Exhibit 10
Execution Copy
CREDIT AGREEMENT
by and among
VF INVESTMENTS S.A.R.L.,
VF EUROPE BVBA
VF ASIA LTD.
and
VF INTERNATIONAL SAGL,
as Borrowers,
V.F. CORPORATION,
as Guarantor,
ABN AMRO BANK N.V.,
as Administrative Agent and Documentation Agent,
BARCLAYS CAPITAL,
as Syndication Agent,
ABN AMRO BANK N.V.,
BARCLAYS CAPITAL,
HSBC BANK USA, N.A.
ING CAPITAL LLC,
BANCO SANTANDER CENTRAL HISPANO, S.A.
and
J.P. MORGAN SECURITIES
INC.,
as Mandated Lead Arrangers and Bookrunners,
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
as of October 27, 2005
TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions and Terms
1.1. Definitions...................................................... 2
1.2. Rules of Interpretation.......................................... 19
1.3. Luxembourg Terms................................................. 21
1.4. Belgian Terms.................................................... 21
ARTICLE II
The Credit Facilities
2.1. RC Loans......................................................... 22
2.2. Utilization of Alternative Currencies............................ 25
2.3. Increase in Total RC Commitment.................................. 26
2.4. TL$ Loans........................................................ 27
2.5. TLE Loans........................................................ 28
2.6. Use of Proceeds.................................................. 30
2.7. Notes............................................................ 30
2.8. Certain Payment Provisions....................................... 31
2.9. Certain Provisions Relating to Euros............................. 31
ARTICLE III
Funding, Fees, and Payment Conventions
3.1. Interest Rate Options............................................ 32
3.2. Continuations and Elections of Subsequent Interest Periods....... 32
3.3. Payment of Interest.............................................. 33
3.4. Prepayments...................................................... 33
3.5. Manner of Payment................................................ 33
3.6. Fees............................................................. 34
3.7. Payments to Agent for Lenders.................................... 35
3.8. Computation of Rates and Fees.................................... 35
3.9. Deficiency Advances; Failure to Purchase Participations.......... 35
ARTICLE IV
Change in Circumstances
4.1. Increased Cost and Reduced Return................................ 36
4.2. Inability to Determine Interest Rate............................. 38
4.3. Illegality....................................................... 38
4.4. Compensation..................................................... 39
4.5. Taxes............................................................ 39
4.6. Change of Lending Office......................................... 41
4.7. Substitution of Lenders.......................................... 41
PAGE
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ARTICLE V
Conditions to Making Loans
5.1. Conditions of Closing............................................ 42
5.2. Conditions to Each Loan.......................................... 43
ARTICLE VI
Representations and Warranties
6.1. Corporate Existence and Power.................................... 44
6.2. Corporate and Governmental Authorization; No Contravention....... 44
6.3. Material Subsidiaries............................................ 44
6.4. Binding Effect................................................... 44
6.5. Financial Information............................................ 44
6.6. Litigation....................................................... 45
6.7. Compliance with ERISA............................................ 45
6.8. Environmental Matters............................................ 45
6.9. Taxes............................................................ 45
6.10. Margin Stock..................................................... 46
6.11. Investment Company............................................... 46
6.12. Full Disclosure.................................................. 46
6.13. No Consents, Etc................................................. 46
6.14. Tax Shelter Regulations.......................................... 47
ARTICLE VII
Affirmative Covenants
7.1. Financial Reports, Etc........................................... 47
7.2. Payment of Taxes................................................. 49
7.3. Maintenance of Properties; Insurance............................. 49
7.4. Compliance with Laws............................................. 50
7.5. Books and Records................................................ 50
ARTICLE VIII
Negative Covenants
8.1. Consolidated Indebtedness to Consolidated Capitalization......... 50
8.2. Liens............................................................ 50
8.3. Indebtedness of Subsidiaries..................................... 51
8.4. Consolidations, Mergers and Sales of Assets...................... 52
8.5. Change in Control................................................ 52
ARTICLE IX
Events of Default and Acceleration
9.1. Events of Default................................................ 52
9.2. Agent to Act..................................................... 54
9.3. Cumulative Rights................................................ 55
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9.4. No Waiver........................................................ 55
9.5. Allocation of Proceeds........................................... 55
ARTICLE X
The Agent
10.1. Appointment, Powers, and Immunities.............................. 55
10.2. Reliance by Agent................................................ 56
10.3. Defaults......................................................... 57
10.4. Rights as Lender................................................. 57
10.5. Indemnification.................................................. 57
10.6. Non-Reliance on Agent and Other Lenders.......................... 58
10.7. Resignation of Agent............................................. 58
10.8. Syndication Agent and Documentation Agent........................ 58
10.9. Agent May File Proofs of Claim................................... 59
ARTICLE XI
Guarantee
11.1. Guarantee........................................................ 59
11.2. No Subrogation................................................... 60
11.3. Amendments, etc. with respect to the Obligations................. 60
11.4. Guarantee Absolute and Unconditional............................. 60
11.5. Reinstatement.................................................... 61
11.6. Payments......................................................... 61
11.7. Independent Obligations.......................................... 61
ARTICLE XII
Miscellaneous
12.1. Assignments and Participations................................... 62
12.2. Notices.......................................................... 65
12.3. Right of Set-off; Adjustments.................................... 68
12.4. Survival......................................................... 69
12.5. Expenses......................................................... 69
12.6. Amendments and Waivers........................................... 69
12.7. Counterparts..................................................... 70
12.8. Termination...................................................... 70
12.9. Indemnification; Limitation of Liability......................... 70
12.10. Severability..................................................... 71
12.11. Integration...................................................... 71
12.12. Agreement Controls............................................... 72
12.13. Usury Savings Clause............................................. 72
12.14. Payments......................................................... 72
12.15. Governing Law; Waiver of Jury Trial.............................. 72
12.16. Confidentiality.................................................. 73
12.17. Judgment Currency................................................ 74
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12.18. "Know Your Customer" Checks...................................... 74
EXHIBIT A Applicable Commitment Percentages........................... A-1
EXHIBIT B Form of Assignment and Assumption........................... B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative........................................... C-1
EXHIBIT D Form of Borrowing Notice.................................... D-1
EXHIBIT E Form of Interest Rate Selection Notice...................... E-1
EXHIBIT F-1 Form of RC Note............................................. F-1-1
EXHIBIT F-2 Form of TLE Note............................................ F-2-1
EXHIBIT F-3 Form of TL$ Note............................................ F-3-1
EXHIBIT G Compliance Certificate...................................... G-1
EXHIBIT H Form of Amendment Agreement................................. H-1
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of October 27, 2005 (the "Agreement"), is
made by and among:
VF INVESTMENTS S.A.R.L., a Luxembourg corporation ("VF Investments"), VF
EUROPE BVBA, a Belgian corporation (besloten vennootschap met beperkte
aansprakelijkheid/societe privee a responsabilite limitee) ("VF Europe"), VF
ASIA LTD., a company incorporated in Hong Kong ("VF Asia"), and VF INTERNATIONAL
SAGL, a Swiss corporation (Gesellschaft mit beschrankter Haftung/Societe a
responsabilite limitee/Societa garanzia limitata/Limited Liability Company) ("VF
International" and, together with VF Investments, VF Europe and VF Asia, the
"Borrowers"),
V.F. CORPORATION, a Pennsylvania corporation having its principal place of
business in Greensboro, North Carolina (the "Guarantor"),
ABN AMRO BANK, N.V., in its capacity as a Lender ("ABN AMRO"), and each
other financial institution executing and delivering a signature page hereto and
each other financial institution which may hereafter become a Lender pursuant to
Section 2.3 or execute and deliver an instrument of assignment with respect to
this Agreement pursuant to Section 12.1 (hereinafter such financial institutions
may be referred to individually as a "Lender" or collectively as the "Lenders"),
ABN AMRO BANK, N.V., in its capacity as Administrative Agent for the
Lenders (in such capacity, and together with any successor agent appointed in
accordance with the terms of Section 10.7, the "Agent") and as Documentation
Agent, and
BARCLAYS CAPITAL, in its capacity as Syndication Agent;
WITNESSETH:
WHEREAS, the Borrowers have requested that the Lenders make available to
(i) VF Europe, VF Investments and VF International a revolving credit facility
of up to E175,000,000 (which may be increased to E225,000,000), the proceeds of
which are to be used for general corporate purposes including, without
limitation, acquisitions and which shall include a multi-currency credit
facility in readily available currencies, (ii) VF Asia a term loan facility in
the amount of $40,000,000 and (iii) VF Europe a term loan facility in the amount
of E40,000,000; and
WHEREAS, the Lenders are willing to make such facilities available to the
Borrowers upon the terms and conditions set forth herein;
NOW, THEREFORE, the Borrowers, the Guarantor, the Lenders and the Agent
hereby agree as follows:
ARTICLE I
DEFINITIONS AND TERMS
1.1. Definitions. For the purposes of this Agreement, in addition to the
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"ABN AMRO" shall have the meaning assigned to such term in the preamble
hereto.
"Acquisition" means the acquisition of an equity interest in another Person
(including the purchase of an option, warrant or convertible or similar type
security to acquire such a controlling interest at the time it becomes
exercisable by the holder thereof), whether by purchase of such equity interest
or upon exercise of an option or warrant for, or conversion of securities into
such equity interest, made with the intent to hold such equity interest as a
strategic investment and not for speculative purposes.
"Affected Currency" shall have the meaning assigned to such term in Section
4.2(b).
"Affected Lender" shall have the meaning assigned to such term in Section
4.7.
"Affiliate" means, as to any Person, any other Person directly or
indirectly controlling, controlled by, or under direct or indirect common
control with, such Person. A Person shall be deemed to be "controlled by" any
other Person if such other Person possesses, directly or indirectly, power to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"Agent" shall have the meaning assigned to such term in the preamble
hereto.
"Agent-Related Persons" means the Agent (including any successor
administrative agent), together with its Affiliates, and the officers,
directors, employees, agents and attorneys- in-fact of such Persons and
Affiliates.
"Agreement Currency" shall have the meaning assigned to such term in
Section 12.17(b).
"Alternative Currency" means Japanese yen, British pounds sterling, Swiss
francs, Dollars and any other freely available currency notified to the Agent
upon not less than five (5) Business Days' prior written notice that, in the
opinion of all RC Lenders, in their sole discretion, is at such time freely
traded in the offshore interbank foreign exchange markets and is freely
transferable and convertible into Euros in the interbank currency market.
"Alternative Currency Equivalent Amount" means with respect to a specified
Alternative Currency and a specified Euro amount, the amount of such Alternative
Currency into which such Euro amount would be converted, based on the applicable
Borrowing Date Exchange Rate.
"Applicable Commitment Percentage" means, (a) for each RC Lender at any
time, a fraction, with respect to the RC Facility, the numerator of which shall
be such RC Lender's RC Loans then outstanding and the denominator of which shall
be the RC Outstandings at such time (or, prior to any termination of the RC
Commitments, the numerator of which shall be such RC
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Lender's RC Commitment then in effect and the denominator of which shall be the
Total RC Commitment then in effect), which Applicable Commitment Percentage for
each RC Lender as of the Closing Date is set forth in Exhibit A, (b) for each
TLE Lender at any time, a fraction, with respect to the TLE Facility, the
numerator of which shall be such TLE Lender's TLE Loans then outstanding and the
denominator of which shall be the TLE Outstandings at any such time (or, prior
to any borrowing under the TLE Facility, the numerator of which shall be such
TLE Lender's TLE Commitment then in effect and the denominator of which shall be
the Total TLE Commitment then in effect), which Applicable Commitment Percentage
for each TLE Lender as of the Closing Date is set forth in Exhibit A, and (c)
for each TL$ Lender at any time, a fraction, with respect to the TL$ Facility,
the numerator of which shall be such TL$ Lender's TL$ Loans then outstanding and
the denominator of which shall be the TL$ Outstandings at such time (or, prior
to any borrowing under the TL$ Facility, the numerator of which shall be such
TL$ Lender's TL$ Commitment then in effect and the denominator of which shall be
the Total TL$ Commitment then in effect), which Applicable Commitment Percentage
for each TL$ Lender as of the Closing Date is set forth in Exhibit A.
"Applicable Creditor" shall have the meaning assigned to such term in
Section 12.17(b).
"Applicable Lending Office" means, for each Lender and for each Type of
Loan made to each Borrower, the "Lending Office" of such Lender (or of an
affiliate of such Lender) as such Lender may from time to time specify to the
Agent and the Borrowers by written notice in accordance with the terms hereof as
the office by which its Loans of such Type to such Borrower are to be made and
maintained.
"Applicable Margin" means (i) with respect to the Term Facilities, 0.175%
and (ii) with respect to the RC Facility, that percent per annum set forth
below, which shall be based upon the higher Rating of outstanding senior
unsecured Indebtedness of the Guarantor existing at the date of determination as
specified in the table below; provided, however that if there is a split in
Ratings of more than one Tier, the Applicable Margin shall be based upon the
Tier that is one tier higher than the lower Rating:
Applicable Margin for
Tier Rating S&P or Moody's RC Loans
- ----- --------------------- ---------------------
I > or = A + or > or = A1 0.150%
II A or A2 0.175%
III A- or A3 0.200%
IV BBB+ or Baa1 0.275%
V < or = BBB or < or = Baa2 0.400%
The Applicable Margin shall be established from time to time based upon the
Ratings in effect from time to time. Any change in the Applicable Margin due to
a change in any Rating shall be effective on the date of such change in such
Rating.
"Approved Fund" shall have the meaning assigned to such term in Section
12.1(g).
"Assignment and Assumption" shall mean an Assignment and Assumption in the
form of Exhibit B (with blanks appropriately filled in) delivered to the Agent
in connection with an assignment of a Lender's interest under this Agreement
pursuant to Section 12.1.
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"Authorized Representative" means, with respect to the Guarantor or any
Borrower, any of the Chairman of the Board, Vice President-Treasurer, any other
Vice President or any member of the Board of Managers or any comparable
governing body of the Guarantor or such Borrower, or any other Person expressly
designated by the written authorization of any of the foregoing as an Authorized
Representative of the Guarantor or such Borrower, as set forth from time to time
in a certificate in the form of Exhibit C.
"Benefit Arrangement" means at any time an employee benefit plan within the
meaning of Section 3(3) of ERISA which is not a Plan or a Multiemployer Plan and
which is maintained or otherwise contributed to by any member of the ERISA
Group.
"Board" means the Board of Governors of the Federal Reserve System (or any
successor body).
"Borrower's Account" means, with respect to any Borrower, a demand deposit
account with the bank specified below having the number set forth opposite the
name of such Borrower below or any successor account with such bank or any other
bank specified by such Borrower to the Agent:
Borrower Bank Account Number
- -------- ---- --------------
VF Investments, S.a.r.l ABN AMRO Bank (Luxembourg)
VF Europe BVBA ABN AMRO Bank - Rotterdam
VF Asia Limited Citibank, N.A.
VF International, Sagl ABN AMRO Bank
"Borrowers" shall have the meaning assigned to such term in the preamble
hereto.
"Borrowing Date Exchange Rate" means, with respect to a specified Loan in
an Alternative Currency, the Spot Rate of Exchange determined for the date such
Loan is originally made, provided that, if such Loan is Continued for a
subsequent Interest Period pursuant to Section 2.2(c), the Borrowing Date
Exchange Rate with respect to such Loan shall be the Spot Rate of Exchange as of
the effective date of such Continuation of such Loan, and the Euro Equivalent
Amount of such Loan shall be adjusted as set forth in Section 2.2.
"Borrowing Notice" means the notice delivered by an Authorized
Representative of the applicable Borrower and the Guarantor in connection with a
Loan under the RC Facility or a Term Facility, in the form of Exhibit D.
"Business Day" means, (i) except as expressly provided in clauses (ii) and
(iii), any day which is not a Saturday, Sunday or a day on which banks in the
State of New York are authorized or obligated by law, executive order or
governmental decree to be closed, (ii) with respect to the selection, funding,
interest rate, payment, and Interest Period of any Offshore Rate Loan
denominated in Dollars, any day which is a Business Day, as described in clause
(i) above, and on which the relevant international financial markets are open
for the transaction of business contemplated by this Agreement and foreign
exchange transactions in London, England and New
4
York, New York, (iii) with respect to the selection, funding, interest rate,
payment and Interest Period of any Loan denominated in Euros, any day which is a
Business Day as described in clause (ii) above, and on which TARGET
(Trans-European Automated Real-time Gross settlement Express Transfer system) or
any successor thereto is scheduled to be open for business, and (iv) with
respect to the selection funding, interest rate, payment and Interest Period for
any Offshore Rate Loan not denominated in Dollars, any day which is a Business
Day as described in clause (ii) above, and on which the relevant Funding Bank is
open for the transaction of business contemplated by this Agreement and on which
dealings in the relevant Alternative Currency are carried on in the applicable
offshore foreign exchange interbank market in which disbursement of or payment
in such Alternative Currency will be made or received hereunder.
"Capital Leases" means all leases which have been capitalized in accordance
with GAAP as in effect from time to time including Statement No. 13 of the
Financial Accounting Standards Board and any related amendments, interpretations
and successors thereof.
"Change of Control" means, at any time:
(i) any person or group of persons (within the meaning of Section 13
or 14 of the Exchange Act, other than the Trust, shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 of the Exchange Act
), of 35% or more of the outstanding shares of Voting Securities of the
Guarantor;
(ii) as of any date a majority of the Board of Directors of the
Guarantor consists of individuals who were not either (A) directors of the
Guarantor as of the corresponding date of the previous year, (B) selected
or nominated to become directors by the Board of Directors of the Guarantor
of which a majority consisted of individuals described in clause (A), or
(C) selected or nominated to become directors by the Board of Directors of
the Guarantor of which a majority consisted of individuals described in
clauses (A) and (B).
"Closing Date" means the date as of which this Agreement is executed by the
Guarantor, the Borrowers, the Lenders and the Agent and on which the conditions
set forth in Section 5.1 have been satisfied or waived.
"Code" means the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder.
"Commitments" means, with respect to any Lender, the RC Commitment, the
TLE Commitment and the TL$ Commitment of such Lender.
"Compensation Period" shall have the meaning assigned to such term in
Section 2.8(b).
"Consistent Basis" in reference to the application of GAAP means the
accounting principles observed in the period referred to are comparable in all
material respects to those applied in the preparation of the audited financial
statements of the Guarantor referred to in Section 6.5(a) (except for those
changes concurred in by the Guarantor's independent public accountants).
5
"Consolidated Capitalization" means, as of any date on which the amount
thereof is to be determined, the sum of Consolidated Indebtedness plus
Consolidated Net Worth.
"Consolidated Indebtedness" means, as of any date on which the amount
thereof is to be determined, all Funded Indebtedness of the Guarantor and its
Subsidiaries, all determined on a consolidated basis.
"Consolidated Net Worth" means, as of any date on which the amount thereof
is to be determined, the consolidated stockholders' equity of the Guarantor and
its Subsidiaries, all as determined on a consolidated basis in accordance with
GAAP applied on a Consistent Basis.
"Continue", "Continuation", and "Continued" shall refer to the continuation
pursuant to Section 2.2(c) or 3.2 hereof of a Fixed Rate Loan of one Type as a
Fixed Rate Loan of the same Type from one Interest Period to the next Interest
Period.
"Default" means any event or condition which, with the giving or receipt of
notice or lapse of time or both unless cured or waived, would constitute an
Event of Default hereunder.
"Default Rate" means (i) with respect to any Loan, fee, or other amount
payable in respect of Obligations, a rate of one percent (1%) above the interest
rate otherwise applicable thereto (or, if no interest rate is otherwise
applicable thereto, the rate that would be applicable to a Euribor Rate Loan
with a three-month Interest Period made on the date of the payment default to
which such Default Rate applies) or (ii) the maximum rate permitted by
applicable law, if lower.
"Dollars" and the symbol "$" means dollars constituting legal tender for
the payment of public and private debts in the United States of America.
"Eligible Assignee" has the meaning specified in Section 12.1(g).
"EMU Legislation" means (a) a Treaty on European Union (the Treaty of Rome
of March 25, 1957, as amended by the Single European Act 1986 and the Maastricht
Treaty (which was signed at Maastricht on February 1, 1992 and came into force
on November 1, 1993)), and (b) legislative measures of the European Council
(including without limitation European Council regulations) for the introduction
of, changeover to or operation of the Euro, in each case as amended or
supplemented from time to time.
"Environmental Laws" means any federal, state, local or foreign statute,
law, ordinance, code, rule, regulation, order, decree, permit or license
regulating, relating to, or imposing liability or standards of conduct
concerning, any environmental matters or conditions, environmental protection or
conservation, including without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended; the Superfund
Amendments and Reauthorization Act of 1986, as amended; the Resource
Conservation and Recovery Act, as amended; the Toxic Substances Control Act, as
amended; the Clean Air Act, as amended; the Clean Water Act, as amended;
together with all regulations promulgated thereunder, and any other "Superfund"
or "Superlien" law.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute and all rules and
regulations promulgated thereunder.
"ERISA Group" means the Guarantor, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Guarantor or any
Subsidiary, are treated as a single employer under Section 414 of the Code.
"Euribor Rate" means (a) for any Interest Period with respect to any
Euribor Rate Loan other than one referred to in subsection (b) of this
definition, the sum of (x) the Applicable Margin under the applicable Facility,
plus (y) the following:
(i) the rate per annum equal to the rate determined by the Agent to be
the offered rate that appears on the page of the Telerate screen that
displays an average Banking Federation of the European Union Interest
Settlement Rate for deposits in Euros (for delivery on the first day of
such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 A.M. (London time) two Business Days
prior to the first day of such Interest Period, or
(ii) in the event the rate referenced in the preceding clause (i) does
not appear on such page or service or such page or service shall cease to
be available, the rate per annum equal to the rate determined by the Agent
to be the offered rate on such other page or other service that displays an
average Banking Federation of the European Union Interest Settlement Rate
for deposits in Euros (for delivery on the first day of such Interest
Period) with a term equivalent to such Interest Period, determined as of
approximately 11:00 A.M. (London time) two Business Days prior to the first
day of such Interest Period, or
(iii) in the event the rates referenced in the preceding subsections
(i) and (ii) are not available, the rate per annum determined by the Agent
as the rate of interest at which deposits in Euros for delivery on the
first day of such Interest Period in same day funds in the approximate
amount of the Euribor Rate Loan being made, continued or converted by ABN
AMRO and with a term equivalent to such Interest Period would be offered by
ABN AMRO's London Branch to major banks in the London interbank market for
such currency at their request at approximately 4:00 P.M. (London time) two
Business Days prior to the first day of such Interest Period; and
(b) for any interest period with respect to any Euribor Rate Loan advanced by a
Lender required to comply with the relevant requirements of the Bank of England
and/or the Financial Services Authority of the United Kingdom or the European
Central Bank, the sum of (i) the rate determined in accordance with subsection
(a) of this definition (including the Applicable Margin) and (ii) the Mandatory
Cost for such Interest Period.
"Euribor Rate Loan" means a Loan for which the rate of interest is
determined by reference to the Euribor Rate.
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"Euro" and "E" each means the single official non-legacy currency
denominated as the Euro and constituting legal tender for the payment of public
and private debts in the Participating Member States.
"Euro Equivalent Amount" means, (a) with respect to any amount denominated
in Euros, such amount and (b) with respect to a specified Alternative Currency
amount, the amount of Euros into which the Alternative Currency amount would be
converted, based on the applicable Borrowing Date Exchange Rate, provided,
however, that, for purposes of any determination of compliance with Sections
2.1(a), 2.1(b) and 5.2(d), the Euro Equivalent Amount of any amount denominated
in an Alternative Currency shall be calculated on the basis of the Spot Rate of
Exchange on the date of such determination.
"Eurocurrency Liabilities" shall have the meaning assigned to such term in
Section 4.1(c)(ii).
"Event of Default" means any of the occurrences set forth as such in
Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the regulations promulgated thereunder.
"Facility" means each of the RC Facility, the TL$ Facility and the TLE
Facility, as applicable.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day as so
published on the next succeeding Business Day, and (b) if no such rate is so
published on such next succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to ABN AMRO on such day on such
transactions as determined by the Agent.
"Fixed Rate" means either of the Euribor Rate or the Offshore Rate, or both
of the foregoing, as the case may be.
"Fixed Rate Loan" means a Euribor Rate Loan or an Offshore Rate Loan, or
both of the foregoing, as the case may be.
"Fixed Rate RC Loan" means an RC Loan for which the rate of interest is
determined by the Euribor Rate or the Offshore Rate.
"Fund" shall have the meaning assigned to such term in Section 12.1(g).
"Funded Indebtedness" means with respect to any Person, without
duplication, (a) all indebtedness in respect of borrowed money, (b) all
obligations under Capital Leases, (c) the deferred purchase price of any
property or services that are in the nature of money borrowed, and (d)
indebtedness evidenced by a promissory note, bond, debenture or similar written
obligation
8
for the payment of money (including non-contingent, past-due obligations under
reimbursement agreements and conditional sales or similar title retention
agreements), other than (x) trade payables and accrued expenses incurred in the
ordinary course of business, and (y) indebtedness secured by cash deposits
subject to a legal right of set-off and not classified as a liability under
GAAP.
"Funding Bank" means any banking institution approved by the Agent located
within a country whose currency is an Alternative Currency.
"GAAP" or "Generally Accepted Accounting Principles" means generally
accepted accounting principles, being those principles of accounting set forth
in pronouncements of the Financial Accounting Standards Board, the American
Institute of Certified Public Accountants, or which have other substantial
authoritative support and are applicable in the circumstances as of the date of
a report.
"Governmental Authority" shall mean any federal, state, municipal, national
or other governmental department, commission, board, bureau, court, agency or
instrumentality or political subdivision thereof or any entity or officer
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to any government or any court, in each case whether
associated with a state of the United States, the United States, or a foreign
entity or government.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Indebtedness of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (a) to purchase or
pay (or advance or supply funds for the purchase or payment of) such
Indebtedness (whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement conditions or otherwise) and the
purpose of such contracts is to provide credit support in the nature of a
guaranty or (b) entered into for the purpose of assuring in any other manner the
holder of such Indebtedness of the payment thereof or to protect such holder
against loss in respect thereof (in whole or in part), provided that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Guarantor" shall have the meaning assigned to such term in the preamble
hereto.
"Hazardous Material" means and includes any pollutant, contaminant, or
hazardous, toxic or dangerous waste, substance or material (including without
limitation petroleum products, asbestos-containing materials and lead), the
generation, handling, storage, transportation, disposal, treatment, release,
discharge or emission of which is subject to any Environmental Law.
"Highest Lawful Rate" shall have the meaning assigned to such term in
Section 12.12.
