UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT PURSUANT
TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported) October 6, 2004
POLO RALPH LAUREN CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
DELAWARE
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(State or Other Jurisdiction of Incorporation)
001-13057 13-2622036
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(Commission File Number) (IRS Employer Identification No.)
650 MADISON AVENUE, NEW YORK, NEW YORK 10022
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(Address of Principal Executive Offices) (Zip Code)
(212) 318-7000
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(Registrant's Telephone Number, Including Area Code)
NOT APPLICABLE
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(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions (SEE General Instruction A.2. below):
[_] Written communications pursuant to Rule 425 under the Securities Act
(17 CFR 230.425)
[_] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[_] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[_] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 1.01. ENTRY INTO A MATERIAL DEFINITIVE AGREEMENT
The disclosure set forth below under Item 2.03 (Creation of a Direct
Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of
a Registrant ) is hereby incorporated by reference into this Item 1.01.
ITEM 2.03. CREATION OF A DIRECT FINANCIAL OBLIGATION OR AN OBLIGATION UNDER
AN OFF-BALANCE SHEET ARRANGEMENT OF A REGISTRANT
On October 6, 2004, Polo Ralph Lauren Corporation (the "COMPANY"), in
substance, expanded and extended its existing bank credit facility by entering
into a new Credit Agreement, attached as Exhibit 99.1 to this report, dated as
of that date, with JPMorgan Chase Bank, as Administrative Agent, The Bank of New
York, Fleet National Bank, SunTrust Bank and Wachovia Bank National Association,
as Syndication Agents, J.P. Morgan Securities Inc., as sole Bookrunner and Sole
Lead Arranger, and a syndicate of lending banks that included each of the
lending banks under the prior credit agreement (the "NEW CREDIT FACILITY").
The prior credit facility provided for a $300.0 million revolving line
of credit, subject to increase to $375.0 million, and was scheduled to mature on
November 18, 2005. The New Credit Facility, which is otherwise substantially on
the same terms as the prior credit facility, provides for a $450.0 million
revolving line of credit, subject to increase to $525.0 million, which is
available for direct borrowings and the issuance of letters of credit. It will
mature on October 6, 2009. As of the date hereof, the Company has no direct
borrowings outstanding under the New Credit Facility. Direct borrowings under
the New Credit Facility bear interest, at the Company's option, at a rate equal
to (i) the higher of (x) the weighted average overnight Federal funds rate, as
published by the Federal Reserve Bank of New York, plus one-half of one percent,
and (y) the prime commercial lending rate of JPMorgan Chase Bank in effect from
time to time, or (ii) the LIBO Rate (as defined in the New Credit Facility) in
effect from time to time, as adjusted for the Federal Reserve Board's
Eurocurrency Liabilities maximum reserve percentages, and a margin based on our
then current credit ratings.
The New Credit Facility requires the Company to maintain certain
covenants:
o a maximum ratio of consolidated EBITDAR to Consolidated Interest
Expense (as such terms are described in the New Credit
Facility); and
o a maximum ratio of Adjusted Debt to EBITDAR (as such terms are
defined in the New Credit Facility).
The credit facility also contains covenants that, subject to specified
exceptions, restrict the Company's ability to:
o incur additional debt;
o incur liens and contingent liabilities;
o sell or dispose of assets, including equity interests;
o merge with or acquire other companies, liquidate or dissolve;
o engage in businesses that are not a related line of business;
o make loans, advances or guarantees;
o engage in transactions with affiliates; and
o make investments.
Upon the occurrence of an event of default under the New Credit
Facility, the lenders may cease making loans, terminate the New Credit Facility,
and declare all amounts outstanding to be immediately
due and payable. The New Credit Facility specifies a number of events of default
(many of which are subject to applicable grace or cure periods), including,
among others, the failure to make timely principal and interest payments or to
satisfy the covenants, including the financial covenants described above.
Additionally, the New Credit Facility provides that an event of default will
occur if Mr. Ralph Lauren and related entities fail to maintain a specified
minimum percentage of the voting power of our common stock.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial statements of businesses acquired.
Not applicable
(b) Pro forma financial information.
Not applicable
(c) Exhibits.
EXHIBIT NO. DESCRIPTION
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99.1 Credit Agreement, dated as of October 6, 2004,
by and among the Company, JPMorgan Chase Bank,
as Administrative Agent, The Bank of New York,
Fleet National Bank, SunTrust Bank and
Wachovia Bank National Association, as
Syndication Agents, J.P. Morgan Securities
Inc., as sole Bookrunner and Sole Lead
Arranger, and a syndicate of lending banks.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
POLO RALPH LAUREN CORPORATION
Date: October 8, 2004 By: /s/ Gerald M. Chaney
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Name: Gerald M. Chaney
Title: Senior Vice President of Finance
and Chief Financial Officer
EXHIBIT INDEX
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99.1 Credit Agreement, dated as of October 6, 2004, by and among the
Company, JPMorgan Chase Bank, as Administrative Agent, The Bank of
New York, Fleet National Bank, SunTrust Bank and Wachovia Bank
National Association, as Syndication Agents, J.P. Morgan Securities
Inc., as sole Bookrunner and Sole Lead Arranger, and a syndicate of
lending banks.
EXHIBIT 99.1
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[GRAPHIC OMITTED]
[LOGO - JP MORGAN]
CREDIT AGREEMENT
dated as of
October 6, 2004
among
POLO RALPH LAUREN CORPORATION,
as Borrower,
The Lenders Party Hereto
and
JPMORGAN CHASE BANK,
as Administrative Agent
THE BANK OF NEW YORK,
FLEET NATIONAL BANK, A BANK OF AMERICA COMPANY,
SUNTRUST BANK,
WACHOVIA BANK NATIONAL ASSOCIATION
as Syndication Agents
J.P. MORGAN SECURITIES INC.,
as Sole Bookrunner and Sole Lead Arranger
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TABLE OF CONTENTS
PAGE
ARTICLE I Definitions..........................................................1
Section 1.01. Defined Terms.........................................1
Section 1.02. Classification of Loans and Borrowings...............21
Section 1.03. Terms Generally......................................21
Section 1.04. Accounting Terms; GAAP...............................22
Section 1.05. Exchange Rates.......................................22
ARTICLE II The Credits........................................................22
Section 2.01. Commitments..........................................22
Section 2.02. Loans and Borrowings.................................23
Section 2.03. Requests for Revolving Borrowings....................24
Section 2.04. Letters of Credit....................................25
Section 2.05. Funding of Borrowings................................31
Section 2.06. Interest Elections...................................31
Section 2.07. Termination and Reduction of Commitments.............32
Section 2.08. Repayment of Loans; Evidence of Debt.................33
Section 2.09. Prepayment of Loans..................................34
Section 2.10. Fees.................................................34
Section 2.11. Interest.............................................35
Section 2.12. Alternate Rate of Interest...........................36
Section 2.13. Increased Costs......................................36
Section 2.14. Break Funding Payments...............................38
Section 2.15. Taxes................................................38
Section 2.16. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs..................................40
Section 2.17. Mitigation Obligations; Replacement of Lenders.......41
Section 2.18. Change in Law........................................42
ARTICLE III Representations and Warranties....................................43
Section 3.01. Organization; Powers.................................43
Section 3.02. Authorization; Enforceability........................43
Section 3.03. Governmental Approvals; No Conflicts.................43
Section 3.04. Financial Condition; No Material Adverse Change......43
Section 3.05. Properties...........................................44
Section 3.06. Litigation and Environmental Matters.................44
Section 3.07. Compliance with Laws and Agreements..................44
Section 3.08. Investment Company Status............................44
Section 3.09. Taxes................................................45
Section 3.10. ERISA................................................45
Section 3.11. Disclosure...........................................45
Section 3.12. Subsidiary Guarantors................................45
ARTICLE IV Conditions.........................................................45
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Section 4.01. Effective Date.......................................45
Section 4.02. Each Credit Event....................................47
ARTICLE V Affirmative Covenants...............................................47
Section 5.01. Financial Statements; Ratings Change
and Other Information................................47
Section 5.02. Notices of Material Events...........................49
Section 5.03. Existence; Conduct of Business.......................49
Section 5.04. Payment of Obligations...............................49
Section 5.05. Maintenance of Properties; Insurance.................50
Section 5.06. Books and Records; Inspection Rights.................50
Section 5.07. Compliance with Laws.................................50
Section 5.08. Use of Proceeds and Letters of Credit................50
Section 5.09. Guarantee Agreement Supplement.......................50
ARTICLE VI Negative Covenants.................................................51
Section 6.01. Indebtedness.........................................51
Section 6.02. Liens................................................52
Section 6.03. Sale of Assets.......................................52
Section 6.04. Fundamental Changes..................................53
Section 6.05. Investments, Loans, Advances, Guarantees
and Acquisitions.....................................53
Section 6.06. Transactions with Affiliates.........................54
Section 6.07. Consolidated Coverage Ratio..........................55
Section 6.08. Consolidated Leverage Ratio..........................55
ARTICLE VII Events of Default.................................................55
ARTICLE VIII The Administrative Agent.........................................58
ARTICLE IX Miscellaneous......................................................60
Section 9.01. Notices..............................................60
Section 9.02. Waivers; Amendments..................................61
Section 9.03. Expenses; Indemnity; Damage Waiver...................62
Section 9.04. Successors and Assigns...............................63
Section 9.05. Survival.............................................66
Section 9.06. Counterparts; Integration; Effectiveness.............66
Section 9.07. Severability.........................................66
Section 9.08. Right of Setoff......................................67
Section 9.09. Governing Law; Jurisdiction; Consent to
Service of Process...................................67
Section 9.10. WAIVER OF JURY TRIAL.................................67
Section 9.11. Headings.............................................68
Section 9.12. Confidentiality......................................68
Section 9.13. Satisfaction in Dollars..............................68
Section 9.14. Waivers and Agreements Under Existing
Credit Agreement.....................................69
ii
SCHEDULES:
Schedule 2.01 -- Commitments
Schedule 2.04 -- Existing Letters of Credit
Schedule 3.06 -- Certain Litigation
Schedule 3.12 -- Guarantor Subsidiaries
Schedule 6.01 -- Existing Indebtedness
Schedule 6.02 -- Existing Liens
Schedule 6.05 -- Existing Investments
EXHIBITS:
Exhibit A -- Form of Assignment and Assumption
Exhibit B-1 -- Form of Opinion of Borrower's Counsel
Exhibit B-2 -- Form of Opinion of Borrower's Corporate Counsel
Exhibit C -- Form of Guarantee Agreement
Exhibit D-1 -- Form of New Lender Supplement
Exhibit D-2 -- Form of Commitment Increase Supplement
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CREDIT AGREEMENT, dated as of October 6, 2004, among POLO RALPH LAUREN
CORPORATION, the LENDERS party hereto, 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.
"ADJUSTED DEBT" means, for any date, all Indebtedness of the Borrower
and its Subsidiaries (computed on a consolidated basis) outstanding on such date
plus 800% of Consolidated Lease Expense for the period of four consecutive
Fiscal Quarters ended on such date.
"ADJUSTED LIBO RATE" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve 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.
"ALTERNATE BASE RATE" means, for any day, a rate per annum 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%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
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"ALTERNATIVE CURRENCY" means any currency that is freely available,
freely transferable and freely convertible into dollars and in which dealings in
deposits are carried on in the London interbank market, PROVIDED that such
currency is reasonably acceptable to the Administrative Agent and the applicable
Issuing Bank.
"ALTERNATIVE CURRENCY LC EXPOSURE" means, at any time, the sum of (a)
the Dollar Equivalent, calculated in accordance with Section 1.05, of the
aggregate undrawn and unexpired amount of all outstanding Alternative Currency
Letters of Credit at such time plus (b) the Dollar Equivalent, calculated in
each case using the Exchange Rate at the time the applicable LC Disbursement is
made, of the aggregate principal amount of all LC Disbursements in respect of
Alternative Currency Letters of Credit that have not yet been reimbursed at such
time.
"ALTERNATIVE CURRENCY LETTER OF CREDIT" means a Letter of Credit
denominated in an Alternative Currency.
"ANNUAL INCREASE" means, for any Fiscal Year, an amount equal to 50% of
Net Income of the Borrower and its Subsidiaries (computed on a consolidated
basis) for such Fiscal Year less the aggregate amount of Equity Payments during
such Fiscal Year.
"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 Eurodollar
Loan, or with respect to the commitment fees payable hereunder, or with respect
to the Applicable Sight Draft Fee Percentage, as the case may be, the applicable
rate per annum set forth below (expressed in basis points) under the caption
"Eurodollar Spread" or "Commitment Fee Rate" or "Applicable Sight Draft Fee
Percentage", as the case may be, based upon the ratings by Moody's and S&P,
respectively, applicable on such date to the Index Debt:
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EURODOLLAR COMMITMENT FEE APPLICABLE SIGHT
INDEX DEBT RATINGS: SPREAD RATE DRAFT FEE PERCENTAGE
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CATEGORY 1
>A- by S&P or A3 45.00 10.00 8.00
by Moody's
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CATEGORY 2
BBB+ by S&P or 50.00 12.50 10.00
Baa1 by Moody's
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CATEGORY 3
BBB by S&P or 62.50 15.00 10.00
Baa2 by Moody's
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3
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EURODOLLAR COMMITMENT FEE APPLICABLE SIGHT
INDEX DEBT RATINGS: SPREAD RATE DRAFT FEE PERCENTAGE
----------------------------------------------------------------------------------------
CATEGORY 4
BBB- by S&P 75.00 17.50 12.50
or Baa3 by Moody's
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CATEGORY 5
< BBB- by S&P or Baa3 by 100.00 20.00 12.50
Moody's
========================================================================================
For purposes of the foregoing, (i) if both Moody's and S&P shall not have in
effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the next-to-last sentence of this definition), then such rating
agency shall be deemed to have established a rating for the Index Debt in
Category 5; (ii) if the ratings established or deemed to have been established
by Moody's and S&P for the Index Debt shall fall within different Categories,
the Applicable Rate shall be based on the higher of the two ratings unless one
of the two ratings is two or more Categories lower than the other, in which case
the Applicable Rate shall be determined by reference to the Category next below
that of the higher of the two ratings; and (iii) 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, irrespective of when notice of such
change shall have been furnished by the Borrower to the Agent and the Lenders
pursuant to Section 5.01 or otherwise. 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 both such
rating agencies 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 agencies, 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 either (but not
both) of Moody's and S&P shall cease to have in effect a rating (whether as a
result of such agency ceasing to be in the business of rating corporate debt
obligations or otherwise), the applicable rate shall be determined by reference
to the rating of the other rating agency.
"APPLICABLE SIGHT DRAFT FEE PERCENTAGE" has the meaning assigned to
such term in the definition of Applicable Rate.
"APPROVED FUND" has the meaning assigned to such term in Section 9.04.
"ASSIGNMENT AND ASSUMPTION" means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 9.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"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.
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"AVAILABLE COMMITMENT" means, as to any Lender at any date of
determination, an amount in dollars equal to the excess, if any, of (a) the
amount of such Lender's Commitment in effect on such date OVER (b) the Revolving
Credit Exposure of such Lender on such date.
"BOARD" means the Board of Governors of the Federal Reserve System of
the United States of America.
"BORROWER" means Polo Ralph Lauren Corporation, a Delaware corporation.
"BORROWING" means Revolving Loans of the same Type made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.
"BORROWING REQUEST" means a request by the Borrower for a Revolving
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 Eurodollar Loan,
the term "BUSINESS DAY" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"CAPITAL LEASE OBLIGATIONS" of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and, 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.
"CHANGE IN LAW" means (a) the adoption of any law, rule, treaty or
regulation after the date of this Agreement, (b) any change in any law, rule,
treaty 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 any Issuing Bank (or, for purposes of Section 2.13(b), by any office
of such Lender from or at which Loans and/or Letters of Credit are made or
issued, or are booked, as the case may be, in accordance with the terms of this
Agreement) 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.
"CODE" means the Internal Revenue Code of 1986, as amended from time to
time.
"COMMERCIAL LETTER OF CREDIT" means a commercial documentary letter of
credit issued by an Issuing Bank for the account of the Borrower or any of its
Subsidiaries for the purchase of goods in the ordinary course of business.
"COMMITMENT" means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Letters of
Credit hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's
5
Revolving Credit Exposure hereunder, as such commitment may be (a) reduced from
time to time pursuant to Section 2.07, (b) reduced or increased from time to
time pursuant to assignments by or to such Lender pursuant to Section 9.04 or
(c) increased from time to time pursuant to Section 2.01(b). The initial amount
of each Lender's Commitment is set forth on Schedule 2.01, in the New Lender
Supplement pursuant to which such Lender shall become a party hereto or in the
Assignment and Assumption pursuant to which such Lender shall have assumed its
Commitment, as applicable. The initial aggregate amount of the Lenders'
Commitments is $450,000,000.
