such
Lender's holding company, if any, as
a consequence of this Agreement or the
Loans made by such Lender to a level
below that which such Lender or such
Lender's holding company could have
achieved but for such Change in Law (taking
into consideration such Lender's
policies and the policies of such Lender's
holding company with respect to
capital adequacy), then from time to time
the Borrower will pay to such Lender
such additional amount or amounts as will
compensate such Lender or such
Lender's holding company for any such
reduction suffered.
(c) A
certificate of a Lender setting forth the amount or amounts
necessary
to compensate such Lender or its holding
company, as the case may be, as
specified in paragraph (a) or (b) of this
Section shall be delivered to the
Borr
