U.S. $300,000,000
SECOND AMENDED AND RESTATED
CREDIT AGREEMENT,
dated as of August 12, 1997,
among
WARNACO INC.,
as the U.S. Borrower,
WARNACO (HK) Ltd.,
as the Foreign Borrower,
THE WARNACO GROUP, INC.,
as a Guarantor,
CERTAIN FINANCIAL INSTITUTIONS,
as the Lenders,
CITIBANK, N.A.,
as the Documentation Agent, for the Lenders,
and
THE BANK OF NOVA SCOTIA,
as the Administrative Agent for the Lenders.
Arrangers:
---------
THE BANK OF NOVA SCOTIA
and
CITICORP SECURITIES, INC.
TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms
1.2. Use of Defined Terms............................................15
1.3. Cross-References................................................15
1.4. Accounting and Financial Determinations.........................16
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
2.1. Commitments.....................................................16
2.1.1. Loan Commitment.................................................16
2.1.2. Commitment to Issue Letters of Credit...........................18
2.1.3. Lenders Not Permitted or Required to Make Loans
and Fronting Bank Not Permitted or Required to
Issue Letters of Credit Under Certain
Circumstances................................................18
2.2. Reduction of the Commitment Amount..............................19
2.3. Borrowing Procedure.............................................19
2.4. Continuation and Conversion Elections...........................21
2.5. Funding.........................................................22
2.6. Notes...........................................................22
2.7. Extension of Commitment Termination Date........................23
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
3.1. Repayments and Prepayments......................................23
3.2. Interest Provisions.............................................24
3.2.1. Rates...........................................................24
3.2.2. Post-Maturity Rates.............................................25
3.2.3. Payment Dates...................................................26
3.2.4. Allocation of Interest Payments.................................26
3.3. Fees............................................................27
3.3.1. Letter of Credit Face Amount Fee................................27
3.3.2. Letter of Credit Fees...........................................28
3.3.3. Fee Letter......................................................28
3.3.4. Commitment Fee..................................................28
3.4. Guaranty........................................................29
3.4.1. Guaranty........................................................29
3.4.2. Acceleration of Guaranty........................................30
3.4.3. Guarantee Absolute, etc.........................................30
TABLE OF CONTENTS
(continued)
Section Page
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3.4.4. Reinstatement, etc...............................................32
3.4.5. Waiver, etc......................................................32
3.4.6. Postponement of Subrogation, etc.................................32
ARTICLE IV
LETTERS OF CREDIT
4.1. Issuance Requests................................................33
4.2. Issuances and Extensions.........................................35
4.3. Destruction of Goods, etc........................................35
4.4. Other Lenders' Participation.....................................35
4.5. Disbursements....................................................37
4.6. Reimbursement; Outstanding Letters, etc..........................37
4.7. Deemed Disbursements.............................................40
4.8. Nature of Reimbursement Obligations..............................41
4.9. Existing Letters of Credit.......................................41
ARTICLE V
CERTAIN LIBO RATE AND OTHER PROVISIONS
5.1. LIBO Rate Lending Unlawful.......................................42
5.2. Deposits Unavailable.............................................42
5.3. Increased LIBO Rate Loan Costs, etc..............................42
5.4. Funding Losses...................................................43
5.5. Increased Capital Costs, etc.....................................43
5.6. Taxes............................................................44
5.7. Payments, Computations, etc......................................46
5.8. Sharing of Payments..............................................47
5.9. Setoff...........................................................48
5.10. Use of Proceeds..................................................48
ARTICLE VI
CONDITIONS PRECEDENT
6.1. Initial Credit Extension.........................................48
6.1.1. Resolutions, etc.................................................48
6.1.2. Delivery of Notes................................................49
6.1.3. Guarantees.......................................................49
6.1.4. Delivery of Form 1001 or 4224....................................49
6.1.5. Certificates as to No Default, etc...............................49
6.1.6. No Material Adverse Change........................................49
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TABLE OF CONTENTS
(continued)
Section Page
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6.1.7. Tradexpress Agreement.............................................50
6.1.8. U.S. Credit Agreement.............................................50
6.1.9. Opinions of Counsel...............................................50
6.2. All Credit Extensions.............................................50
6.2.1. Compliance with Warranties, No Default, etc.......................50
6.2.2. Credit Request....................................................51
6.2.3. Satisfactory Legal Form...........................................51
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1. Organization, etc.................................................52
7.2. Due Authorization, Non-Contravention, etc.........................52
7.3. Government Approval, Regulation, etc..............................52
7.4. Validity, etc.....................................................53
7.5. No Material Adverse Change........................................53
7.6. Litigation, etc...................................................53
7.7. Regulations G, U and X............................................53
7.8. Accuracy of Information...........................................53
7.9. U.S. Credit Agreement Representations and
Warranties.....................................................54
ARTICLE VIII
COVENANTS
8.1. Covenants.........................................................54
8.1.1. Financial Information, Reports, Notices, etc......................54
8.1.2. Future Subsidiaries of Group......................................55
8.1.3. U.S. Credit Agreement Covenants...................................55
8.1.4. Default Notice....................................................55
ARTICLE IX
EVENTS OF DEFAULT
9.1. Listing of Events of Default......................................55
9.1.1. Non-Payment of Obligations........................................55
9.1.2. Breach of Warranty................................................56
9.1.3. Non-Performance of Certain Covenants and
Obligations....................................................56
9.1.4. Non-Performance of Other Covenants and
Obligations...................................................56
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TABLE OF CONTENTS
(continued)
Section Page
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9.1.5. Default Under U.S. Credit Agreement..............................56
9.1.6. Bankruptcy, Insolvency, etc......................................56
9.1.7. Termination, etc. of Loan Documents..............................56
9.2. Action Upon Bankruptcy...........................................56
9.3. Action Upon Other Event of Default...............................57
ARTICLE X
THE AGENTS
10.1. Actions..........................................................57
10.2. Copies, etc......................................................58
10.3. Exculpation......................................................58
10.4. Successor........................................................58
10.5. Loans Made or Letters of Credit Issued by
Scotiabank and Loans made by Citibank.........................59
10.6. Credit Decisions.................................................59
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.1. Waivers, Amendments, etc.........................................60
11.2. Notices..........................................................61
11.3. Payment of Costs and Expenses....................................61
11.4. Indemnification..................................................62
11.5. Survival.........................................................63
11.6. Severability.....................................................63
11.7. Headings.........................................................63
11.8. Execution in Counterparts, Effectiveness, etc....................63
11.9. Governing Law; Entire Agreement..................................63
11.10. Successors and Assigns...........................................63
11.11. Sale and Transfer of Loans and Notes;
Participations in Loans and Notes.............................64
11.11.1. Assignments......................................................64
11.11.2. Participations...................................................66
11.11.3. Fronting Bank Assignments........................................66
11.12. Other Transactions...............................................67
11.13. Forum Selection and Consent to Jurisdiction......................67
11.14. Waiver of Jury Trial.............................................68
11.15. UCP; etc.........................................................68
11.16. Usury Restraint..................................................69
11.17. Judgment Currency................................................69
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SCHEDULE I - List of Existing Letters of Credit and Existing
Loans
EXHIBIT A - Form of Note
EXHIBIT B - Form of Issuance Request
EXHIBIT C - Form of Borrowing Request
EXHIBIT D - Form of Continuation/Conversion Notice
EXHIBIT E - Form of Lender Assignment Agreement
EXHIBIT F-1 - Form of Group Guaranty
EXHIBIT F-2 - Form of Subsidiary Guaranty
EXHIBIT G - Form of Opinion of New York Counsel to the
Obligors
EXHIBIT H - Form of Opinion of General Counsel for the U.S.
Borrower
EXHIBIT I - Form of Opinion of Barbados Counsel to the
Obligors
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AMENDED AND RESTATED
CREDIT AGREEMENT
THIS SECOND AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August
12, 1997 (amending and restating the Existing Credit Agreement (as defined
below)), is among WARNACO INC., a Delaware corporation (the "U.S. Borrower"),
WARNACO (HK) LTD., a company organized under the laws of Barbados (the "Foreign
Borrower"), THE WARNACO GROUP, INC., a Delaware corporation ("Group"), the
various financial institutions as are or may become parties hereto
(collectively, the "Lenders"), CITIBANK, N.A. ("Citibank"), as documentation
agent (in such capacity, the "Documentation Agent") and THE BANK OF NOVA SCOTIA
("Scotiabank"), as administrative agent (in such capacity, the "Administrative
Agent") for the Lenders.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the U.S. Borrower, certain financial institutions and
Scotiabank are parties to an Amended and Restated Credit Agreement, dated as of
June 30, 1997 (as amended or otherwise modified to the date hereof, the
"Existing Credit Agreement"), pursuant to which, inter alia, such financial
institutions have made (or participated in) loans to the U.S. Borrower, as
listed on Schedule I hereto (the "Existing Loans"), and Scotiabank provides a
documentary letter of credit facility in favor of the U.S. Borrower and has
issued those documentary letters of credit (the "Existing Letters of Credit")
listed on Schedule I hereto;
WHEREAS, the Borrowers have requested that the Lenders and the Fronting
Bank amend and restate the Existing Credit Agreement with this Agreement;
WHEREAS, pursuant to this Agreement the Borrowers desire to obtain
Commitments from the Lenders pursuant to which
(a) Letters of Credit will be issued by the Fronting Bank for the
account of the U.S. Borrower to support obligations of the U.S. Borrower
and its wholly-owned Subsidiaries (and their respective divisions) and
for the account of the Foreign Borrower to support obligations of the
Foreign Borrower and, under the several obligations hereunder, each of
the Lenders will, to the extent of such Lender's Percentage, participate
in Letters of Credit (including the Existing Letters of Credit) issued
from time to time hereunder prior to the Commitment Termination Date;
and
(b) Loans will be made by the Fronting Bank to the Borrowers and,
under the several obligations hereunder, each of the Lenders will, to
the extent of such Lender's Percentage, participate in or make the Loans
from time to time prior to the Commitment Termination Date;
WHEREAS, the Fronting Bank and the Lenders are willing, on the terms and
subject to the conditions hereinafter set forth (including Article VI), to amend
and restate the Existing Credit Agreement pursuant to the terms and conditions
of this Agreement, extend such Commitments hereunder, make and participate in
such Loans and issue and participate in such Letters of Credit; and
WHEREAS, the proceeds of Loans will be used for the sole purpose of
providing the Borrowers with up to a four-month (or 120-day, in the case of Base
Rate Loans) trade credit in respect of disbursements made to the beneficiaries
of Letters of Credit and Letters of Credit will be issued solely to support the
worldwide sourcing of merchandise by the U.S. Borrower and its wholly-owned
Subsidiaries (or divisions), including the Foreign Borrower;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE 1.