"COMMITMENT INCREASE SUPPLEMENT" means a supplement to this Agreement
substantially in the form of Exhibit D-2.
"CONSOLIDATED COVERAGE RATIO" means, on the last day of any Fiscal
Quarter, the ratio of (a) Consolidated EBITDAR for the period of four
consecutive Fiscal Quarters ending on such day to (b) the sum of Consolidated
Interest Expense for such period and Consolidated Lease Expense for such period.
"CONSOLIDATED EBITDAR" 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 tax expense, (b) interest expense, 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 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 including non-cash charges arising from the application
of Statement of Financial Accounting Standards No. 142) and (f) Consolidated
Lease Expense and MINUS, (x) to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (i) interest income, (ii)
any extraordinary or non-recurring non-cash 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 (iii) income tax credits (to the extent not
netted from income tax expense) and (y) any cash payments made during such
period in respect of items described in clause (e) above subsequent to the
fiscal quarter in which the relevant non-cash expenses or losses were reflected
as a charge in the statement of Consolidated Net Income, all as determined on a
consolidated basis.
For the purposes of calculating Consolidated EBITDAR for any period of
four consecutive fiscal quarters (each, a "REFERENCE PERIOD") pursuant to any
determination of the Consolidated Leverage Ratio, (i) if at any time during such
Reference Period the Borrower or any Subsidiary shall have made any Material
Disposition, the Consolidated EBITDAR for such Reference Period shall be reduced
by an amount equal to the Consolidated EBITDAR (if positive) attributable to the
property that is the subject of such Material Disposition for such Reference
Period or increased by an amount equal to the Consolidated EBITDAR (if negative)
attributable thereto for such Reference Period, and (ii) if during such
Reference Period the
6
Borrower or any Subsidiary shall have made a Material Acquisition, Consolidated
EBITDAR for such Reference Period shall be calculated after giving PRO FORMA
effect thereto (taking into account (A) such cost savings as may be determined
by the Borrower in a manner consistent with the evaluation performed by the
Borrower in deciding to make such Material Acquisition, as presented to the
Borrower's Board of Directors, provided that the Borrower may take into account
such cost savings only if it in good faith determines on the date of calculation
that it is reasonable to expect that such cost savings will be implemented
within 90 days following the date of such Material Acquisition (or in the case
of any calculation made subsequent to such 90th day, that such cost savings
have, in fact, been implemented) and (B) all transactions that are directly
related to such Material Acquisition and are entered into in connection and
substantially contemporaneously therewith) as if such Material Acquisition
occurred on the first day of such Reference Period. As used in this definition,
"MATERIAL ACQUISITION" means any acquisition of property or series of related
acquisitions of property that (a) constitutes (i) assets comprising all or
substantially all of a business or operating unit of a business, (ii) all or
substantially all of the common stock or other Equity Interests of a Person or
(iii) in any case where clauses (i) and (ii) above are inapplicable, the rights
of any licensee (including by means of the termination of such licensee's rights
under such license) under a trademark license to such licensee from the Borrower
or any of its Affiliates (the "ACQUIRED RIGHTS"), and (b) involves the payment
of consideration by the Borrower and its Subsidiaries in excess of $50,000,000;
"MATERIAL DISPOSITION" means any Disposition of property or series of related
Dispositions of property that yields gross proceeds to the Borrower or any of
its Subsidiaries in excess of $50,000,000. In making any calculation pursuant to
this paragraph with respect to a Material Acquisition of a Person, business or
rights for which quarterly financial statements are not available, the Borrower
shall base such calculation on the financial statements of such Person, business
or rights for the then most recently completed period of twelve consecutive
calendar months for which such financial statements are available and shall deem
the contribution of such Person, business or rights to Consolidated EBITDAR for
the period from the beginning of the applicable Reference Period to the date of
such Material Acquisition to be equal to the product of (x) the number of days
in such period divided by 365 multiplied by (y) the amount of Consolidated
EBITDAR of such Person, business or rights for the twelve-month period referred
to above (calculated on the basis set forth in this definition). In making any
calculation pursuant to this paragraph in connection with an acquisition of
Acquired Rights to be followed by the granting of a new license of such Acquired
Rights (or any rights derivative therefrom), effect may be given to such grant
of such new license (as if it had occurred on the date of such acquisition) if,
and only if, the Borrower in good faith determines on the date of such
calculation that it is reasonable to expect that such grant will be completed
within 90 days following the date of such acquisition (or in the case of any
calculation made subsequent to such 90th day, that such grant has, in fact, been
completed).
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the excess, if
any, of (a) total cash interest expense (including that attributable to Capital
Lease Obligations) of the Borrower and its Subsidiaries for such period with
respect to all outstanding Indebtedness of the Borrower and its Subsidiaries
(including all discounts with respect to bankers' acceptance financing and net
costs under Swap Agreements in respect of interest rates to the extent such net
costs are allocable to such period) over (b) total interest income of the
Borrower and its
7
Subsidiaries not exceeding $25,000,000 for such period (including net interest
income under Swap Agreements in respect of interest rates to the extent such net
interest income is allocable to such period), all on a consolidated basis in
accordance with GAAP.
"CONSOLIDATED LEASE EXPENSE" means, for any period, the aggregate
amount of fixed and contingent rentals payable by the Borrower and its
Subsidiaries for such period with respect to leases of real and personal
property, determined on a consolidated basis in accordance with GAAP; PROVIDED
that payments in respect of Capital Lease Obligations shall not constitute
Consolidated Lease Expense.
"CONSOLIDATED LEVERAGE RATIO" means on the last day of any Fiscal
Quarter, the ratio of (a) Adjusted Debt on such day to (b) Consolidated EBITDAR
for the period of four consecutive Fiscal Quarters ending on such day.
"CONSOLIDATED NET INCOME" means for any period, the consolidated net
income (or loss) of the 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 the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the 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 any Loan
Document) or Requirement of Law applicable to such Subsidiary.
"CONSOLIDATED NET WORTH" means as of any date of determination thereof,
the excess of (a) the aggregate consolidated net book value of the assets of the
Borrower and its Subsidiaries after all appropriate adjustments in accordance
with GAAP (including, without limitation, reserves for doubtful receivables,
obsolescence, depreciation and amortization) over (b) all of the aggregate
liabilities of the Borrower and its Subsidiaries, including all items which, in
accordance with GAAP, would be included on the liability side of the balance
sheet (other than Equity Interests, treasury stock, capital surplus and retained
earnings), in each case determined on a consolidated basis (after eliminating
all inter-company items) in accordance with GAAP; PROVIDED, HOWEVER, that in
calculating Consolidated Net Worth the effects of the Statement of Financial
Accounting Standards No. 142 shall be disregarded.
"CONSOLIDATED TOTAL TANGIBLE ASSETS" means as of any date of
determination thereof, the aggregate consolidated net book value of the assets
of the Borrower and its Subsidiaries (other than patents, patent rights,
trademarks, trade names, franchises, copyrights, licenses, permits, goodwill and
other similar intangible assets properly classified as such in accordance with
GAAP) after all appropriate adjustments in accordance with GAAP (including,
without limitation, reserves for doubtful receivables, obsolescence,
depreciation and amortization).
8
"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.
"DISPOSITION" means with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition thereof.
The terms "Dispose" and "Disposed of" shall have correlative meanings.
"DOLLAR EQUIVALENT" means, on any date of determination, (a) with
respect to any amount hereunder denominated in an Alternative Currency for
purposes of calculations with respect to the matters referred to in Section
1.05, the amount of dollars that may be purchased with such amount of such
currency at the applicable rate of exchange determined in accordance with such
Section, (b) with respect to any calculation involving the amount of any drawing
under any Alternative Currency Letter of Credit, the amount in dollars into
which the relevant amount in such Alternative Currency would be converted based
upon the relevant Exchange Rate in effect at the time the applicable Issuing
Bank makes payment under such Letter of Credit and (c) with respect to any
calculation involving the amount of any Standby Letter of Credit fee payable
pursuant to Section 2.04(f)(ii) with respect to any Alternative Currency Letter
of Credit, the amount in dollars into which the relevant undrawn amount of such
Alternative Currency Letter of Credit would be converted based upon the
applicable Exchange Rate in effect on the date payment of such fee is due.
"DOLLARS" or "$" refers to lawful money of the United States of
America.
"DOMESTIC SUBSIDIARY" means any Subsidiary organized under the laws of
any jurisdiction within the United States of America.
"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 laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, or to human health and safety (insofar as such health and safety may
be adversely affected by exposure to dangerous or harmful substances or
environmental conditions), as have been, are, or in the future become, in
effect.
"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
9
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"EQUITY INTERESTS" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"EQUITY PAYMENT" means with respect to the Borrower and any of its
Subsidiaries, (a) any declaration or payment of any dividend on, or the making
of or provision for any distribution on account of, any Equity Interests of such
Person (other than to the Borrower or another Subsidiary of the Borrower), now
or hereafter outstanding, whether in cash or property or in obligations of the
Borrower or any of its Subsidiaries, and (b) any purchase, redemption or other
acquisition or retirement for value of any Equity Interests of such Person
(other than from the Borrower or another Subsidiary of the Borrower) now or
hereafter outstanding.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.
"ERISA EVENT" means (a) any "reportable event", as defined in Section
4043 of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an "accumulated funding deficiency" (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c) the
filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an
application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt by the Borrower or any ERISA Affiliate of any notice, or the receipt by
any Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"EURODOLLAR", when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
10
"EVENT OF DEFAULT" has the meaning assigned to such term in Article
VII.
"EXCHANGE RATE" means, on any day, with respect to any Alternative
Currency, the rate determined by the Administrative Agent at which such
Alternative Currency may be exchanged into dollars, as set forth at
approximately 11:00 a.m., London time, on such day (or, in the case of any
calculation involving the amount of any LC Disbursement under any Alternative
Currency Letter of Credit, at the time payment thereof is made) on the
applicable Reuters World Spot Page. In the event that any such rate does not
appear on any Reuters World Spot Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange rates
reasonably selected by the Administrative Agent in consultation with the
Borrower for such purpose or, at the discretion of the Administrative Agent in
consultation with the Borrower, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative Agent in
the market where its foreign currency exchange operations in respect of such
Alternative Currency are then being conducted, at or about 11:00 a.m., local
time, on such day (or, in the case of any calculation involving the amount of
any LC Disbursement under any Alternative Currency Letter of Credit, at the time
payment thereof is made) for the purchase of the applicable Alternative Currency
for delivery two Business Days later, PROVIDED that, if at the time of any such
determination, for any reason, no such spot rate is being quoted, the
Administrative Agent may use any other reasonable method it deems appropriate to
determine such rate, and such determination shall be presumed correct absent
manifest error.
"EXCLUDED TAXES" means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by any other Governmental Authority as a result of a present or
former connection between the Administrative Agent, any Lender, any Issuing Bank
or any other recipient of any payment to be made by the Borrower under this
Agreement 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, any Lender,
any Issuing Bank or any other recipient of any payment to be made by the
Borrower under this Agreement having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document), (b) any branch profits taxes imposed by the United States
of America or any similar tax imposed by any other jurisdiction described in
clause (a) above, (c) in the case of a Foreign Lender, including any Issuing
Bank that is a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.17(b)), any 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 (i) causes pursuant to Section 2.02(b) a new branch
or an Affiliate to make any Loan, or (ii) designates a new lending office) or is
attributable to such Foreign Lender's failure to comply with Section 2.15(e),
except to the extent that such Foreign Lender (or its assignor, if any) was
entitled, at the time of designation of a new lending office (or assignment), to
receive additional amounts from the Borrower with respect to such withholding
tax pursuant to Section 2.15(a), and (d) any amounts with respect to any taxes
described in clause (a), (b) or (c) above that are imposed as a result of any
event occurring after the Administrative
11
Agent, any Lender, any Issuing Bank or any other recipient of any payment to be
made by the Borrower under this Agreement becomes a party to this Agreement,
other than a Change in Law.
"EXISTING CREDIT AGREEMENT" means the Credit Agreement, dated as of
November 18, 2002, among the Borrower, the several banks and other financial
institutions parties thereto and JPMorgan Chase Bank, as administrative agent,
as heretofore amended, supplemented or otherwise modified.
"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 national standing selected by it, in its reasonable
discretion.
"FINANCIAL OFFICER" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"FISCAL QUARTER" means with respect to the Borrower and its
Subsidiaries, and with respect to any Fiscal Year, (a) each of the quarterly
periods ending 13 calendar weeks, 26 calendar weeks, 39 calendar weeks and 52 or
53 calendar weeks, as the case may be, after the end of the prior Fiscal Year or
(b) such other quarterly periods as the Borrower shall adopt after giving prior
written notice thereof to the Lenders.
"FISCAL YEAR" means with respect to the Borrower and its Subsidiaries,
(a) the 52- or 53-week annual period, as the case may be, ending on the Saturday
nearest to March 31 of each calendar year or (b) such other fiscal year as the
Borrower shall adopt with the prior written consent of the Required Lenders
(which consent shall not be unreasonably withheld). Any designation of a
particular Fiscal Year by reference to a calendar year shall mean the Fiscal
Year ending during such calendar year.
"FOREIGN LENDER" means any Lender that is organized under the laws of
(or the applicable lending office of which is located in) a jurisdiction other
than that in which the Borrower is located. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall
be deemed to constitute a single jurisdiction.
"FOREIGN SUBSIDIARY" means any Subsidiary which is not a Domestic
Subsidiary.
"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
12
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. For purposes of all
calculations provided for in this Agreement, the amount of any Guarantee of any
guarantor shall be deemed to be the lower of (x) an amount equal to the stated
or determinable amount of the primary obligation in respect of which such
Guarantee is made and (y) the maximum amount for which such guarantor may be
liable pursuant to the terms of the instrument embodying such Guarantee, unless
such primary obligation and the maximum amount for which such guarantor may be
liable are not stated or determinable, in which case the amount of such
Guarantee shall be such guarantor's maximum reasonably anticipated liability in
respect thereof as determined by the Borrower in good faith.
"GUARANTEE AGREEMENT" means the Guarantee Agreement to be executed and
delivered by each Guarantor, substantially in the form of Exhibit C.
"GUARANTOR" means each Domestic Subsidiary that becomes a party to the
Guarantee Agreement on the Effective Date and each Domestic Subsidiary that,
subsequent to the Effective Date, becomes a Significant Subsidiary (as defined
in Regulation S-X part 210.1-02 of the Code of Federal Regulations) or any
Subsidiary which is designated to be a Guarantor by written notice from the
Borrower to the Administrative Agent and, in each case, becomes a party to the
Guarantee Agreement.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
applicable Environmental Law.
"INDEBTEDNESS" of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (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
13
purchase price of property or services (excluding accounts payable incurred in
the ordinary course of business), (e) all Indebtedness of others secured by any
Lien on property owned or acquired by such Person (to the extent of such
Person's interest in such property), whether or not the Indebtedness secured
thereby has been assumed, (f) all Guarantees by such Person of Indebtedness of
others, (g) all Capital Lease Obligations of such Person, (h) all obligations,
contingent or otherwise, of such Person as an account party in respect of
letters of credit and letters of guaranty and (i) all obligations, contingent or
otherwise, of such Person in respect of bankers' acceptances. The Indebtedness
of any Person shall include the Indebtedness of any other entity (including any
partnership in which such Person is a general partner) to the extent such Person
is liable therefor as a result of such Person's ownership interest in or other
relationship with such entity, except to the extent the terms of such
Indebtedness provide that such Person is not liable therefor. For purposes of
all calculations provided for in this Agreement, there shall be disregarded any
Guarantee of any Person in respect of any Indebtedness of any other Person with
which the accounts of such first Person are then required to be consolidated in
accordance with GAAP.
"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.
"INFORMATION MEMORANDUM" means the Confidential Information Memorandum
dated September 2004 relating to the Transactions.
"INTEREST ELECTION REQUEST" means a request by the Borrower to convert
or continue a Revolving Borrowing in accordance with Section 2.06.
"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
Eurodollar 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 Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period.