"Indebtedness" means as to any Person, without duplication, (a) all Funded
Indebtedness of such Person, (b) all indebtedness secured by any Lien on any
property or asset owned or held by such Person regardless or whether the
indebtedness secured thereby shall have been assumed
9
by such Person or is non-recourse to the credit of such Person, other than
indebtedness secured by cash deposits subject to a legal right of set-off and
not classified as a liability under GAAP, and (c) all Indebtedness of third
parties Guaranteed by such Person.
"Indemnified Liabilities" has the meaning set forth in Section 12.9.
"Indemnified Parties" has the meaning set forth in Section 12.9.
"Information" shall have the meaning assigned to such term in Section
12.16.
"Interest Period" means with respect to any Loan, a period commencing on
the date such Loan is made or Continued and ending, at the Borrower's option, on
the date one, two, three or six months (and, subject to Section 2.1(c)(iii),
2.4(b)(iii) and 2.5(b)(iii), nine or twelve months) thereafter as notified to
the Agent by the Authorized Representative of the Borrower of such Loan in
accordance with the terms hereof; provided that,
(i) if any Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next Business Day
(unless such extension would cause the applicable Interest Period to end in
the succeeding calendar month, in which case such Interest Period shall end
on the next preceding Business Day); and
(ii) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month;
(iii) no Interest Period shall extend beyond the Stated Termination
Date, the TL$ Maturity Date or the TLE Maturity Date, as the case may be;
and
(iv) Interest Periods in different clauses of this definition shall be
deemed to be different Interest Periods even if they are coterminous.
"Interest Rate Selection Notice" means, with respect to any Loan, the
written notice delivered by an Authorized Representative of the applicable
Borrower and the Guarantor in connection with the election of a subsequent
Interest Period for such Loan in the form of Exhibit E.
"Judgment Currency" shall have the meaning assigned to such term in Section
12.17(b).
"Lien" means any interest in property securing any obligation owed to, or a
claim by, a Person other than the owner of the property, whether such interest
is based on the common law, statute or contract, and including but not limited
to the lien or security interest arising from a mortgage, encumbrance, pledge,
security agreement, conditional sale or trust receipt or a lease, consignment or
bailment for security purposes. For the purposes of this Agreement, the
Guarantor and any Subsidiary shall be deemed to be the owner of any property
which it has acquired or holds subject to a conditional sale agreement,
financing lease, or other arrangement pursuant to which title to the property
has been retained by or vested in some other Person for security purposes.
10
"Loan Documents" means this Agreement, the Notes, and all other instruments
and documents heretofore or hereafter executed or delivered to or in favor of
any Lender or the Agent in connection with the Loans made and transactions
contemplated under this Agreement, as the same may be amended, supplemented or
replaced from the time to time.
"Loan Party" shall have the meaning assigned to such term in Section 12.16.
"Loans" means, collectively, the Term Loans and the RC Loans.
"Luxembourg" means the Grand Duchy of Luxembourg.
"Luxembourg Companies Act" means the Luxembourg act dated August 10, 1915
on commercial companies, as amended.
"Majority Facility Lenders" means with respect to any Facility, the holders
of more than 50% of the aggregate unpaid principal amount of the Loans
outstanding under such Facility (or (i) in the case of the RC Facility, prior to
the termination of the RC Commitments, the holders of more than 50% of the Total
RC Commitments, (ii) in the case of the TLE Facility, prior to any borrowing
thereunder, the holders of more than 50% of the Total TLE Commitments, or (iii)
in the case of the TL$ Facility, prior to any borrowing thereunder, the holders
of more than 50% of the Total TL$ Commitments).
"Mandatory Cost" means, (a) with respect to any Euribor Rate Loans made by
any Lender lending from an Applicable Lending Office in a Participating Member
State, a rate per annum equal to the percentage notified by that Lender to the
Agent and certified by that Lender in its notice to the Agent to be its
reasonable determination of the cost (expressed as a percentage of that Lender's
participation in all Loans made from that Applicable Lending Office) of
complying with the minimum reserve requirements of the European Central Bank in
respect of loans made from that Applicable Lending Office, (b) with respect to
Offshore Rate Loans denominated in British pounds sterling made by any Lender
lending from an Applicable Lending Office in the United Kingdom, a rate per
annum determined by the Agent calculated in accordance with the following
formula:
Mandatory Cost = BY + S(Y-Z) + (F x 0.01)
------------------------ percent per annum
100 - (B+S)
and (c) with respect to any Offshore Loans denominated in any Alternative
Currency other than British pounds sterling made by any Lender lending from an
Applicable Lending Office in the United Kingdom:
Mandatory Cost = F x 0.01
-------- percent per annum
300
where on the day of application of the formula:
B = The percentage of the Agent's Eligible Liabilities (in excess of any stated
minimum) by reference to which the Bank of England and/or the Financial
11
Services Authority requires the Agent to hold on a non- interest bearing
deposit account in accordance with its cash ratio requirements;
Y = The percentage rate per annum at which sterling deposits are offered by the
Agent to leading banks in the London interbank market at or about 11:00 A.M.
(London time) on that day for the relevant period;
F = The rate of charge payable by the Agent to the Financial Services Authority
under paragraph 2.02 or 2.03 (as appropriate) of the Fees Regulations (but
where for this purpose the figure at paragraph 2.02b or 2.03b shall be
deemed to be zero) and expressed in British Pounds Sterling per
L1,000,000 of the Fee Base of the Agent;
S = The percentage of the Agent's Eligible Liabilities which the Bank of England
(or other relevant United Kingdom governmental authority or agency) requires
the Agent to place as a Special Deposit; and
Z = The interest rate per annum payable by the Bank of England to the Agent on
Special Deposits.
(a) For the purposes of this definition:
(i) "Eligible Liabilities" and "Special Deposits" shall have the
meanings given to them at the time of application of the above formula
under or pursuant to the Bank of England Act 1998 or by the Bank of
England (as appropriate);
(ii) "Fee Base" has the meaning given to it in the Fees Regulations;
(iii) "Fees Regulations" means the regulations on periodic fees
contained in the FSA Supervision Manual governing the payment of fees
for the acceptance of deposits;
(b) In the application of the above formula, B, Y, S, and Z are included in
the formula as percentages, e.g. if B = 0.5% and Y = 15%, BY is calculated
as 0.5% x 15%. and not as 0.5 x 15. A negative result obtained from
subtracting Z from Y is to be treated as zero.
(c) (i) The above formula is applied on the first day of each relevant
period comprised in the relevant Interest Period and
(ii) each rate calculated in accordance with the above formula is, if
necessary, rounded upward to four decimal places.
(d) The Agent may, from time to time, after consultation with the
Guarantor, the Borrowers and the Lenders, determine and notify to the
Guarantor, the Borrowers and the Lenders of any amendments or variations
which are required to be made to the formulae set out above in order to
comply with any change in law, regulation or any requirements from time to
time imposed by any applicable regulatory authority in relation to Loans
denominated in British pounds sterling (including, without limitation, any
requirements relating to British pounds sterling primary liquidity) or any
other Alternative Currency,
12
and any such determination shall, in the absence of manifest error, be
conclusive and binding on the Guarantor, the Borrowers, the Lenders and the
Agent.
"Margin Stock" shall have the meaning of such term within Regulation U of
the Board.
"Material Adverse Effect" means a material adverse effect on (i) the
business, properties, operations or condition, financial or otherwise, of the
Guarantor and its Subsidiaries, taken as a whole, (ii) the ability of the
Guarantor or any Borrower to pay or perform its respective obligations,
liabilities and indebtedness under the Loan Documents as such payment or
performance becomes due in accordance with the terms thereof, or (iii) the
rights, powers and remedies of the Agent or any Lender under any Loan Document
or the validity, legality or enforceability thereof.
"Material Plan" means, at any time, a Plan or Plans having aggregate
Unfunded Liabilities in excess of $50,000,000.
"Material Subsidiary" means at any time any Borrower and any Subsidiary
which as of such time meets the definition of a "significant subsidiary"
contained as of the date hereof in Regulation S-X of the Securities and Exchange
Commission.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means at any time an employee benefit plan within the
meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA Group is
then making, or is accruing an obligation to make, contributions or has within
the preceding five plan years made contributions, including for these purposes
any Person which ceased to be a member of the ERISA Group during such five-year
period.
"New Lender" has the meaning assigned to such term in Section 2.3(a).
"Notes" means, collectively, the Term Notes and the RC Notes.
"Obligations" means the unpaid principal of and interest on (including
interest accruing after the maturity of the Loans and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to any Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
the Loans and all other obligations and liabilities of the Borrowers to the
Agent or to any Lender, whether direct or indirect, absolute or contingent, due
or to become due, or now existing or hereafter incurred, which may arise under
or out of this Agreement, the Notes or any other document made, delivered or
given in connection herewith or therewith, whether on account of principal,
interest, fees, indemnities, costs, expenses (including all fees, charges and
disbursements of counsel to the Agent or to any Lender that are required to be
paid by the Borrowers pursuant hereto) or otherwise.
"Offshore Rate" means (a) for any Interest Period with respect to any
Offshore Rate Loan other than one referred to in subsection (b) of this
definition, the sum of (x) the Applicable Margin under the applicable Facility,
plus (y) the following:
13
(i) the rate per annum equal to the rate determined by the Agent to be
the offered rate that appears on the page of the Telerate screen that
displays an average British Bankers Association Interest Settlement Rate
for deposits in the relevant Alternative Currency (for delivery on the
first day of such Interest Period) with a term equivalent to such Interest
Period, determined as of approximately 11:00 A.M. (London time) two
Business Days prior to the first day of such Interest Period, or
(ii) in the event the rate referenced in the preceding clause (i) does
not appear on such page or service or such page or service shall cease to
be available, the rate per annum equal to the rate determined by the Agent
to be the offered rate on such other page or other service that displays an
average British Bankers Association Interest Settlement Rate for deposits
in the relevant Alternative Currency (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period, determined
as of approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period, or
(iii) in the event the rates referenced in the preceding subsections
(i) and (ii) are not available, the rate per annum determined by the Agent
as the rate of interest at which deposits in the relevant Alternative
Currency for delivery on the first day of such Interest Period in same day
funds in the approximate amount of the Offshore Rate Loan being made or
continued by ABN AMRO and with a term equivalent to such Interest Period
would be offered by ABN AMRO's London Branch to major banks in the London
interbank market for such currency at their request at approximately 4:00
P.M. (London time) two Business Days prior to the first day of such
Interest Period; and
(b) for any Interest Period with respect to any Offshore Rate Loan advanced
by a Lender required to comply with the relevant requirements of the Bank of
England and/or the Financial Services Authority of the United Kingdom or the
European Central Bank, the sum of (i) the rate determined in accordance with
subsection (a) of this definition (including the Applicable Margin) and (ii) the
Mandatory Cost for such Interest Period.
"Offshore Rate Loan" means a Loan in an Alternative Currency that bears
interest based on an Offshore Rate.
"Organizational Documents" means with respect to any corporation, limited
liability company, partnership, limited partnership, limited liability
partnership or other legally authorized incorporated or unincorporated entity,
the articles of incorporation, certificate of incorporation, articles of
organization, articles of association, certificate of limited partnership or
other applicable organizational or charter documents relating to the creation of
such entity.
"Other Taxes" shall have the meaning assigned to such term in Section
4.5(b).
"Outstandings" means, collectively, at any date without duplication, the
Term Loan Outstandings and the RC Outstandings on such date.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the Federal Funds Rate and (b) with respect to any
amount denominated in Euros or an Alternative Currency other than Dollars, the
rate of interest per annum at which overnight
14
deposits in Euros or the applicable Alternative Currency, as the case may be, in
an amount approximately equal to the amount with respect to which such rate is
being determined, would be offered for such day by a branch or Affiliate of the
Agent located in the applicable interbank market for such currency to major
banks in such interbank market.
"Participant" shall have the meaning assigned to such term in Section
12.1(d).
"Participating Member State" means each country which from time to time
becomes a Participating Member State as described in EMU Legislation.
"PBGC" means the Pension Benefit Guaranty Corporation and any successor
thereto.
"Person" means an individual, partnership, corporation, limited liability
company, limited liability partnership, trust, unincorporated organization,
association, joint venture or a government or agency or political subdivision
thereof.
"Plan" means at any time an employee pension benefit plan (other than a
Multiemployer Plan) which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and either (i) is
maintained, or contributed to, by any member of the ERISA Group for employees of
any member of the ERISA Group or (ii) has at any time within the preceding five
years been maintained, or contributed to, by any Person which was at such time a
member of the ERISA Group for employees of any Person which was at such time a
member of the ERISA Group.
"Principal Office" means the principal office of ABN AMRO, presently
located at 540 West Madison Street, Suite 2131, Chicago, Illinois 60661-2591,
Attention: Nemesia Esangga, or such other office and address as the Agent may
from time to time designate.
"Rate Adjustment Payment" shall have the meaning assigned to such term in
Section 2.2(c).
"Rating" means the rating of senior unsecured Indebtedness of the Guarantor
in effect at any time such rating is made by either of Moody's or S&P.
"RC Borrowers" means, collectively, VF Europe, VF Investments and VF
International.
"RC Commitment" means, with respect to each Lender, the obligation of such
Lender to make RC Loans to the RC Borrowers up to an aggregate principal amount
at any one time outstanding equal to such Lender's Applicable Commitment
Percentage of the Total RC Commitment.
"RC Facility" means the facility described in Section 2.1 hereof providing
for RC Loans to the RC Borrowers by the RC Lenders in an aggregate principal
amount at any one time outstanding not to exceed the Total RC Commitment.
"RC Lender" means each Lender that has an RC Commitment or that is the
holder of RC Loans.
15
"RC Loan" means any borrowing under the RC Facility in accordance with
Section 2.1; each such borrowing may be a Euribor Rate Loan or an Offshore Rate
Loan.
"RC Notes" means, collectively, the promissory notes of the RC Borrowers
evidencing RC Loans executed and delivered to the RC Lenders as provided in
Section 2.7(a) substantially in the form of Exhibit F-1, with appropriate
insertions as to amounts, dates and names of Lenders.
"RC Outstandings" means, as of any date of determination, the aggregate
principal amount of all RC Loans then outstanding.
"RC Termination Date" means the earliest of (i) the Stated Termination
Date, (ii) the date of termination of the RC Lenders' obligations pursuant to
Section 9.1 upon the occurrence of an Event of Default, or (iii) the date the RC
Borrowers voluntarily and permanently terminate the RC Facility in accordance
with Section 2.1(e) hereof.
"Register" shall have the meaning assigned to such term in Section 12.1(c).
"Regulation D" means Regulation D of the Board as the same may be amended
or supplemented from time to time.
"Required Lenders" means, as of any date, the holders of more than 50% of
(a) until the Closing Date, the Commitments and (b) thereafter, the sum of (i)
before any borrowing under the TL$ Facility, the TL$ Commitments (or, after any
such borrowing, the aggregate unpaid principal amount of the TL$ Loans then
outstanding), (ii) before any borrowing under the TLE Facility, the TLE
Commitments (or, after any such borrowing, the aggregate unpaid principal amount
of the TLE Loans then outstanding) and (iii) the Total RC Commitments then in
effect or, if the RC Commitments have been terminated, the Total RC
Outstandings.
"Same Day Funds" means (a) with respect to disbursements and payments in
Euros, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Agent to be customary in the place of disbursement or payment
for the settlement of international banking transactions in the relevant
Alternative Currency.
"Significant Subsidiary" means at any time any Borrower or any other
Subsidiary, except Subsidiaries which at such time have been designated by the
Guarantor (by notice to the Agent, which may be amended from time to time, which
notices shall be made available by the Agent to the Lenders upon request) as
nonmaterial and which, if aggregated and considered as a single Subsidiary,
would not meet the definition of "significant subsidiary" in Regulation S-X of
the Securities and Exchange Commission.
"S&P" means Standard & Poor's Ratings Group, a division of McGraw-Hill.
"Spot Rate of Exchange" means (i) in determining the Euro Equivalent Amount
of a specified Alternative Currency amount as of any date, the spot exchange
rate determined by the Agent in accordance with its usual procedures for the
purchase by the Agent of Euros with such Alternative Currency at approximately
10:00 A.M. on the Business Day that is two (2) Business
16
Days prior to such date, and (ii) in determining the Alternative Currency
Equivalent Amount of a specified Euro amount on any date, the spot exchange rate
determined by the Agent in accordance with its usual procedures for the purchase
by the Agent of such Alternative Currency with Euros at approximately 10:00 A.M.
on the Business Day that is two Business Days prior to such date.
"Stated Termination Date" means October 27, 2010.
"Subsequent Participant" means each country that adopts the Euro as its
lawful currency after January 1, 1999.
"Subsidiary" means any corporation or other entity in which more than 50%
of its outstanding Voting Securities or more than 50% of all equity interests is
owned directly or indirectly by the Guarantor and/or by one or more of the
Guarantor's Subsidiaries.
"Substitute Rate" shall have the meaning assigned to such term in Section
4.2.
"Taxes" shall have the meaning assigned to such term in Section 4.5(a).
"Term Facilities" means, collectively, the TL$ Facility and the TLE
Facility.
"Term Loan Outstandings" means, collectively the TL$ Outstandings and the
TLE Outstandings.
"Term Loans" means, collectively, the TL$ Loans and the TLE Loans.
"TL Borrowers" means, collectively, the TL$ Borrower and the TLE
Borrower.
"TL Lenders" means, collectively, the TL$ Lenders and the TLE Lenders.
"TL$ Borrower" means VF Asia.
"TL$ Commitment" means with respect to each Lender, the obligation of such
Lender to make a TL$ Loan to the TL$ Borrower in the amount for such Commitment
set forth opposite its name in Exhibit A hereto, as such amount may be increased
or decreased pursuant to an Assignment and Assumption.
"TL$ Commitment Fee Payment Date" shall have the meaning assigned to such
term in Section 3.6(a)(ii).
"TL$ Facility" means the facility described in Section 2.4 hereof providing
for Loans to the TL$ Borrower by the TL$ Lenders in an aggregate principal
amount equal to the Total TL$ Commitment.
"TL$ Lender" means each Lender that has a TL$ Commitment or that is the
holder of a TL$ Loan.
"TL$ Loan" means any borrowing under the TL$ Facility in accordance with
Section 2.4.
17
"TL$ Maturity Date" means the date that is the second anniversary of the
date on which the TL$ Borrower borrows TL$ Loans under the TL$ Facility.
"TL$ Notes" means, collectively, the promissory notes of the TL$ Borrower
evidencing TL$ Loans executed and delivered to the TL$ Lenders as provided in
Section 2.7(b) substantially in the form of Exhibit F-3, with appropriate
insertions as to amounts, dates and names of Lenders.
"TL$ Outstandings" means, as of any date of determination, the aggregate
principal amount of all TL$ Loans then outstanding.
"TLE Borrower" means VF Europe.
"TLE Commitment" means with respect to each Lender, the obligation of such
Lender to make a TLE Loan to the TLE Borrower in the amount for such
Commitment set forth opposite its name in Exhibit A hereto, as such amount may
be increased or decreased pursuant to an Assignment and Assumption.
"TLE Commitment Fee Payment Date" shall have the meaning assigned to such
term in Section 3.6(a)(iii).
"TLE Facility" means the facility described in Section 2.5 hereof
providing for Loans to the TLE Borrower by the TLE Lenders in an aggregate
principal amount equal to the Total TLE Commitment.
"TLE Lender" means each Lender that has a TLE Commitment or that is the
holder of a TLE Loan.
"TLE Loan" means any borrowing under the TLE Facility in accordance with
Section 2.5.
"TLE Maturity Date" means the date that is the second anniversary of the
date on which the TLE Borrower borrows TLE Loans under the TLE Facility.
"TLE Notes" means, collectively, the promissory notes of the TLE Borrower
evidencing TLE Loans executed and delivered to the TLE Lenders as provided in
Section 2.7(b) substantially in the form of Exhibit F-2, with appropriate
insertions as to amounts, dates and names of Lenders.
"TLE Outstandings" means, as of any date of determination, the aggregate
principal amount of all TLE Loans then outstanding.
"Total Available RC Commitment" means, as to any RC Lender at any time, an
amount equal to the excess, if any, of (a) such Lender's RC Commitment then in
effect over (b) the sum of (i) such Lender's then outstanding Euribor Rate Loans
and (ii) the Euro Equivalent Amount of such Lender's then outstanding Offshore
Rate Loans.
"Total RC Commitment" means a principal amount equal to (a) E175,000,000
or (b) at such time as Exhibit A hereto is amended by the entering into of one
or more amendment
18
agreements pursuant to Section 2.3 hereof, an amount equal to up to
E225,000,000, as such amounts are reduced from time to time in accordance
with Section 2.1(e).
"Total TL$ Commitment" means a principal amount equal to $40,000,000, as
such amount may be reduced from time to time in accordance with Section 2.4(d).
"Total TLE Commitment" means a principal amount equal to E40,000,000, as
such amount may be reduced from time to time in accordance with Section 2.5(d).
"Trust" means the respective trusts established under those certain deeds
of trust dated August 21, 1951 made by John E. Barbey and under the will of John
E. Barbey, deceased.
"Type" shall mean any type of Loan (i.e., a Euribor Rate Loan or an
Offshore Rate Loan).
"Unfunded Liabilities" means, with respect to any Plan at any time, the
amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent such excess
represents a potential liability of a member of the ERISA Group to the PBGC or
any other Person under Title IV of ERISA.
"VF Asia" shall have the meaning assigned to such term in the preamble
hereto.
"VF Europe" shall have the meaning assigned to such term in the preamble
hereto.
"VF International" shall have the meaning assigned to such term in the
preamble hereto.
"VF Investments" shall have the meaning assigned to such term in the
preamble hereto.
"Voting Securities" means shares of capital stock issued by a corporation,
or equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the election
of directors (or persons performing similar functions) of such Person, even if
the right so to vote has been suspended by the happening of such a contingency.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of capital
stock or other ownership interests of which (except directors' qualifying shares
and, in the case of any Subsidiary organized in a jurisdiction outside of the
United States, shares not exceeding 5% of total shares) are at the time directly
or indirectly owned by the Guarantor.
1.2. Rules of Interpretation.
(a) All accounting terms not specifically defined herein shall have
the meanings assigned to such terms and shall be interpreted in accordance with
GAAP applied on a Consistent Basis; provided that, if the Guarantor notifies the
Agent that the Guarantor wishes to amend any covenant in Article VIII to
eliminate the effect of any change in GAAP on the
19
operation of such covenant (or if the Agent notifies the Guarantor that the
Required Lenders wish to amend Article VIII for such purpose), then the
Guarantor's compliance with such covenant shall be determined on the basis of
GAAP in effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a manner
satisfactory to the Guarantor and the Required Lenders.
(b) Each term defined in Articles 1, 8 or 9 of the New York Uniform
Commercial Code shall have the meaning given therein unless otherwise defined
herein, except to the extent that the Uniform Commercial Code of another
jurisdiction is controlling, in which case such terms shall have the meaning
given in the Uniform Commercial Code of the applicable jurisdiction.
(c) The headings, subheadings and table of contents used herein or in
any other Loan Document are solely for convenience of reference and shall not
constitute a part of any such document or affect the meaning, construction or
effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any Loan
Document to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections, paragraphs,
clauses, annexes, appendices, exhibits and schedules in or to such Loan
Document.
(e) All definitions set forth herein or in any other Loan Document
shall apply to the singular as well as the plural form of such defined term, and
all references to the masculine gender shall include reference to the feminine
or neuter gender, and vice versa, as the context may require.
(f) When used herein or in any other Loan Document, words such as
"hereunder", "hereto", "hereof" and "herein" and other words of like import
shall, unless the context clearly indicates to the contrary, refer to the whole
of the applicable document and not to any particular article, section,
subsection, paragraph or clause thereof.
(g) References to "including" means including without limiting the
generality of any description preceding such term, and for purposes hereof the
rule of ejusdem generis shall not be applicable to limit a general statement,
followed by or referable to an enumeration of specific matters, to matters
similar to those specifically mentioned.
(h) Except as otherwise expressly provided, all dates and times of day
specified herein shall refer to such dates and times at London, England.
(i) Whenever interest rates or fees are established in whole or in
part by reference to a numerical percentage expressed as "%", such arithmetic
expression shall be interpreted in accordance with the convention that 1% = 100
basis points.
(j) Each of the parties to the Loan Documents and their counsel have
reviewed and revised, or requested (or had the opportunity to request) revisions
to, the Loan Documents, and any rule of construction that ambiguities are to be
resolved against the drafting party shall be inapplicable in the construing and
interpretation of the Loan Documents and all exhibits, schedules and appendices
thereto.
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(k) Any reference to an officer of the Guarantor or any other Person
by reference to the title of such officer shall be deemed to refer to each other
officer of such Person, however titled, exercising the same or substantially
similar functions.
(l) All references to any agreement or document as amended, modified
or supplemented, or words of similar effect, shall mean such document or
agreement, as the case may be, as amended, modified or supplemented from time to
time only as and to the extent permitted therein and in the Loan Documents.
(m) For all purposes of this Agreement (but not for purposes of the
preparation of any financial statements delivered pursuant hereto), the
equivalent in any Alternative Currency of an amount in Euros, and the equivalent
in Euros of an amount in any Alternative Currency, shall be determined as set
forth in the definitions of Euro Equivalent Amount and Alternative Currency
Equivalent Amount, as applicable.
1.3. Luxembourg Terms. In this Agreement, where it relates to a Luxembourg
entity, a reference to insolvency, reorganization, bankruptcy or liquidation
includes, without limitation, bankruptcy (faillite), insolvency, its voluntary
or judicial liquidation (liquidation volontaire ou judiciaire), composition with
creditors (concordat preventif de faillite), reprieve from payment (sursis de
paiement), controlled management (gestion controlee), general settlement with
creditors, reorganization or similar laws affecting the rights of creditors
generally. In this Agreement, where it relates to a Luxembourg entity, a
reference to a receiver, intervenor, conservator, custodian, trustee,
liquidator, sequestrator, or similar officer includes, without limitation, a
"commissaire a la gestion controlee", a "liquidateur", an "administrateur
judiciaire", a "curateur", an "expert en relation avec la procedure de la
gestion controlee" or any other similar officer appointed as a consequence of
the financial difficulties of such Luxembourg entity.