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Defined Terms. The following terms (whether or not
underscored) when used in this Agreement, including its preamble and recitals,
shall, except where the context otherwise requires, have the following meanings
(such meanings to be equally applicable to the singular and plural forms
thereof):
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 10.4.
"Agent" means, as the context may require, the Administrative Agent, the
Documentation Agent and/or the Managing Agents.
"Agreement" means, on any date, this Amended and Restated Credit
Agreement as originally in effect on the Effective Date and as thereafter from
time to time amended, supplemented, amended and restated, or otherwise modified
and in effect on such date.
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"Alternate Base Rate" means, on any date and with respect to all Base
Rate Loans, a fluctuating rate of interest per annum equal to the higher of
(a) the rate of interest most recently announced by Scotiabank at
its Domestic Office as its base rate for Dollar loans; and
(b) the Federal Funds Rate most recently determined by the
Administrative Agent plus 1/2 of 1%.
The Alternate Base Rate is not necessarily intended to be the lowest rate of
interest determined by Scotiabank in connection with extensions of credit.
Changes in the rate of interest on that portion of any Loans maintained as Base
Rate Loans will take effect simultaneously with each change in the Alternate
Base Rate. The Administrative Agent will give notice promptly to the U.S.
Borrower of changes in the Alternate Base Rate.
"Applicable Margin" means, on any date, a percentage per annum
determined by reference to the Rating Level in effect on such date as set forth
below:
Applicable Applicable
Margin for Margin for
Rating Base Rate LIBO Rate
Level Debt Rating Loans Loans
----- ----------- ---------- ----------
Level 1 A-/A3 or higher 0.000% 0.250%
Level 2 BBB+/Baa1 0.000% 0.275%
Level 3 BBB/Baa2 0.000% 0.300%
Level 4 BBB-/Baa3 0.000% 0.425%
Level 5 BB+/Ba1 or lower 0.250% 0.625%;
provided, however, that at any time when the aggregate outstanding principal
amount of all Loans, together with the aggregate amount of all Letter of Credit
Outstandings exceeds $75,000,000 and the then existing Rating Level is equal to
Level 1, Level 2 or Level 3, the Applicable Margin shall be increased by 0.075%
per annum.
The Applicable Margin shall be determined by reference to the Rating
Level in effect from time to time; provided, however, that no change in the
Applicable Margin shall be effective until three Business Days after the date on
which the Administrative Agent receives evidence reasonably satisfactory to it
from Group or the U.S. Borrower that a new Rating Level is in effect. In the
event that at any time no Debt Rating shall be in effect, the Applicable Margin
shall be 0.250% for each Base Rate Loan and 0.625% for each LIBO Rate Loan.
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"Applicable Time" shall mean New York time, or in the case of actions or
notices by or relating to the Foreign Borrower, Hong Kong time.
"Assignee Lender" is defined in Section 11.11.1.
"Authorized Officer" means, relative to either Borrower or any other
Obligor, those of its officers whose signatures and incumbency shall have been
certified to the Managing Agents and the Lenders pursuant to Section 6.1.1.
"Base Rate Loan" means a Loan bearing interest at a fluctuating rate
determined by reference to the Alternate Base Rate.
"Borrowers" means, collectively, the U.S. Borrower and the Foreign
Borrower.
"Borrowing" means the making of Loans of the same type and, in the case
of LIBO Rate Loans, having the same Interest Period by the Fronting Bank
following a disbursement under a Letter of Credit and the funding of a Lender's
Percentage of such Loans, in each case in accordance with the terms of this
Agreement.
"Borrowing Request" means a loan request and certificate duly executed
by an Authorized Officer of a Borrower, substantially in the form of Exhibit C
hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York or Hong Kong in the case of actions relating to the Foreign
Borrower; and
(b) relative to the making, continuing, prepaying or repaying of
any LIBO Rate Loans, any day on which dealings in Dollars are carried on
in the London interbank market.
"Citibank" is defined in the preamble.
"Commitment" means, as the context may require, a Lender's Loan
Commitment or the Fronting Bank's or a Lender's Letter of Credit Commitment.
"Commitment Amount" means $300,000,000, as such amount may be reduced by
Section 2.2.
-4-
"Commitment Termination Date" means the earliest of
(a) August 11, 1998, as such date may be extended pursuant to the
terms of this Agreement;
(b) the date on which the Commitment Amount is terminated in full
or reduced to zero pursuant to Section 2.2; and
(c) the date on which any Commitment Termination Event occurs.
Upon the occurrence of any event described in clause (b) or (c), the Commitments
shall terminate automatically and without any further action.
"Commitment Termination Event" means
(a) the occurrence of any event or condition described in clause
(e) of Section 6.01 of the U.S. Credit Agreement;
(b) the occurrence and continuance of any other Event of Default
and either
(i) the declaration of the Loans to be due and payable
pursuant to Section 9.3, or
(ii) in the absence of such declaration, the giving of notice
by the Administrative Agent, acting at the direction of the
Required Lenders, to the Borrowers that the Commitments have been
terminated; or
(c) the termination of, or any refinancing, refunding,
replacement, renewal or restatement of, the U.S. Credit Agreement.
"Continuation/Conversion Notice" means a notice of continuation or
conversion and certificate duly executed by an Authorized Officer of a Borrower,
substantially in the form of Exhibit D hereto.
"Credit Extension" means and includes
(a) the advancing of any Loans by the Lenders in connection with
a Borrowing (including the making of a Loan by the Fronting Bank to a
Borrower on a Disbursement Date and the refunding and refinancing of
such Loans by the Lenders); and
-5-
(b) any issuance or extension by the Fronting Bank of a Letter of
Credit.
"Debt Rating" means, on any date, the Public Debt Rating in effect on
such date or, if no Public Debt Rating is then in effect, the Implied Debt
Rating in effect on such date.
"Default" means any Event of Default or any condition, occurrence or
event which, after notice or lapse of time or both, would constitute an Event of
Default.
"Disbursement" means any payment made under a Letter of Credit by the
Fronting Bank to the beneficiary of such Letter of Credit.
"Disbursement Date" is defined in Section 4.5.
"Documentary Letter of Credit" is defined in clause (a) of Section 4.1,
and shall also mean and include each Existing Letter of Credit.
"Documentation Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Documentation
Agent pursuant to Section 10.4.
"Dollar" and the sign "$" mean lawful money of the United States.
"Domestic Office" means, relative to any Lender, the office of such
Lender designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of a Lender (or any successor or
assign of such Lender) within the United States as may be designated from time
to time by notice from such Lender, as the case may be, to each other Person
party hereto.
"Domestic Subsidiary" means any Subsidiary of Group (other than the U.S.
Borrower) organized under the laws of the United States or any state thereof.
"Draft" means and includes any draft, bill, cable or written demand for
payment or receipt drawn or issued under a Documentary Letter of Credit.
"Effective Date" means the date this Agreement becomes effective
pursuant to Section 11.8.
"Environmental Action" means any administrative, regulatory or judicial
action, suit, demand, demand letter, claim, notice of non-compliance or
violation, notice of liability or potential
-6-
liability, investigation, proceeding, consent order or consent agreement
relating in any way to any Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of injury to health, safety
or the environment, including (a) by any governmental or regulatory authority
for enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or any third party
for damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any federal, state, local or foreign statute,
law, ordinance, rule, regulation, code, order, judgment or decree relating to
the environment, health, safety or Hazardous Materials.
"Environment Permit" means any permit, approval, identification number,
license or other authorization required under any Environmental Law.
"Event of Default" is defined in Section 9.1.
"Excess" is defined in Section 11.16.
"Existing Credit Agreement" is defined in the first recital.
"Existing Letters of Credit" is defined in the first recital.
"Existing Loans" is defined in the first recital.
"Federal Funds Rate" means, for any period, a fluctuating interest rate
per annum equal for each day during such period to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by
federal funds brokers, as published for such day (or, if such day is not
a Business Day, for the next preceding Business Day in New York) by the
Federal Reserve Bank of New York; or
(b) if such rate is not so published for any day which is a
Business Day in New York, the average of the quotations for such day on
such transactions received by the Administrative Agent from three
federal funds brokers of recognized standing selected by it.
If for any reason the Administrative Agent shall have determined (which
determination shall be conclusive, absent manifest error) that it is unable to
ascertain the Federal Funds Rate for any reason, including the inability or
failure of the Administrative
-7-
Agent to obtain sufficient bids or publications in accordance with the terms
hereof, the rate announced by the Administrative Agent at its New York Agency as
its "Base Rate New York" shall be the Alternate Base Rate until the
circumstances giving rise to such inability no longer exists.
"Fee Letter" means the confidential Fee Letter, dated July 14, 1997,
between the U.S. Borrower and the Administrative Agent.
"Fiscal Quarter" means any quarter of a Fiscal Year.
"Fiscal Year" means the fiscal year of the U.S. Borrower ending on or
about December 31 of each year.
"Foreign Borrower" is defined in the preamble.
"Foreign Borrower Tradexpress Agreement" means the Tradexpress
Transmission Agreement duly executed and delivered by the Foreign Borrower and
the Fronting Bank pursuant to Section 6.1.7 in a form agreed to by the Fronting
Bank and the U.S. Borrower.