"INTEREST PERIOD" means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; PROVIDED, that (i) if any Interest Period
would end on a day other than a Business Day, such Interest Period shall be
extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest Period
that commences on the last Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the last calendar month of
such Interest Period) shall end on the last Business Day of the last calendar
month of such Interest Period. For purposes hereof, the date of a Borrowing
initially shall be the date on which such Borrowing is made and, in the case of
a
14
Revolving Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"INVESTMENT" means, as applied to any Person, any direct or indirect
purchase or other acquisition by such Person of Equity Interests or other
securities of, or any assets constituting a business unit of, any other Person,
or any direct or indirect loan, advance or capital contribution by such Person
to any other Person. In computing the amount involved in any Investment at the
time outstanding, (a) undistributed earnings of, and unpaid interest accrued in
respect of Indebtedness owing by, such other Person shall not be included, (b)
there shall not be deducted from the amounts invested in such other Person any
amounts received as earnings (in the form of dividends, interest or otherwise)
on such Investment or as loans from such other Person and (c) unrealized
increases or decreases in value, or write-ups, write-downs or write-offs, of
Investments in such other Person shall be disregarded.
"ISSUING BANK" means, as the context may require, (a) JPMorgan Chase
Bank, Wachovia Bank National Association and The Bank of New York, each with
respect to Letters or Credit issued by it or (b) any other Lender that becomes
an Issuing Bank pursuant to Section 2.04(l), with respect to Letters of Credit
issued by it, and in each case its successors in such capacity as provided in
Section 2.04(j). Any Issuing Bank may, in its discretion, arrange for one or
more Letters of Credit to be issued by Affiliates of such Issuing Bank, in which
case the term "Issuing Bank" shall include any such Affiliate with respect to
Letters of Credit issued by such Affiliate; PROVIDED, HOWEVER, that no
arrangement of a type described in this sentence shall be permitted if,
immediately after giving effect thereto, amounts would become payable by the
Borrower under Section 2.13 or 2.15 that are in excess of those that would be
payable under such Section if such arrangement were not implemented and,
PROVIDED, FURTHER, that the fees payable to any such Affiliate shall be subject
to the second sentence of Section 2.10(b).
"LAUREN" means Ralph Lauren, an individual.
"LC DISBURSEMENT" means a payment made by the applicable Issuing Bank
pursuant to a Letter of Credit.
"LC EXPOSURE" means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit (other than Alternative Currency
Letters of Credit) at such time, (b) the aggregate amount of all LC
Disbursements under Letters of Credit (other than Alternative Currency Letters
of Credit) that have not yet been reimbursed by or on behalf of the Borrower at
such time and (c) the Alternative Currency LC Exposure at such time. The LC
Exposure of any Lender at any time shall be its Applicable Percentage of the
total LC Exposure at such time.
"LENDERS" means the Persons listed on Schedule 2.01 and any other
Person that shall have become a party hereto pursuant to an Assignment and
Assumption or a New Lender Supplement, other than any such Person that ceases to
be a party hereto pursuant to an Assignment and Assumption.
"LETTER OF CREDIT" means any letter of credit issued pursuant to this
Agreement.
15
"LIBO RATE" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO RATE" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the 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 and the Guarantee Agreement
"LOAN PARTY" means the Borrower and the Guarantors.
"LOANS" means the loans made by the Lenders to the Borrower pursuant to
this Agreement.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Borrower and the Subsidiaries taken as a whole or (b) the rights and remedies of
the Lenders under the Loan Documents.
"MATERIAL INDEBTEDNESS" means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements, of
any one or more of the Borrower and its Subsidiaries in an aggregate principal
amount exceeding $25,000,000. For purposes of determining Material Indebtedness,
the "principal amount" of the obligations of the Borrower or any Subsidiary in
respect of any Swap Agreement at any time shall be the maximum aggregate amount
(giving effect to any netting agreements) that the Borrower or such Subsidiary
would be required to pay if such Swap Agreement were terminated at such time.
"MATURITY DATE" means October 6, 2009.
"MOODY'S" means Moody's Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.
16
"NET INCOME" ("NET LOSS") means with respect to any Person or group of
Persons, as the case may be, for any fiscal period, the difference between (a)
gross revenues of such Person or group of Persons and (b) all costs, expenses
and other charges incurred in connection with the generation of such revenue
(including, without limitation, taxes on income), determined on a consolidated
or combined basis, as the case may be, and in accordance with GAAP.
"NEW LENDER" has the meaning assigned to such term in Section 2.01(c).
"NEW LENDER SUPPLEMENT" has the meaning assigned to such term in
Section 2.01(c).
"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.
"PARTICIPANT" has the meaning set forth in Section 9.04.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.
"PERMITTED ACQUISITION" means any acquisition (in one transaction or a
series of related transactions) by the Borrower or any Subsidiary, on or after
the Effective Date (whether effected through a purchase of Equity Interests or
assets or through a merger, consolidation or amalgamation), of (i) another
Person, (ii) the assets constituting all or substantially all of a business or
operating business unit of another Person or (iii) in any case where clauses (i)
and (ii) above are inapplicable, the rights of any licensee (including by means
of the termination of such license's rights under such license) under a
trademark license to such licensee from the Borrower or any of its Affiliates,
provided that:
(a) the assets so acquired or, as the case may be, the assets of the
Person so acquired shall be in a Related Line of Business;
(b) no Default shall have occurred and be continuing at the time
thereof or would result therefrom;
(c) such acquisition shall be effected in such manner so that the
acquired Equity Interests, assets or rights are owned either by the Borrower
or a Subsidiary and, if effected by merger, consolidation or amalgamation,
the continuing, surviving or resulting entity shall be the Borrower or a
Subsidiary, PROVIDED that, nothing in this clause shall be deemed to limit
the ability of the Borrower or any Subsidiary to grant to a different
licensee any acquired license rights described in clause (iii) above (or any
rights derivative therefrom);
(d) the Borrower and its Subsidiaries shall be in compliance, on a PRO
FORMA basis after giving effect to such acquisition, with the covenants
contained in Sections 6.07 and 6.08 recomputed as at the last day of the
most recently ended fiscal quarter of the
17
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 shall have delivered to the Administrative Agent
(which shall, promptly following its receipt thereof, deliver to the Lenders
the officers' certificate and related calculations referred to below) prior
to the consummation thereof an officers' certificate to the effect set forth
in clauses (a), (b), (c) and (d) above, together with (i) reasonably
detailed calculations demonstrating satisfaction of the requirement set
forth in clause (d) above and (ii) in any case where the purchase price is
greater than $100,000,000, all material financial information for the Person
or assets to be acquired utilized by the Borrower in making its
determination to complete such acquisition and reasonably detailed
information relating to any cost savings with respect to such acquisition
included in any calculation of Consolidated EBITDAR pursuant to clause (d)
above.
"PERMITTED ENCUMBRANCES" means:
(a) Liens imposed by law for taxes and duties, assessments,
governmental charges or levies that are not yet due or are being contested
in compliance with Section 5.04;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of
business and securing obligations that are not overdue by more than 30 days
or are being contested in compliance with Section 5.04;
(c) pledges and deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other
social security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary course
of business;
(e) Liens incurred in the ordinary course of business in connection
with the sale, lease, transfer or other disposition of any credit card
receivables of the Borrower or any of its Subsidiaries;
(f) judgment, attachment or other similar liens in respect of judgments
that do not constitute an Event of Default under clause (k) of Article VII;
(g) easements, zoning restrictions, restrictive covenants,
encroachments, 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; and
18
(h) possessory Liens in favor of brokers and dealers arising in
connection with the acquisition or disposition of Permitted Investments.
PROVIDED that the term "Permitted Encumbrances" shall not include any Lien
securing Indebtedness.
"PERMITTED INVESTMENTS" means:
(a) direct obligations of, or obligations the principal of and interest
on which are directly and fully guaranteed or insured by, the United States
of America (or by any agency thereof to the extent such obligations are
backed by the full faith and credit of the United States of America);
(b) investments in commercial paper having, at such date of
acquisition, a credit rating of at least A-2 from S&P or P-2 from Moody's;
(c) investments in certificates of deposit, eurodollar time deposits,
banker's acceptances and time deposits maturing within one year from the
date of acquisition thereof issued or guaranteed by or placed with, and
money market deposit accounts issued or offered by, any Lender or any
commercial bank which has a combined capital and surplus and undivided
profits of not less than $100,000,000;
(d) repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a financial
institution satisfying the criteria described in clause (c) above;
(e) securities with maturities of two years or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States or by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth or territory,
political subdivision, taxing authority or foreign government (as the case
may be) are rated, at such date of acquisition, at least A by S&P or A2 by
Moody's;
(f) securities with maturities of two years or less from the date of
acquisition backed by standby letters of credit issued by any Lender or any
commercial bank satisfying the requirements of clause (c) of this
definition;
(g) shares of money market funds that (i) comply with the criteria set
forth in Securities and Exchange Commission Rule 2a-7 under the Investment
Company Act of 1940, and (ii) have portfolio assets of at least (x) in the
case of funds that invest exclusively in assets satisfying the requirements
of clause (a) of this definition, $250,000,000 and (y) in all other cases,
$500,000,000;
(h) in the case of investments by any Foreign Subsidiary, obligations
of a credit quality and maturity comparable to that of the items referred to
in clauses (a) through (g) above that are available in local markets;
19
(i) investments in auction rate securities with a rating of AAA from
S&P and a maximum holding period of 45 days, for which the reset date will
be used to determine the maturity date; and
(j) investments in short term loan participations of up to 35 days if
the short term debt rating is A-2 from S&P or P-2 from Moody's or an
equivalent long term rating of investment grade by Moody's or S&P exists.
"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.
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase Bank 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.
"PRIORITY INDEBTEDNESS" means (a) Indebtedness of the Borrower or any
Subsidiary (other than that described in Section 6.01(e)) secured by any Lien on
any asset of the Borrower or any Subsidiary and (b) Indebtedness of any
Subsidiary which is not a Guarantor, in each case owing to a Person other than
the Borrower or any Subsidiary.
"REGISTER" has the meaning set forth in Section 9.04.
"RELATED LINE OF BUSINESS" means: (a) any line of business in which the
Borrower or any of its Subsidiaries is engaged as of, or immediately prior to,
the Effective Date, (b) any wholesale, retail or other distribution of products
or services under any domestic or foreign patent, trademark, service mark, trade
name, copyright or license or (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.
"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 Articles or
Certificate of Incorporation and By-Laws or Certificate of Partnership or
partnership agreement or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation or
20
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.
"REVOLVING CREDIT EXPOSURE" means, with respect to any Lender at any
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure at such time.
"REVOLVING LOAN" means a Loan made pursuant to Section 2.03.
"S&P" means Standard & Poor's.
"STANDBY LETTER OF CREDIT" means an irrevocable letter of credit
pursuant to which an Issuing Bank agrees to make payments in dollars or an
Alternative Currency for the account of the Borrower or any of its Subsidiaries
in respect of obligations of the Borrower or any of its Subsidiaries incurred
pursuant to contracts made or performances undertaken or to be undertaken or
like matters relating to contracts to which the Borrower or any of its
Subsidiaries is or proposes to become a party in the ordinary course of the
Borrower's or any of its Subsidiaries' business, including for insurance
purposes and in connection with lease transactions.
"STATUTORY RESERVE RATE" means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "Eurocurrency Liabilities" in
Regulation D of the Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in any reserve
percentage.
"SUBSIDIARY" means, with respect to any Person (the "PARENT") at any
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"SUBSIDIARY" means any subsidiary of the Borrower.
"SWAP AGREEMENT" means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value
21
or any similar transaction or any combination of these transactions; PROVIDED
that no phantom stock or similar plan providing for payments only on account of
services provided by current or former directors, officers, employees or
consultants of the Borrower or the Subsidiaries shall be a Swap Agreement.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TRANSACTIONS" means the execution, delivery and performance by the
Borrower of this Agreement and by the Guarantors of the Guarantee Agreement, the
borrowing of Loans, the use of the proceeds thereof and the issuance of Letters
of Credit hereunder.
"TYPE", when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Alternate
Base Rate.
"VOTING STOCK" means stock of any class or classes (however
designated), or other equity ownership interests, of any Person, the holders of
which are at the time entitled, as such holders, to vote for the election of the
directors or other governing body of the Person involved, whether or not the
right so to vote exists by reason of the happening of a contingency.
"WITHDRAWAL LIABILITY" means liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. CLASSIFICATION OF LOANS AND BORROWINGS. For purposes of
this Agreement, Loans may be classified and referred to by Type (e.g., a
"Eurodollar Loan"). Borrowings also may be classified and referred to by Type
(e.g., a "Eurodollar Borrowing").
SECTION 1.03. TERMS GENERALLY. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein shall be construed as referring
to such agreement, instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (b) any reference
herein to any Person shall be construed to include such Person's successors and
assigns, (c) the words "herein", "hereof" and "hereunder", and words of similar
import, shall be construed to refer to this Agreement in its entirety and not to
any particular provision hereof, (d) all references herein to Articles,
Sections, Exhibits and 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.
22
SECTION 1.04. ACCOUNTING TERMS; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; PROVIDED
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the 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.
SECTION 1.05. EXCHANGE RATES. For purposes of calculating the
Alternative Currency LC Exposure at any time during any period and the Dollar
Equivalent at the time of issuance of any Alternative Currency Letter of Credit
then requested to be issued pursuant to Section 2.04(b), the Administrative
Agent will at least once during each calendar month and at such other times as
it in its sole discretion decides to do so, determine the respective rate of
exchange into dollars of each Alternative Currency in which an Alternative
Currency Letter of Credit is then outstanding (which rate of exchange shall be
based upon the Exchange Rate in effect on date of such determination). Such
rates of exchange so determined on each such determination date shall, for
purposes of the calculations described in the preceding sentence, be deemed to
remain unchanged and in effect until the next such determination date.
ARTICLE II
THE CREDITS
SECTION 2.01. COMMITMENTS. (a) Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans in dollars to
the Borrower from time to time during the Availability Period in an aggregate
principal amount that will not result in such Lender's Revolving Credit Exposure
exceeding such Lender's Commitment. Within the foregoing limits and subject to
the terms and conditions set forth herein, the Borrower may borrow, prepay and
reborrow Revolving Loans.
(b) The Borrower and any one or more Lenders (including New Lenders)
may from time to time after the Effective Date agree that such Lender or Lenders
shall establish a new Commitment or Commitments or increase the amount of its or
their Commitment or Commitments by executing and delivering to the
Administrative Agent, in the case of each New Lender, a New Lender Supplement
meeting the requirements of Section 2.01(c) or, in the case of each Lender which
is not a New Lender, a Commitment Increase Supplement meeting the requirements
of Section 2.01(d). Notwithstanding the foregoing, without the consent of the
Required Lenders, (x) the aggregate amount of incremental Commitments
established or increased after the Effective Date pursuant to this paragraph
shall not exceed $75,000,000, (y) unless otherwise agreed to by the
Administrative Agent, each increase in the aggregate Commitments effected
pursuant to this paragraph shall be in a minimum aggregate amount of at
23
least $15,000,000 and (z) unless otherwise agreed by the Administrative Agent,
increases in Commitments may be effected on no more than three occasions
pursuant to this paragraph. No Lender shall have any obligation to participate
in any increase described in this paragraph unless it agrees to do so in its
sole discretion.
(c) Any additional bank, financial institution or other entity which,
with the consent of the Borrower and the Administrative Agent (which consents
shall not be unreasonably withheld), elects to become a "Lender" under this
Agreement in connection with any transaction described in Section 2.01(b) shall
execute a New Lender Supplement (each, a "NEW LENDER SUPPLEMENT"), substantially
in the form of Exhibit D-1, whereupon such bank, financial institution or other
entity (a "NEW LENDER") shall become a Lender, with a Commitment in the amount
set forth therein that is effective on the date specified therein, for all
purposes and to the same extent as if originally a party hereto and shall be
bound by and entitled to the benefits of this Agreement.
(d) Any Lender, which, with the consent of the Borrower and the
Administrative Agent, elects to increase its Commitment under this Agreement
shall execute and deliver to the Borrower and the Administrative Agent a
Commitment Increase Supplement specifying (i) the amount of such Commitment
increase, (ii) the amount of such Lender's total Commitment after giving effect
to such Commitment increase, and (iii) the date upon which such Commitment
increase shall become effective.
(e) Unless otherwise agreed by the Administrative Agent, on each date
upon which the Commitments shall be increased pursuant to this Section, the
Borrower shall prepay all then outstanding Revolving Loans, which prepayment
shall be accompanied by payment of all accrued interest on the amount prepaid
and any amounts payable pursuant to Section 2.14 in connection therewith, and,
to the extent it determines to do so, reborrow Revolving Loans from all the
Lenders (after giving effect to the new and/or increased Commitments becoming
effective on such date). Any prepayment and reborrowing pursuant to the
preceding sentence shall be effected, to the maximum extent practicable, through
the netting of amounts payable between the Borrower and the respective Lenders.