1.4. Belgian Terms. In this Agreement a reference to:
(a) a LIQUIDATOR, TRUSTEE IN BANKRUPTCY, JUDICIAL CUSTODIAN, COMPULSORY
MANAGER, RECEIVER, ADMINISTRATOR RECEIVER, ADMINISTRATOR OR SIMILAR
OFFICER includes any curator/curateur, vereffenaar/liquidateur,
voorlopig bewindvoerder/administrateur provisoire, gerechtelijk
deskundige/expert judiciaire, mandataris ad hoc/mandataire ad hoc,
commissaris inzake opschorting/commissaire au sursis and
sekwester/sequestre;
(b) a SECURITY INTEREST includes any mortgage (hypotheek/hypotheque),
pledge (pand/ nantissement), privilege (voorrecht/privilege),
retention right (eigendomsvoorbehoud/droit de retention), real surety
(zakelijke zekerheid/surete reelle), mandate (mandaat/mandat) to grant
a mortgage, a pledge or any other real surety, and any transfer by way
of security (overdracht ten titel van zekerheid/transfert a titre de
garantie);
(c) a person being UNABLE TO PAY ITS DEBTS is that person being in a state
of cessation of payments (staking van betaling/cessation de
paiements);
(d) a MORATORIUM, COMPOSITION, ASSIGNMENT OR SIMILAR ARRANGEMENT includes
any gerechtelijk akkoord/concordat judiciaire and any minnelijk
akkoord met schuldeisers/
21
accord amiable avec tous les creanciers; WINDING UP, ADMINISTRATION OR
DISSOLUTION includes any vereffening/liquidation,
ontbinding/dissolution, faillissement/faillite and any sluiting van
een onderneming/fermeture d'enterprise; ATTACHMENT, SEQUESTRATION,
DISTRESS, EXECUTION OR ANALOGOUS EVENTS includes any uitvoerend
beslag/saisie executoire and any bewarend beslag/saisie conservatoire;
an AMALGATION, DEMERGER, MERGER, CONSOLIDATION or RECONSTRUCTION
includes any overdracht van algemeenheid/transfert d'universalite,
overdracht van bedrijfstak/transfert de branche d'activite,
splitsing/scission, fusie/fusion and any assimilated transaction in
accordance with articles 676 and 677 of the Belgian Companies Code
(gelijkgestelde verrichting/operation assimilee); and
(e) a "GUARANTEE" includes any "borgtocht/cautionnement", "aval" and any
"garantie" which is independent from the debt to which it relates."
ARTICLE II
THE CREDIT FACILITIES
2.1. RC Loans.
(a) Commitment. Subject to the terms and conditions of this Agreement,
each RC Lender severally agrees to make RC Loans in Euros or an Alternative
Currency (as specified in the respective Borrowing Notice) to the RC Borrowers
under the RC Facility from time to time from the Closing Date until the RC
Termination Date on a pro rata basis among the RC Lenders as to the total
borrowing requested by an RC Borrower on any Business Day determined by such
Lender's Applicable Commitment Percentage up to but not exceeding a Euro
Equivalent Amount equal to the RC Commitment of such Lender, provided, however,
that the Lenders will not be required and shall have no obligation to make any
such RC Loan (i) so long as a Default or an Event of Default has occurred and is
continuing or (ii) if the Agent has accelerated the maturity of any of the Notes
as a result of an Event of Default; provided further, however, that immediately
after giving effect to each such RC Loan, (x) the Euro Equivalent Amount of the
aggregate principal amount of RC Outstandings shall not exceed the then
applicable Total RC Commitment, and (y) the Euro Equivalent Amount of the
aggregate principal amount of all outstanding RC Loans to all RC Borrowers for
each RC Lender, shall not exceed such RC Lender's RC Commitment. Within such
limits and subject to the other terms and conditions of this Agreement, the RC
Borrowers may borrow, repay and reborrow under the RC Facility on any Business
Day from the Closing Date until, but (as to borrowings and reborrowings) not
including, the RC Termination Date.
(b) Amounts. If at any time the aggregate unpaid principal Euro
Equivalent Amount of RC Outstandings shall exceed the Total RC Commitment by
more than 5%, the RC Borrowers shall immediately make such payments and
prepayments of RC Loans as shall be necessary to eliminate such excess. Each RC
Loan under the RC Facility shall be in an amount of at least E5,000,000 (or the
Euro Equivalent Amount thereof in any Alternative Currency), and, if greater
than E5,000,000, an integral multiple of E1,000,000 (or the Euro Equivalent
Amount thereof in any Alternative Currency).
22
(c) RC Loans. (i) An Authorized Representative of an RC Borrower shall
give the Agent:
(1) at least two (2) Business Days' irrevocable telephonic notice
of each RC Loan to such RC Borrower denominated in either Dollars or
Euros (whether representing an additional borrowing or the
Continuation of a borrowing hereunder) prior to 1:00 P.M.; and
(2) at least three (3) Business Days' irrevocable telephonic
notice of each RC Loan to such RC Borrower denominated in any
Alternative Currency other than Dollars (or, in the case of any RC
Loan denominated in any other currency determined to be an Alternative
Currency after the date hereof, such greater notice period reasonably
determined by the Agent to be necessary), whether representing an
additional borrowing or the Continuation of a borrowing hereunder,
prior to 1:00 P.M.
Each such notice shall be effective upon receipt by the Agent, shall specify the
identity of the RC Borrower, the amount of the borrowing, the Type of RC Loan
(Euribor Rate if such RC Loan is requested in Euros, or Offshore Rate if such RC
Loan is requested in an Alternative Currency), the date of borrowing (which
shall be a Business Day), the Interest Period to be used in the computation of
interest, and if an Offshore Rate Loan, the applicable Alternative Currency. The
Authorized Representative of the applicable RC Borrower shall provide the Agent
written confirmation of each such telephonic notice in the form of a Borrowing
Notice or Interest Rate Selection Notice (as applicable) with appropriate
insertions, but failure to provide such confirmation shall not affect the
validity of such telephonic notice. Notice of receipt of such Borrowing Notice
or Interest Rate Selection Notice, as the case may be, together with a
specification of the amount of each RC Lender's portion of an RC Loan requested
thereunder, shall be provided by the Agent to each RC Lender by telefacsimile
transmission with reasonable promptness, but (provided the Agent shall have
received such notice by 1:00 P.M.) not later than 2:00 P.M. on the same day as
the Agent's receipt of such notice. At approximately 4:00 P.M. two (2) Business
Days preceding the date specified for an RC Loan of an Alternative Currency, the
Agent shall determine the Borrowing Date Exchange Rate and the applicable
interest rate. Not later than 5:00 P.M. two (2) Business Days preceding the date
specified for each RC Loan of an Alternative Currency, the Agent shall provide
the applicable RC Borrower and each RC Lender notice by telefacsimile
transmission of the Borrowing Date Exchange Rate applicable to such RC Loan, and
the applicable Alternative Currency Equivalent Amount of the RC Loan or RC Loans
required to be made by each RC Lender on such date, and the Euro Equivalent
Amount of such RC Loan or RC Loans and the applicable Offshore Rate.
(ii) (A) In the case of RC Loans in Euros, not later than 10:00 A.M.
on the date specified for each borrowing under this Section 2.1, each RC Lender
shall, pursuant to the terms and subject to the conditions of this Agreement,
make the amount of the RC Loan or RC Loans to be made by it on such day
available by wire transfer to the Agent in the amount of its pro rata share,
determined according to such RC Lender's Applicable Commitment Percentage of the
RC Loan or RC Loans to be made on such day. Such wire transfer shall be directed
to the Agent at the Principal Office and shall be in the form of Euros
constituting immediately available funds. The amount so received by the Agent
shall, subject to the terms and conditions
23
of this Agreement, be made available to the applicable RC Borrower by delivery
no later than 10:00 A.M. of the proceeds thereof to the applicable Borrower's
Account or otherwise as shall be directed in the applicable Borrowing Notice by
the Authorized Representative of such RC Borrower and reasonably acceptable to
the Agent.
(B) In the case of RC Loans in an Alternative Currency, not later than
10:00 A.M. on the date specified for each RC Loan, each RC Lender shall,
pursuant to the terms and subject to the conditions of this Agreement, make the
amount of the RC Loan or RC Loans to be made by it on such day available to the
applicable RC Borrower at the Funding Bank, to the account of the Agent with the
Funding Bank. The amount so received by the Funding Bank shall, subject to the
terms and conditions of the Loan Documents and upon instruction from the Agent
to the Funding Bank on the same day or immediately preceding day but no later
than 10:00 A.M., be made available to the applicable RC Borrower by delivery of
the Alternative Currency Equivalent Amount to such RC Borrower's account with
the Funding Bank.
(iii) If requested by the applicable RC Borrower through the Agent,
before 1:00 P.M. at least four Business Days before the beginning of any
Interest Period applicable to a Euribor Rate Loan or Offshore Rate Loan, as the
case may be, each Lender will advise the Agent before 10:00 A.M. three Business
Days preceding the beginning of such Interest Period as to whether, if the RC
Borrower selects an Interest Period of nine or twelve months, such RC Lender
expects that deposits in Euros or the applicable Alternative Currency, as the
case may be, with a term corresponding to such Interest Period will be available
to it two Business Days preceding such Interest Period in the amount and for the
duration required to fund the Euribor Rate Loan or Offshore Rate Loan, as the
case may be, to which such Interest Period would apply. If, but only if, each RC
Lender confirms that it expects such deposits to be available to it on terms
acceptable to such RC Lender, in its own discretion, then such Borrower shall be
entitled to select a duration of nine or twelve months for such Interest Period.
(d) Repayment of RC Loans. The principal amount of each RC Loan shall
be due and payable to the Agent for the benefit of each RC Lender in full on the
RC Termination Date, or earlier as specifically provided herein. The principal
amount of any RC Loan may be prepaid without penalty or premium in whole or in
part on any Business Day, upon at least three (3) Business Days' irrevocable
telephonic notice from an Authorized Representative of the applicable Borrower
(effective upon receipt) to the Agent prior to 1:00 P.M. The Agent shall give
the Lenders prompt notice of all such notices of prepayment. Such Authorized
Representative shall provide the Agent written confirmation of each such
telephonic notice, but failure to provide such confirmation shall not effect the
validity of such telephonic notice. All prepayments of RC Loans made by an RC
Borrower shall be in the Euro Equivalent Amount of E5,000,000 or such greater
Euro Equivalent Amount which is an integral multiple of E1,000,000 (provided
that repayments in an Alternative Currency shall be approximately equal to such
amounts), or the amount equal to all RC Outstandings, or such other amount as
necessary to comply with Section 2.1(b). Any prepayment of an RC Loan shall be
accompanied by all accrued interest thereon, together with any additional
amounts required pursuant to Section 4.4.
(e) Reductions. The RC Borrowers shall, by notice from an Authorized
Representative, have the right from time to time, upon not less than three (3)
Business Days' written notice to the Agent, effective upon receipt, to reduce
the Total RC Commitment, which
24
reduction shall be applied pro rata to the RC Commitments of the RC Lenders. The
Agent shall give each RC Lender, within one (1) Business Day of receipt of such
notice, telefacsimile notice, or telephonic notice (confirmed in writing), of
such reduction. Each such reduction shall be in the aggregate amount of
E5,000,000 or such greater amount which is in an integral multiple of
E1,000,000, or the entire remaining Total RC Commitment, and shall permanently
reduce the Total RC Commitment. Each reduction of the Total RC Commitment shall
be accompanied by payment of the RC Loans to the extent that the principal
amount of RC Outstandings exceeds the Total RC Commitment after giving effect to
such reduction, together with accrued and unpaid interest on the amounts prepaid
and any amount required under Section 4.4.
2.2. Utilization of Alternative Currencies. (a) All RC Loans in Alternative
Currencies shall be Offshore Rate Loans.
(b) Each request for an RC Loan in an Alternative Currency under a
Borrowing Notice shall constitute the applicable RC Borrower's request for an RC
Loan of the Euro Equivalent Amount of the amount of the Alternative Currency
specified in such Borrowing Notice, and for such RC Loan to be made available by
the RC Lenders to the applicable RC Borrower in the Alternative Currency
Equivalent Amount of such Euro Equivalent Amount (determined based on the
Borrowing Date Exchange Rate applicable to such RC Loan). The principal amount
outstanding on any RC Loan shall be recorded in the Agent's records in Euros (in
the case of an RC Loan in an Alternative Currency as if the RC Loan had
initially been made in Euros), based on the Euro Equivalent Amount of the
initial RC Loan in an Alternative Currency, as reduced from time to time by the
Euro Equivalent Amount (based on the Borrowing Date Exchange Rate applicable to
such RC Loan) of any principal payments with respect to such RC Loan. Except to
the extent provided in the proviso to the definition of the term "Euro
Equivalent Amount", for the purposes of determining the maximum amount of RC
Outstandings hereunder, it is intended by the parties that all RC Loans shall be
the functional equivalent of RC Loans made and repaid (based on the applicable
Borrowing Date Exchange Rate for each RC Loan) in Euros. It is recognized that
one or more Lenders may elect to record RC Loans in Alternative Currencies. The
Agent shall maintain records sufficient to identify at any time (A) the
Borrowing Date Exchange Rate with respect to each RC Loan and (B) the portion of
the RC Outstandings attributable to each RC Loan.
(c) Any Borrower may elect to Continue an Offshore Rate Loan pursuant
to the terms of Section 3.2 and subject to the conditions set forth in this
Section 2.2(c). In the event an Offshore Rate Loan is Continued, such election
to Continue the Offshore Rate Loan shall be treated as an RC Loan, and the Agent
shall notify the applicable Borrower and the applicable Lenders of the Borrowing
Date Exchange Rate, the Interest Period and the rate for such Continued Offshore
Rate Loan. The RC Lenders shall each be deemed to have made an RC Loan to the
applicable RC Borrower of its Applicable Commitment Percentage of each RC Loan
in an Alternative Currency, and the Agent shall apply the Borrowing Date
Exchange Rate for such new Interest Period to such Continued Alternative
Currency Equivalent Amount to determine the new Euro Equivalent Amount of such
RC Loan and shall adjust its books and the RC Outstandings. In the event that
such adjustment with respect to a Continued RC Loan would cause the total Euro
Equivalent Amount of RC Outstandings to exceed the Total RC Commitment, the RC
Borrowers shall, immediately on the effective date of such Continuation, repay
(a "Rate Adjustment Payment") the portion of such Continued RC Loan (applying
the new
25
Borrowing Date Exchange Rate) necessary to ensure that the Euro Equivalent
Amount of all RC Outstandings does not exceed the Total RC Commitment, provided,
however, that no RC Borrower shall be required to pay any additional
compensation pursuant to Section 4.4 with respect to a prepayment of an RC Loan
required by this sentence if such prepayment is made immediately on the
effective date of the Continuation giving rise to such prepayment and no notice
of such prepayment shall be required. If the Agent does not receive an Interest
Rate Selection Notice giving notice of election of the duration of an Interest
Period or Continuation of an Offshore Rate Loan by the time prescribed in
Sections 2.1(c) or 3.2, as applicable, the applicable Borrower shall be deemed
to have elected to Continue such Offshore Rate Loan as a Loan of the same Type
in the same Alternative Currency for an Interest Period of one month. No
Borrower shall be entitled to elect to Continue any Offshore Rate Loan in an
Alternative Currency if a Default or Event of Default shall have occurred and be
continuing.
2.3. Increase in Total RC Commitment. (a) The RC Borrowers, the Agent and
any Lender or any other Person qualifying as an Eligible Assignee but for the
absence of an assignment, or any combination of such Lenders and such Persons
(collectively, "New Lenders"), may (in their sole discretion) enter into one or
more amendment agreements substantially in the form of Exhibit H attached hereto
and incorporated herein by reference without further approval of the Lenders (or
any other New Lender) pursuant to which each New Lender agrees to incur or
increase, as the case may be, its RC Commitment so as to make available to the
RC Borrowers, subject to all conditions herein set forth, RC Loans in the
maximum aggregate Euro Equivalent Amount (for all New Lenders) of up to
E50,000,000 thereby increasing the Total RC Commitment to up to the Euro
Equivalent Amount of E225,000,000; provided that
(i) each such increase shall be in an amount at least equal to
E10,000,000 or an integral multiple of E5,000,000 in excess thereof;
(ii) the RC Borrowers shall execute and deliver to the Agent (A) if
requested by such New Lender, RC Notes for each New Lender, (B) board
resolutions of each RC Borrower certified by its secretary or assistant
secretary approving and adopting such RC Commitment increase and
authorizing the execution and delivery of the instruments relating thereto,
and (C) the legal opinions of the General Counsel of the Guarantor and
special counsel to the RC Borrowers as to the due authorization, execution
and delivery of such instruments, the enforceability thereof and no
conflict thereof with the Organizational Documents, by-laws and material
agreements of the Guarantor and the RC Borrowers or with any applicable
laws, rules or regulations, all in form and substance substantially similar
to such opinions delivered on the Closing Date in satisfaction of Section
5.1(a)(ii); and
(iii) no Default or Event of Default then exists or would arise as a
result of any such increase.
(b) Upon the execution, delivery and acceptance of the documents
required by this Section 2.3, each New Lender shall have all of the rights and
obligations of an RC Lender under this Agreement. The Agent shall provide the RC
Lenders with notice of the revised Total
26
RC Commitment and the revised Applicable Commitment Percentages of the RC
Lenders, including the New Lenders.
(c) Upon the effectiveness of an increase provided for in this Section
2.3, at the end of the then current Interest Period for such RC Loans as may
then be outstanding, the RC Borrowers shall prepay to certain RC Lenders such
amount of such RC Loans as may be then outstanding as are necessary so that,
after giving effect to such prepayments and any borrowings on such date of all
or any portion of the relevant increase of the Total RC Commitment, the
principal balance of all outstanding RC Loans owing to each RC Lender is
equivalent to each such RC Lender's Applicable Commitment Percentage (after
giving effect to any nonratable increase in the Total RC Commitment resulting
from the exercise of an increase pursuant to this Section 2.3) of the then RC
Outstandings.
2.4. TL$ Loans.
(a) Commitment. Subject to the terms and conditions of this Agreement,
each TL$ Lender severally agrees to make a TL$ Loan in Dollars to the TL$
Borrower under the TL$ Facility on any Business Day occurring during the period
from the Closing Date until December 31, 2005 in an amount equal to the TL$
Commitment of such Lender in effect on the date of such Loan, provided, however,
that any unused portion of the TL$ Commitment of any TL$ Lender will expire on
the date of borrowing and, provided further that the Lenders will not be
required and shall have no obligation to make any such Loan (i) so long as a
Default or an Event of Default has occurred and is continuing or (ii) if the
Agent has accelerated the maturity of any of the Notes as a result of an Event
of Default.
(b) TL$ Loans. (i) An Authorized Representative of the TL$ Borrower
shall give the Agent at least two (2) Business Days' irrevocable telephonic
notice of such TL$ Loan (whether representing the borrowing thereof or the
Continuation of the borrowing hereunder) prior to 1:00 P.M. Each such notice
shall be effective upon receipt by the Agent, shall specify the date of
borrowing (which shall be a Business Day) and the Interest Period to be used in
the computation of interest. The Authorized Representative of the TL$ Borrower
shall provide the Agent written confirmation of each such telephonic notice in
the form of a Borrowing Notice or Interest Rate Selection Notice (as applicable)
with appropriate insertions, but failure to provide such confirmation shall not
affect the validity of such telephonic notice. Notice of receipt of such
Borrowing Notice or Interest Rate Selection Notice, as the case may be, together
with a specification of the amount of each TL$ Lender's portion of the TL$ Loans
requested thereunder, shall be provided by the Agent to each TL$ Lender by
telefacsimile transmission with reasonable promptness, but (provided the Agent
shall have received such notice by 1:00 P.M.) not later than 2:00 P.M. on the
same day as the Agent's receipt of such notice. At approximately 4:00 P.M. two
(2) Business Days preceding the date specified for the TL$ Loans, the Agent
shall determine the applicable interest rate.
(ii) Not later than 10:00 A.M. on the date specified for the TL$
Loans, each TL$ Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make the amount of the TL$ Loan to be made by it
on such day available to the TL$ Borrower at the Funding Bank, to the account of
the Agent with the Funding Bank. The amount so received by the Funding Bank
shall, subject to the terms and conditions of the Loan Documents and upon
27
instruction from the Agent to the Funding Bank on the same day or immediately
preceding day but no later than 10:00 A.M., be made available to the TL$
Borrower by delivery of the amount thereof in Dollars to the TL$ Borrower's
account with the Funding Bank.
(iii) If requested by the TL$ Borrower through the Agent, before 1:00
P.M. at least four Business Days before the beginning of any Interest Period
applicable to the TL$ Loan, each TL$ Lender will advise the Agent before 10:00
A.M. three Business Days preceding the beginning of such Interest Period as to
whether, if the TL$ Borrower selects an Interest Period of nine or twelve
months, such TL$ Lender expects that deposits in Dollars, with a term
corresponding to such Interest Period will be available to it two Business Days
preceding such Interest Period in the amount and for the duration required to
fund the TL$ Loan to which such Interest Period would apply. If, but only if,
each TL$ Lender confirms that it expects such deposits to be available to it on
terms acceptable to such TL$ Lender, in its own discretion, then the TL$
Borrower shall be entitled to select a duration of nine or twelve months for
such Interest Period.
(c) Repayment of TL$ Loans. (i) The principal amount of the TL$ Loans
shall be due and payable to the Agent for the benefit of each TL$ Lender in full
on the TL$ Maturity Date, or earlier as specifically provided herein. The
principal amount of the TL$ Loans may be prepaid without penalty or premium in
whole or in part on any Business Day, upon at least three (3) Business Days'
irrevocable telephonic notice from an Authorized Representative of the TL$
Borrower (effective upon receipt) to the Agent prior to 1:00 P.M. The Agent
shall give the TL$ Lenders prompt notice of all such notices of prepayment. Such
Authorized Representative shall provide the Agent written confirmation of each
such telephonic notice, but failure to provide such confirmation shall not
effect the validity of such telephonic notice. All prepayments of TL$ Loans made
by the TL$ Borrower shall be in the amount of $5,000,000 or such greater amount
which is an integral multiple of $1,000,000, or the amount equal to all TL$
Outstandings. Any prepayment of the TL$ Loans shall be accompanied by all
accrued interest thereon, together with any additional amounts required pursuant
to Section 4.4.
(d) Reductions. The TL$ Borrower shall, by notice from an Authorized
Representative thereof, have the right from time to time but not more frequently
than once each calendar month, upon not less than three (3) Business Days'
written notice to the Agent, effective upon receipt, to reduce the TL$
Commitments, which reduction shall be applied pro rata to the TL$ Commitments of
the TL$ Lenders. The Agent shall give each TL$ Lender, within one (1) Business
Day of receipt of such notice, telefacsimile notice, or telephonic notice
(confirmed in writing), of such reduction. Each such reduction shall be in the
aggregate amount of $5,000,000 or such greater amount which is in an integral
multiple of $1,000,000, or the entire remaining TL$ Commitments, and shall
permanently reduce the TL$ Commitments.
2.5. TLE Loans.
(a) Commitment. Subject to the terms and conditions of this Agreement,
each TLE Lender severally agrees to make a TLE Loan in Euros to the TLE
Borrower under the TLE Facility on any Business Day occurring during the period
from the Closing Date until December 31, 2005 in an amount equal to the TLE
Commitment of such Lender in effect on the date of such Loan, provided, however,
that any unused portion of the TLE Commitment of any TLE Lender
28
will expire on the date of borrowing and, provided further that the Lenders will
not be required and shall have no obligation to make any such Loan (i) so long
as a Default or an Event of Default has occurred and is continuing or (ii) if
the Agent has accelerated the maturity of any of the Notes as a result of an
Event of Default.
(b) TLE Loans. (i) An Authorized Representative of the TLE Borrower
shall give the Agent at least two (2) Business Days' irrevocable telephonic
notice of such TLE Loan (whether representing the borrowing thereof or the
Continuation of the borrowing hereunder) prior to 1:00 P.M. Each such notice
shall be effective upon receipt by the Agent, shall specify the date of
borrowing (which shall be a Business Day) and the Interest Period to be used in
the computation of interest. The Authorized Representative of the TLE Borrower
shall provide the Agent written confirmation of each such telephonic notice in
the form of a Borrowing Notice or Interest Rate Selection Notice (as applicable)
with appropriate insertions, but failure to provide such confirmation shall not
affect the validity of such telephonic notice. Notice of receipt of such
Borrowing Notice or Interest Rate Selection Notice, as the case may be, together
with a specification of the amount of each TLE Lender's portion of the TLE
Loans requested thereunder, shall be provided by the Agent to each TLE Lender
by telefacsimile transmission with reasonable promptness, but (provided the
Agent shall have received such notice by 1:00 P.M.) not later than 2:00 P.M. on
the same day as the Agent's receipt of such notice. At approximately 4:00 P.M.
two (2) Business Days preceding the date specified for the TLE Loans, the Agent
shall determine the applicable interest rate.
(ii) Not later than 10:00 A.M. on the date specified for the TLE
Loans, each TLE Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make the amount of the TLE Loan to be made by it
on such day available to the TLE Borrower at the Funding Bank, to the account
of the Agent with the Funding Bank. The amount so received by the Funding Bank
shall, subject to the terms and conditions of the Loan Documents and upon
instruction from the Agent to the Funding Bank on the same day or immediately
preceding day but no later than 10:00 A.M., be made available to the TLE
Borrower by delivery of the Amount thereof in Euros to the TLE Borrower's
account with the Funding Bank.
(iii) If requested by the TLE Borrower through the Agent, before 1:00
P.M. at least four Business Days before the beginning of any Interest Period
applicable to the TLE Loan, each TLE Lender will advise the Agent before 10:00
A.M. three Business Days preceding the beginning of such Interest Period as to
whether, if the TLE Borrower selects an Interest Period of nine or twelve
months, such TLE Lender expects that deposits in Euros, with a term
corresponding to such Interest Period will be available to it two Business Days
preceding such Interest Period in the amount and for the duration required to
fund the TLE Loan to which such Interest Period would apply. If, but only if,
each TLE Lender confirms that it expects such deposits to be available to it on
terms acceptable to such TLE Lender, in its own discretion, then the TLE
Borrower shall be entitled to select a duration of nine or twelve months for
such Interest Period.
(c) Repayment of TLE Loans. (i) The principal amount of the TLE
Loans shall be due and payable to the Agent for the benefit of each TLE Lender
in full on the TLE Maturity Date, or earlier as specifically provided herein.
The principal amount of the TLE Loans may be prepaid without penalty or premium
in whole or in part on any Business Day, upon at
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least three (3) Business Days' irrevocable telephonic notice from an Authorized
Representative of the TLE Borrower (effective upon receipt) to the Agent prior
to 1:00 P.M.. The Agent shall give the TLE Lenders prompt notice of all such
notices of prepayment. Such Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice, but failure to provide such
confirmation shall not affect the validity of such telephonic notice. All
prepayments of TLE Loans made by the TLE Borrower shall be in the amount of
E5,000,000 or such greater amount which is an integral multiple of E1,000,000,
or the amount equal to all TLE Outstandings. Any prepayment of the TLE Loans
shall be accompanied by all accrued interest thereon, together with any
additional amounts required pursuant to Section 4.4.