"Fronting Bank" means Scotiabank, in its capacity as the issuer of
Letters of Credit (regardless of which office, branch or agency of Scotiabank
issues a Letter of Credit) and in its capacity as the Lender of Loans made prior
to a Funding Date pursuant to the terms of this Agreement.
"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"Funding Date" is defined in clause (c) of Section 2.3.
"GAAP" has the meaning set forth in the U.S. Credit Agreement.
"Goods" means, collectively, all goods (including all inventory), wares,
merchandise and other commodities purchased by or shipped to or to the order of
a Borrower under or by virtue of or in connection with the issuance of a
Documentary Letter of Credit.
"Group" is defined in the preamble.
"Group Guaranty" means the Amended and Restated Guaranty executed and
delivered by an Authorized Officer of Group pursuant to Section 6.1.3,
substantially in the form of Exhibit F-1 hereto, as amended, supplemented,
restated or otherwise modified from time to time.
-8-
"Hazardous Materials" means petroleum and petroleum products, byproducts
or breakdown products, radioactive materials, asbestos-containing materials,
radon gas and any other chemicals, materials or substances designated,
classified or regulated as being "hazardous" or "toxic", or words of similar
import, under any Environmental Law.
"herein", "hereof", "hereto", "hereunder" and similar terms contained in
this Agreement or any other Loan Document refer to this Agreement or such other
Loan Document, as the case may be, as a whole and not to any particular Section,
paragraph or provision of this Agreement or such other Loan Document.
"Implied Senior Rating" means the rating assigned by S&P to Group's
unsecured "implied senior debt" from time to time, as reported by S&P on July
11, 1997 or any subsequent report or notification in writing issued by S&P
(which rating on the date hereof is BBB), or, if such rating is unavailable, the
equivalent rating assigned by Moody's to Group's unsecured "implied senior
debt", as notified in writing to Group by Moody's.
"including" means including without limiting the generality of any
description preceding such term.
"Indebtedness" of any Person means, without duplication:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases which
have been or should be, in accordance with GAAP, recorded as capitalized
lease liabilities;
(d) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade debt incurred in the
ordinary course of business), and indebtedness (excluding prepaid
interest thereon) secured by a Lien on property owned or being purchased
by such Person (including indebtedness arising under conditional sales
or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse; and
(e) all contingent liabilities of such Person in respect of any
of the foregoing.
-9-
"Indemnified Liabilities" is defined in Section 11.4.
"Indemnified Parties" is defined in Section 11.4.
"Interest Period" means, relative to any LIBO Rate Loans, the period
beginning on (and including) the date on which such LIBO Rate Loan is made or
continued as, or converted into, a LIBO Rate Loan pursuant to Section 2.3 or 2.4
and ending on (but excluding) the day which numerically corresponds to such date
one, two, three or four months thereafter (or, if such month has no numerically
corresponding day, on the last Business Day of such month), in each case as such
Loan may be made or as a Borrower may select in its relevant notice pursuant to
Section 2.3 or 2.4; provided, however, that
(a) Interest Periods commencing on the same date for Loans
comprising part of the same Borrowing shall be of the same duration;
(b) if such Interest Period would otherwise end on a day which is
not a Business Day, such Interest Period shall end on the next following
Business Day (unless such next following Business Day is the first
Business Day of a calendar month, in which case such Interest Period
shall end on the Business Day next preceding such numerically
corresponding day); and
(c) no Interest Period may end later than the Stated Maturity
Date for such Loan or, if earlier, the date set forth in clause (a) of
the definition of "Commitment Termination Date", as such date may be
extended from time to time pursuant to the terms of this Agreement.
"Issuance Request" means either (a) a request delivered by a Borrower to
the Fronting Bank in accordance with the provisions of the Tradexpress Agreement
or (b) a request and certificate duly executed by an Authorized Officer of a
Borrower, in substantially the form of Exhibit B attached hereto (with such
changes thereto as may be agreed upon from time to time by the Administrative
Agent and the U.S. Borrower).
"Lender Assignment Agreement" means a Lender Assignment Agreement
substantially in the form of Exhibit E hereto.
"Lenders" is defined in the preamble.
"Letter of Credit" means, as the context may require, a Documentary
Letter of Credit and/or a Standby Letter of Credit.
-10-
"Letter of Credit Availability" means, at any time, the then existing
Commitment Amount minus the sum of the aggregate outstanding principal amount of
all Loans, together with the aggregate amount of all Letter of Credit
Outstandings.
"Letter of Credit Commitment" means, relative to the Fronting Bank, the
Fronting Bank's obligation to issue Letters of Credit pursuant to Section 2.1.2
and, with respect to each of the other Lenders, the obligations of each such
Lender to participate in such Letters of Credit pursuant to the terms of this
Agreement.
"Letter of Credit Outstandings" means, at any time, an amount equal to
the sum of
(a) the aggregate Stated Amount at such time of all Letters of
Credit then outstanding and undrawn (as such aggregate Stated Amount
shall be adjusted, from time to time, as a result of drawings, the
issuance of Letters of Credit, or otherwise),
plus
(b) the then aggregate amount of all unpaid and outstanding
Reimbursement Obligations.
"LIBO Rate" is defined in Section 3.2.1.
"LIBO Rate Loan" means a Loan bearing interest, at all times during an
Interest Period applicable to such Loan, at a fixed rate of interest determined
by reference to the LIBO Rate (Reserve Adjusted).
"LIBO Rate (Reserve Adjusted)" is defined in Section 3.2.1.
"LIBOR Office" means, relative to any Lender, the office of such Lender
designated as such below its signature hereto or designated in the Lender
Assignment Agreement or such other office of any Lender as designated from time
to time by notice from such Lender to the U.S. Borrower and the Administrative
Agent, whether or not outside the United States, which shall be making or
maintaining LIBO Rate Loans hereunder.
"LIBOR Reserve Percentage" is defined in Section 3.2.1.
"Lien" means any security interest, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or otherwise),
charge against or interest in property to secure payment of a debt or
performance of an obligation or other priority or preferential arrangement of
any kind or nature whatsoever.
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"Loans" is defined in Section 2.1.1, and shall also mean and include the
Existing Loans.
"Loan Commitment" means, relative to (i) the Fronting Bank (in such
capacity), its obligation to make Loans to the Borrowers on a Disbursement Date
and (ii) each Lender (other than the Fronting Bank in such capacity), such
Lender's obligation to participate in the Loans made by the Fronting Bank to the
Borrowers and, as set forth in this Agreement, to refund and reimburse the
Fronting Bank for such Loans, in each case pursuant to the terms of this
Agreement.
"Loan Document" means this Agreement, each Note, the Tradexpress
Agreement, the Group Guaranty, the Subsidiary Guaranty, the Fee Letter and each
other agreement, document or instrument delivered in connection with this
Agreement, whether or not specifically mentioned herein.
"Managing Agents" means, collectively, Scotiabank and Citibank.
"Maximum Rate" is defined in Section 11.16.
"Moody's" means Moody's Investors Service, Inc.
"Note" means any promissory note of either Borrower payable to the order
of any Lender (including the Fronting Bank), in the form of Exhibit A (as any
such promissory note may be amended, endorsed or otherwise modified from time to
time), evidencing the aggregate Indebtedness of such Borrower to such Lender
resulting from outstanding Loans made by such Lender, and also means all other
promissory notes accepted from time to time in substitution therefor or renewal
thereof.
"Obligations" means all obligations (monetary or otherwise) of the
Borrowers and each other Obligor arising under or in connection with this
Agreement, the Notes and each other Loan Document.
"Obligor" means the Borrowers and each other Person (other than the
Agents, the Fronting Bank and the Lenders) obligated under any Loan Document.
"Order" is defined in clause (b) of Section 4.6.
"Organic Document" means, relative to any Obligor, as applicable, its
certificate of incorporation, by-laws, certificate of formation or limited
liability company agreement, and all shareholder agreements, voting trusts and
similar arrangements applicable to any of the authorized shares of capital stock
or other ownership interest of such Obligor.
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"Participant" is defined in Section 11.11.2.
"Percentage" means, relative to any Lender, the percentage set forth
opposite its signature hereto or set forth in a Lender Assignment Agreement, as
such percentage may be adjusted from time to time pursuant to the terms hereof
or a Lender Assignment Agreement executed by such Lender and its Assignee Lender
and delivered pursuant to Section 11.11; provided, that the Percentage of each
Lender's Loan Commitment and Letter of Credit Commitment shall be identical.
"Person" means any natural person, corporation, limited liability
company, partnership, firm, association, trust, government, governmental agency
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Public Debt Rating" means, as of any date, the higher rating that has
been most recently announced by either S&P or Moody's, as the case may be, for
any class of non-credit enhanced long-term senior unsecured debt issued by
Group. For purposes of the foregoing, (a) if only one of S&P and Moody's shall
have in effect a Public Debt Rating, the Applicable Margin and the letter of
credit face amount fees shall be determined by reference to the available
rating; (b) if the ratings established by S&P and Moody's shall fall within
different levels separated by two or more levels, the Applicable Margin and the
Applicable Percentage shall be based upon the level that is one level below the
higher rating; (c) if any rating established by S&P or Moody's shall be changed,
such change shall be effective as of the date on which such change is first
announced publicly by the rating agency making such change; and (d) if S&P or
Moody's shall change the basis on which ratings are established, each reference
to the Public Debt Rating announced by S&P or Moody's, as the case may be, shall
refer to the then equivalent rating by S&P or Moody's, as the case may be.
"Quarterly Payment Date" means the last day of each March, June,
September, and December or, if any such day is not a Business Day in New York,
the next succeeding Business Day in New York.
"Received Amount" is defined in clause (c) of Section 4.6.
"Reimbursement Obligation" is defined in Section 4.6.