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 2.12, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith. Each Lender at its option may make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; PROVIDED that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement; and PROVIDED, FURTHER, that no such option may be exercised by
any Lender if, immediately after giving effect thereto, amounts would become
payable by the Borrower under
24
Section 2.13 or 2.15 that are in excess of those that would be payable under
such Section if such option were not exercised.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than $500,000;
PROVIDED that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(e). 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 fifteen (15)
Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.
SECTION 2.03. REQUESTS FOR REVOLVING BORROWINGS. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (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 Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by the
definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request
25
in accordance with this Section, the Administrative Agent shall advise each
Lender of the details thereof and of the amount of such Lender's Loan to be made
as part of the requested Borrowing.
SECTION 2.04. LETTERS OF CREDIT. (a) GENERAl. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters of
Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit) in the form of Commercial Letters of Credit or Standby Letters of Credit
for its own account or the account of its Subsidiaries, in a form reasonably
acceptable to the applicable Issuing Bank (provided that each Letter of Credit
shall provide for payment against sight drafts drawn thereunder), at any time
and from time to time during the Availability Period. In the event of any
inconsistency between the terms and conditions of this Agreement and the terms
and conditions of any form of letter of credit application or other agreement
submitted by the Borrower to, or entered into by the Borrower with, the
applicable Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control. The letters of credit identified on
Schedule 2.04 shall be deemed to be "Letters of Credit" issued on the Effective
Date for all purposes of the Loan Documents.
(b) NOTICE OF ISSUANCE, AMENDMENT, RENEWAL, EXTENSION; CERTAIN
CONDITIONS. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the applicable Issuing Bank) to
the applicable Issuing Bank and, in the case of a Commercial Letter of Credit if
the Administrative Agent shall have so requested and in the case of all Standby
Letters of Credit, the Administrative Agent (in each case, reasonably in advance
of the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension, the currency in which such Letter of Credit is
to be denominated (which shall be dollars or, subject to Section 2.18, an
Alternative Currency), the name and address of the beneficiary thereof and such
other information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit, PROVIDED that in no event shall any Issuing Bank other than
JPMorgan Chase Bank or one other Issuing Bank designated from time to time by
the Borrower and reasonably acceptable to the Administrative Agent issue any
Alternative Currency Letter of Credit hereunder. If requested by the applicable
Issuing Bank, the Borrower also shall submit a letter of credit application on
such Issuing Bank's standard form in connection with any request for a Letter of
Credit. A Letter of Credit shall be issued, amended, renewed or extended only if
(and upon issuance, amendment, renewal or extension of each Letter of Credit the
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension (i) the LC Exposure shall not
exceed (x) $60,000,000, in the case of Standby Letters of Credit, or (y)
$150,000,000, in the case of Commercial Letters of Credit, (ii) the Alternative
Currency LC Exposure with respect to Letters of Credit denominated in an
Alternative Currency shall not exceed $50,000,000, and (iii) the total Revolving
Credit Exposures shall not exceed the total Commitments. Subsequent to the
receipt by any Issuing Bank of a Notification Instruction (as defined below)
from the Administrative Agent which shall not have been withdrawn, such Issuing
Bank will contact the Administrative Agent prior to the issuance or increase in
any Letter of Credit to determine whether or not such issuance or increase would
result in any of the limitations set forth in the preceding sentence being
exceeded.
26
For purposes of this Section 2.04(b), a "Notification Instruction" shall mean
any instruction from the Administrative Agent requiring that an Issuing Bank
make the contacts described in the preceding sentence, which instruction the
Administrative Agent (i) may deliver at any time when it determines that the
percentage which the aggregate Revolving Credit Exposure constitutes of the
aggregate Commitments then in effect is greater than 80% and (ii) will withdraw
when it determines that such percentage is less than 80%. For purposes of the
third preceding sentence the amount of any Alternative Currency Letter of Credit
shall be the Dollar Equivalent thereof calculated on the basis of the applicable
rate of exchange determined in accordance with Section 1.05.
(c) EXPIRATION DATE. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is one Business Day prior to the Maturity Date.
(d) PARTICIPATIONS. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent in dollars, for the account of such Issuing Bank, such
Lender's Applicable Percentage of (i) each LC Disbursement made by such Issuing
Bank in dollars and (ii) the Dollar Equivalent, using the Exchange Rate at the
time such payment is made, of each LC Disbursement made by such Issuing Bank in
an Alternative Currency and, in each case, not reimbursed by the Borrower on the
date due as provided in paragraph (e) of this Section, or of any reimbursement
payment required to be refunded to the Borrower for any reason. Each Lender
acknowledges and agrees that its obligation to acquire participations pursuant
to this paragraph in respect of Letters of Credit is absolute and unconditional
and shall not be affected by any circumstance whatsoever, including any
amendment, renewal or extension of any Letter of Credit or the occurrence and
continuance of a Default or reduction or termination of the Commitments, and
that each such payment shall be made without any offset, abatement, withholding
or reduction whatsoever.
(e) REIMBURSEMENT. If any Issuing Bank shall make any LC Disbursement
in respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to such Issuing Bank an amount equal to such LC
Disbursement in dollars, on the date that such LC Disbursement is made (or, if
such date is not a Business Day, on or before the next Business Day); PROVIDED
that, if such LC Disbursement is made under an Alternative Currency Letter of
Credit, automatically and with no further action required, such Borrower's
obligation to reimburse the applicable LC Disbursement shall be permanently
converted into an obligation to reimburse the Dollar Equivalent, calculated
using the Exchange Rate at the time such payment is made, of such LC
Disbursement, and PROVIDED, FURTHER, that, in the case of any such reimbursement
obligation which is in an amount of not less than $500,000, the Borrower may,
subject to the conditions to borrowing set forth herein, request in accordance
with Section 2.03 that such payment be financed in dollars with an ABR Revolving
Borrowing in an equivalent
27
amount and, to the extent so financed, the Borrower's obligation to make such
payment shall be discharged and replaced by the resulting ABR Revolving
Borrowing. If the Borrower fails to make when due any reimbursement payment
required pursuant to this paragraph, the applicable Issuing Bank shall
immediately notify the Administrative Agent, which shall promptly notify each
Lender of the applicable LC Disbursement, the Dollar Equivalent thereof
calculated in accordance with the preceding sentence (if such LC Disbursement
relates to an Alternative Currency Letter of Credit), the reimbursement payment
then due from the Borrower in respect thereof and such Lender's Applicable
Percentage thereof. Promptly following receipt of such notice, each Lender
(other than such Issuing Bank) shall pay to the Administrative Agent in dollars
its Applicable Percentage of the reimbursement payment then due from the
Borrower, in the same manner as provided in Section 2.05 with respect to Loans
made by such Lender (and Section 2.05 shall apply, MUTATIS MUTANDIS, to the
payment obligations of the Lenders), and the Administrative Agent shall promptly
pay to such Issuing Bank in dollars the amounts so received by it from the
Lenders. Promptly following receipt by the Administrative Agent of any payment
from the Borrower pursuant to this paragraph, the Administrative Agent shall
distribute such payment to the applicable Issuing Bank or, to the extent that
Lenders have made payments pursuant to this paragraph to reimburse such Issuing
Bank, then to such Lenders and such Issuing Bank as their interests may appear.
Any payment made by a Lender pursuant to this paragraph to reimburse an Issuing
Bank for any LC Disbursement (other than the funding of ABR Loans as
contemplated above) shall not constitute a Loan and shall not relieve the
Borrower of its obligation to reimburse such LC Disbursement.
(f) LETTER OF CREDIT FEES.
(i) COMMERCIAL LETTER OF CREDIT FEE. The Borrower agrees that, on the
date of each LC Disbursement under a Commercial Letter of Credit, it will
pay to the applicable Issuing Bank, for the account of the Lenders, a
Commercial Letter of Credit fee. Such fee shall be equal to the Applicable
Sight Draft Fee Percentage then in effect of the amount of such drawing
(calculated on the basis of the Dollar Equivalent thereof, using the
applicable Exchange Rate in effect at the time payment of such drawing is
made, of such drawing in the case of any Alternative Currency Letter of
Credit). On the fifth Business Day following the last day of each March,
June, September and December, each Issuing Bank will pay over to the
Administrative Agent an amount equal to the aggregate amount of such fees
received by such Issuing Bank from the Borrower during the three-month
period ended on such last day, and the Administrative Agent will allocate
and pay to each Lender a fee equal to its pro rata share of the aggregate
amount of such fees so received by such Issuing Bank during such three-month
period.
(ii) STANDBY LETTER OF CREDIT FEES. The Borrower agrees to pay to the
Administrative Agent, for the account of the applicable Issuing Bank and the
Lenders, a Standby Letter of Credit fee calculated at the rate per annum
equal to the Applicable Rate applicable to Eurodollar Loans from time to
time in effect on the aggregate average daily amount available to be drawn
(calculated, in the case of any Alternative Currency Letter of Credit, on
the basis of the Dollar Equivalent thereof using the applicable Exchange
Rate in effect on the date payment of such fee is due) under each Standby
Letter of Credit issued hereunder (and in no event less than $500 with
respect to each such Standby Letter
28
of Credit). Standby Letter of Credit Fees accrued through and including the
last day of March and September of each year shall be payable in arrears on
the fifth Business Day following such last day, commencing on the first such
date to occur after the date hereof. The Administrative Agent will promptly
pay to the Issuing Banks and the Lenders their pro rata shares of any
amounts received from the Borrower in respect of any such fees. Standby
Letter of Credit 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).
(g) OBLIGATIONS ABSOLUTE. The Borrower's obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit, any application for the issuance of a Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the applicable Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply with the
terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder. Neither
the Administrative Agent, the Lenders nor any Issuing Bank, nor any of their
Related Parties, shall have any liability or responsibility by reason of or in
connection with the issuance or transfer of any Letter of Credit or any payment
or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
applicable Issuing Bank; PROVIDED that the foregoing shall not be construed to
excuse such Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by such Issuing Bank's failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence, bad faith or willful
misconduct on the part of an Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, an Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
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(h) DISBURSEMENT PROCEDURES. The applicable Issuing Bank shall,
promptly following its receipt thereof, examine all documents purporting to
represent a demand for payment under a Letter of Credit. Such Issuing Bank shall
promptly notify the Administrative Agent and the Borrower by telephone
(confirmed by telecopy) of such demand for payment and whether such Issuing Bank
has made or will make an LC Disbursement thereunder; PROVIDED that any failure
to give or delay in giving such notice shall not relieve the Borrower of its
obligation to reimburse such Issuing Bank and the Lenders with respect to any
such LC Disbursement.
(i) INTERIM INTEREST. If an Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made (or, if such date is not a
Business Day, on or prior to the next Business Day), the unpaid amount thereof
shall bear interest, for each day from and including the date such LC
Disbursement is made to but excluding the date that the Borrower reimburses such
LC Disbursement, at the rate per annum then applicable to ABR Loans; PROVIDED
that, if the Borrower fails to reimburse such LC Disbursement when due pursuant
to paragraph (e) of this Section, then Section 2.11(c) shall apply; and
PROVIDED, FURTHER, that, in the case of an LC Disbursement made under an
Alternative Currency Letter of Credit, the amount of interest due with respect
thereto shall accrue on the Dollar Equivalent, calculated using the Exchange
Rate at the time such LC Disbursement was made, of such LC Disbursement.
Interest accrued pursuant to this paragraph shall be for the account of the
applicable Issuing Bank, except that interest accrued on and after the date of
payment by any Lender pursuant to paragraph (e) of this Section to reimburse
such Issuing Bank shall be for the account of such Lender to the extent of such
payment.
(j) REPLACEMENT OF ANY ISSUING BANK. Any Issuing Bank may be replaced
at any time by written agreement among the Borrower, the Administrative Agent,
the replaced Issuing Bank and the successor Issuing Bank. The Administrative
Agent shall notify the Lenders of any such replacement of such Issuing Bank. At
the time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.04(f) and 2.10(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of such Issuing Bank under this Agreement with respect to Letters of
Credit to be issued thereafter and (ii) references herein to the term "Issuing
Bank" shall be deemed to include a reference to such successor or to any
previous Issuing Bank, or to such successor and all previous Issuing Banks, as
the context shall require. After the replacement of an Issuing Bank hereunder,
the replaced Issuing Bank shall remain a party hereto and shall continue to have
all the rights and obligations of an Issuing Bank under this Agreement with
respect to Letters of Credit issued by it prior to such replacement, but shall
not be required to issue additional Letters of Credit.
(k) CASH COLLATERALIZATION. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the then total LC Exposure) demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in dollars and in cash equal to the LC Exposure as of such
date plus any
30
accrued and unpaid interest thereon; PROVIDED that (i) the portions of such
amount attributable to undrawn Alternative Currency Letters of Credit shall be
deposited in the applicable Alternative Currencies in the actual amounts of such
undrawn Letters of Credit and (ii) the obligation to deposit such cash
collateral shall become effective immediately, and such deposit shall become
immediately due and payable, without demand or other notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in
paragraph (h) or (i) of Article VII. Each deposit pursuant to this paragraph
shall be held by the Administrative Agent as collateral for the payment and
performance of the obligations of the Borrower under this Agreement. The
Administrative Agent shall have exclusive dominion and control, including the
exclusive right of withdrawal, over such account. Other than any interest earned
on the investment of such deposits, which investments shall be made at the
option and sole discretion of the Administrative Agent and at the Borrower's
risk and expense, such deposits shall not bear interest. Interest or profits, if
any, on such investments shall accumulate in such account. Moneys in such
account shall be applied by the Administrative Agent to reimburse the Issuing
Banks for LC Disbursements for which they have not been reimbursed (to be
applied ratably among them according to the respective aggregate amounts of the
then unreimbursed LC Disbursements) and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders with LC Exposure representing
greater than 50% of the then total LC Exposure), be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required to
provide an amount of cash collateral hereunder as a result of the occurrence of
an Event of Default or, in accordance with Section 2.09(c), the total Revolving
Credit Exposure exceeding 105% of the total Commitments, such amount (to the
extent not applied as aforesaid) shall be returned to the Borrower within three
Business Days after all Events of Default have been cured or waived or, as the
case may be, the total Revolving Credit Exposure not exceeding the total
Commitments.
(l) ADDITIONAL ISSUING BANKS. The Borrower may, at any time and from
time to time with the consent of the Administrative Agent (which consent shall
not be unreasonably withheld) and such Lender, designate one or more additional
Lenders to act as an issuing bank under the terms of this Agreement, PROVIDED
that the total number of Issuing Banks at any time shall not exceed four. Any
Lender designated as Issuing Bank pursuant to this paragraph (l) shall be deemed
to be an "Issuing Bank" for the purposes of this Agreement (in addition to being
a Lender) with respect to Letters of Credit issued by such Lender.
(m) REPORTING. Unless the Administrative Agent otherwise agrees, each
Issuing Bank will report in writing to the Administrative Agent (i) on the first
Business Day of each week and on the second Business Day to occur after the last
day of each March, June, September and December, and on such other dates as the
Administrative Agent may reasonably request, the daily activity during the
preceding week, calendar quarter or other period, as the case may be, with
respect to Letters of Credit issued by it, including the aggregate outstanding
LC Exposure with respect to such Letters of Credit on each day during such week,
quarter or other period, in such form and detail as shall be satisfactory to the
Administrative Agent, (ii) on any Business Day on which the Borrower fails to
reimburse an LC Disbursement required to be reimbursed to such Issuing Bank on
such day, the date of such failure and the amount of such LC Disbursement
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and (iii) such other information with respect to Letters of Credit issued by
such Issuing Bank as the Administrative Agent may reasonably request.
SECTION 2.05. 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;
PROVIDED that ABR Loans made to finance the reimbursement of an LC Disbursement
as provided in Section 2.04(e) shall be remitted by the Administrative Agent to
the applicable Issuing Bank.
(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 agrees to pay to the Administrative Agent forthwith on demand
such corresponding amount with interest thereon, for each day from and including
the date such amount is made available to the Borrower to but excluding the date
of payment to the Administrative Agent, at the greater of the Federal Funds
Effective Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation. If such Lender pays such
amount to the Administrative Agent, then such amount shall constitute such
Lender's Loan included in such Borrowing. If such Lender's share of such
Borrowing is not made available to the Administrative Agent by such Lender
within three Business Days after the date such amount is made available to the
Borrower, the Administrative Agent shall also be entitled to recover such amount
from the Borrower, on demand, with interest thereon at the rate per annum
applicable to ABR Loans hereunder accruing from the date of such Borrowing.