(d) Reductions. The TLE Borrower shall, by notice from an Authorized
Representative thereof, have the right from time to time but not more frequently
than once each calendar month, upon not less than three (3) Business Days'
written notice to the Agent, effective upon receipt, to reduce the TLE
Commitments, which reduction shall be applied pro rata to the TLE Commitments
of the TLE Lenders. The Agent shall give each TLE Lender, within one (1)
Business Day of receipt of such notice, telefacsimile notice, or telephonic
notice (confirmed in writing), of such reduction. Each such reduction shall be
in the aggregate amount of E5,000,000 or such greater amount which is in an
integral multiple of E1,000,000, or the entire remaining TLE Commitments, and
shall permanently reduce the TLE Commitments.
2.6. Use of Proceeds. The proceeds of the Loans made pursuant to the RC
Facility hereunder shall be used by the RC Borrowers for general corporate
purposes including without limitation the making of acquisitions. The proceeds
of the Loans made pursuant to the Term Facilities hereunder shall be used to pay
dividends on the equity interests of the TL Borrowers.
2.7. Notes.
(a) RC Notes. Upon the request to the Agent by any RC Lender, RC Loans
made by such Lender to each RC Borrower shall be evidenced by an RC Note payable
by such RC Borrower to the order of such Lender in the respective amount of its
Applicable Commitment Percentage of the Total RC Commitment, which RC Note shall
be dated the Closing Date or a later date pursuant to an Assignment and
Assumption or to Section 2.3(a)(ii) and shall be duly completed, executed and
delivered by such RC Borrower.
(b) TL$ Notes. Upon the request to the Agent by any TL$ Lender, the
TL$ Loans made by such Lender to the TL$ Borrower shall be evidenced by a TL$
Note payable by the TL$ Borrower to the order of such TL$ Lender, which TL$ Note
shall be dated the date of such borrowing or a later date pursuant to an
Assignment and Assumption and shall be duly completed, executed and delivered by
the TL$ Borrower.
(c) TLE Notes. Upon the request to the Agent by any TLE
Lender, the TLE Loans made by such Lender to the TLE Borrower shall be
evidenced by a TLE Note payable by the TLE Borrower to the order of
such TLE Lender, which TLE Note shall be dated the date of such
borrowing or a later date pursuant to an Assignment and Assumption and shall be
duly completed, executed and delivered by the TLE Borrower.
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2.8. Certain Payment Provisions. Unless the applicable Borrower or any
Lender has notified the Agent, prior to the date any payment is required to be
made by it to the Agent hereunder, that such Borrower or such Lender, as the
case may be, will not make such payment, the Agent may assume that such Borrower
or such Lender, as the case may be, has timely made such payment and may (but
shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Agent in Same Day Funds, then:
(a) if the applicable Borrower failed to make such payment, each
applicable Lender shall forthwith on demand repay to the Agent the portion of
such assumed payment that was made available to such Lender in Same Day Funds,
together with interest thereon in respect of each day from and including the
date such amount was made available by the Agent to such Lender to the date such
amount is repaid to the Agent in Same Day Funds, at the applicable Overnight
Rate from time to time in effect; and
(b) if any Lender failed to make such payment, such Lender shall
forthwith on demand pay to the Agent the amount thereof in Same Day Funds,
together with interest thereon for the period from the date such amount was made
available by the Agent to the applicable Borrower to the date such amount is
recovered by the Agent (the "Compensation Period") at a rate per annum equal to
the applicable Overnight Rate from time to time in effect. If such Lender pays
such amount to the Agent, then such amount shall constitute such Lender's Loan,
included in the applicable Loan. If such Lender does not pay such amount
forthwith upon the Agent's demand therefor, the Agent may make a demand therefor
upon the applicable Borrower, and such Borrower shall pay such amount to the
Agent, together with interest thereon for the Compensation Period at a rate per
annum equal to the rate of interest applicable to the applicable Loan. Nothing
herein shall be deemed to relieve any Lender from its obligation to fulfill its
RC Commitment, TLE Commitment and/or TL$ Commitment or to prejudice any
rights which the Agent or the applicable Borrower may have against any Lender as
a result of any default by such Lender hereunder.
A notice of the Agent to any Lender with respect to any amount owing under this
subsection 2.8 shall be conclusive, absent manifest error.
2.9. Certain Provisions Relating to Euros. (a) Without prejudice and in
addition to any method of conversion or rounding prescribed by any EMU
Legislation and without prejudice to (i) the liabilities for Indebtedness of any
Borrower to the Lenders under or pursuant to this Agreement or (ii) each
Lender's Commitment or Commitments, any reference in this Agreement to a minimum
amount (or an integral multiple thereof) in a national currency of a Subsequent
Participant to be paid to or by the Agent shall immediately, upon it becoming a
Subsequent Participant, be replaced by a reference to such reasonably comparable
and convenient amount (or an integral multiple thereof) in the Euro unit as the
Agent may specify.
(b) The Agent may from time to time further modify the terms of, and
practices contemplated by, this Agreement with respect to the Euro to the extent
the Agent determines, in its reasonable discretion, that such modifications are
necessary or convenient to reflect new laws, regulations, customs or practices
developed in connection with the Euro. The Agent may effect such modifications,
and this Agreement shall be deemed so amended, without
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the consent of the Guarantor, any Borrower or any Lender to the extent such
modifications are not materially disadvantageous to the Guarantor, the Borrowers
and the Lenders, upon notice thereto.
ARTICLE III
FUNDING, FEES, AND PAYMENT CONVENTIONS
3.1. Interest Rate Options. (a) All Loans in Alternative Currencies shall
be Offshore Rate Loans. All Loans in Euros shall be Euribor Rate Loans.
(b) The TL Borrowers may elect multiple Interest Periods with respect
to different portions of each Term Loan borrowing, in which case each such
portion shall be allocated ratably among the Lenders holding the Term Loans
comprising such borrowing, and the Term Loans comprising each such portion shall
be considered a separate borrowing. Notwithstanding the foregoing, a TL Borrower
may not pursuant to this Section 3.1(b) (i) elect an Interest Period for Term
Loans that ends after the TL$ Maturity Date or the TLE Maturity Date, as
applicable, (ii) elect Interest Periods that would result in more than ten Term
Loan borrowings being outstanding at any one time, or (iii) elect an Interest
Period for any Term Loan unless the aggregate outstanding principal amount of
Term Loans (including any Term Loans made to such Borrower in the same currency
on the date that such Interest Period is to begin) to which such Interest Period
will apply equals (x) with respect to TL$ Loans, $5,000,000 or an integral
multiple of $1,000,000 in excess thereof or (y) with respect to TLE Loans,
E5,000,000 or an integral multiple of E1,000,000 in excess thereof.
(c) So long as no Default or Event of Default shall have occurred and
be continuing, the Borrower shall have the option to elect the duration of the
initial and any subsequent Interest Periods applicable to any Loans; provided,
however, (x) there shall not be outstanding at any one time Loans having more
than twenty (20) different Interest Periods and (y) no Loan shall have an
Interest Period that extends beyond the Stated Termination Date (in the case of
an RC Loan), the TL$ Maturity Date (in the case of a TL$ Loan) or the TLE
Maturity Date (in the case of a TLE Loan). If the Agent does not receive a
Borrowing Notice or an Interest Rate Selection Notice giving notice of election
of the duration of an Interest Period or of Continuation of any such RC Loan as
a Fixed Rate Loan by the time prescribed by Sections 2.1(c) and 3.2, as
applicable, Section 2.2(c) shall apply.
3.2. Continuations and Elections of Subsequent Interest Periods. (a)
Subject to the limitations set forth in the definition of "Interest Period," in
Sections 2.1(c)(iii), 2.4(b)(iii), 2.5(b)(iii) and 3.1 and in Article IV, any
Borrower may, provided that no Default or Event of Default shall have occurred
and be continuing, upon delivery of telephonic notice to the Agent (which shall
be irrevocable) on or before 1:00 P.M. two (2) Business Days' prior to the date
of such Continuation in the case of Loans denominated in either Dollars or Euros
and three (3) Business Days' prior to the date of such Continuation in the case
of Loans denominated in any Alternative Currency other than Dollars, elect a
subsequent Interest Period for any Fixed Rate Loan to begin on the last day of
the then current Interest Period for such Fixed Rate Loan (subject to Section
2.2 with respect to any Offshore Rate Loan in an Alternative Currency).
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(b) Each such notice shall be effective upon receipt by the Agent,
shall specify the amount of the affected Fixed Rate Loan, the Type of Loan, and,
if a Continuation as a Fixed Rate Loan, the Interest Period to be used in the
computation of interest. The Authorized Representative of such Borrower shall
provide the Agent written confirmation of each such telephonic notice in the
form of a Borrowing Notice or Interest Rate Selection Notice (as applicable)
with appropriate insertions, but failure to provide such confirmation shall not
affect the validity of such telephonic notice. Notice of receipt of such
Borrowing Notice or Interest Rate Selection Notice, as the case may be, shall be
provided by the Agent to each affected Lender by telefacsimile transmission with
reasonable promptness, but (provided the Agent shall have received such notice
by 1:00 P.M.) not later than 2:00 P.M. on the same day as the Agent's receipt of
such notice. All such Continuations of Loans shall be effected pro rata based on
the Applicable Commitment Percentages of the applicable Lenders.
(c) Subject to Section 2.2(c), failure by any Borrower to elect a
Continuation in accordance with Section 3.2(a) or to provide notice of payment
shall result in such Borrower being deemed to have elected to Continue the
applicable Loan as a Loan of the same Type for an Interest Period of one month.
3.3. Payment of Interest. Each Borrower shall pay to the Agent interest on
the outstanding and unpaid principal amount of each Loan made to such Borrower
by each Lender, for the account of such Lender commencing on the date of such
Loan until such Loan shall be repaid, at the applicable Fixed Rate as designated
by such Borrower in the related Borrowing Notice or Interest Rate Selection
Notice or as otherwise provided hereunder. Interest on each Loan shall be paid
on the earlier of (a) the last day of the applicable Interest Period for such
Fixed Rate Loan and, if such Interest Period extends for more than three (3)
months, at intervals of three (3) months after the first day of such Interest
Period, and (b) upon payment in full of the related Loan; provided, however,
that any amount payable hereunder (whether of principal, interest, fees or
otherwise), if not paid when due, shall bear interest until such amount is paid
in full at the Default Rate notwithstanding any provision herein to the
contrary.
3.4. Prepayments. Subject to Section 2.2(c), whenever any payment of
principal shall be made in respect of any Loan hereunder, whether at maturity,
on acceleration, by optional or mandatory prepayment or as otherwise required or
permitted hereunder, with the effect that any Loan shall be prepaid in whole or
in part prior to the last day of the Interest Period applicable to such Loan,
such payment of principal shall be accompanied by the additional payment, if
any, required by Section 4.4.
3.5. Manner of Payment. (a) Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid by or on behalf of any Borrower to the Lenders or the Agent with respect
to any Loan, shall be made to the Agent (i) in Euros at the Principal Office in
the case of Loans made in Euros and (ii) in the same Alternative Currency at the
Funding Bank in the case of Loans made in Alternative Currencies, in immediately
available funds without setoff, recoupment, deduction or counterclaim on or
before 2:00 P.M. on the date such payment is due. The applicable Borrower shall
give the Agent not less than one (1) Business Day's prior written notice of any
payment of principal, such notice to be given prior to 2:00 P.M. and to specify
the date the payment will be made and the Loan to which payment relates. In the
case of Loans made in Euros or Dollars to any Borrower, the
33
Agent may, but shall not be obligated to, debit the amount of such payment from
any one or more ordinary deposit accounts of such Borrower with the Agent. Any
such payment shall not be deemed to be received until the time such funds become
available. Interest shall continue to accrue at the Default Rate on any
principal or fees as to which no payment is made from the date such amount was
due and payable until the date such funds become available.
(b) In the event that any payment hereunder or under any of the Notes
becomes due and payable on a day other than a Business Day, then such due date
shall be extended to the next succeeding Business Day unless provided otherwise
under the definition of "Interest Period"; provided, however, that interest
shall continue to accrue during the period of any such extension; and provided
further, however, that in no event shall any such due date be extended beyond
the RC Termination Date, the TL$ Maturity Date or the TLE Maturity Date, as
the case may be.
3.6. Fees.
(a) Commitment Fees. (i) For the period beginning on and including the
Closing Date and ending on (but excluding) the RC Termination Date, the RC
Borrowers agree, jointly and severally, to pay to the Agent, for the pro rata
benefit of the RC Lenders based on their Applicable Commitment Percentages, a
commitment fee calculated at a rate per annum equal at all times to 30% of the
Applicable Margin with respect to the RC Facility from time to time in effect
multiplied by the Total Available RC Commitment in effect from time to time
during the period for which payment is made. Such fees shall be due in arrears
on the last Business Day of each March, June, September and December commencing
December 31, 2005 to and on the RC Termination Date. Notwithstanding the
foregoing, so long as any Lender fails to make available any portion of its RC
Commitment when requested, such Lender shall not be entitled to receive payment
of its pro rata share of such fee until such Lender shall make available such
portion.
(ii) For the period beginning on and including the Closing Date and
ending on (but excluding) the date (the "TL$ Commitment Fee Payment Date") which
is the earlier of (x) the date of borrowing of the TL$ Loans under the TL$
Commitments and (y) December 31, 2005, the TL$ Borrower agrees to pay to the
Agent, for the pro rata benefit of the TL$ Lenders based on their Applicable
Commitment Percentages, a commitment fee at a rate per annum equal to 0.05%
multiplied by the Total TL$ Commitment in effect during the period for which
payment is made. Such fees shall be due on the TL$ Commitment Fee Payment Date.
Notwithstanding the foregoing, so long as any TL$ Lender fails to make available
any portion of its TL$ Commitment when requested, such TL$ Lender shall not be
entitled to receive payment of its pro rata share of such fee until such Lender
shall make available such portion.
(iii) For the period beginning on and including the Closing Date and
ending on (but excluding) the date (the "TLE Commitment Fee Payment Date")
which is the earlier of (x) the date of borrowing of the TLE Loans under
the TLE Commitments and (y) December 31, 2005, the TLE Borrower agrees
to pay to the Agent, for the pro rata benefit of the TLE Lenders based on
their Applicable Commitment Percentages, a commitment fee at a rate per annum
equal to 0.05% multiplied by the Total TLE Commitment in effect during the
period for which payment is made. Such fees shall be due on the TLE
Commitment Fee Payment Date.
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Notwithstanding the foregoing, so long as any TLE Lender fails to make
available any portion of its TLE Commitment when requested, such TLE
Lender shall not be entitled to receive payment of its pro rata share of such
fee until such Lender shall make available such portion.
(b) Utilization Fee. For the period beginning on and including the
Closing Date and ending on (but excluding) the RC Termination Date, for each day
on which the RC Outstandings exceed sixty-six and two-thirds percent (66 2/3%)
of the Total RC Commitment, the RC Borrowers agree, jointly and severally, to
pay to the Agent, for the pro rata benefit of the RC Lenders based on their
respective Applicable Commitment Percentages, a utilization fee calculated at a
rate per annum equal to .05% of all RC Outstandings on such day. Such fees shall
be due in arrears on the last Business Day of each March, June, September and
December, commencing on the first of such days to occur after any utilization
fee shall have accrued and become payable to and on the RC Termination Date.
(c) Administrative Fees. The Borrowers agree, jointly and severally,
to pay to the Agent, for the Agent's individual account, an annual
administrative fee, such fee to be payable in such amounts and at such dates as
from time to time agreed to by the Guarantor and Agent in writing.
3.7. Payments to Agent for Lenders. Except as otherwise specified herein,
(i) each payment on account of the principal of and interest on Loans and the
fees described in Section 3.6, shall be made to the Agent for the account of the
applicable Lenders pro rata based on their Applicable Commitment Percentages,
and (ii) the Agent will promptly distribute to the applicable Lenders, in
immediately available funds payments received in fully collected, immediately
available funds from the applicable Borrower.
3.8. Computation of Rates and Fees. Except as may be otherwise expressly
provided, interest rates (including each Fixed Rate and the Default Rate) and
fees shall be computed on the basis of a year of 360 days and calculated for
actual days elapsed.
3.9. Deficiency Advances; Failure to Purchase Participations. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan hereunder, nor shall the RC
Commitment, TLE Commitment or TL$ Commitment of any Lender hereunder be
increased as a result of such default of any other Lender. Without limiting the
generality of the foregoing, in the event any Lender shall fail to make any Loan
to any Borrower as herein provided, the Agent may in its discretion, but shall
not be obligated to, advance in its favor as a Lender all or any portion of such
Loan (each, a "deficiency advance") and shall thereafter be entitled to payments
of principal of and interest on such deficiency advance in the same manner and
at the same interest rate or rates to which such defaulting Lender would have
been entitled had it made such Loan; provided that (i) such defaulting Lender
shall not be entitled to receive payments of principal, interest or fees with
respect to such deficiency advance until such deficiency advance shall be paid
by such defaulting Lender and (ii) upon payment to the Agent from such
defaulting Lender of the entire outstanding amount of each such deficiency
advance, together with accrued and unpaid interest thereon, from the most recent
date or dates interest was paid to the Agent by a Borrower on each Loan
comprising the deficiency advance at the interest rate per annum for overnight
borrowing by the Agent from the Federal Reserve Bank, then such payment shall be
credited against the applicable
35
Loan of the Agent in full payment of such deficiency advance and such Borrower
shall be deemed to have borrowed the amount of such deficiency advance from such
other Lender as of the most recent date or dates, as the case may be, upon which
any payments of interest were made by such Borrower thereon.
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1. Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any applicable law,
rule, or regulation, or any change in any applicable law, rule, or regulation
(other than any such adoption or change relating to Taxes or Other Taxes, the
compensation for which is governed by Section 4.5), or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office) with any
request or directive (whether or not having the force of law) of any such
Governmental Authority, central bank, or comparable agency:
(i) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the reserve
requirement contemplated by Section 4.1(c)(ii)) relating to any extensions
of credit or other assets of, or any deposits with or other liabilities or
commitments of, such Lender (or its Applicable Lending Office), including
the RC Commitment, TLE Commitment or TL$ Commitment of such Lender
hereunder; or
(ii) shall impose on such Lender (or its Applicable Lending Office) or
on the London interbank market any other condition affecting this Agreement
or its Note or any of such extensions of credit or liabilities or
commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Continuing, or maintaining any
Fixed Rate Loans or to reduce any sum received or receivable by such Lender (or
its Applicable Lending Office) under this Agreement or its Note with respect to
any Fixed Rate Loans, then the applicable Borrower or Borrowers shall pay to
such Lender within 15 days of demand for such amount or amounts as will
compensate such Lender for such increased cost or reduction. If any Lender
requests compensation by any Borrower under this Section 4.1(a), such Borrower
may, by notice to such Lender (with a copy to the Agent), suspend the obligation
of such Lender to make or Continue Loans of the Type with respect to which such
compensation is requested until the event or condition giving rise to such
request ceases to be in effect (in which case the provisions of Section 4.4
shall be applicable); provided that such suspension shall not affect the right
of such Lender to receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have determined that
the adoption of any applicable law, rule, or regulation regarding capital
adequacy or any change therein or in the interpretation or administration
thereof by any Governmental Authority, central
36
bank, or comparable agency charged with the interpretation or administration
thereof, or any request or directive regarding capital adequacy (whether or not
having the force of law) of any such Governmental Authority, central bank, or
comparable agency, has or would have the effect of reducing the rate of return
on the capital of such Lender or any corporation controlling such Lender as a
consequence of such Lender's obligations hereunder to a level below that which
such Lender or such corporation could have achieved but for such adoption,
change, request, or directive (taking into consideration its policies with
respect to capital adequacy), then from time to time within 15 days after demand
by such Lender (with a copy to the Agent) the applicable Borrower or Borrowers
shall pay to such Lender such additional amount or amounts as will compensate
such Lender for such reduction.
(c) Each Lender shall promptly notify the applicable Borrower or
Borrowers and the Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Lender to compensation pursuant to this
Section 4.1 and will designate a different Applicable Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the judgment of such Lender, be otherwise disadvantageous to
it. Any Lender claiming compensation under this Section 4.1 shall furnish to the
applicable Borrower or Borrowers and the Agent a statement setting forth the
additional amount or amounts to be paid to it hereunder and the calculation
thereof in reasonable detail which shall be conclusive in the absence of
manifest error. In determining such amount, such Lender may use any reasonable
averaging and attribution methods.
(i) Failure or delay on the part of any Lender to demand compensation
for any increased costs or reduction in amounts received or receivable or
reduction in return on capital shall not constitute a waiver of such
Lender's right to demand such compensation; provided that the applicable
Borrower or Borrowers shall not be under any obligation to compensate any
Lender under clauses (a) or (b) above with respect to increased costs or
reduction in return on capital with respect to any period prior to the date
that is three months prior to such request if such Lender knew or could
reasonably have been expected to be aware of the circumstances giving rise
to such increased costs or reductions in return on capital and of the fact
that such circumstances would in fact result in a claim for increased
compensation by reason of such increased costs or reductions in capital;
provided further that the foregoing limitation shall not apply to any
increased costs or reductions in return on capital arising out of the
retroactive application of any law, rule, guideline or directive as
aforesaid within such three-month period.
(ii) The applicable Borrower shall pay to each Lender, as long as such
Lender shall be required to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency funds or deposits
(currently known as "Eurocurrency liabilities"), additional interest on the
unpaid principal amount of each Euribor Rate Loan and of each Offshore Rate
Loan, as applicable, equal to the actual costs of such reserves allocated
to such Loan by such Lender (as determined by such Lender in good faith,
which determination shall be conclusive), excluding any costs included in
the definition of Mandatory Costs, which shall be due and payable on each
date on which interest is payable on such Loan, provided such Borrower
shall have received at least 15 days' prior notice (with a copy to the
Agent) of such additional interest from such Lender. If a
37
Lender fails to give notice 15 days prior to the relevant Interest Payment
Date, such additional interest shall be due and payable 15 days from
receipt of such notice.
4.2. Inability to Determine Interest Rate. If on or prior to the first day
of any Interest Period for any Fixed Rate Loan:
(a) the Agent determines (which determination shall be conclusive)
that by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Euribor Rate for such
Interest Period or the Offshore Rate for one or more Alternative Currencies
for such Interest Period; or
(b) the Majority Facility Lenders under any Facility determine (which
determination shall be conclusive) and notify the Agent that the Euribor
Rate or the Offshore Rate for one or more Alternative Currencies will not
adequately and fairly reflect the cost to the Lenders of funding or
maintaining Fixed Rate Loans under such Facility for such Interest Period
(any currency affected by the circumstances described in clause (a) or (b)
is referred to as an "Affected Currency");
then the Agent shall give telecopy or telephonic notice thereof to the
applicable Borrower or Borrowers and the applicable Lenders as soon as
practicable thereafter. If such notice is given, and unless an alternate rate is
determined as set forth below, then (i) any such Loans in an Affected Currency
requested to be made on the first day of such Interest Period shall not be made,
(ii) any outstanding Loans in an Affected Currency shall be due and payable on
the last day of the then-current Interest Period with respect thereto, and (iii)
until such notice has been withdrawn by the Agent, no further Loans in an
Affected Currency shall be made or Continued as such. Notwithstanding the
foregoing, as promptly as practicable but in no event later than three Business
Days after the giving of the required notice by the Agent with respect to such
circumstances, the Agent (in consultation with the applicable Lenders) shall
negotiate with the applicable Borrower or Borrowers in good faith to ascertain
whether a substitute interest rate (a "Substitute Rate") may be agreed upon for
the maintaining of Loans in the Affected Currency. If a Substitute Rate is
agreed upon by the applicable Borrower or Borrowers and all the affected
Lenders, such Substitute Rate shall apply. If a Substitute Rate is not so agreed
upon by the applicable Borrower or Borrowers and all the affected Lenders within
such time, each affected Lender's Loans in the Affected Currency shall
thereafter bear interest at a rate equal to the sum of (i) the rate certified by
such affected Lender to be its costs of funds (from such sources as it may
reasonably select out of those sources then available to it) for such Loans,
plus (ii) the Applicable Margin plus (iii) any Mandatory Cost incurred by such
affected Lender in respect of such Loans from time to time.
4.3. Illegality. Notwithstanding any other provision of this Agreement, in
the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Euribor Rate Loans or Offshore Rate Loans
hereunder, then such Lender shall promptly notify the applicable Borrower or
Borrowers thereof, and such Lender's obligation to make Euribor Rate Loans or
Offshore Rate Loans, as the case may be, shall be suspended until the
circumstances giving rise to suspension no longer exist, and each such Euribor
Rate Loan or Offshore Rate Loan, as the case may be, then outstanding shall be
due and payable on the last day of the then current Interest Period with respect
thereto.
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4.4. Compensation. Upon the request of any Lender (with a copy to the
Agent), the applicable Borrower or Borrowers shall promptly pay to such Lender
such amount or amounts as shall be sufficient (in the reasonable opinion of such
Lender) to compensate it for any loss, cost, or expense (excluding loss of
anticipated profits) incurred by it as a result of:
(a) any payment or prepayment of a Fixed Rate Loan for any reason
(except as set forth in Section 2.2(c)), including, without limitation, the
acceleration of the Loans pursuant to Section 9.1, on a date other than the
last day of the Interest Period for such Loan; or
(b) any failure by any Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in Article V
to be satisfied) to borrow, Continue, or prepay a Fixed Rate Loan on the
date for such borrowing, Continuation, or prepayment specified in the
relevant notice of borrowing, prepayment or Continuation under this
Agreement;
including any loss or expense arising from the liquidation or reemployment of
funds obtained by it to maintain such Loan or from fees payable to terminate the
deposits from which such funds were obtained.
4.5. Taxes. (a) Any and all payments by the Guarantor or any Borrower to or
for the account of any Lender or the Agent hereunder or under any other Loan
Document shall be made free and clear of and without deduction for any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding (x) in the
case of each Lender and the Agent, taxes imposed on its income, and franchise or
similar taxes (including branch profit taxes) imposed on it, by the jurisdiction
under the laws of which such Lender (or its Applicable Lending Office) or the
Agent (as the case may be) is organized or any political subdivision thereof and
(y) in the case of each Lender and the Agent, taxes imposed by reason of any
present or former connection between such Lender or the Agent and the
jurisdiction imposing such taxes, other than solely as a result of this
Agreement or any transaction contemplated hereby (all such taxes, duties,
levies, imposts, deductions, charges, withholdings, and liabilities not excluded
in (x) and (y) being hereinafter referred to as "Taxes"). If the Guarantor or
any Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable under this Agreement or any other Loan Document to any Lender or
the Agent, (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 4.5) such Lender or the Agent receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Guarantor or such Borrower, as the case may be, shall make such deductions,
(iii) the Guarantor or such Borrower, as the case may be, shall pay the full
amount deducted to the relevant taxation authority or other authority in
accordance with applicable law, and (iv) within thirty days after the date of
such payment, the Guarantor or such Borrower, as the case may be, shall furnish
to the Agent, at its address referred to in Section 12.2, the original or a
certified copy of a receipt evidencing payment thereof or, if such receipt is
not legally available, any other document evidencing payment thereof that is
reasonably satisfactory to such Lender.