"Required Lenders" means, at any time, Lenders holding at least 51% of
the then aggregate outstanding principal amount of the Notes then held by the
Lenders or, if no such principal amount is then outstanding, Lenders having
Percentages that equal at least 51% of the Commitments; provided, that so long
as the Fronting Bank (in such capacity) has any Loans outstanding and
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owing to it from either Borrower, each Lender will be deemed to have outstanding
and owing to it a principal amount equal to such Lender's Percentage multiplied
by the aggregate outstanding principal amount of Loans owing to the Fronting
Bank.
"S&P" means Standard & Poor's Ratings Group, currently a division of
McGraw-Hill, Inc., or any successor thereto.
"Scotiabank" is defined in the preamble.
"Standby Letter of Credit" is defined in clause (b) of Section 4.1.
"Stated Amount" of each Letter of Credit means the maximum amount of
such Letter of Credit that may then be drawn under such Letter of Credit whether
or not the conditions for drawing thereunder have been met.
"Stated Expiry Date" is defined in Section 4.1.
"Stated Maturity Date" means, in the case of any Loan, the earlier of
(a) the date which is four months following the date of the making of such Loan
(in the case of a Loan initially made as a LIBO Rate Loan) or (in the case of a
Loan initially made as a Base Rate Loan), the date that is 120 days after the
making of such Loan and (b) the Commitment Termination Date (as such date may be
extended pursuant to the terms of this Agreement).
"Stated Rate" is defined in Section 11.16.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which) more
than 50% of (a) the issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such corporation
(irrespective of whether at the time capital stock of any other class or classes
of such corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such limited
liability company, partnership or joint venture or (c) the beneficial interest
in such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries. The term
"wholly owned Subsidiary" shall exclude any directors' or officers' qualifying
shares which may be outstanding.
"Subsidiary Guaranty" means the Amended and Restated Guaranty executed
and delivered by each Domestic Subsidiary pursuant to Section 6.1.3 or Section
8.1.3, substantially in the
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form of Exhibit F-2 hereto, as amended, supplemented, restated or otherwise
modified from time to time.
"Taxes" is defined in Section 5.6.
"Tradexpress Agreement" means, as the context may require, the U.S.
Borrower Tradexpress Agreement and/or the Foreign Borrower Tradexpress
Agreement.
"type" means relative to any Loan, the portion thereof, if any, being
maintained as a Base Rate Loan or a LIBO Rate Loan.
"UCP" is defined in Section 11.15.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"U.S. Borrower" is defined in the preamble.
"U.S. Borrower Tradexpress Agreement" means the Tradexpress Transmission
Agreement duly executed and delivered by the U.S. Borrower and the Fronting Bank
pursuant to Section 6.1.7 in a form agreed to by the Fronting Bank and the U.S.
Borrower.
"U.S. Credit Agreement" means the Credit Agreement, dated as of August
12, 1997, among the U.S. Borrower, Group, the initial lenders named therein,
Scotiabank and Citibank, as managing agents, Citibank, as documentation agent,
and Scotiabank, as administrative agent, competitive bid agent, swing line bank
and an issuing bank, as further amended, restated or waived from time to time
with the consent of the Required Lenders hereunder solely for purposes of this
Agreement, and regardless of whether such U.S. Credit Agreement is terminated,
unless in connection with such termination a replacement credit facility
satisfactory to the Required Lenders hereunder is entered into, in which case
the affirmative and negative covenants in such facility shall become the subject
of this Agreement.
"Usury Restraint" is defined in Section 11.16.
SECTION 1.2. Use of Defined Terms. Unless otherwise defined or the
context otherwise requires, terms for which meanings are provided in this
Agreement shall have such meanings when used in each Note, Borrowing Request,
Continuation/ Conversion Notice, Loan Document, notice and other communication
delivered from time to time in connection with this Agreement or any other
Loan Document.
SECTION 1.3. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Loan Document to any Article or
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Section are references to such Article or Section of this Agreement or such
other Loan Document, as the case may be, and, unless otherwise specified,
references in any Article, Section or definition to any clause are references to
such clause of such Article, Section or definition.
SECTION 1.4. Accounting and Financial Determinations. Unless otherwise
specified, all accounting terms used herein shall be interpreted, all accounting
determinations and computations hereunder shall be made, and all financial
statements required to be delivered hereunder or thereunder shall be prepared in
accordance with, GAAP.
ARTICLE II
COMMITMENTS, BORROWING PROCEDURES AND NOTES
SECTION 2.1. Commitments. On the terms and subject to the conditions of
this Agreement (including Article VI), each Lender severally agrees as follows:
SECTION 2.1.1. Loan Commitment. The Borrowers, Group, the Agents, the
Fronting Bank and the Lenders hereby agree that the Existing Credit Agreement is
hereby amended and restated in its entirety to become effective and binding on
the Borrowers, Group and the other parties to this Agreement pursuant to the
terms of this Agreement, and that the commitments which the Fronting Bank and
the Lenders have agreed to extend to the Borrowers under the Existing Credit
Agreement shall be extended or advanced to the Borrowers upon the amended and
restated terms and conditions contained in this Agreement with the intent that
the terms of this Agreement shall supersede the terms of the Existing Credit
Agreement (which shall hereafter have no further effect upon the parties
thereto, other than for accrued fees and expenses, and indemnification
provisions, accrued and owing under the terms of the Existing Credit Agreement
on or prior to the date hereof or arising (in the case of an indemnification)
under the terms of the Existing Credit Agreement). In furtherance of the
foregoing, from time to time on any Business Day each Lender severally agrees,
subject to the terms of this Agreement (including Article VI) that
(a) in the case of the Fronting Bank, it will make loans
(the "Loans") to (i) the U.S. Borrower (in the case of each Letter of
Credit issued for the account of other than the Foreign Borrower) and
(ii) the Foreign Borrower (in the case of each Letter of Credit issued
for the account of the Foreign Borrower), and (in each case), on the
Disbursement Date of each Letter of Credit for a period not to exceed
the Stated Maturity Date for such Loan in a principal amount
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equal to the aggregate amount of Disbursements made under one or more
Letters of Credit on such Disbursement Date; and
(b) in the case of each Lender (other than the Fronting Bank
in such capacity), such Lender will participate in the Loans made by the
Fronting Bank pursuant to this Agreement and, if required pursuant to
the terms of this Agreement, such Lender will refinance and reimburse
the Fronting Bank for the outstanding principal amount of Loans
previously made by the Fronting Bank in an amount equal to its
Percentage of the aggregate amount of all (or, if elected by the
Fronting Bank, less than all) Loans (determined, in the sole discretion
of the Fronting Bank, as between Loans made to the U.S. Borrower and the
Foreign Borrower) then outstanding and owing to the Fronting Bank (in
its capacity as the Fronting Bank), and upon the receipt by the Fronting
Bank of immediately available funds from a Lender in respect of the
reimbursement or refinancing of a Loan previously made by and owing to
the Fronting Bank, the amount so received by the Fronting Bank will
thereafter be a Loan to the applicable Borrower owing to such Lender
(and no longer owing to the Fronting Bank). No Lender's obligation to
make any Loan shall be affected by any other Lender's failure to make
any Loan. On the terms and subject to the conditions hereof, the
Borrowers may from time to time borrow Loans and continue or convert
such Loans as Base Rate Loans or LIBO Rate Loans pursuant to the terms
hereof, but once a particular Loan is repaid or prepaid by a Borrower,
it cannot be reborrowed. Notwithstanding anything contained herein to
the contrary, so long as any Lender shall be in default in its
obligation to fund its pro rata share of any Loans (as notified to such
Lender by the Administrative Agent, the Administrative Agent agreeing to
use good faith efforts to give such notification promptly following the
occurrence of such default) or shall have rejected its obligations under
its Commitments, then such Lender shall not be entitled to receive any
payments of principal of or interest on its pro rata share of the Loans
or its share of any commitment or other fees payable hereunder
(including fees payable pursuant to Section 3.3) unless and until (x)
the Loans of all the other Lenders and all interest thereon have been
paid in full, (y) such failure to fulfill its obligation to fund is
cured or (z) the Obligations under this Agreement shall have been
declared or shall have become immediately due and payable, and for
purposes of voting or consenting to matters with respect to the Loan
Documents, such Lender shall be deemed not to be a "Lender" hereunder
and such Lender's Percentage shall each be deemed to be zero (0) (with
each other Lender's Percentage being increased proportionately for
purposes of the definition of "Required Lenders" so that all such
non-defaulting Lenders' Percentages
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shall collectively equal 100%). No Commitment of any Lender shall be
increased or otherwise affected by any such failure or rejections by any
other Lender. Any payments of principal of or interest on Obligations
which would, but for this Section, be paid to any Lender, shall be paid
to the Lenders who shall not be in default under their respective
Commitments and who shall not have rejected any Commitment, for
application to the Obligations or cash collateral in respect of Letters
of Credit in such manner and order (pro rata among such Lenders) as
shall be determined by the Administrative Agent. The parties hereto
acknowledge and agree that a Lender's failure to make a Loan based on
either Borrower's failure to satisfy one or more of the conditions
precedent to the making of Loans set forth in Article VI shall not be
construed as such Lender being in default of its obligations to fund its
pro rata share of Loans or a rejection of such Lender's Commitments.
SECTION 2.1.2. Commitment to Issue Letters of Credit. From time to time
on any Business Day prior to the Commitment Termination Date, the Fronting Bank
will issue, and each Lender will participate in, the Letters of Credit, in
accordance with Article IV.
SECTION 2.1.3. Lenders Not Permitted or Required to Make Loans and
Fronting Bank Not Permitted or Required to Issue Letters of Credit Under Certain
Circumstances. In addition to the other terms of this Agreement (including
Article VI):
(a) No Lender (other than, in the case of clause (a)(ii),
the Fronting Bank acting in such capacity) shall be permitted or
required to make any Loan if, after giving effect thereto (and the
payment of any Reimbursement Obligations with the proceeds of such Loans
or the refunding and refinancing of Loans made by the Fronting Bank with
the proceeds of the Loans made by the Lenders hereunder), the aggregate
outstanding principal amount of all Loans
(i) together with the aggregate amount of all Letter of
Credit Outstandings, would exceed the Commitment Amount, or
(ii) of such Lender, together with such Lender's Percentage
of the aggregate amount of all Letter of Credit Outstandings
would exceed the amount of such Lender's Percentage multiplied by
the Commitment Amount.