SECTION 2.06. INTEREST ELECTIONS. (a) Each Revolving Borrowing
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the Borrower
may elect to convert such Borrowing to a different Type or to continue such
Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the
32
Type resulting from such election to be made on the effective date of such
election. Each such telephonic Interest Election Request shall be irrevocable
and shall be confirmed promptly by hand delivery or telecopy to the
Administrative Agent of a written Interest Election Request in a form approved
by the Administrative Agent and signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to clauses
(iii) and (iv) below shall be specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such Interest
Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
SECTION 2.07. TERMINATION AND REDUCTION OF COMMITMENTS. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; PROVIDED that (i) each reduction of the Commitments
shall be in an amount that is
33
an integral multiple of $100,000 and not less than $1,000,000 or, if less, the
remaining amount of the total Commitments, 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 2.09, the total Revolving
Credit Exposures would exceed the total Commitments.
(c) The Borrower shall notify the Administrative Agent of any election
to terminate or reduce the Commitments under paragraph (b) of this Section at
least two (2) Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by the Borrower pursuant
to this Section shall be irrevocable; PROVIDED that a notice of termination of
the Commitments delivered by the Borrower may state that such notice is
conditioned upon the effectiveness of other credit facilities, 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 2.08. 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.
(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 Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or interest
due and payable or to become due and payable from the Borrower to each Lender
hereunder and (iii) the amount of any sum received by the Administrative Agent
hereunder for the account of the Lenders and each Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be PRIMA FACIE evidence of the existence and
amounts of the obligations recorded therein; PROVIDED that the failure of any
Lender or the Administrative Agent to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 9.04) be represented by one or more promissory
notes in such
34
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 2.09. PREPAYMENT OF LOANS. (a) The Borrower shall have the
right at any time and from time to time to prepay voluntarily any Borrowing in
whole or in part without premium or penalty, 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 voluntary prepayment hereunder prior to (i) in
the case of ABR Loans, 11:00 a.m., New York City time, on such date of
prepayment or (ii) in the case of Eurodollar Loans, 12:00 noon, New York City
time, on the Business Day immediately preceding such date of prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be prepaid and whether
the prepayment is of Eurodollar Loans, ABR Loans or a combination thereof, and,
if of a combination thereof, the amount allocable to each; PROVIDED that, if a
notice of voluntary prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.07, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.07. Promptly following receipt of any such notice the
Administrative Agent shall advise the Lenders of the contents thereof. Each
partial voluntary prepayment of any Revolving Borrowing shall be in an aggregate
principal amount of $500,000 or a multiple of $100,000 in excess thereof. Each
voluntary prepayment of a Revolving Borrowing shall be applied ratably to the
Loans included in the prepaid Borrowing.
(c) If on any date the total Revolving Credit Exposure exceeds 105% of
the total Commitments, the Borrower shall, without notice or demand, within
three Business Days after such date, prepay Loans in an aggregate amount
sufficient to reduce the total Revolving Credit Exposure to less than the total
Commitments, PROVIDED that if, after giving effect to such prepayment, the total
Revolving Credit Exposure would still exceed the total Commitments, the Borrower
shall, without notice or demand, deposit cash collateral in an account with the
Administrative Agent established and maintained in accordance with Section
2.04(k) in an aggregate amount such that, after deducting therefrom the amount
so deposited in such account, the total Revolving Credit Exposure does not
exceed the total Commitments.
(d) Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.11 and any amounts payable pursuant to Section 2.14.
SECTION 2.10. FEES. (a) 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 Effective Date to the last day of the Availability
Period, computed at the Applicable Rate on the average daily amount of the
Available Commitment of such Lender during the period for which payment is made.
Commitment fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the fifth Business Day
following such last day, commencing on the first such date to occur after the
date hereof; PROVIDED that all such fees shall be payable on the date on which
the Commitments terminate and any such fees accruing after the date on which the
Commitments terminate shall be payable on demand. All
35
commitment 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 each Issuing Bank the fees agreed
upon by the Borrower with such Issuing Bank with respect to the issuance,
amendment, renewal or extension of any Letter of Credit or processing of
drawings thereunder. For the avoidance of doubt, in any case where, in
accordance with the second sentence of the definition of Issuing Bank, an
Issuing Bank arranges for one or more Letters of Credit to be issued by an
Affiliate of such Issuing Bank, the fees agreed upon by such Issuing Bank with
the Borrower shall be deemed to have been agreed upon by such Affiliate unless
the Borrower and such Affiliate otherwise agree.
(c) The Borrower agrees to pay to the Administrative Agent, for the
account of each Lender, a utilization fee accruing for each day on which the
aggregate amount of the Revolving Credit Exposure of all Lenders exceeds 50% of
the aggregate amount of the Commitments then in effect at a rate per annum equal
to 0.125% on the amount of the Revolving Credit Exposure of such Lender
outstanding on such day. Utilization fees accrued through and including the last
day of March, June, September and December of each year shall be payable on the
fifth Business Day following such last day, commencing on the first such date to
occur after the date hereof, and on the Maturity Date; PROVIDED that if there
shall exist any Revolving Credit Exposure at any time after the Commitments are
terminated or expire, the Commitments, for purposes of calculations pursuant to
this Section, shall be deemed to remain outstanding in the amounts in effect
immediately prior to such termination or expiration and any utilization fees
accruing after such termination or expiration shall be payable on demand. All
utilization 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).
(d) 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.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to each Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances (other than in the case, and to the extent,
of any overpayment thereof by the Borrower).
SECTION 2.11. INTEREST. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear interest
at the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.
(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
36
well as before judgment, at a rate per annum equal to (i) in the case of overdue
principal of any Loan, 2% plus the rate otherwise applicable to such Loan as
provided in the preceding paragraphs of this Section or (ii) in the case of any
other amount, 2% plus the rate applicable to ABR Loans as provided in paragraph
(a) of this Section.
(d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and upon termination of all of the
Commitments; 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 Loan prior to the end
of the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any conversion of any Eurodollar 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.
(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,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
SECTION 2.12. ALTERNATE RATE OF INTEREST. If prior to the commencement
of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that by reason of circumstances affecting
the relevant market adequate and reasonable means do not exist for
ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable, for
such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders (or
Lender) of making or maintaining their Loans (or its Loan) included in such
Borrowing for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower
and the Lenders by telephone or telecopy as promptly as practicable thereafter
and, until the Administrative Agent notifies the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
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 Borrowings,
then the other Type of Borrowings shall be permitted.
36
SECTION 2.13. 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 (except any such reserve requirement
reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
(ii) impose on any Lender or any Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans made
by such Lender or any Letter of Credit or participation therein;
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make such Loan) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining any Letter of Credit or
to reduce the amount of any sum received or receivable by such Lender or such
Issuing Bank hereunder (whether of principal, interest or otherwise), then the
Borrower will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or any Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Lender's or such Issuing Bank's capital as a consequence of
this Agreement or the Loans made by, or participations in Letters of Credit held
by, such Lender, or the Letters of Credit issued by such Issuing Bank, to a
level below that which such Lender could have achieved but for such Change in
Law (taking into consideration such Lender's or such Issuing Bank's policies
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or such Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or such Issuing Bank for any such
reduction suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate such Lender or such Issuing Bank, as
the case may be, as specified in paragraph (a) or (b) of this Section,
containing a reasonably detailed explanation of the basis on which such amount
or amounts were calculated and explaining the Change in Law by reason of which
it has become entitled to be so compensated, shall be delivered to the Borrower
and shall be conclusive absent manifest error. No Lender or Issuing Bank shall
be entitled to the benefits of this Section 2.13 unless such Lender or Issuing
Bank shall have complied with the requirements of this Section 2.13. The
Borrower shall pay such Lender or such Issuing Bank, as the case may be, the
amount shown as due on any such certificate within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; PROVIDED
that the Borrower shall not be required to compensate a Lender or an Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 90 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or such Issuing Bank's
intention to claim
38
compensation therefor; provided FURTHER that, if the Change in Law giving rise
to such increased costs or reductions is retroactive, then the 90-day period
referred to above shall be extended to include the period of retroactive effect
thereof. Notwithstanding any other provision of this Section 2.13, no Lender
shall demand compensation for any increased costs or reduction referred to above
in this Section if it shall not then be the general policy of such Lender to
demand such compensation in similar circumstances from comparable borrowers
under comparable provisions of other credit agreements, if any (it being
understood, for the avoidance of doubt, that a waiver by any Lender in any given
case of its right to demand such compensation from any given borrower shall not,
in and of itself, be deemed to constitute a change in the general policy of such
Lender).
(e) Notwithstanding any other provision to the contrary, this Section
2.13 shall have no application with respect to any Indemnified Taxes, Other
Taxes or any Excluded Taxes, which matters, for the avoidance of doubt, shall be
dealt with exclusively under Section 2.15.
SECTION 2.14. BREAK FUNDING PAYMENTS. In the event of (a) the payment
of any principal of any Eurodollar Loan other than on the last day of an
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.09(b) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.17, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate that would have been
applicable to such Loan, for the period from the date of such event to the last
day of the then current Interest Period therefor (or, in the case of a failure
to borrow, convert or continue, for the period that would have been the Interest
Period for such Loan), over (ii) the amount of interest which would accrue on
such principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof. No Lender or Issuing Bank shall be entitled to the
benefits of this Section 2.14 unless such Lender or Issuing Bank shall have
complied with the requirements of this Section 2.14.
SECTION 2.15. TAXES. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; PROVIDED that if the
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions
39
applicable to additional sums payable under this Section) the Administrative
Agent, Lender or the relevant Issuing Bank (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Borrower shall make such deductions and (iii) the Borrower shall pay
the full amount deducted to the relevant Governmental Authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender
and any Issuing Bank, as promptly as possible but in any event within 30 days
after written demand therefor, for the full amount of any Indemnified Taxes or
Other Taxes paid by the Administrative Agent, such Lender or such Issuing Bank,
as the case may be, on or with respect to any payment by or on account of any
obligation of the Borrower hereunder (including Indemnified Taxes or Other Taxes
imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental Authority.
A certificate as to the amount of such payment or liability delivered to the
Borrower by a Lender or any Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or any Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Each Foreign Lender (including each Issuing Bank that is a Foreign
Lender) shall deliver to the Borrower (with a copy to the Administrative Agent),
at the time it becomes a Lender (or, in the case of any Participant, on or
before the date such Participant purchases the related Participation) and at all
times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law or reasonably requested by the
Borrower as will permit such payments to be made without withholding. Each
Foreign Lender (including each Issuing Bank that is a Foreign Lender) shall
promptly notify the Borrower at any time it determines that it is no longer in a
position to provide any documentation required to be delivered to the Borrower
pursuant to this paragraph. No Person shall be entitled to become a Lender or
Participant unless it shall have complied with the requirements of the first
sentence of this paragraph (if such requirements are applicable to it).
(f) If the Administrative Agent, a Lender or an Issuing Bank determines
that it has received a refund which, in the good faith judgment of the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, is
allocable to any Indemnified Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.15, it shall promptly pay over
such refund to the Borrower (but only to the extent of indemnity payments made,
or additional amounts paid,
40
by the Borrower under this Section 2.15 with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent or such Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); PROVIDED, that the Borrower, upon the request of the Administrative
Agent or such Lender, agrees to repay the amount paid over to the Borrower (plus
any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.
SECTION 2.16. PAYMENTS GENERALLY; PRO RATA TREATMENT; SHARING OF
SET-OFFS. (a) The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.13, 2.14 or 2.15, or
otherwise) prior to 12:00 noon, New York City time, on the date when due, in
immediately available funds, without set-off or counterclaim. Any amounts
received after such time on any date may, in the discretion of the
Administrative Agent or an Issuing Bank, as applicable, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
its offices at 270 Park Avenue, New York, New York, except payments to be made
directly to an Issuing Bank as expressly provided herein and except that
payments pursuant to Sections 2.13, 2.14, 2.15 and 9.03 shall be made directly
to the Persons entitled thereto. The Administrative Agent shall distribute any
such payments received by it for the account of any other Person to the
appropriate recipient promptly following receipt thereof. If any payment
hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars except as
provided in Section 2.04(k).
(b) If at any time insufficient funds are received by and available to
the Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest, fees, expenses and other amounts then due hereunder,
such funds shall be applied (i) first, towards payment of interest, fees,
expenses and other amounts then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest, fees, expenses and
other amounts then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in LC Disbursements
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in LC
Disbursements of other Lenders to
41
the extent necessary so that the benefit of all such payments shall be shared by
the Lenders ratably in accordance with the aggregate amount of principal of and
accrued interest on their respective Revolving Loans and participations in LC
Disbursements; PROVIDED that (i) if any such participations are purchased and
all or any portion of the payment giving rise thereto is recovered, such
participations shall be rescinded and the purchase price restored to the extent
of such recovery, without interest, and (ii) the provisions of this paragraph
shall not be construed to apply to any payment made by the Borrower pursuant to
and in accordance with the express terms of this Agreement or any payment
obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in LC Disbursements to any
assignee or participant, other than to the Borrower or any Subsidiary or
Affiliate thereof (as to which the provisions of this paragraph shall apply).
The Borrower consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation.
(d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or an Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or such Issuing
Bank, as the case may be, the amount due. In such event, if the Borrower has not
in fact made such payment, then each of the Lenders or such Issuing Bank, as the
case may be, severally agrees to repay to the Administrative Agent forthwith on
demand the amount so distributed to such Lender or such Issuing Bank with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by
it pursuant to Section 2.04(d) or (e), 2.05(b) or 2.16(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.17. MITIGATION OBLIGATIONS; REPLACEMENT OF LENDERS. (a) If
any Lender (including any Issuing Bank) requests compensation under Section
2.13, or if the Borrower is required to pay any additional amount to any Lender
(including any Issuing Bank) or any Governmental Authority for the account of
any Lender (including any Issuing Bank) pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the judgment
of such Lender, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in the
future and (ii) would not subject such Lender to any material unreimbursed cost
or expense and would not otherwise be disadvantageous to such
42
Lender. The Borrower hereby agrees to pay all reasonable out-of-pocket costs and
expenses incurred by any Lender in connection with any such designation or
assignment.
(b) If any Lender (including any Issuing Bank) requests compensation
under Section 2.13, or if the Borrower is required to pay any additional amount
to any Lender (including any Issuing Bank) or any Governmental Authority for the
account of any Lender (including any Issuing Bank) pursuant to Section 2.15, or
if any Lender (including any Issuing Bank) defaults in its obligation to fund
Loans hereunder, then the Borrower may, at its sole expense, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 9.04, provided that the Borrower shall be required to pay the
processing and recordation fee referred to in Section 9.04(b)(ii)(C)), all its
interests, rights and obligations under this Agreement to an assignee that shall
assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); PROVIDED that (i) the Borrower shall have received the
prior written consent of the Administrative Agent, which consent shall not
unreasonably be withheld, (ii) such Lender shall have received payment of an
amount equal to the outstanding principal of its Loans and participations in LC
Disbursements, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) (and, if such Lender is an Issuing Bank, all Letters of Credit
issued by it shall have been cancelled or other arrangements reasonably
satisfactory to such Issuing Bank shall have been made with respect to such
Letters of Credit) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.13 or payments required to be made
pursuant to Section 2.15, such assignment will result in a reduction in such
compensation or payments. A Lender (including any Issuing Bank) shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply. No such
assignment shall be deemed to be a waiver of any rights which the Borrower, the
Administrative Agent or any other Lender shall have against the replaced Lender.
SECTION 2.18. CHANGE IN LAW. If (a) any Change in Law shall make it
unlawful for any Issuing Bank to issue Letters of Credit denominated in an
Alternative Currency or (b) there shall have occurred any change in national or
international financial, political or economic conditions (including the
imposition of or any change in exchange controls) or currency exchange rates
that would make it impracticable for such Issuing Bank to issue Letters of
Credit denominated in such Alternative Currency, then by prompt written notice
thereof to the Borrower and to the Administrative Agent (which notice shall be
withdrawn whenever such circumstances no longer exist), such Issuing Bank may
declare that Letters of Credit will not thereafter be issued by it in the
affected Alternative Currency or Alternative Currencies, whereupon the affected
Alternative Currency or Alternative Currencies shall be deemed (for the duration
of such declaration) not to constitute an Alternative Currency for purposes of
the issuance of Letters of Credit by such Issuing Bank.
43
ARTICLE III
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. ORGANIZATION; POWERS. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business in,
and is in good standing in, every jurisdiction where such qualification is
required.
SECTION 3.02. AUTHORIZATION; ENFORCEABILITY. The Transactions are
within each Loan Party's corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. Each Loan Document has
been duly executed and delivered by each Loan Party which is a party thereto and
constitutes a legal, valid and binding obligation of such Loan Party,
enforceable in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and subject to general principles of equity, regardless of whether
considered in a proceeding in equity or at law.