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(b) In addition, the Guarantor and the Borrowers agree, jointly and
severally, to pay any and all present or future stamp or documentary taxes and
any other excise or property taxes or charges or similar levies which arise from
any payment made under this Agreement or any other Loan Document or from the
execution or delivery of, or otherwise with respect to, this Agreement or any
other Loan Document (hereinafter referred to as "Other Taxes").
(c) The Guarantor and the Borrowers agree, jointly and severally, to
indemnify each Lender and the Agent for the full amount of Taxes and Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed or asserted by
any jurisdiction on amounts payable under this Section 4.5) paid by such Lender
or the Agent (as the case may be) and any liability (including penalties,
interest, and expenses) arising therefrom or with respect thereto.
Indemnification shall be made within 15 days of the date of demand therefor.
(d) Each Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Lender is
located, or any treaty to which such jurisdiction is a party, with respect to
payments under this Agreement shall, at the reasonable request of the applicable
Borrower or Borrowers, deliver to the applicable Borrower or Borrowers (with a
copy to the Agent), at such time or times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law as
will permit such payments to be made without withholding or at a reduced rate.
Each Lender, on the date of its execution and delivery of this Agreement in the
case of each such Lender listed on the signature pages hereof and on the date on
which it becomes a Lender in the case of each such other Lender, represents and
warrants to the Agent, each Borrower and the Guarantor that as of such date
payments to its Applicable Lending Offices under this Agreement are exempt from
withholding tax under the law of the jurisdiction or jurisdictions in which such
Lender or its Applicable Lending Offices is or are located or any treaty to
which any such jurisdiction is a party. Upon the request of any Lender, the
Borrowers will make such factual representations as may be reasonably required
by such Lender in order to enable such Lender to make such representation and
warranty.
(e) For any period with respect to which a Lender has failed to
provide the applicable Borrower or Borrowers and the Agent with the appropriate
form pursuant to Section 4.5(d) (unless such failure is due to a change in
treaty, law, or regulation occurring subsequent to the date on which a form
originally was required to be provided), such Lender shall not be entitled to
indemnification under Section 4.5(a) or 4.5(b) with respect to Taxes; provided,
however, that should a Lender, which is otherwise exempt from or subject to a
reduced rate of withholding tax, become subject to Taxes because of its failure
to deliver a form required hereunder, such Borrower or Borrowers shall take such
steps as such Lender shall reasonably request to assist such Lender to recover
such Taxes.
(f) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 4.5 shall survive the termination of the Commitments and the
payment in full of the Notes.
(g) If any Lender receives a refund or credit from a taxation
authority (such credit to include any increase in any foreign tax credit) in
respect of any Taxes or Other Taxes for which it has been indemnified by a
Borrower or with respect to which a Borrower has paid
40
additional amounts hereunder, it shall within 30 days from the date of such
receipt pay over the amount of such refund, credit or other reduction (including
any interest paid or credited by the relevant taxing authority or Governmental
Authority with respect to such refund, credit or other reduction) to such
Borrower (but only to the extent of indemnity payments made, or additional
amounts paid, by such Borrower with respect to the Taxes or Other Taxes giving
rise to such refund or credit), net of all reasonable out-of-pocket third party
expenses of such Lender related to claiming such refund or credit and without
interest (other than interest paid by the relevant taxation authority with
respect to such refund or credit); provided, however, that such Borrower agrees
to repay, upon the request of such Lender, the amount paid over to the Borrower
(plus penalties, interest or other charges) to such Lender in the event such
Lender is required to repay such refund or credit to such taxation authority.
4.6. Change of Lending Office. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of Section 4.1, 4.2(b) or 4.5 with
respect to such Lender, it will, if requested by the applicable Borrower, use
reasonable efforts (subject to overall policy considerations of such Lender) to
designate another lending office for any Loans affected by such event with the
object of avoiding the consequences of such event; provided, that such
designation is made on terms that, in the sole judgment of such Lender, cause
such Lender and its lending office(s) to suffer no economic, legal or regulatory
disadvantage, and provided, further, that nothing in this Section 4.6 shall
affect or postpone any of the obligations of such Borrower or the rights of any
Lender pursuant to Section 4.1, 4.2(b) or 4.5.
4.7. Substitution of Lenders. Upon the receipt by a Borrower or Borrowers
from any Lender (an "Affected Lender") of a claim under Section 4.1, 4.2(b) or
4.5 or a request for payment of Mandatory Costs, such Borrower or Borrowers may:
(a) request one or more of the other Lenders to acquire and assume all or part
of such Affected Lender's Loans and Commitments; or (b) replace such Affected
Lender by designating another Lender or a financial institution that is willing
to acquire such Loans and assume such Commitments; provided that (i) such
replacement does not conflict with any requirement of law, (ii) no Default or
Event of Default shall have occurred and be continuing at the time of such
replacement, (iii) such Borrower or Borrowers shall repay (or the replacement
bank or financial institution shall purchase, at par) all Loans, accrued
interest and other amounts owing to such replaced Lender prior to the date of
replacement, (iv) such Borrower or Borrowers shall be liable to such replaced
Lender under Section 4.4 if any Fixed Rate Loan owing to such replaced Lender
shall be prepaid (or purchased) other than on the last day of the Interest
Period relating thereto, (v) the replacement bank or institution, if not already
a Lender, shall otherwise qualify as an Eligible Assignee, (vi) the replaced
Lender shall be obligated to make such replacement in accordance with the
provisions of Section 12.1 (provided that such Borrower or Borrowers or
replacement Lender shall be obligated to pay the registration and processing
fee) and (vii) such Borrower or Borrowers shall pay all additional amounts (if
any) required pursuant to Section 4.1, 4.2(b) or 4.5, as the case may be, and
all Mandatory Costs to the extent such additional amounts and Mandatory Costs of
such Affected Lender were incurred on or prior to the consummation of such
replacement.
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ARTICLE V
CONDITIONS TO MAKING LOANS
5.1. Conditions of Closing. The obligation of the Lenders to make the
initial Loans requested to be made by it is subject to the conditions precedent
that:
(a) the Agent shall have received on the Closing Date, in form and
substance satisfactory to the Agent, the following:
(i) executed originals of each of this Agreement, any Notes requested
prior to the Closing Date and the other Loan Documents, together with all
schedules and exhibits thereto;
(ii) the favorable written opinion or opinions with respect to the
Loan Documents and the transactions contemplated thereby of (i) Candace S.
Cummings, Vice President & General Counsel of the Guarantor, (ii) Davis
Polk & Wardwell, special counsel to the Guarantor, (iii) Loyens Winandy,
local counsel to VF Investments, (iv) Baker & McKenzie CVBA/SCRL, local
counsel to VF Europe, (v) Fairbairn Catley Low & Kong, local counsel to VF
Asia and (vi) Baker & McKenzie Zurich, local counsel to VF International,
in each case, dated the Closing Date, addressed to the Agent and the
Lenders and satisfactory to the Agent and to Simpson Thacher & Bartlett
LLP, special counsel to the Agent;
(iii) resolutions of the board of directors or other appropriate
governing body (or of the appropriate committee thereof) of the Guarantor
and of each Borrower certified by such entity's secretary or assistant
secretary or any Authorized Representative of such entity as of the Closing
Date, approving and adopting the Loan Documents to be executed by the
Guarantor and each Borrower, as applicable, and authorizing the execution
and delivery thereof;
(iv) specimen signatures of officers or other appropriate
representatives executing the Loan Documents on behalf of the Guarantor and
each Borrower, certified by the secretary or assistant secretary or any
Authorized Representative of the Guarantor and each Borrower, as
applicable;
(v) the Organizational Documents of the Guarantor and each Borrower
certified as of a recent date by the Secretary of State or other
appropriate Governmental Authority of the jurisdiction of its organization
or by an Authorized Representative of the Guarantor or such Borrower, as
the case may be;
(vi) the by-laws or articles of association of the Guarantor and each
Borrower certified as of the Closing Date as true and correct by such
entity's secretary or assistant secretary or any Authorized Representative
of such entity;
(vii) to the extent applicable and available in the relevant
jurisdiction, a certificate issued as of a recent date by the Secretary of
State or other appropriate Governmental Authority of the jurisdiction of
formation of the Guarantor and each
42
Borrower as to the due existence and good standing of the Guarantor and
each Borrower, as applicable;
(viii) notice of appointment of the initial Authorized Representative
of the Guarantor and each Borrower;
(ix) a certificate of an Authorized Representative of the Guarantor
dated the Closing Date demonstrating compliance with the covenants
contained in Sections 8.1, 8.2(i) and 8.3(e) as of the end of the fiscal
quarter for which financial statements are publicly available most recently
ended prior to the Closing Date, substantially in the form of Exhibit G;
(x) evidence that all fees payable by the Guarantor and the Borrowers
on the Closing Date to the Agent and the Lenders have been paid in full;
(xi) a certificate of the Guarantor certifying that (A) as of the
Closing Date, each of the representations and warranties set forth in
Article VI is true and correct, (B) after giving effect to the Closing Date
and all Loans to be made on the Closing Date, there will be no Default or
Event of Default under this Agreement, and (C) except as disclosed in any
reports or financial statements filed with the Securities and Exchange
Commission prior to September 13, 2005, as of the Closing Date there shall
not have occurred a material adverse change since January 1, 2005 in the
business, financial position or results of operations of the Guarantor and
its Subsidiaries, taken as a whole; and
(xii) such other documents, instruments, certificates and opinions as
the Agent or any Lender may reasonably request on or prior to the Closing
Date in connection with the consummation of the transactions contemplated
hereby.
5.2. Conditions to Each Loan. The obligations of the Lenders to make any
Loan on or subsequent to the Closing Date are subject to the satisfaction of the
following conditions:
(a) the Agent shall have received a Borrowing Notice;
(b) the representations and warranties of the Guarantor set forth in
Article VI and in each of the other Loan Documents shall be true and correct in
all material respects on and as of the date of such Loan, with the same effect
as though such representations and warranties had been made on and as of such
date, except to the extent that such representations and warranties expressly
relate to an earlier date and except that the financial statements referred to
in Section 6.5 shall be deemed to be those financial statements most recently
delivered to the Agent and the Lenders pursuant to Section 7.1 from the date
financial statements are delivered to the Agent and the Lenders in accordance
with such Section;
(c) at the time of (and after giving effect to) each Loan, no Default
or Event of Default shall have occurred and be continuing; and
43
(d) immediately after giving effect to an RC Loan, the aggregate Euro
Equivalent Amount of the principal balance of all outstanding RC Loans for each
Lender shall not exceed such Lender's RC Commitment.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Guarantor represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
6.1. Corporate Existence and Power. The Guarantor and each Borrower is a
corporation duly incorporated, validly existing and, to the extent applicable in
the relevant jurisdiction, in good standing under the laws of the jurisdiction
of its organization, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
6.2. Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Guarantor and each Borrower, as
applicable, of this Agreement and the Notes are within such entity's corporate
powers, have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Guarantor or any Borrower or of any agreement, judgment, injunction,
order, decree or other instrument binding upon the Guarantor or any of its
Subsidiaries or result in the creation or imposition of any Lien on any asset of
the Guarantor or any of its Subsidiaries.
6.3. Material Subsidiaries. Each of the Guarantor's Material Subsidiaries
is a corporation, limited liability company or partnership, as the case may be,
duly organized and validly existing under the laws of the jurisdiction of its
formation, and has the requisite powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
6.4. Binding Effect. This Agreement constitutes a valid and binding
agreement of the Guarantor and each Borrower, and each Note, when executed and
delivered in accordance with this Agreement, will constitute a valid and binding
obligation of the relevant Borrower, in each case enforceable in accordance with
its terms.
6.5. Financial Information. (a) The consolidated balance sheet of the
Guarantor and its Subsidiaries as of January 1, 2005 and the related
consolidated statements of income, retained earnings and cash flow for the
fiscal year then ended, reported on by PriceWaterhouseCoopers LLP and set forth
in the Guarantor's Form 10-K for the fiscal year then ending, a copy of which
has been delivered to each of the Lenders, fairly present, in conformity with
GAAP, the consolidated financial position of the Guarantor and its Subsidiaries
as of such date and their consolidated results of operations and cash flows for
such fiscal year.
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(b) The unaudited consolidated balance sheet of the Guarantor and its
Subsidiaries as of July 2, 2005 and the related unaudited consolidated
statements of income and cash flows for the six months then ended, set forth in
the Guarantor's quarterly report for the fiscal quarter ended July 2, 2005 as
filed with the Securities and Exchange Commission on Form 10-Q, a copy of which
has been delivered to each of the Lenders, fairly present, in conformity with
GAAP applied on a Consistent Basis, the consolidated financial position of the
Guarantor and its Subsidiaries as of such date and their consolidated results of
operations and cash flows for such six-month period (subject to normal year-end
adjustments).
6.6. Litigation. There is no action, suit or proceeding pending against, or
to the knowledge of the Guarantor threatened against or affecting, the Guarantor
or any of its Subsidiaries before any court or arbitrator or any governmental
body, agency or official which could reasonably be expected to have a Material
Adverse Effect, or which in any manner draws into question the validity of this
Agreement or the Notes.
6.7. Compliance with ERISA. Each member of the ERISA Group has fulfilled
its obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan.
No member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan or Multiemployer
Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Code or (iii) incurred any liability under Title IV of ERISA other
than a liability to the PBGC for premiums under Section 4007 of ERISA, in each
case that could reasonably be expected to have a Material Adverse Effect.
6.8. Environmental Matters. In the ordinary course of its business, the
Guarantor conducts periodic reviews, which it considers prudent and reasonable
in light of the nature of the business, of the effect of Environmental Laws on
the business, operations and properties of the Guarantor and its Subsidiaries,
in the course of which it identifies and evaluates associated liabilities and
costs (including, without limitation, any capital or operating expenditures
required for clean-up or closure of properties presently or previously owned,
any capital or operating expenditures required to achieve or maintain compliance
with environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat and any actual
or potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of this review, the Guarantor has reasonably
concluded that Environmental Laws are unlikely to have a Material Adverse
Effect.
6.9. Taxes. The Guarantor and its Significant Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Guarantor or any
Significant Subsidiary, except for such amounts as may be contested in good
faith by appropriate proceedings, so long as collection thereof is effectively
stayed. The
45
charges, accruals and reserves on the books of the Guarantor and its
Subsidiaries in respect of taxes or other governmental charges are, in the
reasonable opinion of the Guarantor, adequate.
6.10. Margin Stock. The proceeds of the borrowings made hereunder will be
used by the Borrowers only for the purposes expressly authorized herein. None of
such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any Margin Stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
Margin Stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose" credit within the meaning of Regulation U or
Regulation X (12 C.F.R. Part 221) of the Board; provided, however that the
Guarantor or any Borrower may purchase (i) its own stock and (ii) Margin Stock
in connection with an Acquisition so long as, following the application of the
proceeds of each borrowing hereunder, not more than twenty-five percent (25%) of
the value of the assets of the Guarantor or such Borrower, as the case may be,
and its Subsidiaries on a consolidated basis will be Margin Stock. Neither the
Guarantor or any Borrower nor any agent acting in its behalf has taken or will
take any action which might cause this Agreement or any of the documents or
instruments delivered pursuant hereto to violate any regulation of the Board or
to violate the Securities Exchange Act of 1934, as amended, or the Securities
Act of 1933, as amended, or any state securities laws, in each case as in effect
on the date hereof.
6.11. Investment Company. Neither the Guarantor nor any Borrower is an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
6.12. Full Disclosure. All information heretofore furnished by the
Guarantor, or furnished by any Borrower and confirmed by the Guarantor, to the
Agent or any Lender for purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all such information hereafter furnished
by the Guarantor, or furnished by any Borrower and confirmed by the Guarantor,
to the Agent or any Lender will be, true and accurate in every material respect
or based on reasonable estimates on the date as of which such information is
stated or certified. The Guarantor has disclosed to the Lenders in writing any
and all facts which materially and adversely affect or may affect (to the extent
the Guarantor can now reasonably foresee), the business, properties, operations
or condition, financial or otherwise, of the Guarantor and its Subsidiaries,
considered as a whole, or the ability of the Guarantor or any Borrower to
perform its respective obligations under this Agreement.
6.13. No Consents, Etc. Neither the respective businesses or properties of
the Guarantor or any Subsidiary, nor any relationship among the Guarantor or any
Subsidiary and any other Person, nor any circumstance in connection with the
execution, delivery and performance of the Loan Documents and the transactions
contemplated thereby, is such as to require a consent, approval or authorization
of, or filing, registration or qualification with, any Governmental Authority or
any other Person on the part of the Guarantor or any Borrower as a condition to
the execution, delivery and performance of, or consummation of the transactions
contemplated by the Loan Documents, which, if not obtained or effected, would be
reasonably likely to have a Material Adverse Effect, or if so, such consent,
approval, authorization, filing, registration or qualification has been duly
obtained or effected, as the case may be, except that the registration in
Luxembourg of the Loan Documents (and/or any document in connection therewith)
with the Administration de l'Enregistrement et des Domaines may be required in
the
46
case of legal proceedings before Luxembourg courts (if competent) or, in the
case that the Loan Documents (and/or any document in connection therewith) must
be produced before an official Luxembourg authority, in which case either a
nominal registration duty or an ad valorem duty (or, for instance, 0.24 (zero
point twenty four) per cent of the amount of the payment obligation mentioned in
the document so registered) will be payable depending on the nature of the
document to be registered.
6.14. Tax Shelter Regulations. Neither the Guarantor nor any Borrower
intends to treat the Loans as being a "reportable transaction" (within the
meaning of Treasury Regulation Section 1.6011-4). In the event the Guarantor or
any Borrower determines to take any action inconsistent with such intention, it
will promptly notify the Agent thereof. If the Guarantor or any Borrower so
notifies the Agent, the Guarantor and the Borrowers acknowledges that one or
more of the Lenders may treat its Loans as part of a transaction that is subject
to Treasury Regulation Section 301.6112-1, and such Lender or Lenders, as
applicable, will maintain the lists and other records required by such Treasury
Regulation.
ARTICLE VII
AFFIRMATIVE COVENANTS
As long as any Commitment remains in effect or any Loan or other amount is
owing to any Lender or the Agent hereunder, unless the Required Lenders shall
otherwise consent in writing:
7.1. Financial Reports, Etc. The Guarantor will deliver to each of the
Lenders:
(a) as soon as available and in any event within 90 days after the end
of each fiscal year of the Guarantor, a consolidated balance sheet of the
Guarantor and its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all prepared in accordance with GAAP applied on a
Consistent Basis and containing opinions of PriceWaterhouseCoopers LLP, or other
such independent certified public accountants of nationally recognized standing,
which are unqualified as to the scope of the audit performed and as to the
"going concern" status of the Guarantor;
(b) as soon as available and in any event within 45 days after the end
of each of the first three quarters of each fiscal year of the Guarantor, a
consolidated balance sheet of the Guarantor and its Subsidiaries as of the end
of such quarter and the related consolidated statements of income for such
quarter and of income and cash flows for the portion of the Guarantor's fiscal
year ended at the end of such quarter, setting forth in each case in comparative
form the figures for the corresponding quarter and the corresponding portion of
the Guarantor's previous fiscal year, all certified (subject to normal year-end
adjustments) as to fairness of presentation, generally accepted accounting
principles and consistency by an Authorized Representative of the Guarantor;
47
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of an
Authorized Representative of the Guarantor (i) setting forth in reasonable
detail the calculations required to establish whether the Guarantor was in
compliance with the requirements of Sections 8.1, 8.2(i) and 8.3(e) on the date
of such financial statements and (ii) stating whether there exists on the date
of such certificate any Default or Event of Default and, if any Default or Event
of Default then exists, setting forth the details thereof and the action which
the Guarantor is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i) advising
whether anything has come to their attention to cause then to believe that there
existed on the date of such statements any Default or Event of Default and (ii)
confirming the calculations set forth in the officer's certificate delivered
simultaneously therewith pursuant to clause (c) above;
(e) forthwith upon the occurrence of any Default or Event of Default,
a certificate of an Authorized Representative of the Guarantor setting forth the
details thereof and the action which the Guarantor is taking or proposes to take
with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Guarantor generally, copies of all financial statements, reports and proxy
statements so mailed;
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements on
Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and 8-K (or their
equivalents) which the Guarantor shall have filed with the Securities and
Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section 4043
of ERISA) with respect to any Plan which might constitute grounds for a
termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice that it has incurred
complete or partial withdrawal liability under Title IV of ERISA or notice that
any Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC under
Title IV of ERISA of an intent to terminate, impose liability (other than for
premiums under Section 4007 of ERISA) in respect of, or appoint a trustee to
administer, any Plan, a copy of such notice; (iv) applies for a waiver of the
minimum funding standard under Section 412 of the Code, a copy of such
application; (v) gives notice of intent to terminate any Plan under Section
404l(c) of ERISA, a copy of such notice and other information filed with the
PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063 of
ERISA, a copy of such notice; or (vii) fails to make any payment or contribution
to any Plan or Multiemployer Plan or in respect of any Benefit Arrangement or
makes any amendment to any Plan or Benefit Arrangement which has resulted or
could result in the imposition of a Lien or the posting of a bond or other
security, a certificate of an Authorized Representative of the Guarantor setting
forth details as to such occurrence and the action, if any, which the Guarantor
or applicable
48
member of the ERISA Group is required or proposes to take with respect thereto;
provided that no such delivery referred to in clauses (i) through (vii) above
shall be required unless the event described in the applicable clause could
reasonably be expected to have a Material Adverse Effect;
(i) if the Guarantor or any Borrower has notified the Agent of any
intention by the Guarantor or such Borrower to treat the Loans as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4), the Guarantor or such Borrower, as the case may be, shall deliver to
the Agent a duly completed copy of IRS Form 8886 or any successor form promptly
after the Guarantor or such Borrower files such form with the IRS; and
(j) from time to time such additional information regarding the
financial position or business of the Guarantor and its Subsidiaries as the
Agent or any Lender may reasonably request.
Documents required to be delivered pursuant to Section 7.1(a), (b) or (g)
may be delivered electronically and, if so delivered, shall be deemed to have
been delivered on the date on which such documents are posted (or a link thereto
is provided) on the Guarantor's website on the Internet at www.vfc.com, at
www.sec.gov/edgar/searchedgar/webusers.htm (the Central Index Key as of the date
of this Agreement for the Guarantor being 0000103379), or on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender
and the Agent have access (whether a commercial, third-party website or whether
sponsored by the Agent), in each case so long as such documents are generally
available without charge to the Agent and each of the Lenders at such locations;
provided that: (x) the Guarantor shall deliver paper copies of such documents to
the Agent or any Lender that requests the Guarantor to deliver such paper copies
until a written request to cease delivering paper copies is given by the Agent
or such Lender and (y) the Guarantor shall notify (which may be by facsimile or
electronic mail) the Agent and each Lender of the posting of any such documents
and provide to the Agent by electronic mail electronic versions (i.e., soft
copies) of such documents. Notwithstanding anything contained herein, in every
instance the Guarantor shall be required to provide paper copies of the
certificates required by Section 7.1(c) to the Agent. Except for such
certificates required by Section 7.1(c), the Agent shall have no obligation to
request the delivery or to maintain copies of the documents referred to above,
and in any event shall have no responsibility to monitor compliance by the
Guarantor with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
7.2. Payment of Taxes. The Guarantor will pay, and will cause each
Significant Subsidiary to pay, all their respective tax liabilities, except
where the same may be contested in good faith by appropriate proceedings, and
will maintain, and will cause each Significant Subsidiary to maintain, in
accordance with generally accepted accounting principles, appropriate reserves
for the accrual of the same.
7.3. Maintenance of Properties; Insurance. The Guarantor will keep, and
will cause each Significant Subsidiary to keep, all material property useful and
necessary in its business in good working order and condition, ordinary wear and
tear excepted; will maintain, and will cause each Significant Subsidiary to
maintain (either in the name of the Guarantor or in such
49
Significant Subsidiary's own name) with financially sound and reputable
insurance companies, insurance on all their property in at least such amounts
and against at least such risks as are usually insured against in the same
general area by companies of established repute engaged in the same or a similar
business; provided that the Guarantor shall have the right to self-insure or use
a captive insurer in order to meet such insurance requirements so long as the
Guarantor or such captive insurer provides the Lenders with reasonable proof of
financial responsibility. The Guarantor will furnish to the Lenders, upon
written request from the Agent, full information as to the insurance carried.
7.4. Compliance with Laws. The Guarantor will comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except where (i) the necessity of compliance therewith
is contested in good faith by appropriate proceedings or (ii) appropriate steps
are being taken to correct any failure to comply therewith and such failure does
not have a Material Adverse Effect.
7.5. Books and Records. The Guarantor will, and will cause each Significant
Subsidiary to, (a) maintain proper books of record and account, in which full,
true and correct entries in conformity with GAAP consistently applied shall be
made of all financial transactions and matters involving the assets and business
of the Guarantor or such Significant Subsidiary, as the case may be; and (b)
maintain such books of record and account in material conformity with all
applicable requirements of any Governmental Authority having regulatory
jurisdiction over the Guarantor or such Significant Subsidiary, as the case may
be.
ARTICLE VIII
NEGATIVE COVENANTS
As long as any Commitment remains in effect or any Loan or other amount is
owing to any Lender or the Agent hereunder, unless the Required Lenders shall
otherwise consent in writing, the Guarantor will not, nor will it permit any
Subsidiary to:
8.1. Consolidated Indebtedness to Consolidated Capitalization. Permit the
ratio of Consolidated Indebtedness to Consolidated Capitalization to be greater
than 0.60 to 1.00 at any time.
8.2. Liens. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect to any property or assets now
owned or hereafter acquired by the Guarantor or any Subsidiary, other than
(a) Liens existing on the date of this Agreement securing Indebtedness
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $50,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such event;
50
(c) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Guarantor or a Subsidiary
and not created in contemplation of such event;
(d) any Lien existing on any asset prior to the acquisition thereof by
the Guarantor or a Subsidiary and not created in contemplation of such
acquisition;
(e) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, provided that such Lien attaches to such asset concurrently with or
within 90 days after the acquisition thereof;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by clauses (a)
through (e) above provided that such Indebtedness is not increased and is not
secured by any additional assets;
(g) Liens arising in the ordinary course of business which (i) do not
secure Indebtedness, (ii) do not secure any obligation in an amount exceeding
$50,000,000 and (iii) do not in the aggregate materially detract from the value
of its assets or materially impair the use thereof in the operations of its
business;
(h) Liens on assets of a Subsidiary securing Indebtedness owed to the
Guarantor or a Wholly Owned Subsidiary; and
(i) Liens not otherwise permitted by the foregoing clauses securing
Indebtedness in an aggregate principal amount at any time not to exceed 5% of
Consolidated Net Worth.