(b) The Fronting Bank shall not be permitted or required to
issue any Letter of Credit or extend for an additional period of time
the Stated Expiry Date of a
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previously issued Letter of Credit if, after giving effect thereto the aggregate
amount of all Letter of Credit Outstandings, together with the aggregate
outstanding principal amount of all Loans would exceed the Commitment Amount.
(c) The Fronting Bank shall not be permitted or required to
make any Loan on any Disbursement Date if, after giving effect thereto
(and the payment of any Reimbursement Obligations with the proceeds of
such Loans), the aggregate outstanding principal amount of all Loans,
together with the aggregate amount of all Letter of Credit Outstandings,
would exceed the Commitment Amount.
SECTION 2.2. Reduction of the Commitment Amount. The U.S. Borrower may,
from time to time on any Business Day, voluntarily reduce the amount of the
Commitment Amount; provided, however, that all such reductions shall be binding
on both Borrowers, shall require at least three Business Days' prior notice to
the Administrative Agent and be permanent.
SECTION 2.3. Borrowing Procedure. (a) Upon any Disbursements being made
in respect of one or more Letters of Credit (whether such Letters of Credit were
issued to support the obligations of the Foreign Borrower, the U.S. Borrower or
any Subsidiary of the U.S. Borrower (or any of their respective divisions)), the
U.S. Borrower (in the case of a Letter of Credit issued for the account of other
than the Foreign Borrower) and the Foreign Borrower (in the case of a Letter of
Credit issued for its account) shall (unless it shall have given notice to the
Administrative Agent to the contrary prior to 3:00 p.m., Applicable Time, at
least three Business Days prior to the date of such Disbursement) be deemed to
have delivered to the Administrative Agent a Borrowing Request pursuant to which
such Borrower shall have been deemed to irrevocably request that the Fronting
Bank make a LIBO Rate Loan to such Borrower with a four month Interest Period in
a principal amount equal to the aggregate amount of the Disbursements made on
such date. Each Borrower hereby acknowledges and agrees that each Borrowing
Request deemed to be delivered hereunder, the making of a Loan by the Fronting
Bank to reimburse the Fronting Bank for Disbursements made under the Letters of
Credit and the acceptance by either Borrower of the proceeds of the Borrowing
shall constitute a representation and warranty by the Borrowers that on the date
of such Borrowing (both immediately before and after giving effect to such
Borrowing and the application of the proceeds thereof) the statements made in
Section 6.2.1 are in each case true and correct. Proceeds of such Loans shall be
used to fund the Reimbursement Obligations in respect of Letters of Credit under
which one or more Disbursements were made on the date of the Loan. Each of the
parties hereto acknowledge and
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agree that upon the satisfaction of the conditions precedent set forth in
Section 6.1, the Existing Loans shall be deemed to be Loans made by the Fronting
Bank on the Effective Date under the terms of this Agreement and shall
thereafter accrue interest and fees pursuant to the terms hereof, and each
Lender shall continue to participate in such Loans in an amount equal to such
Lender's Percentage of the outstanding principal amount of the Existing Loans.
(b) In addition to the provisions of the making of Loans set forth in
clause (a), above, by delivering a Borrowing Request to the Administrative Agent
on or before 11:00 a.m., Applicable Time, on a Business Day, a Borrower may from
time to time irrevocably request, on not less than three nor more than five
Business Days' notice (in the case of LIBO Rate Loans) and on the date of such
Borrowing (in the case of Base Rate Loans), that a Borrowing be made as other
than a LIBO Rate Loan having a four month Interest Period or in an amount other
than the full amount of Disbursements with respect to which such Loan is to be
made. If either Borrower elects that a Borrowing be made as a LIBO Rate Loan
having a one, two or three month Interest Period pursuant to this clause, then
upon the expiration of such Interest Period such Borrower shall (unless it shall
have given notice to the Administrative Agent to the contrary prior to 11:00
a.m., Applicable Time, at least three Business Days prior to the date of such
Disbursement) be deemed to have delivered to the Administrative Agent a
Continuation/Conversion Notice pursuant to which such Borrower shall have been
deemed to irrevocably request that the Fronting Bank continue the outstanding
LIBO Rate Loan as a LIBO Rate Loan with an Interest Period of (i) one month, in
the case of the expiration of a three month Interest Period or Interest Periods
which, in the aggregate, equal three months, (ii) two months, in the case of the
expiration of a two month Interest Period or Interest Periods which, in the
aggregate, equal two months, or (iii) three months, in the case of the
expiration of a one month Interest Period, in each case in a principal amount
equal to the amount of the LIBO Rate Loan with an Interest Period then expiring.
On the terms and subject to the conditions of this Agreement, each Borrowing
shall be comprised of the type of Loans, and shall be made on the Business Day,
specified (or deemed to be specified) in such Borrowing Request.
(c) The Fronting Bank may, at any time (whether or not a Default or
Event of Default has occurred and is then continuing), in its sole and absolute
discretion but subject to clause (a)(ii) of Section 2.1.3, demand that each
other Lender make a Loan in an amount equal to such Lender's Percentage of the
aggregate principal amount of all or a portion of the Loans outstanding on the
date such demand is made, and may (in its sole discretion) elect which Loans (as
among the Borrowers) are to be chosen as
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the Loans to be refunded by the Lenders. Each Lender (other than the Fronting
Bank) irrevocably agrees that it shall (whether or not the conditions to the
making of a Credit Extension contained in Article VI have been (or can be)
satisfied) make such Loan by depositing the amount so demanded in same day funds
in an account specified by the Fronting Bank on or before 11:00 a.m. New York
City time on the first Business Day following receipt of such a demand. The
Fronting Bank agrees to apply all such funds received by it under this clause to
refund and refinance the Loans previously made by it to either Borrower, as
identified in the demand that it delivers to the Lenders pursuant to this
clause. On the date (a "Funding Date") that the Lenders (other than the Fronting
Bank) advance funds to the Fronting Bank pursuant to this clause, the principal
amount so refunded and refinanced shall become a Loan to the Borrower identified
by the Fronting Bank outstanding under such Lender's Note to that particular
Borrower and shall no longer be a Loan owed to the Fronting Bank under the
Fronting Bank's Note to that particular Borrower.
All interest payable with respect to any Loans made pursuant to this
clause shall be appropriately adjusted to reflect the period of time during
which such Loans were owing to the Fronting Bank and, on and subsequent to a
Funding Date, such Loans were owing to the Lenders.
The obligation of each Lender to make Loans by way of advancing
immediately available funds to the Fronting Bank on a Funding Date to be applied
to refund and refinance the Loans previously made by the Fronting Bank to the
Borrowers (or either one of them) under this clause shall be absolute and
unconditional and shall not be affected by any circumstance, including (i) any
set-off, counterclaim, recoupment, defense or other right which any Lender may
have against Scotiabank, the Borrowers or any other Person for any reason
whatsoever; (ii) the occurrence or continuance of any Default or the inability
of the Borrowers to otherwise satisfy the conditions precedent set forth in
Article VI; (iii) any adverse change in the condition (financial or otherwise)
of either Borrower or any other Obligor; (iv) the acceleration or maturity of
any Loans or other Obligations or the termination of any Commitment after the
making of any Loan; (v) any breach of this Agreement or any other Loan Document
by either Borrower, any other Obligor or any Lender; or (vi) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
SECTION 2.4. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Administrative Agent on or before 10:00
a.m., Applicable Time, on a Business Day, either Borrower may from time to time
irrevocably elect, on not less than three nor more than five Business Days'
notice that
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all, or any portion of any Loans made to it be, in the case of Base Rate Loans,
converted into LIBO Rate Loans or, in the case of a LIBO Rate Loan, converted
into a Base Rate Loan or continued as a LIBO Rate Loan (in the absence of
delivery of a Continuation/Conversion Notice with respect to any LIBO Rate Loan
at least three Business Days before the last day of the then current Interest
Period with respect thereto, such LIBO Rate Loan shall, on such last day,
automatically convert to a LIBO Rate Loan pursuant to the provisions of clause
(b) of Section 2.3, unless such Loan is otherwise required to be paid pursuant
to the terms of this Agreement (including the first sentence of Section 3.1));
provided, however, that (i) no portion of the outstanding principal amount of
any Loans may be continued as, or be converted into, LIBO Rate Loans when any
Default has occurred and is continuing and (ii) the maximum length of any
Interest Period or combination of Interest Periods for any particular Loan shall
not exceed four months.
Section 2.5. Funding. Each Lender may, if it so elects, fulfill its
obligation to participate in, and to make, continue or convert LIBO Rate Loans
hereunder by causing one of its foreign branches or affiliates (or an
international banking facility all of the capital stock or other ownership
interests of which are wholly-owned by such Lender) to make or maintain such
LIBO Rate Loan; provided, however, that such LIBO Rate Loan shall nonetheless be
deemed to have been made and to be held by such Lender, and the obligation of
the Lender to refund and refinance such LIBO Rate Loan on the Funding Date and
the obligation of the Borrowers to repay such LIBO Rate Loan shall nevertheless
be of or to such Lender for the account of such foreign branch, affiliate or
international banking facility; provided, further that the Borrowers shall not
be required to pay any amount under this Section or Section 5.6 that is greater
than the amount which it would have been required to pay had such Lender not
caused such branch, affiliate or facility to make or maintain such LIBO Rate
Loan. In addition, the Borrower hereby consents and agrees that, for purposes of
any determination to be made for purposes of Section 5.1, 5.2, 5.3 or 5.4, it
shall be conclusively assumed that such Lender elected to fund all LIBO Rate
Loans by purchasing Dollar deposits in its LIBOR Office's interbank eurodollar
market.