SECTION 3.03. GOVERNMENTAL APPROVALS; NO CONFLICTS. The Transactions
(a) do not require any consent or approval of, registration or filing with, or
any other action by, any Governmental Authority, except such as have been
obtained or made and are in full force and effect, (b) will not violate any
applicable law or regulation or the charter, by-laws or other organizational
documents of the Borrower or any of its Subsidiaries or any order of any
Governmental Authority, (c) will not violate or result in a default under any
indenture or any material agreement or other instrument binding upon the
Borrower or any of its Subsidiaries or its assets, or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries, and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries.
SECTION 3.04. FINANCIAL CONDITION; NO MATERIAL ADVERSE CHANGE. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal year ended April 3, 2004, reported on by Deloitte & Touche LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended July 3, 2004, certified by its chief
financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of the
Borrower and its consolidated Subsidiaries as of such dates and for such periods
in accordance with GAAP, subject to year-end audit adjustments and the absence
of footnotes in the case of the statements referred to in clause (ii) above.
44
(b) Since April 3, 2004, there has been no material adverse change in
the business, operations, property or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole.
SECTION 3.05. PROPERTIES. (a) Each of the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to the operation of its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes or
such other defects as, in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed to
use, all trademarks, tradenames, copyrights, patents and other intellectual
property material to its business as currently conducted, and the use thereof by
the Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
SECTION 3.06. LITIGATION AND ENVIRONMENTAL MATTERS. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) which could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect (except as set forth on Schedule 3.06) or (ii) that
involve this Agreement or the Transactions. Schedule 3.06 lists all litigation
pending on the date of this Agreement against the Borrower or any of its
Subsidiaries in which the amount in controversy or potential liability of the
Borrower or any of its Subsidiaries exceeds $25,000,000 and is not covered by
insurance.
(b) Except with respect to any matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability.
SECTION 3.07. COMPLIANCE WITH LAWS AND AGREEMENTS. Each of the Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and is
continuing.
SECTION 3.08. INVESTMENT COMPANY STATUS. Neither the Borrower nor any
of its Subsidiaries is required to be registered as an "investment company" as
defined in the Investment Company Act of 1940.
45
SECTION 3.09. TAXES. Each of the Borrower and its Subsidiaries has
timely filed or caused to be filed all Tax returns and reports required to have
been filed and has paid or caused to be paid all Taxes required to have been
paid by it, except (a) Taxes that are being contested in good faith by
appropriate proceedings and for which the Borrower or such Subsidiary, as
applicable, has set aside on its books adequate reserves or (b) to the extent
that the failure to do so could not reasonably be expected to result in a
Material Adverse Effect.
SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events for
which liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Accounting Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed by more
than $10,000,000 the fair market value of the assets of such Plan, and the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements reflecting such amounts, exceed by more than $10,000,000 the fair
market value of the assets of all such underfunded Plans.
SECTION 3.11. DISCLOSURE. The Information Memorandum together with all
of the other reports, financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or hereafter
delivered hereunder or reports filed pursuant to the Securities Exchange Act of
1934 (as modified or supplemented by other information so furnished prior to the
date on which this representation and warranty is made or deemed made) do not
contain any material misstatement of fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; PROVIDED that, with respect to
projected financial information, the Borrower represents only that such
information was prepared in good faith based upon assumptions believed to be
reasonable at the time; and PROVIDED, FURTHER, that the Borrower makes no
representation or warranty whatsoever concerning the information contained in
the Information Memorandum under the heading "Industry Overview" or any
financial information delivered pursuant to clause (e) of the definition of
"Permitted Acquisition".
SECTION 3.12. SUBSIDIARY GUARANTORS. Set forth on Schedule 3.12 is a
list of each Subsidiary which, in accordance with Section 4.01(b), is required
to be a Guarantor under the Guarantee Agreement on the Effective Date.
ARTICLE IV
CONDITIONS
SECTION 4.01. EFFECTIVE DATE. The obligations of the Lenders to make
Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective until the
46
date on which each of the following conditions is satisfied (or waived in
accordance with Section 9.02):
(a) The Administrative Agent (or its counsel) shall have received from
each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence reasonably satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of this Agreement.
(b) The Administrative Agent shall have received the Guarantee
Agreement executed and delivered by (i) each Domestic Subsidiary which is a
guarantor under the Existing Credit Agreement, and (ii) each Domestic
Subsidiary, if any, which, as of the Effective Date, is a Significant
Subsidiary (as defined in Regulation S-X part 210.1-02 of the Code of
Federal Regulations) and which is not a guarantor under the Existing Credit
Agreement.
(c) The Administrative Agent shall have received evidence, in form and
substance reasonably satisfactory to it that all obligations of the Borrower
under the Existing Credit Agreement (other than the indemnity and other
obligations (including obligations in relation to the letters of credit
identified on Schedule 2.04) that expressly survive the termination thereof)
shall have been paid in full, and all commitments of the Lenders to extend
credit thereunder shall have been terminated.
(d) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of (i) Paul, Weiss, Rifkind, Wharton & Garrison LLP, counsel
for the Loan Parties, substantially in the form of Exhibit B-1 and (ii) the
Corporate Counsel of the Borrower, substantially in the form of Exhibit B-2.
The Borrower hereby requests Paul, Weiss, Rifkind, Wharton & Garrison LLP to
deliver the opinion provided for in clause (i), above.
(e) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Loan Parties, the authorization of the Transactions by the Loan Parties and
any other legal matters relating to the Loan Parties, this Agreement or the
Transactions, all in form and substance reasonably satisfactory to the
Administrative Agent and its counsel.
(f) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the conditions
set forth in paragraphs (a) and (b) of Section 4.02.
(g) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
47
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of the Issuing
Banks to issue Letters of Credit hereunder shall not become effective unless
each of the foregoing conditions is satisfied (or waived pursuant to Section
9.02) at or prior to 3:00 p.m., New York City time, on October 30, 2004 (and, in
the event such conditions are not so satisfied or waived, the Commitments shall
terminate at such time).
SECTION 4.02. EACH CREDIT EVENT. The obligation of each Lender to make
a Loan on the occasion of any Borrowing, and of each Issuing Bank to issue,
increase, renew or extend any Letter of Credit, is subject to the satisfaction
of the following conditions:
(a) The representations and warranties made by any Loan Party in or
pursuant to the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of issuance,
increase, renewal or extension of such Letter of Credit, as applicable
(other than such representations as are made as of a specific earlier date,
in which case such representations and warranties shall be true and correct
in all material respects as of such earlier date).
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, increase, renewal or extension of such Letter of
Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, increase, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
AFFIRMATIVE COVENANTS
Until the Commitments have expired or been terminated and the principal
of and interest on each Loan and all fees payable hereunder shall have been paid
in full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees with
the Lenders that:
SECTION 5.01. FINANCIAL STATEMENTS; RATINGS CHANGE AND OTHER
INFORMATION. The Borrower will furnish to each Lender through the Administrative
Agent:
(a) within 90 days after the end of each Fiscal Year of the Borrower,
its audited consolidated balance sheet and related statements of operations,
stockholders' equity and cash flows as of the end of and for such year,
setting forth in each case in comparative form the figures for the previous
fiscal year, all reported on by Deloitte & Touche or other independent
public accountants of recognized national standing (without a "going
concern" or like qualification or exception and without any qualification or
exception as to the scope of such audit) to the effect that such
consolidated financial statements present fairly in all material respects
the financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied; provided, HOWEVER, that, so long as the Borrower is
required to file reports under Section 13 of the Securities and Exchange Act
of 1934, the requirements of this paragraph shall be deemed satisfied by the
delivery of, the Annual Report of the Borrower on Form 10-K for such Fiscal
Year, signed by the duly authorized officer or officers of the Borrower;
(b) within 60 days after the end of each of the first three Fiscal
Quarters of each fiscal year of the Borrower, its consolidated balance sheet
and related statements of operations, stockholders' equity and cash flows as
of the end of and for such fiscal quarter and the then elapsed portion of
the fiscal year, setting forth in each case in comparative form the figures
for the corresponding period or periods of (or, in the case of the balance
sheet, as of the end of) the previous fiscal year, all certified by one of
its Financial Officers as presenting fairly in all material respects the
financial condition and results of operations of the Borrower and its
consolidated Subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes; PROVIDED, HOWEVER, that, so long as the Borrower is
required to file reports under Section 13 of the Securities and Exchange Act
of 1934, the requirements of this paragraph shall be deemed satisfied by the
delivery of the Quarterly Report of the Borrower on Form 10-Q for the
relevant Fiscal Quarter, signed by the duly authorized officer or officers
of the Borrower.
(c) concurrently with any delivery of financial statements under clause
(a) or (b) above, a certificate of a Financial Officer of the Borrower (i)
stating that he or she has obtained no knowledge that a Default has occurred
(except as set forth in such certificate), (ii) if a Default has occurred,
specifying the details thereof and any action taken or proposed to be taken
with respect thereto, (iii) setting forth reasonably detailed calculations
demonstrating compliance with Sections 6.03, 6.07 and 6.08; and (iv) stating
whether any change in GAAP or in the application thereof has occurred since
the date of the audited financial statements referred to in Section 3.04
which has had an effect on such financial statements and, if any such change
has occurred, specifying the effect of such change on the financial
statements accompanying such certificate;
(d) concurrently with any delivery of financial statements under clause
(a) above, a certificate of the accounting firm that reported on such
financial statements stating whether they obtained knowledge during the
course of their examination of such financial statements of any Default
(which certificate may be limited to the extent required by accounting rules
or guidelines);
(e) promptly after the same become publicly available, copies of all
other periodic and other reports, proxy statements and other materials filed
by the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange, or
distributed by the Borrower to its shareholders generally, as the case may
be;
49
(f) promptly after the Borrower shall have received notice that Moody's
or S&P has announced a change in the rating established or deemed to have
been established for the Index Debt, written notice of such rating change;
and
(g) promptly following any request therefor, such other information
regarding the business affairs or financial position of the Borrower or any
Subsidiary, or compliance with the terms of this Agreement, as the
Administrative Agent or any Lender may reasonably request.
SECTION 5.02. NOTICES OF MATERIAL EVENTS. The Borrower will furnish to
the Lenders through the Administrative Agent prompt written notice of the
following:
(a) the occurrence of any Default;
(b) the filing or commencement of any action, suit or proceeding by or
before any arbitrator or Governmental Authority against or affecting the
Borrower or any Affiliate thereof that, if adversely determined, could
reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any ERISA Event that, alone or together with any
other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate
amount exceeding $10,000,000; and
(d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.
Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
SECTION 5.03. EXISTENCE; CONDUCT OF BUSINESS. The Borrower will, and
will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material
to the conduct of its business except, in each case (other than the case of the
foregoing requirements insofar as they relate to the legal existence of the
Borrower and the Guarantors), to the extent that failure to do so could not
reasonably be expected to result in a Material Adverse Effect; PROVIDED that the
foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.04.
SECTION 5.04. PAYMENT OF OBLIGATIONS. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could reasonably be expected to result in a Material Adverse
Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to
50
make payment pending such contest could not reasonably be expected to result in
a Material Adverse Effect.
SECTION 5.05. MAINTENANCE OF PROPERTIES; INSURANCE. Except where the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect, the Borrower will, and will cause each of its Subsidiaries to,
(a) keep and maintain all property material to the conduct of its business in
good working order and condition, ordinary wear and tear excepted, and (b)
maintain, with financially sound and reputable insurance companies, insurance on
such of its property and in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.
SECTION 5.06. BOOKS AND RECORDS; INSPECTION RIGHTS. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which entries in conformity in all material respects with all
applicable laws, rules and regulations of any Governmental Authority are made of
all dealings and transactions in relation to its business and activities. The
Borrower will, and will cause each of its Subsidiaries to, on an annual basis at
the request of the Administrative Agent (or at any time after the occurrence and
during the continuance of a Default), permit any representatives designated by
the Administrative Agent or any Lender, upon reasonable prior notice, to visit
and inspect its properties, to examine and make extracts from its books and
records, and to discuss its affairs, finances and condition with its officers
and independent accountants, all during reasonable business hours.
SECTION 5.07. COMPLIANCE WITH LAWS. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and orders
of any Governmental Authority applicable to it or its property, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect.
SECTION 5.08. USE OF PROCEEDS AND LETTERS OF CREDIT. The proceeds of
the Loans will be used only to finance the working capital needs and general
corporate purposes of the Borrower and its Subsidiaries (including the
refinancing of the Existing Credit Agreement). No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations T, U
and X. The Commercial Letters of Credit shall be used solely to finance
purchases of inventory by the Borrower and its Subsidiaries in the ordinary
course of their business, and the Standby Letters of Credit shall be used solely
for the purposes described in the definition of such term in Section 1.01.
SECTION 5.09. GUARANTEE AGREEMENT SUPPLEMENT. Each Domestic Subsidiary
that becomes a "Significant Subsidiary" (as defined in Regulation S-X, part
210.1-02 of the Code of Federal Regulations) subsequent to the Effective Date
shall promptly (and in any event within 60 days of becoming such a "Significant
Subsidiary") execute and deliver to the Administrative Agent (with a counterpart
for each Lender) a supplement to the Guarantee Agreement pursuant to which such
Subsidiary shall become a party thereto as a Guarantor, together with such other
documents and legal opinions with respect thereto as the Administrative Agent
shall reasonably request (which documents and opinions shall be in form and
substance reasonably satisfactory to the Administrative Agent).
51
ARTICLE VI
NEGATIVE COVENANTS
Until the Commitments have expired or terminated and the principal of
and interest on each Loan and all fees payable hereunder have been paid in full
and all Letters of Credit have expired or terminated and all LC Disbursements
shall have been reimbursed, the Borrower covenants and agrees with the Lenders
that:
SECTION 6.01. INDEBTEDNESS. The Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:
(a) Indebtedness created hereunder;
(b) Indebtedness existing on the date hereof and set forth in Schedule
6.01 and extensions, renewals and replacements of any such Indebtedness that
do not increase the outstanding principal amount thereof or shorten the
final maturity or weighted average life to maturity thereof;
(c) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
(d) Guarantees by the Borrower of Indebtedness of any Subsidiary and by
any Subsidiary of Indebtedness of the Borrower or any other Subsidiary;
(e) Indebtedness of the Borrower or any Subsidiary incurred to finance
the acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations, and extensions, renewals and
replacements of any such Indebtedness that do not increase the outstanding
principal amount thereof; PROVIDED that such Indebtedness is incurred no
more than 90 days prior to or within 90 days after such acquisition or the
completion of such construction or improvement;
(f) Priority Indebtedness in an aggregate principal amount at any one
time outstanding not to exceed 10% of the Borrower's then Consolidated Net
Worth; and
(g) unsecured Indebtedness, not otherwise permitted by this Section, of
the Borrower or any Subsidiary which is a Guarantor so long as (i) on a pro
forma basis after giving effect to the incurrence of such Indebtedness, the
ratio of (x) Adjusted Debt then outstanding to (y) Consolidated EBITDAR for
the then most recently ended period of four consecutive Fiscal Quarters for
which financial statements shall have been delivered to the Lenders pursuant
to Section 5.01 is not greater than 3.75 to 1.00 and (ii) the aggregate
principal amount at any one time outstanding of all Indebtedness permitted
by this paragraph (g) having a maturity date or any scheduled amortization
or other mandatory prepayment or repurchase on or prior to the Maturity Date
shall not exceed $300,000,000.
For purposes of this subsection 6.01, any Person becoming a Subsidiary
of the Borrower after the date of this Agreement shall be deemed to have
incurred all of its then outstanding Indebtedness at the time it becomes a
Subsidiary, and any Indebtedness assumed by the Borrower or any of its
Subsidiaries shall be deemed to have been incurred on the date of assumption.
SECTION 6.02. LIENS. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any property
or asset now owned or hereafter acquired by it, or assign or sell any income or
revenues (including accounts receivable) or rights in respect of any thereof,
except:
(a) Permitted Encumbrances;
(b) Liens existing on the date hereof and set forth on Schedule 6.02;
(c) any Lien on any property or asset of the Borrower or any Subsidiary
securing Indebtedness permitted by Section 6.01(e) incurred to acquire,
construct or improve such property or asset;
(d) Liens solely constituting the right of any other Person to a share
of any licensing royalties (pursuant to a licensing agreement or other
related agreement entered into by the Borrower or any of its Subsidiaries
with such Person in the ordinary course of the Borrower's or such
Subsidiary's business) otherwise payable to the Borrower or any of its
Subsidiaries, PROVIDED that such right shall have been conveyed to such
Person for consideration received by the Borrower or such Subsidiary on an
arm's-length basis;
(e) Liens arising from precautionary Uniform Commercial Code financing
statement filings with respect to operating leases entered into by the
Borrower or any of its Subsidiaries in the ordinary course of business; and
(f) Liens securing Indebtedness described in clause (a) of the
definition of Priority Indebtedness.