8.3. Indebtedness of Subsidiaries. Incur, create, assume or permit to exist
any Indebtedness of any Subsidiary of the Guarantor, howsoever evidenced,
except:
(a) Indebtedness of any corporation outstanding at the time such
corporation becomes a Subsidiary and not created in contemplation of such event;
(b) Indebtedness of any corporation outstanding at the time such
corporation is merged or consolidated with or into a Subsidiary and not created
in contemplation of such event;
(c) Indebtedness secured by a Lien permitted by Section 8.2 hereof;
(d) Indebtedness owing to the Guarantor or a Wholly Owned Subsidiary;
and
(e) Indebtedness not otherwise permitted by the foregoing clauses of
this Section in an aggregate outstanding principal amount for all Subsidiaries
at no time exceeding $450,000,000.
The foregoing is subject to the further limitations that (i) for purposes
of this Section, any preferred stock of a Subsidiary held by a Person other than
the Guarantor or a Wholly Owned Subsidiary shall be included, at the higher of
its voluntary or involuntary liquidation value, in the
51
Indebtedness of such Subsidiary and (ii) Indebtedness permitted by this Section
does not include a refunding, renewal or extension of such Indebtedness so that
any such new Indebtedness must fall independently within one of the above
exceptions.
8.4. Consolidations, Mergers and Sales of Assets. The Guarantor will not
(i) consolidate or merge with or into any other Person; provided that the
Guarantor may merge with another Person if (A) the Guarantor is the corporation
surviving such merger and is not a subsidiary of another person and (B)
immediately after giving effect to such merger, no Default or Event of Default
shall have occurred and be continuing; or (ii) sell, lease or otherwise
transfer, directly or indirectly, all or substantially all of its assets to any
other Person, except for sales, leases and other transfers to a Wholly Owned
Subsidiary; provided that nothing in this Section 8.4 shall be construed to
prohibit or limit the ability of the Guarantor or any Subsidiary to dispose of
Margin Stock for fair market value.
8.5. Change in Control. Cause, suffer or permit to exist or occur any
Change of Control.
ARTICLE IX
EVENTS OF DEFAULT AND ACCELERATION
9.1. Events of Default. If any one or more of the following events (herein
called "Events of Default") shall occur for any reason whatsoever (and whether
such occurrence shall be voluntary or involuntary or come about or be effected
by operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any Governmental
Authority), that is to say:
(a) if default shall be made in the due and punctual payment of the
principal of any Loan, when and as the same shall be due and payable whether
pursuant to any provision of Article II or Article III, at maturity, by
acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of any
amount of interest on any Loan or other Obligation or of any fees or other
amounts payable to any of the Lenders or the Agent within five days of the date
on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance of any
covenant set forth in Article VIII; or
(d) if a default shall be made in the performance or observance of, or
shall occur under, any covenant, agreement or provision contained in this
Agreement or the Notes (other than as described in clauses (a), (b) or (c)
above) and such default shall continue for 30 or more days after the earlier of
(i) receipt of notice of such default by an Authorized Representative of the
Guarantor from the Agent and (ii) the date on which an officer or Authorized
Representative of the Guarantor becomes aware of such default, or if without the
written consent of the Lenders, this Agreement or any Note shall be disaffirmed
or shall terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than as expressly provided for
hereunder or thereunder); or
52
(e) if there shall occur (i) a default, which is not waived or cured
within any applicable grace periods, in the payment of any principal, interest,
premium or other amount with respect to any Indebtedness (other than the Loans
and other Obligations and other than Indebtedness owed to the Guarantor or any
Subsidiary) of the Guarantor or any Subsidiary in an amount not less than
$50,000,000 in the aggregate outstanding, or (ii) any event of default as
specified in any agreement or instrument under or pursuant to which any such
Indebtedness in excess of $50,000,000 may have been issued, created, assumed,
guaranteed or secured by the Guarantor or any Subsidiary, and such default or
event of default shall continue for more than the period of grace, if any,
therein specified, and such default or event of default shall permit the holder
of any such Indebtedness (or any agent or trustee acting on behalf of one or
more holders) to accelerate the maturity thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report or
statement at any time furnished to the Agent or any Lender by or on behalf of
the Guarantor or any Subsidiary pursuant to or in connection with any Loan
Document, or otherwise, shall be false or misleading in any material respect
when given; or
(g) if the Guarantor or any Significant Subsidiary shall be unable to
pay its debts generally as they become due; file a petition to take advantage of
any insolvency statute; make an assignment for the benefit of its creditors;
commence a proceeding for the appointment of a receiver, trustee, liquidator or
conservator of itself or of the whole or any substantial part of its property;
file a petition or answer seeking liquidation, reorganization or arrangement or
similar relief under the federal bankruptcy laws or any other applicable law or
statute, domestic or foreign; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee, liquidator or
conservator of the Guarantor or any Significant Subsidiary or of the whole or
any substantial part of its properties and such order, judgment or decree
continues unstayed and in effect for a period of sixty (60) days, or approve a
petition filed against the Guarantor or any Significant Subsidiary seeking
liquidation, reorganization or arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United States of
America or any state thereof or any other jurisdiction, domestic or foreign,
which petition is not dismissed within sixty (60) days; or if, under the
provisions of any other law for the relief or aid of debtors, a court of
competent jurisdiction shall assume custody or control of the Guarantor or any
Significant Subsidiary or of the whole or any substantial part of its
properties, which control is not relinquished within sixty (60) days; or if
there is commenced against the Guarantor or any Significant Subsidiary any
proceeding or petition seeking reorganization, arrangement or similar relief
under the federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state thereof or any other jurisdiction,
domestic or foreign which proceeding or petition remains undismissed for a
period of sixty (60) days; or if the Guarantor or any Significant Subsidiary
takes any action to indicate its consent to or approval of any such proceeding
or petition; or
(i) if (i) any judgment or order where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is in excess
of $50,000,000 is rendered against the Guarantor or any Subsidiary, or (ii)
there is any attachment, injunction or execution
53
against any of the Guarantor's or Subsidiaries' properties for any amount in
excess of $50,000,000; and such judgment, attachment, injunction or execution
remains unpaid, unstayed, undischarged, unbonded or undismissed for a period of
thirty (30) days; or
(j) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $50,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV or ERISA by any member of the ERISA
Group, any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate, to impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or to cause a trustee to be appointed to administer any Material Plan; or a
condition shall exist by reason of which the PBGC would be entitled to obtain a
decree adjudicating that any Material Plan must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could reasonably be expected to cause one or more members of the ERISA
Group to incur a payment obligation in excess of $50,000,000;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be taken: (i) the
Agent may, and at the direction of the Required Lenders shall, declare
any obligation of the Lenders to make further Loans terminated,
whereupon the obligation of each Lender to make further Loans
hereunder shall terminate immediately, and (ii) the Agent shall at the
direction of the Required Lenders, at their option, declare by notice
to the Guarantor any or all of the Obligations to be immediately due
and payable, and the same, including all interest accrued thereon and
all other obligations of the Guarantor and the Borrowers to the Agent
and the Lenders, shall forthwith become immediately due and payable
without presentment, demand, protest, notice or other formality of any
kind, all of which are hereby expressly waived, anything contained
herein or in any instrument evidencing the Obligations to the contrary
notwithstanding; provided, however, that notwithstanding the above, if
there shall occur an Event of Default under clause (g) or (h) above,
then the obligation of the Lenders to make Loans hereunder shall
automatically terminate and any and all of the Obligations shall be
immediately due and payable without the necessity of any action by the
Agent or the Required Lenders or notice to the Agent or the Lenders;
and
(B) the Agent and each of the Lenders shall have all of the
rights and remedies available under the Loan Documents or under any
applicable law.
9.2. Agent to Act. In case any one or more Events of Default shall occur
and not have been waived, the Agent may, and at the direction of the Required
Lenders shall, proceed to protect and enforce their rights or remedies either by
suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
54
9.3. Cumulative Rights. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
9.4. No Waiver. No course of dealing between the Guarantor or any Borrower,
on the one hand, and any Lender or the Agent, on the other hand, or any failure
or delay on the part of any Lender or the Agent in exercising any rights or
remedies under any Loan Document or otherwise available to it shall operate as a
waiver of any rights or remedies and no single or partial exercise of any rights
or remedies shall operate as a waiver or preclude the exercise of any other
rights or remedies hereunder or of the same right or remedy on a future
occasion.
9.5. Allocation of Proceeds. If an Event of Default has occurred and not
been waived, and the maturity of the Notes has been accelerated pursuant to
Article IX hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Guarantor or any Borrower hereunder, shall be applied by the Agent in the
following order:
(a) amounts due to the Lenders pursuant to Sections 3.6(a) and 12.5;
(b) amounts due to the Agent pursuant to Section 3.6(b);
(c) payments of interest on Loans to be applied for the ratable
benefit of the Lenders;
(d) payments of principal of Loans, to be applied for the ratable
benefit of the Lenders;
(e) amounts due to the Agent and the Lenders pursuant to Section 12.9;
(f) payments of all other amounts due under any of the Loan Documents,
if any, to be applied for the ratable benefit of the Lenders;
(g) any surplus remaining after application as provided for herein, to
the Borrowers or otherwise as may be required by applicable law.
ARTICLE X
THE AGENT
10.1. Appointment, Powers, and Immunities. Each Lender hereby irrevocably
appoints and authorizes the Agent to act as its agent under this Agreement and
the other Loan Documents with such powers and discretion as are specifically
delegated to the Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Agent (which term as used in this sentence and in Section 10.5 and the first
sentence of Section 10.6 hereof shall include its affiliates and its own and its
affiliates' officers, directors, employees, and agents):
55
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a trustee or fiduciary
for any Lender (it being understood, without limiting the generality of the
foregoing, that the use of the term "agent" herein and in the other Loan
Documents with reference to the Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable law, and instead such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative relationship
between independent contracting parties);
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made in or in
connection with any Loan Document or any certificate or other document referred
to or provided for in, or received by any of them under, any Loan Document, or
for the value, validity, effectiveness, genuineness, enforceability, or
sufficiency of any Loan Document, or any other document referred to or provided
for therein or for any failure by the Guarantor, any Borrower or any other
Person to perform any of its obligations thereunder;
(c) shall not be responsible for or have any duty to ascertain,
inquire into, or verify the performance or observance of any covenants or
agreements by the Guarantor or any Borrower or the satisfaction of any condition
or to inspect the property (including the books and records) of the Guarantor or
any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any litigation or
collection proceedings under any Loan Document;
(e) shall not be responsible for any action taken or omitted to be
taken by it under or in connection with any Loan Document, except for its own
gross negligence or willful misconduct; and
(f) shall not be obligated to carry out any "know your customer" or
other checks in relation to any person on behalf of any Lender and each Lender
confirms to the Agent that it is solely responsible for any such checks it is
required to carry out and that it may not rely on any statement in relation to
such checks made by the Agent.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact that it
selects in the absence of gross negligence or willful misconduct.
10.2. Reliance by Agent. The Agent shall be entitled to rely, and shall be
fully protected in relying, upon any certification, notice, instrument, writing,
or other communication (including, without limitation, any thereof by telephone
or telefacsimile) believed by it to be genuine and correct and to have been
signed, sent or made by or on behalf of the proper Person or Persons, and upon
advice and statements of legal counsel (including counsel for the Guarantor and
the Borrowers), independent accountants, and other experts selected by the
Agent. The Agent may deem and treat the payee of any Note as the holder thereof
for all purposes hereof unless and until the Agent receives and accepts an
Assignment and Assumption executed in accordance with Section 12.1 hereof. As to
any matters not expressly provided for by this
56
Agreement, the Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from acting (and shall be
fully protected in so acting or refraining from acting) upon the instructions of
the Required Lenders, and such instructions shall be binding on all of the
Lenders; provided, however, that the Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to any
Loan Document or applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking any such action.
For purposes of determining compliance with the conditions specified in
Section 5.1 hereof, each Lender that has signed this Agreement shall be deemed
to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
10.3. Defaults. The Agent shall not be deemed to have knowledge or notice
of the occurrence of a Default or Event of Default unless the Agent has received
written notice from a Lender, the Guarantor or any Borrower specifying such
Default or Event of Default and stating that such notice is a "Notice of
Default". In the event that the Agent receives such a notice of the occurrence
of a Default or Event of Default, the Agent shall give prompt written notice
thereof to the Lenders. The Agent shall (subject to Sections 10.2 and 12.6
hereof) take such action with respect to such Default or Event of Default as
shall reasonably be directed by the Required Lenders, provided that, unless and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem advisable in the
best interest of the Lenders.
10.4. Rights as Lender. With respect to its Commitments and the Loans made
by it, ABN AMRO (and any successor acting as Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as any other Lender
and may exercise the same as though it were not acting as the Agent, and the
term "Lender" or "Lenders" shall, unless the context otherwise indicates,
include the Agent in its individual capacity. ABN AMRO (and any successor acting
as Agent) and its affiliates may (without having to account therefor to any
Lender) accept deposits from, lend money to, make investments in, provide
services to, and generally engage in any kind of lending, trust, or other
business with the Guarantor or any of its Subsidiaries or affiliates as if it
were not acting as Agent, and ABN AMRO (and any successor acting as Agent) and
its affiliates may accept fees and other consideration from the Guarantor or any
of its Subsidiaries or affiliates for services in connection with this Agreement
or otherwise without having to account for the same to the Lenders.
10.5. Indemnification. Whether or not the transactions contemplated hereby
are consummated, the Lenders shall indemnify upon demand each Agent-Related
Person (to the extent not reimbursed by or on behalf of the Borrowers and
without limiting the obligation of the Borrowers to do so), pro rata, and hold
harmless each Agent-Related Person from and against any and all Indemnified
Liabilities incurred by it; provided, however, that no Lender shall be liable
for the payment to any Agent-Related Person of any portion of such Indemnified
57
Liabilities to the extent determined in a final, nonappealable judgment by a
court of competent jurisdiction to have resulted from such Agent-Related
Person's own gross negligence or willful misconduct; provided, however, that no
action taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of this
Section. Without limitation of the foregoing, each Lender shall reimburse the
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including fees and expenses of legal counsel) incurred by the Agent in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Loan Document, or any document
contemplated by or referred to herein, to the extent that the Agent is not
reimbursed for such expenses by or on behalf of the Borrowers. The undertaking
in this Section shall survive termination of the Commitments, the payment of all
other Obligations and the resignation of the Agent.
10.6. Non-Reliance on Agent and Other Lenders. Each Lender agrees that it
has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Guarantor and its Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of the
Guarantor or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
10.7. Resignation of Agent. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Guarantor. Upon any such
resignation, the Required Lenders shall have the right (with the consent of the
Guarantor) to appoint a successor Agent. If no successor Agent shall have been
so appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Lenders and with the
consent of the Guarantor, appoint a successor Agent which shall be a commercial
bank organized under the laws of the United States of America or any state
thereof having combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this Article
X shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
10.8. Syndication Agent and Documentation Agent. The Syndication Agent and
the Documentation Agent shall have no duties or responsibilities under this
Agreement other than their duties as Lenders. The Syndication Agent and the
Documentation Agent shall be entitled to the benefit of indemnification under
Sections 10.5 and 12.9 hereof to the extent necessary.
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10.9. Agent May File Proofs of Claim. In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement,
adjustment, composition or other judicial proceeding relative to the Guarantor
or any Borrower, the Agent (irrespective of whether the principal of any Loan
shall then be due and payable as herein expressed or by declaration or otherwise
and irrespective of whether the Agent shall have made any demand on the
Guarantor or any such Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans and all other Obligations
that are owing and unpaid and to file such other documents as may be necessary
or advisable in order to have the claims of the Lenders and the Agent (including
any claim for the reasonable compensation, expenses, disbursements and advances
of the Lenders and the Agent and their respective agents and counsel and all
other amounts due the Lenders and the Agent under Sections 3.6 and 12.5) allowed
in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Agent and, in the event that the Agent
shall consent to the making of such payments directly to the Lenders, to pay to
the Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Agent and its agents and counsel, and any
other amounts due the Agent under Sections 3.6 and 12.5.
Nothing contained herein shall be deemed to authorize the Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the Obligations
or the rights of any Lender or to authorize the Agent to vote in respect of the
claim of any Lender in any such proceeding.
ARTICLE XI
GUARANTEE
11.1. Guarantee. (a) To induce the Lenders to execute and deliver this
Agreement and to make the Loans, and in consideration thereof, the Guarantor
hereby unconditionally and irrevocably guarantees to the Agent, for the ratable
benefit of the Lenders and their respective successors, indorsees and assigns,
the prompt and complete payment and performance when due (whether at the stated
maturity, by acceleration or otherwise) of the Obligations.
(b) Anything herein to the contrary notwithstanding, the maximum
liability of the Guarantor hereunder shall in no event exceed the amount which
can be guaranteed by the Guarantor under applicable federal and state laws
relating to the insolvency of debtors.
(c) The guarantee contained in this Article XI shall remain in full
force and effect and be binding in accordance with and to the extent of its
terms upon the Guarantor and
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the successors and assigns thereof, and shall inure to the benefit of the
Lenders and their successors and permitted assigns, until all the Obligations
shall have been satisfied by payment in full and the Commitments shall be
terminated, notwithstanding that from time to time during the term of this
Agreement the Borrowers may be free from any Obligations.
11.2. No Subrogation. Notwithstanding any payment made by the Guarantor
hereunder or any set-off or application of funds of the Guarantor by the Agent
or any Lender, the Guarantor shall not be entitled to be subrogated to any of
the rights of the Agent or any Lender against any Borrower or any collateral
security or guarantee or right of offset held by the Agent or any Lender for the
payment of the Obligations, nor shall the Guarantor seek or be entitled to seek
any contribution or reimbursement from any Borrower in respect of payments made
by the Guarantor hereunder, until all amounts owing to the Agent and the Lenders
by any Borrower on account of the Obligations are paid in full and the
Commitments are terminated. If any amount shall be paid to the Guarantor on
account of such subrogation rights at any time when all of the Obligations shall
not have been paid in full or the Commitments shall not have been terminated,
such amount shall be held by the Guarantor in trust for the Agent and the
Lenders and shall, forthwith upon receipt by the Guarantor, be turned over to
the Agent in the exact form received by the Guarantor (duly indorsed by the
Guarantor to the Agent, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Agent may determine.
11.3. Amendments, etc. with respect to the Obligations. The Guarantor shall
remain obligated hereunder notwithstanding that, without any reservation of
rights against the Guarantor and without notice to or further assent by the
Guarantor, any demand for payment of any of the Obligations made by the Agent or
any Lender may be rescinded by the Agent or such Lender and any of the
Obligations continued, and the Obligations, or the liability of any other Person
upon or for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, may, from time to time, in whole or in
part, be renewed, extended, amended, modified, accelerated, compromised, waived,
surrendered or released by the Agent or any Lender, and this Agreement and the
Notes and any other documents executed and delivered in connection therewith may
be amended, modified, supplemented or terminated, in whole or in part, including
with respect to any condition precedent, as the Agent (or the Required Lenders
or all Lenders, as the case may be) may deem advisable from time to time, and
any collateral security, guarantee or right of offset at any time held by the
Agent or any Lender for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. Neither the Agent nor any Lender shall have any
obligation to protect, secure, perfect or insure any Lien at any time held by it
as security for the Obligations or for the guarantee contained in this Article
XI or any property subject thereto.
11.4. Guarantee Absolute and Unconditional. Except as otherwise required by
this Agreement, the Guarantor waives any and all notice of the creation,
renewal, extension or accrual of any of the Obligations and notice of or proof
of reliance by the Agent or any Lender upon the guarantee contained in this
Article XI or acceptance of the guarantee contained in this Article XI; the
Obligations, and any of them, shall conclusively be deemed to have been created,
contracted or incurred, or renewed, extended, amended or waived, in reliance
upon the guarantee contained in this Article XI; and all dealings between the
Borrowers and the Guarantor, on the one hand, and the Agent and the Lenders, on
the other hand, likewise shall be conclusively presumed to have been had or
consummated in reliance upon the guarantee contained in this
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Article XI. To the fullest extent permitted by applicable law, the Guarantor
waives diligence, presentment, protest, demand for payment and notice of default
or nonpayment to or upon any Borrower or the Guarantor with respect to the
Obligations. The Guarantor understands and agrees that the guarantee contained
in this Article XI shall be construed as a continuing, absolute and
unconditional guarantee of payment without regard to (a) the validity or
enforceability of the obligations of the Borrowers under this Agreement or any
Note, any of the Obligations or any other collateral security therefor or
guarantee or right of offset with respect thereto at any time or from time to
time held by the Agent or any Lender, (b) any defense, set-off or counterclaim
(other than a defense of payment or performance) which may at any time be
available to or be asserted by any Borrower or any other Person against the
Agent or any Lender, or (c) any other circumstance whatsoever (with or without
notice to or knowledge of the Borrowers or the Guarantor) which constitutes, or
might be construed to constitute, an equitable or legal discharge of the
Borrowers for the Obligations, or of the Guarantor under the guarantee contained
in this Article XI, in bankruptcy or in any other instance. When making any
demand hereunder or otherwise pursuing its rights and remedies hereunder against
the Guarantor the Agent or any Lender may, but shall be under no obligation to,
make a similar demand on or otherwise pursue such rights and remedies as it may
have against any Borrower, or any other Person or against any collateral
security or guarantee for the Obligations or any right of offset with respect
thereto, and any failure by the Agent or any Lender to make any such demand, to
pursue such other rights or remedies or to collect any payments from the
Borrowers, or any other Person or to realize upon any such collateral security
or guarantee or to exercise any such right of offset, or any release of any
Borrower, or any other Person or any such collateral security, guarantee or
right of offset, shall not relieve the Guarantor of any obligation or liability
hereunder, and shall not impair or affect the rights and remedies, whether
express, implied or available as a matter of law, of the Agent or any Lender
against the Guarantor. For the purposes hereof "demand" shall include the
commencement and continuance of any legal proceedings.
11.5. Reinstatement. The guarantee contained in this Article XI shall
continue to be effective, or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any of the Obligations is rescinded or must
otherwise be restored or returned by the Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Borrower or the Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
Borrower or the Guarantor or any substantial part of its property, or otherwise,
all as though such payments had not been made.
11.6. Payments. The Guarantor hereby guarantees that payments hereunder
will be paid to the Agent without set-off or counterclaim in the applicable
currency at the Principal Office.
11.7. Independent Obligations. The obligations of the Guarantor under the
guarantee contained in this Article XI are independent of the obligations of the
Borrowers, and a separate action or actions may be brought and prosecuted
against the Guarantor whether or not any Borrower is joined in any such action
or actions. The Guarantor waives, to the fullest extent permitted by law, the
benefit of any statute of limitations affecting its liability hereunder or the
enforcement thereof.
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ARTICLE XII
MISCELLANEOUS
12.1. Assignments and Participations.
(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, except that neither the Guarantor nor any Borrower may assign
or otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender, and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection (d)
of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of subsection (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in subsection (d)
of this Section and, to the extent expressly contemplated hereby, the
Indemnified Parties) any legal or equitable right, remedy or claim under or by
reason of this Agreement.
(b) Subject to Section 12.1(h), any Lender may at any time assign to
one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including all or a portion of its Commitment or
Commitments and the Loan or Loans at the time owing to it); provided that (i)
except in the case of an assignment of the entire remaining amount of the
assigning Lender's Commitment and Loans at the time owing to it or in the case
of an assignment to a Lender or an Affiliate of a Lender or an Approved Fund (as
defined in subsection (g) of this Section) with respect to a Lender, the
aggregate amount of the RC Commitment (which for this purpose includes RC Loans
outstanding thereunder), TL$ Commitment (or TL$ Loans) and TLE Commitment (or
TLE Loans) subject to each such assignment, determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to the
Agent or, if "Trade Date" is specified in the Assignment and Assumption, as of
the Trade Date, shall not be less than E5,000,000 (or its equivalent) or an
integral multiple of E5,000,000 (or its equivalent) in excess thereof, unless
each of the Agent and, so long as no Event of Default under Section 9.1(a), (b),
(g) or (h) has occurred and is continuing, the Guarantor otherwise consents
(each such consent not to be unreasonably withheld or delayed); (ii) 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 with respect
to the Loans and the Commitment assigned; (iii) any assignment of an RC
Commitment must be approved (which approval shall not be unreasonably withheld
or delayed) by the Agent unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise qualify as
an Eligible Assignee); and (iv) the parties to each assignment shall execute and
deliver to the Agent an Assignment and Assumption, together with a processing
and recordation fee of $3,500. Subject to acceptance and recording thereof by
the Agent pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the Eligible
Assignee thereunder shall be a party to this Agreement and, to the extent of the
interest assigned by such Assignment and Assumption, have
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the rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
4.1, 4.4, 4.5, 12.5 and 12.9 with respect to facts and circumstances occurring
prior to the effective date of such assignment). Upon request, each applicable
Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection 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 subsection (d) of this Section.
Notwithstanding the foregoing, (x) the Agent shall not be obligated to consent
to an assignment hereunder until it is satisfied it has complied with all
necessary "know your customer" or other similar checks under all applicable laws
and regulations in relation to the assignment to such assignee Lender and (y) an
assignment will only be effective after performance by the Agent of all "know
your customer" or other checks relating to any person that it is required to
carry out in relation to such assignment to an assignee Lender, the completion
of which the Agent shall promptly notify to the assigning Lender and the
assignee Lender.
(c) The Agent, acting solely for this purpose as an agent of the
Borrowers, shall maintain at the Agent's Applicable Lending Office 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 Commitments of,
and principal amounts of the Loans 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 Guarantor, the Borrowers, the Agent 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
Guarantor, the Borrowers and any Lender, at any reasonable time and from time to
time upon reasonable prior notice.
(d) Subject to Section 12.1(h), any Lender may at any time, without
the consent of, or (except as set forth below in this subsection (d)) notice to,
the Guarantor, any Borrower or the Agent, sell participations to any Person
(other than a natural person or the Guarantor or any of the Guarantor's
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of such
Lender's rights and/or obligations under this Agreement (including all or a
portion of its Commitment and/or the Loans owing to it); provided that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Guarantor, the Borrowers, the
Agent 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. Each Lender selling a participation shall notify the Guarantor and
the Borrowers of the identity of the participant and the amount of the
participation, provided that the failure of any Lender to give such notice shall
not affect the validity of such sale or the rights of the participant hereunder.
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
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the Participant, agree to any amendment, waiver or other modification described
in the first proviso to Section 12.6 that directly affects such Participant.
Subject to subsection (e) of this Section, the Borrowers agree that each
Participant shall be entitled to the benefits of Sections 4.1 and 4.4 to the
same extent as if it were a Lender and had acquired its interest by assignment
pursuant to subsection (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 12.3(a) as though
it were a Lender, provided such Participant agrees to be subject to Section
12.3(b) as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment
under Section 4.1 or 4.5 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 Guarantor's prior
written consent. No Participant shall be entitled to the benefits of Section 4.5
unless the Guarantor is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Guarantor, to provide such
forms, certificates or other evidence, if any, with respect to withholding tax
matters as required under Section 4.5(d).