SECTION 2.6. Notes. The Loans of the Fronting Bank under the Loan
Commitment shall be evidenced by Notes payable to the order of the Fronting Bank
from each Borrower in an aggregate maximum principal amount equal to the
original Commitment Amount, and the Loans of each Lender (other than the
Fronting Bank) under the Loan Commitment shall be evidenced by Notes payable
from each Borrower to the order of such Lender in a maximum principal amount
equal to such Lender's Percentage multiplied by the original Commitment Amount.
Each Borrower hereby irrevocably
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authorizes each Lender to make (or cause to be made) appropriate notations on
the grid attached to such Lender's Notes (or on any continuation of such grid),
which notations, if made, shall evidence, inter alia, the date of, the
outstanding principal of, and the interest rate and Interest Period applicable
to the Loans evidenced thereby and the principal amount of Loans that have been
repaid (including, in the case of the Fronting Bank, Loans that have been
refunded and refinanced by the Lenders on a Funding Date). Such notations shall
be conclusive and binding on the Borrowers absent manifest error; provided,
however, that the failure of any Lender to make any such notations shall not
limit or otherwise affect any Obligations of either Borrower.
SECTION 2.7. Extension of Commitment Termination Date. The Commitment
Termination Date may be extended by the Lenders in their sole and absolute
discretion upon written request of the U.S. Borrower received at least 60 days
but not more than 90 days prior to the then effective Commitment Termination
Date (as such date may have been extended). The Lenders shall give written
notice to the U.S. Borrower of their decision and, if approved, of the new
Commitment Termination Date; provided, that notwithstanding any other provision
in this Agreement to the contrary, in no event shall the modified Commitment
Termination Date exceed 364 days from the then expiring Commitment Termination
Date. The Lenders shall give written notice to the U.S. Borrower of their
decision within 30 days of request. In the absence of the approval of any one of
the Lenders, the then effective Commitment Termination Date shall not be
extended and shall terminate and expire as otherwise provided in this Agreement,
and the failure of any Lender to deliver a written notice within the requisite
period set forth above shall be deemed to be an election by that Lender not to
extend the Commitment Termination Date.
ARTICLE III
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES
SECTION 3.1. Repayments and Prepayments. The Borrowers shall repay in
full the entire unpaid principal amount of each Loan upon the Stated Maturity
Date therefor; provided, that notwithstanding anything contained in this
Agreement or any Loan Document to the contrary, the Foreign Borrower shall only
be obligated to repay the principal amount of the Loans made to it and
Reimbursement Obligations in respect of Letters of Credit issued for its
account. Prior thereto (and subject to Section 2.1.1), each Borrower
(a) may, from time to time on any Business Day, make a
voluntary prepayment, in whole or in part, of the
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outstanding principal amount of any Loans; provided, however, that all
such voluntary prepayments shall require at least one Business Day's
prior written notice to the Administrative Agent;
(b) shall, on each date when any reduction in the Commitment
Amount shall become effective (which reduction shall be subject to
Section 2.2), make a mandatory prepayment (which shall be applied (or
held as cash collateral for application to the aggregate amount of all
Letter of Credit Outstandings not consisting of unpaid and outstanding
Reimbursement Obligations) by the Administrative Agent to the payment of
the Loans and unpaid and outstanding Reimbursement Obligations of the
then Letter of Credit Outstandings) equal to the excess, if any, of the
aggregate outstanding principal amount of all Loans, together with the
aggregate amount of all Letter of Credit Outstandings over the
Commitment Amount as so reduced; and
(c) shall, immediately upon any acceleration of the Stated
Maturity Date of any Obligations pursuant to Section 9.2 or Section 9.3,
repay all Obligations, unless, pursuant to Section 9.3, only a portion
of all Obligations is so accelerated.
Each prepayment of any Loans made pursuant to this Section shall be without
premium or penalty, except as may be required by Section 5.4. No voluntary
prepayment of principal of any Loans shall cause a reduction in the Commitment
Amount.
SECTION 3.2. Interest Provisions. Interest on the outstanding principal
amount of Loans shall accrue and be payable in accordance with this Section 3.2.
SECTION 3.2.1. Rates. Loans comprising a Borrowing shall accrue
interest at a rate per annum:
(a) on that portion maintained from time to time as a Base
Rate Loan, equal to the sum of the Alternate Base Rate from time to time
in effect plus the Applicable Margin in effect from time to time; or
(b) on that portion maintained as a LIBO Rate Loan (whether
made pursuant to clause (a) or clause (b) of Section 2.3), during each
Interest Period applicable thereto, equal to the sum of the LIBO Rate
(Reserve Adjusted) for such Interest Period plus the Applicable Margin
in effect from time to time.
The "LIBO Rate (Reserve Adjusted)" means, relative to any Loan to be
made, continued or maintained as, or converted into, a
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LIBO Rate Loan for any Interest Period, a rate per annum (rounded upwards, if
necessary, to the nearest 1/16 of 1%) determined pursuant to the following
formula:
LIBO Rate = LIBO Rate
(Reserve Adjusted) -------------------------------
1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate Loans
will be determined by the Administrative Agent on the basis of the LIBOR Reserve
Percentage in effect on, and the applicable rates furnished to and received by
the Administrative Agent from Scotiabank, two Business Days before the first day
of such Interest Period.
"LIBO Rate" means, relative to any Interest Period for LIBO Rate Loans,
the rate of interest per annum (rounded upwards, if necessary, to the nearest
1/16 of 1%) reported, on the first day of such Interest Period as of 11:00 a.m.
London time, on Telerate Access Service Page 3750 (British Bankers Association
Settlement Rate) as the London Interbank Offered Rate for Dollar deposits having
a term comparable to such Interest Period and in an amount of $1,000,000 or more
(or, if said page shall cease to be publicly available, as reported by any
publicly available source of similar market data selected by the Administrative
Agent that, in the Administrative Agent's reasonable judgment, accurately
reflects such London Interbank Offered Rate).
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Loans, the reserve percentage, if any (expressed as a decimal) equal
to the maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as currently defined in Regulation D of the F.R.S.
Board, having a term approximately equal or comparable to such Interest Period.
All LIBO Rate Loans shall bear interest from and including the first day
of the applicable Interest Period to (but not including) the last day of such
Interest Period at the interest rate determined as applicable to such LIBO Rate
Loan.
SECTION 3.2.2. Post-Maturity Rates. After and during the continuance of
a Default or an Event of Default (after giving effect to any grace periods in
respect thereof in the case of an Event of Default described in Section 9.1.1),
the Borrowers shall pay interest (after as well as before judgment) on (a) the
unpaid principal amount of each outstanding Loan at a rate per annum
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equal to 2% per annum above the then applicable interest rate in respect of such
Loan and (b) to the fullest extent permitted by law, the amount of any interest,
fee or other amount payable hereunder at a rate per annum equal at all times to
2% per annum above the Alternate Base Rate then in effect.
SECTION 3.2.3. Payment Dates. Interest accrued on each Loan shall be
payable, without duplication:
(a) on the Stated Maturity Date therefor;
(b) on the date of any optional or required payment or
prepayment, in whole or in part, of principal outstanding on such Loan
(including, with respect to LIBO Rate Loans, on the last day of each
applicable Interest Period for such LIBO Rate Loan);
(c) with respect to any Base Rate Loans converted into LIBO
Rate Loans on a day when interest would not otherwise have been payable
pursuant to the terms hereof, on the date of such conversion; and
(d) on that portion of any Loans the Stated Maturity Date of
which is accelerated pursuant to Section 9.2 or Section 9.3, immediately
upon such acceleration.
Interest accrued on Loans or other monetary Obligations arising under this
Agreement or any other Loan Document after the date such amount is due and
payable (whether on the Stated Maturity Date, upon acceleration or otherwise)
shall be payable upon demand.
SECTION 3.2.4. Allocation of Interest Payments. Accrued and unpaid
interest on the outstanding principal amount of the Loans shall be allocated and
payable to the Lenders as set forth in this Section:
(a) Interest shall be payable by a Borrower to the Fronting
Bank (for its own account) on the outstanding principal amount of its
Loans from the date such Loans are made to (but excluding) the Funding
Date in an amount equal to the difference between (x) (i) in the case of
LIBO Rate Loans, the LIBO Rate (Reserve Adjusted) or, in the case of
Base Rate Loans, the Alternate Base Rate, plus the Applicable Margin
then in effect for LIBO Rate Loans or Base Rate Loans (as applicable)
multiplied by (ii) the outstanding principal amount of the LIBO Rate
Loans or Base Rate Loans, as the case may be, minus (y) the Interest
Amount (as defined below). Prior to the Funding Date each Lender (other
than the Fronting Bank) shall be paid interest in an aggregate amount
(referred to as the "Interest
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Amount") equal to such Lender's Percentage of (i) the principal amount
of the Loans outstanding prior to a Funding Date multiplied by (ii) the
Applicable Margin then in effect for LIBO Rate Loans (in the case of the
outstanding principal amount of LIBO Rate Loans) or Base Rate Loans (in
the case of the outstanding principal amount of Base Rate Loans).
(b) On and subsequent to a Funding Date, interest shall be
payable by a Borrower for the account of each Lender (including the
Fronting Bank, in its capacity as a Lender) in accordance with its
Percentage on the principal amount of its Loans actually funded by such
Lender in an amount equal to (in the case of the outstanding principal
amount of LIBO Rate Loans) the LIBO Rate (Reserve Adjusted) plus the
Applicable Margin for such LIBO Rate Loans or, if applicable (in the
case of the outstanding principal amount of Base Rate Loans), the
Alternate Base Rate plus the Applicable Margin for Base Rate Loans.
SECTION 3.3. Fees. Each Borrower agrees to pay the fees payable by it
set forth in this Section 3.3. All such fees shall be non-refundable.