SECTION 6.03. SALE OF ASSETS. Except in the ordinary course of business
(including the sale, lease, transfer or other disposition of any credit card
receivable of the Borrower or any of its Subsidiaries), the Borrower will not,
nor will it permit any of its Subsidiaries to, sell, lease, transfer or
otherwise dispose of any of its assets, including any of the Equity Interests in
any of its Subsidiaries, PROVIDED that (a) any Subsidiary may sell, transfer,
lease or otherwise dispose of its assets to the Borrower or to another
Subsidiary, (b) the Borrower may sell, transfer, lease or otherwise dispose of
its assets to any of its Subsidiaries and (c) so long as no Default shall have
occurred and be continuing or would result therefrom, no such sale, lease,
transfer or other disposition of assets or Equity Interests out of the ordinary
course of business shall constitute a violation of this Section so long as the
aggregate fair market value of the assets or Equity Interests so sold, leased,
transferred or otherwise disposed of during any Fiscal Year of the Borrower
(other than as permitted by clauses (a) and (b) immediately preceding) shall not
exceed 10% of Consolidated Total Tangible Assets as at the end of the
53
preceding Fiscal Year. In addition, the Borrower may sell, transfer, lease or
otherwise dispose of any asset or Equity Interests out of the ordinary course of
business, PROVIDED that the net cash proceeds thereof are used within 180 days
after the receipt thereof to purchase assets to be utilized by the Borrower in
any Related Line of Business and/or to reduce the Commitments; and PROVIDED,
FURTHER, that the aggregate fair market value of the assets or Equity Interests
so sold, transferred, leased or otherwise disposed of during any Fiscal Year of
the Borrower in reliance on this sentence shall not exceed $75,000,000.
SECTION 6.04. FUNDAMENTAL CHANGES. (a) The Borrower will not, and will
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or liquidate or
dissolve, EXCEPT that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing, (i) any
Subsidiary may merge into the Borrower in a transaction in which the Borrower is
the surviving corporation, (ii) any Subsidiary (including a Guarantor) may merge
into any other Subsidiary in a transaction in which the surviving entity is a
Subsidiary, and (iii) any Subsidiary may liquidate or dissolve if the Borrower
determines in good faith that such liquidation or dissolution is in the best
interests of the Borrower and is not materially disadvantageous to the Lenders
and EXCEPT that the Borrower or any Subsidiary may effect any acquisition
permitted by Section 6.05 by means of a merger of the Person that is the subject
of such acquisition with the Borrower or any of its Subsidiaries (PROVIDED that,
in the case of a merger with the Borrower, the Borrower is the survivor); and
(b) The Borrower will not, and will not permit any of its Subsidiaries
to, engage to any material extent in any business other than a Related Line
of Business.
SECTION 6.05. INVESTMENTS, LOANS, ADVANCES, GUARANTEES AND
ACQUISITIONS. The Borrower will not, and will not permit any of its Subsidiaries
to, purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets of
any other Person constituting a business unit or the rights of any licensee
under a trademark license to such licensee from the Borrower or any of its
Affiliates, except:
(a) Permitted Investments;
(b) investments by the Borrower in the capital stock of its
Subsidiaries;
(c) loans or advances made by the Borrower to, and Guarantees by the
Borrower of obligations of, any Subsidiary, and loans or advances made by
any Subsidiary to, and Guarantees by any Subsidiary of obligations of, the
Borrower or any other Subsidiary;
(d) Guarantees constituting Indebtedness permitted by Section 6.01;
54
(e) advances or loans made in the ordinary course of business to
employees of the Borrower and its Subsidiaries;
(f) existing Investments not otherwise permitted under this Agreement
and described in Schedule 6.05 hereto;
(g) Investments received in connection with the bona fide settlement of
any defaulted Indebtedness or other liability owed to the Borrower or any
Subsidiary;
(h) Permitted Acquisitions; PROVIDED that if, as a result of a
Permitted Acquisition, (i) a new Domestic Subsidiary shall be created and
such Domestic Subsidiary is a Significant Subsidiary (as defined in
Regulation S-X part 210.1-02 of the Code of Federal Regulations) or (ii) any
then existing Domestic Subsidiary shall become such a Significant
Subsidiary, such Domestic Subsidiary shall promptly thereafter become party
to the Guarantee Agreement as a Guarantor;
(i) Investments in an aggregate amount not to exceed $125,000,000 in
any Person or Persons, including Onward Kashiyama Co., Ltd., or any of its
subsidiaries or Affiliates, which will hold any rights to one or more
sublicenses under the licensing arrangements embodied in the License
Agreement, dated March 1, 1998, between the Polo/Lauren Company, L.P. and
Polo/Ralph Lauren Japan Co., Ltd, or any amendment, replacement or
restatement thereof; and
(j) additional Investments in an amount not in excess of an amount
equal to the sum of (x) $278,542,500, and (y) the Annual Increase for each
Fiscal Year which shall have been completed, including, for the avoidance of
doubt, Fiscal Year 2005, and for which financial statements and the related
certificates shall have been delivered pursuant to Sections 5.01(a) and (c),
during the period from the Effective Date through the date at which
compliance with this paragraph is being determined (as reflected in such
financial statements and certificates); PROVIDED that the aggregate amount
of Investments under this paragraph (j) shall in no event exceed
$375,000,000.
SECTION 6.06. TRANSACTIONS WITH AFFILIATES. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, (a) any of
its Affiliates, (b) a spouse or any relative (by blood, adoption or marriage)
within the third degree of any such Affiliate or (c) any other Person which is
an Affiliate of any such spouse or relative, except (x) in the ordinary course
of business at prices and on terms and conditions, in the aggregate (taking into
account all of the Borrower's or such Subsidiary's transactions with, and the
benefits to the Borrower and its Subsidiaries derived from the Borrower's or
such Subsidiary's Investment in, such Affiliate), not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties and (y) transactions between or among the Borrower and
its Subsidiaries not involving any other Affiliate.
55
SECTION 6.07. CONSOLIDATED COVERAGE RATIO. The Borrower will not permit
the Consolidated Coverage Ratio as at the last day of any period of four
consecutive Fiscal Quarters ending after the Effective Date to be less than 2.50
to 1.00.
SECTION 6.08. CONSOLIDATED LEVERAGE RATIO. The Borrower will not permit
the Consolidated Leverage Ratio as at the last day of any period of four
consecutive Fiscal Quarters ending after the Effective Date to be greater than
3.75 to 1.00.
ARTICLE VII
EVENTS OF DEFAULT
If any of the following events ("EVENTS OF DEFAULT") shall occur:
(a) the Borrower shall fail to pay (i) any principal of any Loan when
and as the same shall become due and payable, whether at the due date
thereof or at a date fixed for prepayment thereof or otherwise, or (ii) any
reimbursement obligation in respect of any LC Disbursement when and as the
same shall become due and payable and such failure to pay such reimbursement
obligation shall continue unremedied for a period of two Business Days;
(b) the Borrower shall fail to pay any interest on any Loan or
unreimbursed LC Disbursement or any fee or any other amount (other than an
amount referred to in clause (a) of this Article) payable under this
Agreement, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five days;
(c) any representation or warranty made or deemed made by or on behalf
of the Borrower or any Subsidiary in or in connection with this Agreement or
the Guarantee Agreement or any amendment or modification hereof or thereof
or waiver hereunder or thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with this
Agreement or the Guarantee Agreement or any amendment or modification hereof
or thereof or waiver hereunder or thereunder, shall prove to have been
incorrect in any material respect when made or deemed made;
(d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.03 (with respect to the
Borrower's existence) or 5.08 or in Article VI;
(e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure shall
continue unremedied for a period of 30 days after notice thereof from the
Administrative Agent to the Borrower (which notice will be given at the
request of any Lender);
(f) the Borrower or any Subsidiary shall fail to make any payment of
principal or interest, regardless of amount, in respect of any Material
Indebtedness, when and as the
56
same shall become due and payable beyond the period (without giving effect
to any extensions, waivers, amendments or other modifications of or to such
period) of grace, if any, provided in the instrument or agreement under
which such Material Indebtedness was created;
(g) any event or condition occurs (after giving effect to any
applicable grace periods and after giving effect to any extensions, waivers,
amendments or other modifications of any applicable provision or agreement)
that results in any Material Indebtedness becoming due prior to its
scheduled maturity or that enables or permits the holder or holders of any
Material Indebtedness or any trustee or agent on its or their behalf to
cause, with the giving of an acceleration or similar notice if required, any
Material Indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; PROVIDED that this clause (g) shall not apply to secured
Indebtedness that becomes due as a result of the voluntary sale or transfer
of the property or assets securing such Indebtedness to the extent such
Indebtedness is paid when due;
(h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such case,
such proceeding or petition shall continue undismissed for 60 days or an
order or decree approving or ordering any of the foregoing shall be entered;
PROVIDED, HOWEVER, that the occurrence of any of the events specified in
this paragraph (h) with respect to any Person other than the Borrower shall
not be deemed to be an Event of Default unless (x) the net assets of such
Person, determined in accordance with GAAP, shall have exceeded $20,000,000
as of the date of the most recent audited financial statements delivered to
the Lenders pursuant to Section 5.01 or on the date of occurrence of any
such event and/or (y) the aggregate net assets of all Loan Parties and other
Subsidiaries in respect of which any of the events specified in this
paragraph (h) and in paragraphs (i) and (j) of this Article VII shall have
occurred shall have exceeded $25,000,000 as of the date of the most recent
audited financial statements delivered to the Lenders pursuant to Section
5.01 or on the date of occurrence of any such event;
(i) the Borrower or any Subsidiary shall (i) voluntarily commence any
proceeding or file any petition seeking liquidation, reorganization or other
relief under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (h) of this Article, (iii) apply
for or consent to the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any
such proceeding, (v) make a general assignment for the benefit of creditors
or (vi) take any action for the purpose of effecting any of the foregoing;
57
PROVIDED, HOWEVER, that the occurrence of any of the events specified in
this paragraph (i) with respect to any Person other than the Borrower shall
not be deemed to be an Event of Default unless (x) the net assets of such
Person, determined in accordance with GAAP, shall have exceeded $20,000,000
as of the date of the most recent audited financial statements delivered to
the Lenders pursuant to Section 5.01 or on the date of occurrence of any
such event and/or (y) the aggregate net assets of all Loan Parties and other
Subsidiaries in respect of which any of the events specified in this
paragraph (i) and in paragraphs (h) and (j) of this Article VII shall have
occurred shall have exceeded $25,000,000 as of the date of the most recent
audited financial statements delivered to the Lenders pursuant to Section
5.01 or on the date of occurrence of any such event;
(j) the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become due;
PROVIDED, HOWEVER, that the occurrence of any of the events specified in
this paragraph (j) with respect to any Person other than the Borrower shall
not be deemed to be an Event of Default unless (x) the net assets of such
Person, determined in accordance with GAAP, shall have exceeded $20,000,000
as of the date of the most recent audited financial statements delivered to
the Lenders pursuant to Section 5.01 or on the date of occurrence of any
such event and/or (y) the aggregate net assets of all Loan Parties and other
Subsidiaries in respect of which any of the events specified in this
paragraph (j) and in paragraphs (h) and (i) of this Article VII shall have
occurred shall have exceeded $25,000,000 as of the date of the most recent
audited financial statements delivered to the Lenders pursuant to Section
5.01 or on the date of occurrence of any such event;
(k) one or more judgments for the payment of money in an aggregate
amount (not paid or covered by insurance) in excess of $25,000,000 shall be
rendered against the Borrower, any Subsidiary or any combination thereof and
the same shall remain undischarged for a period of 30 consecutive days from
the entry thereof during which execution shall not be effectively stayed or
bonded, or any action shall be legally taken by a judgment creditor to
attach or levy upon any assets of the Borrower or any Subsidiary to enforce
any such judgment;
(l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that have
occurred, could reasonably be expected to result in a Material Adverse
Effect;
(m) Lauren, his estate or Persons related to him by blood, adoption or
marriage and/or trusts or other entities principally for the benefit of any
of the foregoing (the "LAUREN INTERESTS") shall cease to own in the
aggregate, directly or indirectly either (x) Voting Stock of the Borrower
having the voting power to elect a majority of the Board of Directors of the
Borrower or (y) Voting Stock representing more than 25% of the voting power
of the Borrower's Equity Interests; or
(n) the Guarantee Agreement ceases to be in full force and effect;
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then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (h) or (i) of this
Article, the Commitments shall automatically terminate and the principal of the
Loans then outstanding, together with accrued interest thereon and all fees and
other obligations of the Borrower accrued hereunder, shall automatically become
due and payable, without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
ARTICLE VIII
THE ADMINISTRATIVE AGENT
Each of the Lenders hereby irrevocably appoints the Administrative
Agent as its agent and authorizes the Administrative Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
bank serving as Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken
by it with the consent or at the request of the Required
59
Lenders (or such other number or percentage of the Lenders as shall be necessary
under the circumstances as provided in Section 9.02) or in the absence of its
own gross negligence or willful misconduct. The Administrative Agent shall be
deemed not to have knowledge of any Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or a Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with this Agreement, (ii) the contents of any certificate,
report or other document delivered hereunder or in connection herewith, (iii)
the performance or observance of any of the covenants, agreements or other terms
or conditions set forth herein, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement or any other agreement, instrument or document,
or (v) the satisfaction of any condition set forth in Article IV or elsewhere
herein, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, with the consent of the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder. The fees payable by the
Borrower to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrower and such
successor. After the Administrative Agent's resignation
60
hereunder, the provisions of this Article and Section 9.03 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents and
their respective Related Parties in respect of any actions taken or omitted to
be taken by any of them while it was acting as Administrative Agent.
Each Lender (including each Issuing Bank) acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each
Lender (including each Issuing Bank) also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking
action under or based upon this Agreement, any related agreement or any document
furnished hereunder or thereunder.
The Syndication Agents shall not have any duties or responsibilities
hereunder in their capacity as such.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. NOTICES. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
and in the Guarantee Agreement shall be in writing and shall be delivered by
hand or overnight courier service, mailed by certified or registered mail or
sent by telecopy, as follows:
(i) if to the Borrower, to Polo Ralph Lauren Corporation, 650
Madison Avenue, New York, New York 10022, Attention of Gerald M. Chaney,
Senior Vice President, Finance and Chief Financial Officer (Telecopy No.
(212) 318-7705);
(ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan and
Agency Services Group, 1111 Fannin, 10th Floor, Houston, Texas, 77002,
Attention of Debbie Meche (Telecopy No. (713) 750-2938), with a copy to
JPMorgan Chase Bank, 1411 Broadway, 5th Floor, New York 10018, Attention of
Paul O'Neill (Telecopy No. (212) 391-7118); and
(iii) if to any other Lender or any Issuing Bank, to it at its address
(or telecopy number) set forth in its Administrative Questionnaire.
(b) Notices and other communications to the Lenders (including any
Issuing Bank) hereunder may be delivered or furnished to the Lenders through the
Administrative Agent by electronic communications pursuant to procedures
approved by the Administrative Agent; PROVIDED that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or the
61
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; PROVIDED that approval of such procedures may be
limited to particular notices or communications.
(c) Any party hereto may change its address or telecopy number for
notices and other communications hereunder by notice to the other parties hereto
(or, in the case of any Lender, by notice to the Administrative Agent and the
Borrower). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.
SECTION 9.02. WAIVERS; AMENDMENTS. (a) No failure or delay by the
Administrative Agent, any Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Administrative Agent, the Issuing Banks and the Lenders
hereunder and under the Guarantee Agreement are cumulative and are not exclusive
of any rights or remedies that they would otherwise have. No waiver of any
provision of this Agreement or the Guarantee Agreement or consent to any
departure by the Borrower or any Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or any Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor the Guarantee Agreement nor any
provision hereof or thereof may be waived, amended or modified except pursuant
to an agreement or agreements in writing entered into by the Borrower or the
Guarantors, as the case may be, and the Required Lenders or by the Borrower or
the Guarantors, as the case may be, and the Administrative Agent with the
consent of the Required Lenders; PROVIDED that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such
Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.16(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) release all or substantially all of the Guarantors
from their obligations under the Guarantee Agreement, without the written
consent of each Lender, or (vi) change any of the provisions of this Section or
the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; PROVIDED FURTHER that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or an
62
Issuing Bank without the prior written consent of the Administrative Agent or
such Issuing Bank, as the case may be.