(f) Subject to Section 12.1(h), any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement (including under its Note, if any) to secure obligations of such
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such
Lender from any of its obligations hereunder or substitute any such pledgee or
assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c)
an Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Agent (which approval shall be subject to the last sentence
of Section 12.1(b) and shall not be unreasonably withheld) and (ii) unless an
Event of Default under Section 9.1(a), (b), (g) or (h) has occurred and is
continuing, the Guarantor (each such approval not to be unreasonably withheld or
delayed); provided that notwithstanding the foregoing, "Eligible Assignee" shall
not include the Guarantor or any of the Guarantor's Affiliates or Subsidiaries.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business.
"Approved Fund" means any Fund 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.
(h) Notwithstanding anything to the contrary in this Section 12.1, a
Lender may not assign, sell participations in or pledge or assign a security
interest in all or any portion or its rights and obligations under this
Agreement (each such action, a "Transfer"), if as a result thereof:
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(i) the total number of creditors (other than Qualifying Banks (as
defined below)) of VF International under this Agreement would at any time
exceed 10, in each case in accordance with the meaning of the Guidelines
(as defined below); or
(ii) the total number of creditors (other than Qualifying Banks) in
relation to all outstanding loans or written debt acknowledgements
(including Loans) of VF International would at any time exceed 20, in each
case in accordance with the meaning of the Guidelines.
For purposes of this Section 12.1(h), "Guidelines" means the guidelines in
relation to bonds of April 1999 as issued by the Swiss Federal Tax
Administration (Merkblatt "Obligationen" vom April 1999 der Eidgenossischen
Steuerverwaltung), and "Qualifying Bank" means (i) a bank as defined in the
Swiss Federal Law of 8 November 1934 relating to banks and savings institutions,
or (ii) any other person that is a bank according to the banking legislation in
effect in its jurisdiction of organization.
Upon the reasonable request of any Lender in connection with any such
proposed Transfer, VF International and (in the case of clause (x) below only)
the Agent will notify such Lender of the total number of creditors (other than
Qualifying Banks) of VF International of which it is aware (x) under this
Agreement and (y) in relation to all outstanding loans or written debt
acknowledgements (including Loans), in each case in accordance with the meaning
of the Guidelines. No Transfer shall be valid for any purpose unless the Lender
proposing to make such transfer has notified VF International thereof and VF
International has confirmed to such Lender in writing that such transfer will
not violate this Section 12.1(h). VF International agrees to respond to any such
notification promptly following its receipt thereof.
Each Lender hereby represents and warrants that, on the date hereof, it is
a Qualifying Bank. VF International hereby represents and warrants that, on the
date hereof, to the best of its knowledge, the total number of its creditors
(other than Qualifying Banks) in relation to all outstanding loans or written
debt acknowledgements (including Loans) does not exceed 20. VF International
hereby covenants and agrees that, so long as any Loans are outstanding to it, it
will not permit the total number of its creditors (other than Qualifying Banks)
in relation to all outstanding loans or written debt acknowledgements (including
Loans) to exceed 20.
12.2. Notices. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice by telefacsimile (where the proper transmission of such notice is
either acknowledged by the recipient or electronically confirmed by the
transmitting device), or (iii) on the fifth Business Day after the day on which
mailed to such party, if sent prepaid by certified or registered mail, return
receipt requested (provided that any document produced by VF Investments shall
also comply with the requirements of the Luxembourg Companies Act), in each case
delivered, transmitted or mailed, as the case may be, to the address or
telefacsimile number, as appropriate, set forth below or such other address or
number as such party shall specify by notice hereunder:
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(a) if to the Guarantor:
V.F. Corporation
105 Corporate Center Boulevard
Greensboro, North Carolina 27408
Attn: Frank C. Pickard, III, Vice President-Treasurer
Telephone: (336) 424-6000
Telefacsimile: (336) 424-7630
(b) if to VF Investments:
VF Investments S.a.r.l.
2, rue Joseph Hackin
L-1746 Luxembourg
Attention: Eric Tazzieri - Administrator
Phone: 011 352 427171249
Fax: 011 352 421961
e-mail: etazzieri@equitytrust.com
with a copy to:
V.F. Corporation
105 Corporate Center Boulevard
Greensboro, North Carolina 27408
Attn: Frank C. Pickard, III, Vice President-Treasurer
Telephone: (336) 424-6000
Telefacsimile: (336) 424-7630
(c) if to VF Europe:
VF Europe BVBA
Fountain Business Park
C. Van Kerckhovenstraat, 110
Bldg. 2/4
B-2880 Bornem
Belgium
Attnention: Neil Wright - Chief Financial Officer
Phone: 011.32.3298.2013
Fax: 011.32.3298.2010
e-mail: neil_wright@vfc.com
with a copy to:
V.F. Corporation
105 Corporate Center Boulevard
Greensboro, North Carolina 27408
Attn: Frank C. Pickard, III, Vice President-Treasurer
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Telephone: (336) 424-6000
Telefacsimile: (336) 424-7630
(d) if to VF Asia:
VF Asia Limited
Flat B, 10th Floor, Kader Building
22 Kai Cheung Road, Kowloon Bay
Kowloon
Hong Kong
Attention: Patrick Ku - Chief Financial Officer/Vice President Asia
Shared Services
Phone: 011.852.2953.2288
Fax: 011.852.2318.1787
e-mail: patrick_ku@vfc.com
with a copy to:
V.F. Corporation
105 Corporate Center Boulevard
Greensboro, North Carolina 27408
Attn: Frank C. Pickard, III, Vice President-Treasurer
Telephone: (336) 424-6000
Telefacsimile: (336) 424-7630
(e) if to VF International:
VF International Sagl
Via Senago, 42/e
Centro Open Space 01, Stabile C
6912 Pazzallo
Switzerland
Attention: Allen Ramsay - Chief Financial Officer
Phone: 011.41.91.960.92.00
Fax: 011.41.91.960.93.00
e-mail: ramsaya@vfc.com
with a copy to:
V.F. Corporation
105 Corporate Center Boulevard
Greensboro, North Carolina 27408
Attn: Frank C. Pickard, III, Vice President-Treasurer
Telephone: (336) 424-6000
Telefacsimile: (336) 424-7630
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(f) if to the Agent:
ABN AMRO Bank N.V.
540 West Madison Street, Suite 2131
Chicago, Illinois 60661-2591
Attention: Agency Services
Telephone: 312-992-5082
Telefacsimile: 312-601-3611
with a copy to:
ABN AMRO Bank N.V.
350 Park Avenue, 3rd Floor
New York, New York 10055
Attention: Chris Plumb
Telephone: 212-251-3788
Telefacsimile: 212-251-3593
(g) if to the Lenders:
At the addresses set forth in an administrative questionnaire
delivered to the Agent.
12.3. Right of Set-off; Adjustments. (a) Upon the occurrence and during the
continuance of any Event of Default, 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 indebtedness at
any time owing by such Lender (or any of its affiliates) to or for the credit or
the account of the Guarantor or any Borrower against any and all of the
obligations of the Guarantor or such Borrower, as the case may be, now or
hereafter existing under this Agreement and the Notes held by such Lender,
irrespective of whether such Lender shall have made any demand under this
Agreement or such Notes and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Guarantor or relevant Borrower, as the case
may be, after any such set-off and application made by such Lender; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender under this Section 12.3
are in addition to other rights and remedies (including, without limitation,
other rights of set-off) that such Lender may have.
(b) Except to the extent that this Agreement expressly provides for
payments to be allocated to a particular Lender or Lenders under a particular
Facility, if any Lender (a "benefited Lender") shall at any time receive any
payment of all or part of the Loans owing to it, or interest thereon, or receive
any collateral in respect thereof (whether voluntarily or involuntarily, by
set-off, or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other
Lender's Loans owing to it, or interest thereon, such benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the proceeds thereof,
as
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shall be necessary to cause such benefited Lender to share the excess payment or
benefits of such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess payment or benefits
is thereafter recovered from such benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest. The Guarantor and the Borrowers agree that any
Lender so purchasing a participation from a Lender pursuant to this Section 12.3
may, to the fullest extent permitted by law, exercise all of its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Guarantor or the
relevant Borrower in the amount of such participation.
12.4. Survival. All covenants, agreements, representations and warranties
made herein shall survive the making by the Lenders of the Loans and the
execution and delivery to the Lenders of this Agreement and the Notes and shall
continue in full force and effect so long as any of Obligations remain
outstanding or any Lender has any Commitment hereunder or the Guarantor or any
Borrower has continuing obligations hereunder unless otherwise provided herein.
12.5. Expenses. The Borrowers jointly and severally agree to pay on demand
all reasonable out-of-pocket costs and expenses of the Agent in connection with
the syndication, preparation, execution, delivery, administration, modification,
and amendment of this Agreement, the other Loan Documents, and the other
documents to be delivered hereunder, including, without limitation, the
reasonable fees and expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and responsibilities under
the Loan Documents. If an Event of Default occurs, the Borrowers further jointly
and severally agree to pay on demand all reasonable out-of-pocket costs and
expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable attorneys' fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings, or otherwise) of the Loan
Documents and the other documents to be delivered hereunder.
12.6. Amendments and Waivers. Except as set forth in Sections 2.3 and
2.9(b), any provision of this Agreement or any other Loan Document may be
amended or waived if, but only if, such amendment or waiver is in writing and is
signed by the Guarantor, the Borrowers and either the Required Lenders or (as to
Loan Documents other than the Credit Agreement) the Agent at the direction of
and on behalf of the Required Lenders; provided that no such amendment or waiver
shall, unless signed by all the Lenders affected thereby, (i) increase the
Commitments of the Lenders or the Total RC Commitment (except as provided in
Section 2.3), (ii) reduce the principal of or rate or amount of interest on any
Loan or any fees or other amounts payable hereunder, (iii) postpone any date
fixed for the payment of any scheduled installment of principal of or interest
on any Loan or any fees or other amounts payable hereunder or for termination of
any Commitment, (iv) change the percentage of the applicable Commitments or of
the unpaid principal amount of the Notes, or the number of Lenders, which shall
be required for the Lenders or any of them to take any action under this Section
12.6 or any other provision of this Agreement, (v) change Section 9.5, Section
2.1(e), Section 2.4(d), Section 2.5(d) or Section 12.3 in a manner that would
alter the pro rata sharing of payments or the pro rata reduction of any of the
Commitments required thereby, (v) amend this Section 12.6 or (vi) release the
Guarantor from its obligations under Article XI; and, provided further, that no
amendment, waiver or consent shall, unless in writing and signed by the Agent in
addition to the
69
Lenders required above, affect the rights or duties of the Agent under this
Agreement or any other Loan Document. Notwithstanding anything to the contrary
herein, no defaulting Lender shall have any right to approve or disapprove any
amendment, waiver or consent hereunder, except that the Commitment of such
Lender may not be increased or extended without the consent of such Lender.
No notice to or demand on the Guarantor or any Borrower in any case shall
entitle the Guarantor or any Borrower to any other or further notice or demand
in similar or other circumstances, except as otherwise expressly provided
herein. No delay or omission on any Lender's or the Agent's part in exercising
any right, remedy or option shall operate as a waiver of such or any other
right, remedy or option or of any Default or Event of Default.
12.7. Counterparts. This Agreement and any Loan Document may be executed in
any number of counterparts, each of which when so executed and delivered shall
be deemed an original, and it shall not be necessary in making proof of this
Agreement or any Loan Document to produce or account for more than one such
fully- executed counterpart. Delivery of an executed signature page of this
Agreement or any Loan Document by facsimile transmission shall be effective as
delivery of a manually executed counterpart thereof.
12.8. Termination. The termination of this Agreement shall not affect any
rights of the Guarantor, the Borrowers, the Lenders or the Agent or any
obligation of the Guarantor, the Borrowers, the Lenders or the Agent, arising
prior to the effective date of such termination, and the provisions hereof shall
continue to be fully operative until all transactions entered into or rights
created or obligations incurred prior to such termination have been fully
disposed of, concluded or liquidated and the Obligations arising prior to or
after such termination have been irrevocably paid in full. The rights granted to
the Agent for the benefit of the Lenders under the Loan Documents shall continue
in full force and effect, notwithstanding the termination of this Agreement,
until all of the Obligations have been paid in full after the termination hereof
(other than Obligations in the nature of continuing indemnities or expense
reimbursement obligations not yet due and payable, which shall continue) or the
Guarantor or the Borrowers have furnished the Lenders and the Agent with an
indemnification satisfactory to the Agent and each Lender with respect thereto.
Notwithstanding the foregoing, if after receipt of any payment of all or any
part of the Obligations, any Lender is for any reason compelled to surrender
such payment to any Person because such payment is determined to be void or
voidable as a preference, impermissible setoff, a diversion of trust funds or
for any other reason, this Agreement shall continue in full force, and the
Borrowers shall be liable to, and shall jointly and severally indemnify and hold
the Agent or such Lender harmless for, the amount of such payment surrendered
until the Agent or such Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Agent or
the Lenders in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Agent or the Lenders' rights under this
Agreement and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.
12.9. Indemnification; Limitation of Liability. (a) The Borrowers, to the
maximum extent permitted by applicable law, jointly and severally agree to
indemnify and hold harmless the Agent and each Lender and each of their
affiliates and their respective officers, directors,
70
employees, agents, and advisors (each, an "Indemnified Party") from and against
any and all claims, damages, losses, liabilities, costs, and expenses
(including, without limitation, reasonable attorneys' fees) that may be incurred
by or asserted or awarded against any Indemnified Party, in each case arising
out of or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation, or proceeding or preparation of
defense in connection therewith) the Loan Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Loans
(collectively, "Indemnified Liabilities"), except to the extent such claim,
damage, loss, liability, cost, or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 12.9 applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the Guarantor, any
Borrower or any of their respective directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party is otherwise a
party thereto and whether or not the transactions contemplated hereby are
consummated. The Borrowers agree that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or otherwise) to it,
any of its Subsidiaries, any guarantor, or any security holders or creditors
thereof arising out of, related to or in connection with the transactions
contemplated herein, except to the extent that such liability is found in a
final non-appealable judgment by a court of competent jurisdiction to have
directly resulted from such Indemnified Party's gross negligence or willful
misconduct. The Guarantor and the Borrowers agree not to assert any claim
against the Agent, any Lender, any of their affiliates, or any of their
respective directors, officers, employees, attorneys, agents, and advisers, on
any theory of liability, for special, indirect, consequential, or punitive
damages arising out of or otherwise relating to the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans.
(b) Without prejudice to the survival of any other agreement of the
Borrowers hereunder, the agreements and obligations of the Borrowers contained
in this Section 12.9 shall survive the payment in full of the Loans and all
other amounts payable under this Agreement.
12.10. Severability. If any provision of this Agreement or the other Loan
Documents shall be determined to be illegal or invalid as to one or more of the
parties hereto, then such provision shall remain in effect with respect to all
parties, if any, as to whom such provision is neither illegal nor invalid, and
in any event all other provisions hereof shall remain effective and binding on
the parties hereto.
12.11. Integration. This Agreement, together with the other Loan Documents,
comprises the complete and integrated agreement of the parties on the subject
matter hereof and thereof and supersedes all prior agreements, written or oral,
on such subject matter. In the event of any conflict between the provisions of
this Agreement and those of any other Loan Document, the provisions of this
Agreement shall control; provided that the inclusion of supplemental rights or
remedies in favor of the Agent or the Lenders in any other Loan Document
executed on or after the date of this Agreement shall not be deemed a conflict
with this Agreement. Each Loan Document was drafted with the joint participation
of the respective parties thereto and shall be construed neither against nor in
favor of any party, but rather in accordance with the fair meaning thereof.
71
12.12. Agreement Controls. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
12.13. Usury Savings Clause. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrowers shall
pay to the Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the
Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrowers to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to such Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
12.14. Payments. All principal, interest, and other amounts to be paid by
the Guarantor or any Borrower under this Agreement and the other Loan Documents
shall be paid to the Agent in immediately available funds, without setoff,
deduction or counterclaim. Subject to the definition of "Interest Period"
herein, whenever any payment under this Agreement or any other Loan Document
shall be stated to be due on a day that is not a Business Day, such payment may
be made on the next succeeding Business Day, and such extension of time in such
case shall be included in the computation of interest and fees, as applicable,
and as the case may be. The Agent shall not be liable to any party to this
Agreement in any way whatsoever for any delay, or the consequences of any delay,
in the crediting to any account of any amount denominated in the Euro.
12.15. Governing Law; Waiver of Jury Trial.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE
TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
72
(b) THE GUARANTOR AND EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY
AGREES AND CONSENTS THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE
INSTITUTED IN ANY STATE OR FEDERAL COURT SITTING IN NEW YORK CITY, STATE OF NEW
YORK, UNITED STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS
AGREEMENT, THE GUARANTOR AND EACH BORROWER EXPRESSLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER
HAVE TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND
ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND THE
GUARANTOR AND EACH BORROWER HEREBY IRREVOCABLY SUBMITS GENERALLY AND
UNCONDITIONALLY TO THE NON EXCLUSIVE JURISDICTION OF ANY SUCH COURT IN ANY SUCH
SUIT, ACTION OR PROCEEDING.
(c) THE GUARANTOR AND EACH BORROWER AGREES THAT SERVICE OF PROCESS MAY
BE MADE BY PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER
LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE GUARANTOR OR, AS THE CASE
MAY BE, TO THE RELEVANT BORROWER IN CARE OF THE GUARANTOR AT THE GUARANTOR'S
ADDRESS PROVIDED IN SECTION 12.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR
UNDER THE APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
(d) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY AMENDMENT, INSTRUMENT,
DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE DELIVERED IN
CONNECTION THEREWITH, THE GUARANTOR, THE BORROWERS, THE AGENT AND THE LENDERS
HEREBY AGREE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH
ACTION, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A JURY
AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY
RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION, SUIT OR
PROCEEDING.
(e) THE GUARANTOR AND EACH BORROWER HEREBY EXPRESSLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION IT MAY HAVE THAT ANY
COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO THE TERMS HEREOF IS AN
INCONVENIENT FORUM.
12.16. Confidentiality. Each of the Agent 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
73
counsel and other advisors (it being understood that the Persons to whom such
disclosure is made will be informed of the confidential nature of such
Information and instructed to keep such Information confidential), (b) to the
extent requested by any regulatory authority (including any self-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 hereto, (e) in
connection with the exercise of any remedies hereunder or under or any other
Loan Document or any action or proceeding relating to this Agreement or any
other Loan Documents or the enforcement of rights hereunder or thereunder, (f)
subject to an agreement containing provisions substantially the same as those of
this Section, to any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement, (g)
with the consent of the Guarantor, or (h) to the extent such Information (x)
becomes publicly available other than as a result of a breach of this Section or
(y) becomes available to the Agent or any Lender on a nonconfidential basis from
a source other than the Guarantor or any Borrower. For the purposes of this
Section, "Information" means all information received from the Guarantor or any
of its Subsidiaries (each, a "Loan Party") relating to any Loan Party or any of
their respective businesses, other than any such information that is available
to the Agent or any Lender on a nonconfidential basis prior to disclosure by any
Loan Party. 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.
12.17. Judgment Currency. (a) If, for the purpose of obtaining judgment in
any court, it is necessary to convert a sum owing hereunder in one currency into
another currency, each party hereto agrees, to the fullest extent that it may
effectively do so, that the rate of exchange used shall be that at which, in
accordance with normal banking procedures in the relevant jurisdiction, the
first currency could be purchased with such other currency on the Business Day
immediately preceding the day on which final judgment is given.
(b) The obligations of each Borrower in respect of any sum due to any
party hereto or any holder of the obligations owing hereunder (the "Applicable
Creditor") shall, notwithstanding any judgment in a currency (the "Judgment
Currency") other than the currency in which such sum is stated to be due
hereunder (the "Agreement Currency"), be discharged only to the extent that, on
the Business Day following receipt by the Applicable Creditor of any sum
adjudged to be so due in the Judgment Currency, the Applicable Creditor may in
accordance with normal banking procedures in the relevant jurisdiction purchase
the Agreement Currency with the Judgment Currency; if the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Applicable Creditor in the Agreement Currency, the relevant Borrower as a
separate obligation and notwithstanding any such judgment, agrees to indemnify
the Applicable Creditor against such loss. The obligations of each Borrower
contained in this Section shall survive the termination of this Agreement and
the payment of all other amounts owing hereunder.
12.18. "Know Your Customer" Checks. (a) If:
74
(i) the introduction of or any change in (or in the interpretation,
administration or application of) any law or regulation made after the date
of this Agreement;
(ii) any change in the status of a Loan Party after the date of this
Agreement; or
(iii) a proposed assignment or transfer by a Lender of any of its
rights and/or obligations under this Agreement to a party that is not a
Lender prior to such assignment or transfer,
obliges the Agent or any Lender (or, in the case of paragraph (iii) above, any
prospective new Lender) to comply with "know your customer" or similar
identification procedures in circumstances where the necessary information is
not already available to it, each Loan Party shall promptly upon the request of
the Agent or any Lender supply, or procure the supply of, such documentation and
other evidence as is reasonably requested by the Agent (for itself or on behalf
of any Lender) or any Lender (for itself or, in the case of the event described
in paragraph (iii) above, on behalf of any prospective new Lender) in order for
the Agent, such Lender or, in the case of the event described in paragraph (iii)
above, any prospective new Lender to carry out and be satisfied it has complied
with all necessary "know your customer" or other similar checks under all
applicable laws and regulations pursuant to the transactions contemplated in the
Loan Documents.
(b) Each Lender shall promptly upon the request of the Agent supply, or
procure the supply of, such documentation and other evidence as is reasonably
requested by the Agent (for itself) in order for the Agent to carry out and be
satisfied it has complied with all necessary "know your customer" or other
similar checks under all applicable laws and regulations pursuant to the
transactions contemplated in the Loan Documents.
[Signatures on following pages]
75
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
made, executed and delivered by their duly authorized officers as of the day and
year first above written.
V.F. CORPORATION
By:
------------------------------------
Name: Mackey J. McDonald
Title: Chairman, President and Chief
Executive Officer
By:
------------------------------------
Name: Frank C. Pickard III
Title: Vice President - Treasurer
VF INVESTMENTS S.A.R.L.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
VF EUROPE BVBA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
VF ASIA LTD.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
VF INTERNATIONAL SAGL
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ABN AMRO BANK N.V.,
as Agent for the Lenders
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
2
ABN AMRO BANK N.V., as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
3
BARCLAYS CAPITAL,
as Syndication Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
4
BARCLAYS BANK PLC, as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
5
JPMORGAN CHASE BANK, N.A., as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
6
[BANCO SANTANDER CENTRAL HISPANO,
S.A., NEW YORK BRANCH], as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
7
[HSBC BANK USA, N.A.], as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
8
[ING LUXEMBOURG S.A.], as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
9
[CITIBANK, N.A]. as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
10
[DRESDNER BANK AG FRANKFURT AM MAIN],
as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
11
[FORTIS BANK (NEDERLAND) N.V.],
as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
12
[SANPAOLO IMI S.P.A.], as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
13
[UNICREDITO ITALIANO S.P.A. -
NEW YORK BRANCH], as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
14
[WACHOVIA BANK, N.A.], as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
15
[THE BANK OF NEW YORK], as Lender
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
16
EXHIBIT A
APPLICABLE COMMITMENT PERCENTAGES
1. RC FACILITY
APPLICABLE
RC COMMITMENT
LENDER COMMITMENT PERCENTAGE
------ --------------- ----------
ABN AMRO Bank N.V E 18,200,000 10.40%
Barclays Bank PLC E 18,200,000 10.40%
JPMorgan Chase Bank, N.A E 18,200,000 10.40%
Banco Santander Central Hispano, S.A.,
New York Branch E 14,600,000 8.34%
HSBC Bank USA, N.A E 14,600,000 8.34%
ING Luxembourg S.A E 14,600,000 8.34%
Citibank, N.A E 11,600,000 6.63%
Dresdner Bank AG Frankfurt am Main E 11,600,000 6.63%
Fortis Bank (Nederland) N.V E 11,600,000 6.63%
Sanpaolo IMI S.p.A E 11,600,000 6.63%
UniCredito Italiano S.p.A. - New York Branch E 11,600,000 6.63%
Wachovia Bank, N.A E 11,600,000 6.63%
The Bank of New York E 7,000,000 4.00%
TOTAL E175,000,000.00 100%
2. TL$ FACILITY
APPLICABLE
TL$ COMMITMENT
LENDER COMMITMENT PERCENTAGE
------ -------------- ----------
ABN AMRO Bank N.V $ 4,400,000 11.00%
Barclays Bank PLC $ 4,300,000 10.75%
JPMorgan Chase Bank, N.A $ 4,300,000 10.75%
Banco Santander Central Hispano, S.A.,
New York Branch $ 3,600,000 9.00%
HSBC Bank USA, N.A $ 3,600,000 9.00%
ING Luxembourg S.A $ 3,600,000 9.00%
Citibank, N.A $ 2,700,000 6.75%
Dresdner Bank AG Frankfurt am Main $ 2,700,000 6.75%
Fortis Bank (Nederland) N.V $ 2,700,000 6.75%
Sanpaolo IMI S.p.A $ 2,700,000 6.75%
UniCredito Italiano S.p.A. - New York Branch $ 2,700,000 6.75%
Wachovia Bank, N.A $ 2,700,000 6.75%
TOTAL $40,000,000.00 100%
A-1
3. TLE FACILITY
APPLICABLE
TLE COMMITMENT
LENDER COMMITMENT PERCENTAGE
------ -------------- ----------
ABN AMRO Bank N.V. E 4,200,000 10.50%
Barclays Bank PLC E 4,300,000 10.75%
JPMorgan Chase Bank, N.A. E 4,200,000 10.50%
Banco Santander Central Hispano, S.A.,
New York Branch E 3,300,000 8.25%
HSBC Bank USA, N.A. E 3,300,000 8.25%
ING Luxembourg S.A. E 3,300,000 8.25%
Citibank, N.A. E 2,400,000 6.00%
Dresdner Bank AG Frankfurt am Main E 2,400,000 6.00%
Fortis Bank (Nederland) N.V. E 2,400,000 6.00%
Sanpaolo IMI S.p.A. E 2,400,000 6.00%
UniCredito Italiano S.p.A. - New York Branch E 2,400,000 6.00%
Wachovia Bank, N.A. E 2,400,000 6.00%
The Bank of New York E 3,000,000 7.50%
TOTAL E40,000,000.00 100%
EXHIBIT B
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is dated
as of the Effective Date set forth below and is entered into by and between
[Insert name of Assignor] (the "Assignor") and [Insert name of Assignee] (the
"Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as it may be
amended, restated or modified from time to time, the "Credit Agreement"),
receipt of a copy of which is hereby acknowledged by the Assignee. The Standard
Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to
and incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below and
(ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity as
a Lender) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: _______________________
2. Assignee: _______________________ [and is an Affiliate/Approved Fund
of [Identify Lender]](11)
3. Administrative Agent: ABN AMRO Bank N.V., as the administrative agent
under the Credit Agreement
4. Credit Agreement: The Credit Agreement, dated as of October 27, 2005,
among VF Investments S.a.r.l., VF Europe BVBA, VF Asia Ltd and VF
International Sagl, as the Borrowers, V.F. Corporation, as the
Guarantor, the Lenders parties thereto, ABN AMRO Bank N.V., as
Documentation Agent and Administrative Agent, and Barclays Capital, as
Syndication Agent.