SECTION 3.3.1. Letter of Credit Face Amount Fee. The Borrowers agree to
pay to the Administrative Agent, for the pro rata account of the Lenders
determined in accordance with each Lender's Percentage, a fee for each Letter of
Credit for the period from and including the date of the issuance of such Letter
of Credit to (but not including) the earlier of (a) the date upon which such
Letter of Credit expires and (b) the date upon which the Stated Amount of such
Letter of Credit is irrevocably reduced to zero (by the making of a Disbursement
by the Fronting Bank or otherwise), at the rates per annum determined by
reference to the Rating Level in effect from time to time as set forth below for
such type of Letter of Credit (provided, however, that no change in the rate for
Letters of Credit shall be effective until three Business Days after the date on
which the Administrative Agent receives evidence reasonably satisfactory to it
from Group or the U.S. Borrower that a new Rating Level is in effect):
Rate for Rate for
Documentary Standby
Rating Letters of Letters of
Level Debt Rating Credit Credit
----- ----------- ----------- ----------
Level 1 A-/A3 or higher 0.175% 0.250%
Level 2 BBB+/Baa1 0.200% 0.275%
Level 3 BBB/Baa2 0.225% 0.300%
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Level 4 BBB-/Baa3 0.350% 0.425%
Level 5 BB+/Ba1 or lower 0.550% 0.625%;
provided, however, that at any time when the aggregate outstanding principal
amount of all Loans, together with the aggregate amount of all Letter of Credit
Outstandings exceeds $75,000,000 and the then existing Rating Level is equal to
Level 1, Level 2 or Level 3, such fee shall be increased by 0.075% per annum.
The Foreign Borrower shall only be liable for the fee that has accrued on those
Letters of Credit issued for its account. In the event that at any time no Debt
Rating shall be in effect, the applicable rate per annum for purposes of
determining the Letter of Credit fees provided for under this Section shall be
0.550% in the case of Documentary Letters of Credit and 0.625% in the case of
Standby Letters of Credit. Such fee shall be payable by the applicable Borrower
in arrears on each Quarterly Payment Date (commencing on the first such date
after the issuance of such Letter of Credit), on the Commitment Termination Date
and, in the case of Documentary Letters of Credit with expiry dates that extend
beyond the Commitment Termination Date, on the expiration of or, if earlier, on
the date of any disbursement made under, such Documentary Letter of Credit, in
each case, for any period then ending for which such fee shall not theretofore
have been paid.
SECTION 3.3.2. Letter of Credit Fees. The Borrowers agree to pay to the
Fronting Bank the fees relating to Letters of Credit in accordance with the Fee
Letter and such customary fees currently paid by the Borrowers on the Effective
Date for each Letter of Credit for the period from and including the date of
issuance of such Letter of Credit to (but not including) the date upon which
such Letter of Credit expires; provided, that the Foreign Borrower shall be
obligated to pay such fees only on those Letters of Credit issued for its
account.
SECTION 3.3.3. Fee Letter. The U.S. Borrower agrees to pay to
Scotiabank, for its own account, such fees in the amounts and on the dates set
forth in the Fee Letter.
SECTION 3.3.4. Commitment Fee. The U.S. Borrower agrees to pay to the
Administrative Agent, for the pro rata account of each Lender determined in
accordance with each Lender's Percentage, for the period commencing on the
Effective Date and continuing through the Commitment Termination Date, a
commitment fee on the sum of the average daily unused portion of the Commitment
Amount at the rates per annum determined by reference to the Rating Level in
effect from time to time as set forth below; (provided, however, that no change
in the commitment fee rate shall be effective until three Business Days after
the date on which the
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Administrative Agent receives evidence reasonably satisfactory to it from Group
or the U.S. Borrower that a new Rating Level is in effect):
Commitment
Rating Level Fee Rate
------------ --------
Level 1 0.065%
Level 2 0.075%
Level 3 0.100%
Level 4 0.125%
Level 5 0.200%
In the event that at any time no Rating Level shall be in effect, the applicable
rate per annum for purposes of determining the commitment fees provided for
under this Section shall be 0.200%. The fee payable under this Section shall be
payable by the U.S. Borrower in arrears on each Quarterly Payment Date,
commencing on the first such date after the Effective Date, and on the
Commitment Termination Date for any period then ending for which such fee shall
not theretofore have been paid.
The amount of any Loans made and Letters of Credit issued by the
Fronting Bank and not funded by the other Lenders will constitute usage of the
Commitment Amount for purposes of calculating the commitment fee payable to
Lenders (other than the Fronting Bank) pursuant to this Section.
SECTION 3.4. Guaranty. The U.S. Borrower shall guaranty the Obligations
of the Foreign Borrower and each other L/C Party as set forth below.
SECTION 3.4.1. Guaranty. The U.S. Borrower hereby absolutely,
unconditionally and irrevocably
(a) guarantees (referred to as its "Guaranty") the full and
punctual payment when due, whether at stated maturity, by required
prepayment, declaration, acceleration, demand or otherwise, of all
Obligations of each of its Subsidiaries (and/or divisions thereof),
including the Foreign Borrower for whom a Letter of Credit has been
issued (collectively referred to as the "L/C Parties"), whether for
principal, interest, fees, expenses or otherwise (including all such
amounts which would become due but for the operation of the automatic
stay under Section 362(a) of the United States Bankruptcy Code, 11
U.S.C. 'SS'362(a), and the operation of Sections 502(b) and 506(b) of
the United States Bankruptcy Code, 11 U.S.C. 'SS'502(b) and
'SS'506(b)); and
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(b) indemnifies and holds harmless each Lender, the Fronting Bank
and each Agent, and their respective successors, transferees and assigns
(collectively referred to as the "Lender Parties") for any and all costs
and expenses (including reasonable attorney's fees and expenses)
incurred by such Lender Party in enforcing any rights under this Section
3.4.1.
This Guaranty constitutes a guaranty of payment when due and not of collection,
and the U.S. Borrower specifically agrees that it shall not be necessary or
required that any Lender Party exercise any right, assert any claim or demand or
enforce any remedy whatsoever against any L/C Party or any other Obligor (or any
other Person) before or as a condition to the obligations of the U.S. Borrower
hereunder.
SECTION 3.4.2. Acceleration of Guaranty. The U.S. Borrower agrees that,
in the event of the dissolution or insolvency of the Foreign Borrower or the
dissolution (other than to the extent permitted by the U.S. Credit Agreement) or
insolvency of any other L/C Party, Obligor, or the U.S. Borrower, or the
inability or failure of any Obligor, any L/C Party or the U.S. Borrower to pay
debts as they become due, or an assignment by any Obligor, any L/C Party or the
U.S. Borrower for the benefit of creditors, or the commencement of any case or
proceeding in respect of any of the foregoing Persons under any bankruptcy,
insolvency or similar laws, and with respect to any involuntary case or
proceeding, such case or proceeding remains undismissed for a period of 30 days;
and if any such event shall occur at a time when any of the Obligations of any
L/C Party and each other Obligor may not then be due and payable, the U.S.
Borrower will pay to the Administrative Agent (for the account of the Lender
Parties) forthwith the full amount which would be payable hereunder by the U.S.
Borrower if all such Obligations were then due and payable.
SECTION 3.4.3. Guarantee Absolute, etc. This Guaranty shall in all
respects be a continuing, absolute, unconditional and irrevocable guaranty of
payment, and shall remain in full force and effect until all Obligations of the
Foreign Borrower, each other L/C Party and each other Obligor have been paid in
full, all obligations of the U.S. Borrower hereunder shall have been paid in
full and all Commitments shall have terminated. The U.S. Borrower guarantees
that the Obligations of the Foreign Borrower, each other L/C Party and each
other Obligor and their respective Subsidiaries will be paid strictly in
accordance with the terms of this Agreement and each other Loan Document under
which they arise, regardless of any law, regulation or order now or hereafter in
effect in any jurisdiction affecting any of such terms or the rights of any
Lender Party with respect thereto.
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The liability of the U.S. Borrower under this Guaranty shall be absolute,
unconditional and irrevocable irrespective of:
(a) any lack of validity, legality or enforceability of this
Agreement, any Note or any other Loan Document;
(b) the failure of any Lender Party
(i) to assert any claim or demand or to enforce any right or
remedy against the Foreign Borrower, any other L/C Party, any
other Obligor or any other Person (including any other guarantor)
under the provisions of this Agreement, any Note, any other Loan
Document or otherwise, or
(ii) to exercise any right or remedy against any other
guarantor of any Obligations of the Foreign Borrower, any other
L/C Party or any other Obligor;
(c) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations of the Foreign
Borrower, any other L/C Party or any other Obligor, or any other
extension, compromise or renewal of any Obligation of the Foreign
Borrower, any other L/C Party or any other Obligor;
(d) any reduction, limitation, impairment or termination of the
Obligations of the Foreign Borrower, any other L/C Party or any other
Obligor for any reason, including any claim of waiver, release,
surrender, alteration or compromise, and shall not be subject to (and
the U.S. Borrower hereby waives any right to or claim of) any defense or
setoff, counterclaim, recoupment or termination whatsoever by reason of
the invalidity, illegality, nongenuineness, irregularity, compromise,
unenforceability of, or any other event or occurrence affecting the
Obligations of the Foreign Borrower, any other L/C Party, any other
Obligor or otherwise;
(e) any amendment to, rescission, waiver, or other modification
of, or any consent to departure from, any of the terms of this
Agreement, any Note or any other Loan Document;
(f) any amendment to or waiver or release or addition of, or
consent to departure from, any other guaranty, held by any Lender Party
securing any of the Obligations of the Foreign Borrower, any other L/C
Party or any other Obligor; or
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(g) any other circumstance which might otherwise constitute a
defense available to, or a legal or equitable discharge of, the Foreign
Borrower, any other L/C Party, any other Obligor, any surety or any
guarantor.