SECTION 9.03. EXPENSES; INDEMNITY; DAMAGE WAIVER. (a) The Borrower
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and J.P. Morgan Securities, Inc., as sole bookrunner and
sole lead arranger, including the reasonable fees, charges and disbursements of
one domestic counsel for the Administrative Agent and J.P.Morgan Securities,
Inc., collectively, in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of this Agreement or any
amendments, modifications or waivers of the provisions hereof and (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent, any
Issuing Bank or any Lender, including the fees, charges and disbursements of any
counsel for the Administrative Agent, any Issuing Bank or any Lender, in
connection with the enforcement or preservation of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit .
(b) The Borrower shall indemnify the Administrative Agent, each Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an "INDEMNITEE") against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee, incurred by or asserted against any Indemnitee
arising out of, in connection with, or as a result of (i) the execution or
delivery of this Agreement or any agreement or instrument contemplated hereby,
the performance by the parties hereto of their respective obligations hereunder
or the consummation of the Transactions or any other transactions contemplated
hereby, (ii) any Loan or Letter of Credit or the use of the proceeds therefrom
(including any refusal by an Issuing Bank to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such demand do
not strictly comply with the terms of such Letter of Credit), (iii) any actual
or alleged presence or release of Hazardous Materials on or from any property
owned or operated by the Borrower or any of its Subsidiaries, or any
Environmental Liability related in any way to the Borrower or any of its
Subsidiaries, or (iv) any actual or prospective claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory and regardless of whether any Indemnitee is a party thereto;
PROVIDED that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
resulted from the gross negligence, bad faith or willful misconduct of such
Indemnitee or such Indemnitee's employer or any Affiliate of either thereof or
any of their respective officers, directors, employees, advisors or agents.
(c) To the extent that the Borrower fails to pay any amount required to
be paid by it to the Administrative Agent or any Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or such Issuing Bank, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
PROVIDED that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the
63
case may be, was incurred by or asserted against the Administrative Agent or
such Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.
(e) All amounts due under this Section shall be payable promptly after
written demand therefor.
SECTION 9.04. SUCCESSORS AND ASSIGNS. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that (i)
the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender (including any Issuing Bank) may assign or
otherwise transfer its rights or obligations hereunder except in accordance with
this Section. Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby (including any Affiliate of
any Issuing Bank that issues any Letter of Credit), Participants (to the extent
provided in paragraph (c) of this Section) and, to the extent expressly
contemplated hereby, the Related Parties of each of the Administrative Agent,
each Issuing Bank and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) (i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written consent
(such consent not to be unreasonably withheld or delayed) of:
(A) the Borrower, PROVIDED that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default under clause (a), (b), (h) or (i)
of Article VII has occurred and is continuing, any other assignee; and
(B) the Administrative Agent, PROVIDED that no consent of the
Administrative Agent shall be required for an assignment of any Commitment
to an assignee that is a Lender with a Commitment immediately prior to
giving effect to such assignment.
(ii) Assignments shall be subject to the following additional
conditions:
(A) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the assigning
Lender's
64
Commitment or Loans, the amount of the Commitment or Loans of the assigning
Lender subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent) shall not be less than $5,000,000 unless each of
the Borrower and the Administrative Agent otherwise consent, provided that
no such consent of the Borrower shall be required if an Event of Default
under clause (a), (b), (h) or (i) of Article VII has occurred and is
continuing;
(B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations
under this Agreement;
(C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500;
(D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and.
(E) no assignment, (including any assignment to a Lender, an
Affiliate of a Lender or an Approved Fund) shall be permitted if,
immediately after giving effect thereto, amounts would become payable by the
Borrower under Section 2.13 or 2.15 (including amounts payable under Section
2.15 in respect of withholding taxes) that are in excess of those that would
be payable under such Section in respect of the amount assigned if such
assignment were not made.
For the purposes of this Section 9.04(b), the term "Approved Fund" has
the following meaning:
"APPROVED FUND" means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.
(iii) Subject to acceptance and recording thereof pursuant to paragraph
(b)(iv) of this Section, from and after the effective date specified in each
Assignment and Assumption the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement (including, in the
case of any Foreign Lender (including each Issuing Bank that is a Foreign
Lender), obligations under Section 2.15(e)), and the assigning Lender thereunder
shall, to the extent of the interest assigned by such Assignment and Assumption,
be released from its obligations under this Agreement (and, in the case of an
Assignment and Assumption covering all of the assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a party hereto
but shall continue to be entitled to the benefits of Sections 2.13, 2.14, 2.15
and 9.03); PROVIDED, HOWEVER, that no such assignment or transfer shall be
deemed to be a waiver
65
of any rights which the Borrower, the Administrative Agent or any other Lender
shall have against such Lender. Any assignment or transfer by a Lender of rights
or obligations under this Agreement that does not comply with this Section 9.04
shall be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (c) of
this Section.
(iv) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Banks and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, any Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.
(v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(c) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent or any Issuing Bank, sell participations to one or more
banks or other entities (a "PARTICIPANT") in all or a portion of such Lender's
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender's
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the Borrower, the Administrative Agent, the applicable
Issuing Bank and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in clauses (i),
(ii),(iii),(iv) and (vi) of the first proviso to Section 9.02(b) that affects
such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.13,
2.14 and 2.15 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.08 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.16(c) as though it were a Lender.
66
(ii) A Participant shall not be entitled to the benefits of Section
2.13, 2.14 or 2.15 unless such Participant shall have complied with the
requirements of such Section; provided, that in any case in which a Participant
is so entitled, any such Participant shall not be entitled to receive any
greater payment under Section 2.13, 2.14 or 2.15 than the applicable Lender
would have been entitled to receive with respect to the participation sold to
such Participant, unless the sale of the participation to such Participant is
made with the Borrower's prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.15 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.15(e) as though it were a Lender.
(d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; PROVIDED that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender
as a party hereto.
SECTION 9.05. SURVIVAL. All representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the making of any Loans and issuance of any
Letters of Credit, and shall terminate at such time as no principal of or
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid, no Letter of Credit is outstanding and the
Commitments have expired or been terminated. The provisions of Sections 2.13,
2.14, 2.15 and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any provision
hereof.
SECTION 9.06. COUNTERPARTS; INTEGRATION; EFFECTIVENESS. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 9.07. SEVERABILITY. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to
67
the extent of such invalidity, illegality or unenforceability without affecting
the validity, legality and enforceability of the remaining provisions hereof;
and the invalidity of a particular provision in a particular jurisdiction shall
not invalidate such provision in any other jurisdiction.
SECTION 9.08. RIGHT OF SETOFF. If an Event of Default shall have
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this Section
are in addition to other rights and remedies (including other rights of setoff)
which such Lender may have.
SECTION 9.09. GOVERNING LAW; JURISDICTION; CONSENT TO SERVICE OF
PROCESS. (a) This Agreement shall be construed in accordance with and governed
by the law of the State of New York.
(b) Each party to this Agreement hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party hereto may
otherwise have to bring any action or proceeding relating to this Agreement
against any other party hereto or its properties in the courts of any
jurisdiction.
(c) Each party to this Agreement hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any court
referred to in paragraph (b) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
68
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION.
SECTION 9.11. HEADINGS. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 9.12. CONFIDENTIALITY. Each of the Administrative Agent, each
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors, in each case who have a need to
know such Information in accordance with customary banking practices (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this Agreement,
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all information
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower; PROVIDED that, in the case of information received from the Borrower
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
SECTION 9.13. SATISFACTION IN DOLLARS. The obligation of the Borrower
hereunder and in respect of the Letters of Credit to make payments in dollars
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or
69
converted into any currency other than dollars or any other realization in such
currency, whether as proceeds of set-off, security, guarantee, distributions, or
otherwise, except to the extent to which such tender, recovery or realization
shall result in the effective receipt by the Administrative Agent and the
Lenders of the full amount of dollars expressed to be payable hereunder and in
respect of the Letters of Credit and the Borrower shall indemnify the
Administrative Agent, the Issuing Banks and each Lender (as an alternative or
additional cause of action) for the amount (if any) by which such effective
receipt shall fall short of the full amount of dollars expressed to be payable
hereunder and in respect of the Letters of Credit and such obligation to
indemnify shall not be affected by judgment being obtained for any other sums
due under this Agreement and in respect of the Letters of Credit.
SECTION 9.14. WAIVERS AND AGREEMENTS UNDER EXISTING CREDIT AGREEMENT.
(a) The Lenders which are parties to the Existing Credit Agreement (which
Lenders constitute the "Required Lenders" as defined in the Existing Credit
Agreement) hereby (i) waive the requirement, set forth in Section 2.07(c) of the
Existing Credit Agreement, that the Borrower give not less than two Business
Days' notice of any termination of the Commitments (as defined therein),
PROVIDED that such notice shall be given on or prior to the date of such
termination, (ii) acknowledge and agree that, for purposes of determining the
total "Revolving Credit Exposures" (as defined therein) that would be
outstanding thereunder on the date of such termination, the letters of credit
issued thereunder that are listed on Schedule 2.04 shall (as a result of the
operation of the last sentence of Section 2.04(a), which provides that on the
Effective Date such letters of credit shall be deemed to be "Letters of Credit"
issued hereunder) on the Effective Date be deemed no longer outstanding under
the Existing Credit Agreement and (iii) pursuant to Section 9.02 of the Existing
Credit Agreement, consent to the execution and delivery by JPMorgan Chase Bank,
in its capacity as Administrative Agent (under and as defined in the Existing
Credit Agreement) for and on behalf of the Lenders (under and as defined in the
Existing Credit Agreement), of this Agreement to evidence or effectuate (as set
forth in Section 9.14(b)) the waivers and agreements set forth in clauses (i)
and (ii) above.
(b) JPMorgan Chase Bank, in its capacity as Administrative Agent as
defined in the Existing Credit Agreement hereby (i) waives, for and on behalf of
the Lenders (as defined therein), the requirement, set forth in Section 2.07(c)
of the Existing Credit Agreement, that the Borrower give not less than two
Business Days' notice of any termination of the Commitments (as defined
therein), PROVIDED that such notice shall be given on or prior to the date of
such termination, and (ii) acknowledges and agrees, for and on behalf of the
Lenders (as defined therein), that for purposes of determining the total
"Revolving Credit Exposures" (as defined therein) that would be outstanding
thereunder on the date of such termination, the letters of credit issued
thereunder that are listed on Schedule 2.04 shall on the Effective Date be
deemed no longer outstanding under the Existing Credit Agreement.
70
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
POLO RALPH LAUREN CORPORATION
By /s/ Gerald M. Chaney
----------------------------------
Name: Gerald M. Chaney
Title: Senior Vice President and
Chief Financial Officer
JPMORGAN CHASE BANK, individually and
as Administrative Agent,
By /s/ Louis Mastrianni
----------------------------------
Name: Louis Mastrianni
Title: Vice President
Signature page to
Polo Ralph Lauren Credit Agreement,
dated as of October 6, 2004
THE BANK OF NEW YORK,
By /s/ Roger A. Grossman
----------------------------------
Name: Roger A. Grossman
Title: Vice President
FLEET NATIONAL BANK, a Bank of America Company
By /s/ David Rodriguez
----------------------------------
Name: David Rodriguez
Title: Vice President
SUNTRUST BANK,
By /s/ Mark Pickering
----------------------------------
Name: Mark Pickering
Title: Vice President
WACHOVIA BANK NATIONAL ASSOCIATION,
By /s/ Susan T. Vitalie
----------------------------------
Name: Susan T. Vitale
Title: Vice President
Signature page to
Polo Ralph Lauren Credit Agreement,
dated as of October 6, 2004
CITIBANK, N.A.,
By /s/ Martin Efron
----------------------------------
Name: Martin Efron
Title: Vice President
COMERICA BANK,
By /s/ Sarah R. West
----------------------------------
Name: Sarah R. West
Title: Account Officer
BANK LEUMI USA,
By /s/ Phyllis Rosenfeld
----------------------------------
Name: Phyllis Rosenfeld
Title: Vice President
By /s/ Glenn D. Kreutzer
----------------------------------
Name: Glenn D. Kreutzer
Title: Assistant Treasurer
ISRAEL DISCOUNT BANK OF NEW YORK,
By /s/ Alan Lefkowitz
----------------------------------
Name: Alan Lefkowitz
Title: FVP
Signature page to
Polo Ralph Lauren Credit Agreement,
dated as of October 6, 2004
By /s/ Lucas Ramirez
----------------------------------
Name: Lucas Ramirez
Title: AVP
UNION BANK OF CALIFORNIA, N.A.,
By /s/ Theresa L. Rocha
----------------------------------
Name: Theresa L. Rocha
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
By /s/ Jennifer L. Thurston
----------------------------------
Name: Jennifer L. Thurston
Title: AVP & Relationship Manager
BARCLAYS BANK PLC,
By /s/ Nicholas Bell
----------------------------------
Name: Nicholas Bell
Title: Director
LASALLE BANK NATIONAL ASSOCIATION,
By /s/ Peg Laughlin
----------------------------------
Name: Peg Laughlin
Title: SVP
Signature page to
Polo Ralph Lauren Credit Agreement,
dated as of October 6, 2004
DEUTSCHE BANK AG NEW YORK BRANCH,
By /s/ Frederick W. Laird
----------------------------------
Name: Frederick W. Laird
Title: Managing Director
By /s/ Belinda Wheeler
----------------------------------
Name: Belinda Wheeler
Title: Vice President
HSBC BANK USA, NATIONAL ASSOCIATION
By /s/ Andrew H. Ross
----------------------------------
Name: Andrew H. Ross
Title: First Vice President
SUMITOMO MITSUI BANKING CORPORATION,
By /s/ Edward McColly
----------------------------------
Name: Edward McColly
Title: Vice President & Department Head
Signature page to
Polo Ralph Lauren Credit Agreement,
dated as of October 6, 2004
UBS LOAN FINANCE LLC,
By /s/ Wilfred V. Saint
----------------------------------
Name: Wilfred V. Saint
Title: Director, Banking Products
Services, US
By /s/ Joselin Fernandes
----------------------------------
Name: Joselin Fernandes
Title: Associate Director, Banking
Products Services, US
WELLS FARGO BANK, N.A.,
By /s/ Peter M. Angelica
----------------------------------
Name: Peter M. Angelica
Title: Vice President
EXHIBIT A
---------
[FORM OF]
ASSIGNMENT AND ASSUMPTION
Reference is made to the Credit Agreement dated as of October 6, 2004
(as amended and in effect on the date hereof, the "Credit Agreement"), among
Polo Ralph Lauren Corporation, the Lenders named therein and JPMorgan Chase
Bank, as Administrative Agent for the Lenders. Terms defined in the Credit
Agreement are used herein with the same meanings.
The Assignor named on the reverse hereof hereby irrevocably sells and
assigns, without recourse, to the Assignee named on the reverse hereof, and the
Assignee hereby irrevocably purchases and assumes, without recourse, from the
Assignor, subject to the terms and conditions of the Credit Agreement and
effective as of the Assignment Date set forth on the reverse hereof, the
interests set forth on the reverse hereof (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth on the reverse hereof in the Commitment of
the Assignor on the Assignment Date and Revolving Loans owing to the Assignor
which are outstanding on the Assignment Date, together with the participations
in Letters of Credit and LC Disbursements held by the Assignor on the Assignment
Date, but excluding accrued interest and fees to and excluding the Assignment
Date. The Assignee hereby acknowledges receipt of a copy of the Credit
Agreement. From and after the Assignment Date (i) the Assignee shall be a party
to and be bound by the provisions of the Credit Agreement and, to the extent of
the Assigned Interest, have the rights and obligations of a Lender thereunder
and (ii) the Assignor shall, to the extent of the Assigned Interest, relinquish
its rights and be released from its obligations under the Credit Agreement.
This Assignment and Assumption is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.15(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] [Borrower] shall pay the fee payable to
the Administrative Agent pursuant to Section [9.04(b)] [2.17(b)] of the Credit
Agreement.
This Assignment and Assumption shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment (the "Assignment Date"):
================================================================
Percentage Assigned of
Commitment (set forth, to at
Principal Amount least 8 decimals, as a
of Revolving percentage of the aggregate
Loans Assigned Commitments of all Lenders)
----------------------------------------------------------------
$ %
================================================================
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor] , as Assignor
By:
-------------------------------
Name:
Title:
[Name of Assignee] , as Assignee
By:
-------------------------------
Name:
Title:
The undersigned hereby consent to the within assignment:(2)
POLO RALPH LAUREN CORPORATION JPMORGAN CHASE BANK,
as Administrative Agent,
By: By:
---------------------------- -------------------------------
Name: Name:
Title: Title:
- --------------
(2) Consents to be included to the extent required by Section 9.04(b) of the
Credit Agreement.