- ----------
(1) Select as applicable.
B-1
Agent and Administrative Agent, and Barclays Capital, as Syndication
Agent.
5. Assigned Interest:
AGGREGATE
AMOUNT OF
COMMITMENT/LOANS AMOUNT OF COMMITMENT/ PERCENTAGE ASSIGNED OF
FACILITY ASSIGNED FOR ALL LENDERS* LOANS ASSIGNED* COMMITMENT/ LOANS(2)
- ----------------- ---------------- --------------------- ----------------------
RC Facility E______ E______ ___%
TL$ Facility $______ $______ ___%
TLE Facility E______ E______ ___%
- ----------
* Amount to be adjusted by the counterparties to take into account any
payments or prepayments made between the Trade Date and the Effective Date.
[6. Trade Date: ________________](3)
Effective Date: _______________, 20 [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The Assignee represents and warrants to the Agent, each Borrower and the
Guarantor that as of the Effective Date payments to it under the Credit
Agreement are exempt from withholding tax.
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
------------------------------------
Title:
---------------------------------
ASSIGNEE
----------------------------------------
[NAME OF ASSIGNEE]
- ----------
(2) Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans
of all Lenders thereunder.
(3) To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
B-2
By:
------------------------------------
Title:
---------------------------------
Consented to and Accepted:
ABN AMRO BANK N.V.,
as Administrative Agent
By:
---------------------------------
Title:
------------------------------
[Consented to and Accepted:
V.F. CORPORATION,
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
By:
---------------------------------
Name:
-------------------------------
Title: ]
------------------------------
B-3
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
Credit Agreement, dated as of October 27, 2005, among VF Investments
S.a.r.l., VF Europe BVBA, VF Asia Ltd and VF International Sagl, as the
Borrowers, V.F. Corporation, as the Guarantor, the Lenders parties thereto, ABN
AMRO Bank N.V., as Documentation Agent and Administrative Agent, and Barclays
Capital, as Syndication Agent, as it may be amended, restated or modified from
time to time,.
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest
is free and clear of any lien, encumbrance or other adverse claim and (iii) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the
Guarantor, any of its Subsidiaries or Affiliates or any other Person obligated
in respect of any Loan Document or (iv) the performance or observance by the
Guarantor, any of its Subsidiaries or Affiliates or any other Person of any of
their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 6.5 or 7.1 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) attached hereto is any
documentation required to be delivered by it pursuant to Section 4.5(d) of the
Credit Agreement, duly completed and executed by the Assignee; and (b) agrees
that (i) it will, independently and without reliance on the Administrative
Agent, the Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents, and
(ii) it will perform in accordance with their terms all of the obligations which
by the terms of the Loan Documents are required to be performed by it as a
Lender.
B-4
2. Payments. From and after the Effective Date, the Administrative Agent
shall make all payments in respect of the Assigned interest (including payments
of principal, interest, fees and other amounts) to the Assignee whether such
amounts have accrued prior to or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the
Administrative Agent for periods prior to the Effective Date or with respect to
the making of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
B-5
EXHIBIT C
NOTICE OF APPOINTMENT (OR REVOCATION) OF AUTHORIZED REPRESENTATIVE
Reference is hereby made to the Credit Agreement dated as of October 27,
2005 (the "Agreement") among VF Investments S.a.r.l., VF Europe BVBA, VF Asia
Ltd and VF International Sagl (collectively, the "Borrowers"), V.F. Corporation
(the "Guarantor"), the Lenders parties thereto, ABN AMRO Bank N.V., as
Administrative Agent (the "Agent") and as Documentation Agent, and Barclays
Capital, as Syndication Agent. Capitalized terms used but not defined herein
shall have the respective meanings therefor set forth in the Agreement.
1. The undersigned [Borrower] [Guarantor] hereby nominates, constitutes and
appoints each individual named below as an Authorized Representative for written
notifications under the Loan Documents, and hereby represents and warrants that
(i) set forth opposite each such individual's name is a true and correct
statement of such individual's office (to which such individual has been duly
elected or appointed), a genuine specimen signature of such individual and an
address for the giving of notice, and (ii) each such individual has been duly
authorized by the undersigned [Borrower] [Guarantor] to act as Authorized
Representative for written notifications under the Loan Documents:
NAME OFFICE SPECIMEN SIGNATURE
---- ------ ------------------
- ------------------------- ------------------------- ------------------------
- ------------------------- ------------------------- ------------------------
- ------------------------- ------------------------- ------------------------
2. The undersigned [Borrower] [Guarantor] hereby nominates, constitutes and
appoints each individual named below as an Authorized Representative for
telephonic notifications under the Loan Documents, and hereby represents and
warrants that (i) set forth opposite each such individual's name is a true and
correct statement of such individual's office (to which such individual has been
duly elected or appointed), a genuine specimen signature of such individual and
an address for the giving of notice, and (ii) each such individual has been duly
authorized by the undersigned [Borrower] [Guarantor] to act as Authorized
Representative for telephonic notifications under the Loan Documents:
NAME OFFICE SPECIMEN SIGNATURE
---- ------ ------------------
- ------------------------- ------------------------- ------------------------
- ------------------------- ------------------------- ------------------------
- ------------------------- ------------------------- ------------------------
C-1
3. The undersigned [Borrower] [Guarantor] hereby revokes (effective upon receipt
hereof by the Agent) the prior appointment of [___] as an Authorized
Representative.
This the __ day of ______, 20__.
[V.F. CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
By:
-----------------------------------
Name:
---------------------------------
Title: ]
--------------------------------
[VF INVESTMENTS S.A.R.L.
By:
-----------------------------------
Name:
---------------------------------
Title: ]
--------------------------------
[VF EUROPE BVBA
By:
-----------------------------------
Name:
---------------------------------
Title: ]
--------------------------------
[VF ASIA LTD.
By:
-----------------------------------
Name:
---------------------------------
Title: ]
--------------------------------
[VF INTERNATIONAL SAGL
By:
-----------------------------------
Name:
---------------------------------
Title: ]
--------------------------------
C-2
EXHIBIT D
FORM OF BORROWING NOTICE
To: ABN AMRO Bank N.V.,
as Agent
540 West Madison Street, Suite 2131
Chicago, Illinois 60661-2591
Attention: Agency Services
Telephone: 312-992-5082
Telefacsimile: 312-601-3611
Reference is hereby made to the Credit Agreement dated as of October 27,
2005 (the "Agreement") among VF Investments S.a.r.l., VF Europe BVBA, VF Asia
Ltd and VF International Sagl (collectively, the "Borrowers"), V.F. Corporation
(the "Guarantor"), the Lenders parties thereto, ABN AMRO Bank N.V., as
Administrative Agent (the "Agent") and as Documentation Agent, and Barclays
Capital, as Syndication Agent. Capitalized terms used but not defined herein
shall have the respective meanings therefor set forth in the Agreement.
The undersigned Borrower through its Authorized Representative hereby gives
notice to the Agent that Loans of the type and amount set forth below be made on
the date indicated:
TYPE OF LOAN INTEREST AGGREGATE
(CHECK ONE) PERIOD(1) AMOUNT(2) DATE OF LOAN(3) CURRENCY(4)
- ----------------- --------- --------- --------------- -----------
RC Loans:........ _________ _________ _________ _________
TL$ Loans:....... _________ _________ _________ Dollars
TLE Loans:....... _________ _________ _________ Euros
- ----------
(1) One, two, three, six, and if available to all Lenders, nine or twelve
months.
(2) Must be, with respect to RC Loans, E5,000,000 (or the Alternative Currency
Equivalent Amount thereof) or if greater an integral multiple of E1,000,000
(or the Alternative Currency Equivalent Amount thereof).
(3) At least (a) two (2) Business Days later for Euribor Rate Loans or Offshore
Rate Loans denominated in Dollars with a one, two, three or six month
Interest Period, (b) three (3) Business Days later for Offshore Rate Loans
denominated in any Alternative Currency other than Dollars with a one, two,
three or six month Interest Period, or (c) four (4) Business Days later for
Loans with a nine or twelve month Interest Period.
(4) Specify Euros or the Alternative Currency.
The undersigned Borrower hereby requests that the proceeds of the Loans
described in this Borrowing Notice be made available to it as follows: [insert
transmittal instructions].
The undersigned Guarantor hereby certifies that:
1. No Default or Event of Default exists either now or after giving effect
to the borrowing described herein; and
2. All the representations and warranties set forth in Article VI of the
Agreement and in the Loan Documents (other than those expressly stated to refer
to a particular date) are true and correct as of the date hereof except that the
reference to the financial statements in Section 6.5(a) of the Agreement is to
those financial statements most recently delivered to you pursuant to
D-1
Section 7.1 of the Agreement (it being understood that any financial statements
delivered pursuant to Section 7.1(b) have not been certified by independent
public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
V.F. CORPORATION
BY:
------------------------------------
Authorized Representative
DATE:
----------------------------------
[VF INVESTMENTS S.A.R.L.
BY:
-----------------------------------
Authorized Representative
DATE: ]
---------------------------------
[VF EUROPE BVBA
BY:
-----------------------------------
Authorized Representative
DATE: ]
---------------------------------
[VF ASIA LTD.
BY:
-----------------------------------
Authorized Representative
DATE: ]
---------------------------------
[VF INTERNATIONAL SAGL
BY:
-----------------------------------
Authorized Representative
DATE: ]
---------------------------------
D-2
EXHIBIT E
FORM OF INTEREST RATE SELECTION NOTICE
To: ABN AMRO Bank N.V.,
as Agent
540 West Madison Street, Suite 2131
Chicago, Illinois 60661-2591
Attention: Agency Services
Telephone: 312-992-5082
Telefacsimile: 312-601-3611
Reference is hereby made to the Credit Agreement dated as of October 27,
2005 (the "Agreement") among VF Investments S.a.r.l., VF Europe BVBA, VF Asia
Ltd and VF International Sagl (collectively, the "Borrowers"), V.F. Corporation
(the "Guarantor"), the Lenders parties thereto, ABN AMRO Bank N.V., as
Administrative Agent (the "Agent") and as Documentation Agent, and Barclays
Capital, as Syndication Agent, as it may be amended, restated or modified from
time to time. Capitalized terms used but not defined herein shall have the
respective meanings therefor set forth in the Agreement.
The undersigned Borrower through its Authorized Representative hereby gives
notice to the Agent of the following selection of a type of Loan and Interest
Period:
TYPE OF LOAN INTEREST AGGREGATE
(CHECK ONE) PERIOD(1) AMOUNT(2) DATE OF LOAN(3) CURRENCY(4)
- ----------------- --------- --------- --------------- -----------
RC Loans:........ _________ _________ _________ _________
TL$ Loans:....... _________ _________ _________ Dollars
TLE Loans:....... _________ _________ _________ Euros
(1) One, two, three, six, and if available to all Lenders, nine or twelve
months.
(2) Must be, with respect to RC Loans, E5,000,000 (or the Alternative Currency
Equivalent Amount thereof) or if greater an integral multiple of E1,000,000
(or the Alternative Currency Equivalent Amount thereof).
(3) At least (a) two (2) Business Days later for Euribor Rate Loans or Offshore
Rate Loans denominated in Dollars with a one, two, three or six month
Interest Period, (b) three (3) Business Days later for Offshore Rate Loans
denominated in an Alternative Currency other than Dollars with a one, two,
three or six month Interest Period, or (c) four (4) Business Days later for
Loans with a nine or twelve month Interest Period.
(4) Specify Euros or the Alternative Currency.
This notice may be executed in any number of counterparts, all of which
taken together shall constitute one and the same notice and any of the parties
hereto may execute this notice by signing any such counterpart.
V.F. CORPORATION
BY:
------------------------------------
Authorized Representative
DATE:
----------------------------------
E-1
[VF INVESTMENTS S.A.R.L.
BY:
-----------------------------------
Authorized Representative
DATE: ]
---------------------------------
[VF EUROPE BVBA
BY:
-----------------------------------
Authorized Representative
DATE: ]
---------------------------------
[VF ASIA LTD.
BY:
-----------------------------------
Authorized Representative
DATE: ]
---------------------------------
[VF INTERNATIONAL SAGL
BY:
-----------------------------------
Authorized Representative
DATE: ]
---------------------------------
E-2
EXHIBIT F-1
FORM OF RC NOTE
Promissory Note
(RC Loan)
__________________, ____________
__________ __, ____
FOR VALUE RECEIVED, [NAME OF BORROWER], a [_____________] corporation
having its principal place of business located in [_____________] (the
"Borrower"), hereby promises to pay to the order of [_____________] (the
"Lender"), in its individual capacity, at the office of ABN AMRO BANK, N.V., as
Administrative Agent for the Lenders (the "Agent"), located at 540 West Madison
Street, Suite 2131, Chicago, Illinois 60661-2591 (or at such other place or
places as the Agent may designate in writing) at the times set forth in the
Credit Agreement dated as of October 27, 2005 among the Borrower, [VF
Investments S.a.r.l.,] [VF Europe BVBA,] VF Asia Ltd and [VF International
Sagl], as borrowers, V.F. Corporation (the "Guarantor"), the Lenders parties
thereto, the Agent and the Documentation Agent and Syndication Agent named
therein (as it may be amended, restated or modified from time to time, the
"Agreement" -- all capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement), in the applicable currency, in
immediately available funds, the aggregate unpaid principal amount of all RC
Loans made by the Lender to the Borrower pursuant to the Agreement on the RC
Termination Date or such earlier date as may be required pursuant to the terms
of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in Articles II and III of the Agreement. All or any portion of
the principal amount of RC Loans may be prepaid or required to be prepaid as
provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of the
Agreement or under the terms of the other Loan Documents executed in connection
with the Agreement, the then remaining principal amount and accrued but unpaid
interest thereon evidenced by this RC Note shall become immediately due and
payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event this RC Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and interest,
all costs of collection, including reasonable attorneys' fees, and interest due
hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This RC Note is one of the RC Notes referred to in the Agreement and is
issued pursuant to and entitled to the benefits and security of the Agreement to
which reference is hereby made for a more complete statement of the terms and
conditions upon which the RC Loans evidenced hereby were or are made and are to
be repaid. This RC Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
F-1-1
This RC Note shall be governed by and construed in accordance with the laws
of the State of New York.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this RC Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
[SIGNATURE PAGE FOLLOWS.]
F-1-2
IN WITNESS WHEREOF, the Borrower has caused this RC Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
[VF INVESTMENTS S.A.R.L.
By:
-----------------------------------
Name:
---------------------------------
Title: ]
--------------------------------
[VF EUROPE BVBA
By:
-----------------------------------
Name:
---------------------------------
Title: ]
--------------------------------
[VF INTERNATIONAL SAGL
By:
-----------------------------------
Name:
---------------------------------
Title: ]
--------------------------------
F-1-3
EXHIBIT F-2
FORM OF TL$ NOTE
Promissory Note
(TL$ Loan)
__________________, ____________
__________ __, ____
FOR VALUE RECEIVED, VF ASIA LTD, a Hong Kong corporation having its
principal place of business located in [_____________] (the "Borrower"), hereby
promises to pay to the order of [_____________] (the "Lender"), in its
individual capacity, at the office of ABN AMRO BANK, N.V., as Administrative
Agent for the Lenders (the "Agent"), located at 540 West Madison Street, Suite
2131, Chicago, Illinois 60661-2591 (or at such other place or places as the
Agent may designate in writing) at the times set forth in the Credit Agreement
dated as of October 27, 2005 among the Borrower, VF Investments S.a.r.l., VF
Europe BVBA and VF International Sagl, as borrowers, V.F. Corporation (the
"Guarantor"), the Lenders parties thereto, the Agent and the Documentation Agent
and Syndication Agent named therein (as it may be amended, restated or modified
from time to time, the "Agreement" -- all capitalized terms not otherwise
defined herein shall have the respective meanings set forth in the Agreement),
in lawful money of the United States of America, in immediately available funds,
the aggregate unpaid principal amount of all TL$ Loans made by the Lender to the
Borrower pursuant to the Agreement on the TL$ Maturity Date or such earlier date
as may be required pursuant to the terms of the Agreement, and to pay interest
from the date hereof on the unpaid principal amount hereof, in like money, at
said office, on the dates and at the rates provided in Articles II and III of
the Agreement. All or any portion of the principal amount of TL$ Loans may be
prepaid or required to be prepaid as provided in the Agreement
If payment of all sums due hereunder is accelerated under the terms of the
Agreement or under the terms of the other Loan Documents executed in connection
with the Agreement, the then remaining principal amount and accrued but unpaid
interest thereon evidenced by this TL$ Note shall become immediately due and
payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event this TL$ Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This TL$ Note is the TL$ Note referred to in the Agreement and is issued
pursuant to and entitled to the benefits and security of the Agreement to which
reference is hereby made for a more complete statement of the terms and
conditions upon which the TL$ Loans evidenced hereby were or are made and are to
be repaid. This TL$ Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
F-3-1
This TL$ Note shall be governed by and construed in accordance with the
laws of the State of New York.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this TL$ Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
[SIGNATURE PAGE FOLLOWS.]
F-3-2
IN WITNESS WHEREOF, the Borrower has caused this TL$ Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
VF ASIA LTD.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-3-3
EXHIBIT F-3
FORM OF TLE NOTE
Promissory Note
(TLE Loan)
__________________, ____________
_________ __, _____
FOR VALUE RECEIVED, VF EUROPE BVBA, a Belgian corporation having its
principal place of business located in [____________] (the "Borrower"), hereby
promises to pay to the order of [___________] (the "Lender"), in its individual
capacity, at the office of ABN AMRO BANK, N.V., as Administrative Agent for the
Lenders (the "Agent"), located at 540 West Madison Street, Suite 2131, Chicago,
Illinois 60661-2591 (or at such other place or places as the Agent may designate
in writing) at the times set forth in the Credit Agreement dated as of October
27, 2005 among the Borrower, VF Investments S.a.r.l., VF Asia Ltd and VF
International Sagl, as borrowers, V.F. Corporation (the "Guarantor"), the
Lenders parties thereto, the Agent and the Documentation Agent and Syndication
Agent named therein (as it may be amended, restated or modified from time to
time, the "Agreement" -- all capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Agreement), in Euros, in
immediately available funds, the aggregate unpaid principal amount of all TLE
Loans made by the Lender to the Borrower pursuant to the Agreement on the TLE
Maturity Date or such earlier date as may be required pursuant to the terms of
the Agreement, and to pay interest from the date hereof on the unpaid principal
amount hereof, in like money, at said office, on the dates and at the rates
provided in Articles II and III of the Agreement. All or any portion of the
principal amount of TLE Loans may be prepaid or required to be prepaid as
provided in the Agreement
If payment of all sums due hereunder is accelerated under the terms of the
Agreement or under the terms of the other Loan Documents executed in connection
with the Agreement, the then remaining principal amount and accrued but unpaid
interest thereon evidenced by this TLE Note shall become immediately due and
payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event this TLE Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection, including reasonable attorneys' fees, and
interest thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This TLE Note is the TLE Note referred to in the Agreement and is issued
pursuant to and entitled to the benefits and security of the Agreement to which
reference is hereby made for a more complete statement of the terms and
conditions upon which the TLE Loans evidenced hereby were or are made and are to
be repaid. This TLE Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
F-3-1
This TLE Note shall be governed by and construed in accordance with the
laws of the State of New York.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this TLE Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
[SIGNATURE PAGE FOLLOWS.]
F-3-2
IN WITNESS WHEREOF, the Borrower has caused this TLE) Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
VF EUROPE BVBA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
F-3-3
EXHIBIT G
COMPLIANCE CERTIFICATE
ABN AMRO BANK N.V.,
as Agent
540 West Madison Street, Suite 2131
Chicago, Illinois 60661-2591
Attention: Agency Services
Telephone: 312-992-5082
Telefacsimile: 312-601-3611
Reference is hereby made to the Credit Agreement dated as of October 27,
2005 among VF Europe BVBA, VF Investments S.a.r.l., VF Asia Ltd and VF
International Sagl (collectively, the "Borrowers"), V.F. Corporation (the
"Guarantor"), the Lenders parties thereto, the Agent and the Documentation Agent
and Syndication Agent named therein. Capitalized terms used but not otherwise
defined herein shall have the respective meanings therefor set forth in the
Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you as of [________________] (the
"Determination Date") as follows:
1. Calculations:
A. Compliance with Section 8.1: Consolidated Indebtedness to
Consolidated Capitalization
1. Consolidated Indebtedness as of the Determination Date
$________________________
2. Consolidated Net Worth as of the Determination Date
$________________________
3. Sum of A.1 and A.2
$________________________
4. Ratio of A.1 to A.3 _______________ to 1.00
Required: A.4 must not be greater than 0.60 to 1.00 at any time.
B. Compliance with Section 8.2(i): Liens
1. Consolidated Net Worth as of the Determination Date
$________________________
G-1
2. B.1 X 5%
$________________________
3. Is Indebtedness secured by Liens not
permitted under Section 8.2(a)-(h) less than B.2? Yes________
No________
C. Compliance with Section 8.3(f): Indebtedness of Subsidiaries
1. Is Indebtedness not permitted under
Section 8.3(a)-(e) less than $450,000,000? Yes________
No________
2. No Default
A. Since [______] (the date of the last similar certification), (a)
neither the Guarantor nor any Borrower has defaulted in the keeping,
observance, performance or fulfillment of its obligations pursuant to any
of the Loan Documents; and (b) no Default or Event of Default specified in
Article IX of the Agreement has occurred and is continuing.
B. If a Default or Event of Default has occurred since [________] (the
date of the last similar certification), the Guarantor and the Borrowers
propose to take the following action with respect to such Default or Event
of Default:
___________________________________________________________________________
___________________________________________________________________________
(Note, if no Default or Event of Default has occurred, insert "Not
Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with Section 7.1 of the
Agreement.
G-2
IN WITNESS WHEREOF, I have executed this Certificate this __ day of
___________, 20__.
V.F. CORPORATION
By:
------------------------------------
Authorized Representative
Name:
----------------------------------
Title:
---------------------------------
G-3
EXHIBIT H
FORM OF AMENDMENT AGREEMENT
AMENDMENT NO. TO
CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into this ___ day of
_______________, 20__, by and among VF INVESTMENTS S.A.R.L., VF EUROPE BVBA, VF
ASIA LTD and VF INERNATIONAL SAGL (the "Borrowers"), V.F. CORPORATION (the
"Guarantor"), the Lenders parties thereto, Barclays Capital, as Syndication
Agent and ABN AMRO Bank N.V., as Documentation Agent and as Administrative Agent
(the "Agent") for the lenders (the "Lenders") party to that certain Credit
Agreement dated October 27, 2005 among such Lenders, the Borrowers, the
Guarantor and the Agent, as amended (the "Agreement") and [_________] [(the "New
Lender")].
WITNESSETH:
WHEREAS, the Guarantor, the Borrowers, the Agent and the Lenders have
entered into the Agreement pursuant to which the Lenders have agreed to make
revolving loans to the RC Borrowers (as defined in the Agreement) in the
principal amount of up to E175,000,000 (which may be increased to E225,000,000)
as evidenced by the RC Notes (as defined in the Agreement); and
WHEREAS, the New Lender has agreed to [provide the RC Borrowers an RC
Commitment of E__,000,000] [increase its RC Commitment to E_______] thereby
increasing the then applicable Total RC Commitment to E___,000,000 and the
parties hereto desire to amend the Agreement in accordance with Section 2.3 of
the Agreement in the manner herein set forth effective as of the date hereof;
NOW, THEREFORE, the Guarantor, the Borrowers, the Agent and the New Lender
do hereby agree as follows:
1. Definitions. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereby
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. Amendments. Subject to the conditions hereof, the Agreement is hereby
amended, effective as of the date hereof, by deleting Exhibit A and inserting in
lieu thereof Exhibit A attached hereto, and the New Lender agrees by the
execution of this Amendment Agreement that it [shall be a party to the Agreement
as a Lender and] shall provide to the RC Borrowers its RC Commitment. Exhibit A
attached hereto shall be unchanged from Exhibit A to the Agreement immediately
prior to the effectiveness hereof with respect to the RC Commitment of each
Lender which is not the New Lender.
3. Representations and Warranties. The Guarantor hereby certifies that:
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(a) The representations and warranties made by the Guarantor in
Article VI of the Agreement are true on and as of the date hereof except
that the financial statements referred to in Section 6.5(a) shall be those
most recently furnished to each Lender pursuant to Section 7.1(a) and (b);
(b) There has been no Material Adverse Effect;
(c) No event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, constituted a Default
or an Event of Default on the part of the Guarantor or any Borrower under
the Agreement or the Notes either immediately or with the lapse of time or
the giving of notice, or both.
4. Conditions. As a condition to the effectiveness of this Amendment
Agreement, the Borrowers shall deliver, or cause to be delivered to the Agent,
the following:
(a) Four (4) counterparts of this Amendment Agreement executed by the
Guarantor, each Borrower and the New Lender; and
(b) If requested by the New Lender, [against delivery of its existing
RC Note,] a fully-executed RC Note payable to the New Lender in the amount
of the New Lender's RC Commitment.
5. New Lender. Upon the effectiveness of this Amendment Agreement, the New
Lender, if not a Lender prior to the effectiveness of this Amendment Agreement,
shall be a party to the Agreement and have the rights and obligations of a
Lender thereunder.
6. Other Documents. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be satisfactory in
form and substance to the Agent and its counsel; the Agent shall have received
copies of all additional agreements, instruments and documents which it may
reasonably request in connection therewith, including evidence of the authority
of the Guarantor and each Borrower to enter into the transactions contemplated
by this Amendment Agreement, in each case such documents, when appropriate, to
be certified by appropriate corporate or governmental authorities; and all
proceedings of the Guarantor and of each Borrower relating to the matters
provided for herein shall be satisfactory to the Agent and its counsel.
7. Entire Agreement. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement or otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any other party to the other. None of the terms or conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except in accordance with the Agreement.
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8. Full Force and Effect of Agreement. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
H-3
IN WITNESS WHEREOF, the parties hereto have caused this Amendment agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
V.F. CORPORATION
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
VF INVESTMENTS S.A.R.L.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
VF EUROPE BVBA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
VF ASIA LTD
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
VF INTERNATIONAL SAGL
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
ABN AMRO BANK N.V., AS AGENT
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
H-4
----------------------------------------
[Insert Name of Lender]
H-5