SECTION 3.4.4. Reinstatement, etc. The U.S. Borrower agrees that this
Guaranty shall continue to be effective or be reinstated, as the case may be, if
at any time any payment (in whole or in part) of any of the Obligations is
rescinded or must otherwise be restored by any Lender Party, upon the
insolvency, bankruptcy or reorganization of the Foreign Borrower, any other L/C
Party, any other Obligor or otherwise, all as though such payment had not been
made.
SECTION 3.4.5. Waiver, etc. The U.S. Borrower hereby waives promptness,
diligence, notice of acceptance and any other notice with respect to any of the
Obligations of the Foreign Borrower, any other L/C Party or any other Obligor
and this Guaranty and any requirement that any Agent or any other Lender Party
protect, secure, perfect or insure any security interest or Lien, or any
property subject thereto, or exhaust any right or take any action against the
Foreign Borrower, any other L/C Party, any other Obligor or any other Person
(including any other guarantor) or entity or any collateral securing the
Obligations of the Foreign Borrower, any other L/C Party or any other Obligor,
as the case may be.
SECTION 3.4.6. Postponement of Subrogation, etc. The U.S. Borrower will
not exercise any rights which it may acquire by way of rights of subrogation
under this Guaranty, by any payment made hereunder or otherwise, until the prior
payment, in full and in cash, of all Obligations of the Foreign Borrower, each
other L/C Party and each other Obligor. Any amount paid to the U.S. Borrower on
account of any such subrogation rights prior to the payment in full of all
Obligations of the Foreign Borrower, each other L/C Party and each other Obligor
shall be held in trust for the benefit of the Lender Parties and shall
immediately be paid to the Administrative Agent and credited and applied against
the Obligations of the Foreign Borrower, each other L/C Party and each other
Obligor, whether matured or unmatured, in accordance with the terms of this
Agreement; provided, however, that if
(a) the U.S. Borrower has made payment to the Lender Parties of
all or any part of the Obligations of the Foreign Borrower, any other
L/C Party or any other Obligor; and
(b) all Obligations of the Foreign Borrower, each other L/C Party
and each other Obligor have been paid in full and all Commitments have
been permanently terminated;
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each Lender Party agrees that, at the U.S. Borrower's request, the
Administrative Agent, on behalf of the Lender Parties, will execute and deliver
to the U.S. Borrower appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
the U.S. Borrower of an interest in the Obligations of the Foreign Borrower,
each other L/C Party and each other Obligor resulting from such payment by the
U.S. Borrower. In furtherance of the foregoing, for so long as any Obligations
or Commitments remain outstanding, the U.S. Borrower shall refrain from taking
any action or commencing any proceeding against the Foreign Borrower, any other
L/C Party or any other Obligor (or its successors or assigns, whether in
connection with a bankruptcy proceeding or otherwise) to recover any amounts in
the respect of payments made under this Guaranty to any Lender Party.
ARTICLE IV
LETTERS OF CREDIT
SECTION 4.1. Issuance Requests. Either Borrower or any wholly-owned
Subsidiary of the U.S. Borrower (or any of their respective divisions) may
request, from time to time on or prior to the Commitment Termination Date, by
delivering to the Administrative Agent and the Fronting Bank an Issuance Request
(such request being, in either Borrower's sole discretion, either delivered (by
telex, teletransmission or otherwise) in the form attached hereto as Exhibit B
or, in the case of any Documentary Letter of Credit, in accordance with the
terms of the Tradexpress Agreement) on or before 3:00 p.m., Applicable Time on
the Business Day on which a Documentary Letter of Credit is to be issued or on
not less than three nor more than ten Business Day's in advance of the Business
Day on which a Standby Letter of Credit is to be issued, that the Fronting Bank
issue either
(a) an irrevocable sight documentary letter of credit in such
form as may be requested by such Borrower or such Subsidiary and
approved by the Fronting Bank (each a "Documentary Letter of Credit"),
or
(b) an irrevocable standby irrevocable letter of credit in such
form as may be requested by such Borrower or such Subsidiary and
approved by the Fronting Bank (each a "Standby Letter of Credit"),
in each case to facilitate such Borrower's and (in the case of the U.S.
Borrower, its Subsidiaries') worldwide sourcing of merchandise. Each Letter of
Credit shall by its terms:
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(i) be issued in a Stated Amount which does not exceed (or
would not exceed) the then Letter of Credit Availability;
(ii) be stated to expire on a date (its "Stated Expiry Date")
no later than 180 days from its date of issuance (it being
acknowledged and agreed by the Borrowers, the Fronting Bank and
the Lenders that the Stated Expiry Date for a Documentary Letter
of Credit may be a date that is up to 179 days subsequent to the
Commitment Termination Date; provided, however, that no Standby
Letter of Credit may have a Stated Expiry date subsequent to the
Commitment Termination Date); and
(iii) on or prior to its Stated Expiry Date:
(A) terminate immediately upon notice to the Fronting
Bank thereof from the beneficiary thereunder that all
obligations covered thereby have been terminated, paid, or
otherwise satisfied in full, and
(B) reduce in part immediately and to the extent the
beneficiary thereunder has notified the Fronting Bank thereof
that the obligations covered thereby have been paid or
otherwise satisfied in part.
So long as no Default has occurred and is continuing, by delivery to the
Fronting Bank and the Administrative Agent of an Issuance Request (such request
being, in either Borrower's sole discretion, either delivered (by telex,
teletransmission or otherwise) in accordance with the terms of the Tradexpress
Agreement or in the form attached hereto as Exhibit B) on or before 3:00 p.m.,
Applicable Time, (1) in the case of any Documentary Letter of Credit, on the
Stated Expiry Date thereof and (2) in the case of any Standby Letter of Credit,
on the third day prior to the Stated Expiry Date thereof, each Borrower may on
or prior to the then existing Commitment Termination Date request the Fronting
Bank to extend the Stated Expiry Date of such Letter of Credit for an additional
period not to exceed (x) in the case of a Documentary Letter of Credit, the
earlier of 180 days from its date of extension and 179 days after the Commitment
Termination Date and (y) in the case of a Standby Letter of Credit, the earlier
of 180 days from its date of extension and the Commitment Termination Date.
Notwithstanding any other provision in this Agreement to the contrary, the
Fronting Bank may in its discretion refuse to issue any Letter of Credit if such
issuance would, in the Fronting Bank's reasonable determination, contravene any
sanctions, laws or regulations of any State of the United States or any Federal
body or authority of the United States (including but not limited to the
regulations of the Federal Reserve Bank) or the laws, regulations
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or sanctions of any other applicable jurisdiction or authority or if, in the
Fronting Bank's reasonable determination, any of the above-mentioned laws,
regulations or sanctions would affect the Fronting Bank's ability to perform its
obligations with respect to any such Letter of Credit if issued.
SECTION 4.2. Issuances and Extensions. On the terms and subject to the
conditions of this Agreement (including Section 4.1 and Article VI), the
Fronting Bank shall issue Letters of Credit, and extend the Stated Expiry Dates
of outstanding Letters of Credit, in accordance with the Issuance Requests made
therefor. The Fronting Bank will make available the original of each Letter of
Credit which it issues in accordance with the Issuance Request therefor to the
beneficiary thereof (and, at the request of a Lender, will provide such Lender
on a monthly basis with a schedule of the outstanding Letters of Credit as of
the last day of the prior month) and will notify the beneficiary under any
Letter of Credit of any extension of the Stated Expiry Date thereof.
SECTION 4.3. Destruction of Goods, etc. Neither the Fronting Bank nor
its agents or correspondents shall be responsible for the negligence or
fraudulence of any beneficiary of a Letter of Credit, for the existence, nature,
condition, description, value, quality or quantity of the Goods, for the
packing, shipment, export, import, handling, storage or delivery thereof, or for
the safety or preservation thereof at any time, and neither the Fronting Bank
nor its agents or correspondents shall be liable for any loss resulting from the
total or partial destruction of or damage to or deterioration or fall in value
of the Goods, or from the delay in arrival or failure to arrive of either the
Goods or of any of the documents relating thereto, or from the inadequacy or
invalidity of any document or insurance, or from the default or insolvency of
any insurer, carrier or other Person issuing any document with respect to the
Goods, or from failure to give or delay in giving notice of arrival of the Goods
or any other notice, or from any error in or misinterpretation of or default or
delay in the sending, transmission, arrival or delivery of any message, whether
in writing or not, by post, telegraph, cable, wireless or otherwise, and the
obligations hereunder of each Borrower to the Fronting Bank shall not be in any
way lessened or affected if any Draft or document accepted, paid or acted upon
by the Fronting Bank or its agents or correspondents does not bear a reference
or sufficient reference to a Documentary Letter of Credit or if no note thereof
is made on a Documentary Letter of Credit.
SECTION 4.4. Other Lenders' Participation. Each Letter of Credit issued
pursuant to Section 4.2 shall, effective upon its issuance and without further
action, be issued on behalf of all Lenders (including the Fronting Bank thereof)
according to their
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respective Percentages. Each Lender shall, to the extent of its Percentage, be
deemed irrevocably to have participated in the issuance of such Letter of Credit
and shall be responsible to reimburse promptly the Fronting Bank thereof for
Reimbursement Obligations which have not been converted into a Loan on the
Disbursement Date pursuant to the terms of this Agreement or reimbursed by the
Borrowers in accordance with Section 4.5, or which have been converted into a
Loan on the Disbursement Date pursuant to the terms of this Agreement or
reimbursed by the Borrowers but must be returned, restored or disgorged by the
Fronting Bank for any reason, and each Lender shall, to the extent of its
Percentage, be entitled to receive from the Administrative Agent a ratable
portion of the letter of credit fees received by the Administrative Agent
pursuant to Section 3.3.1, with respect to each Letter of Credit. In the event
that either Borrower shall fail to reimburse the Fronting Bank, or if for any
reason Loans shall not be made to fund any Reimbursement Obligation, in each
case as provided in this Agreement and in an amount equal to the Disbursement
amount, or in the event the Fronting Bank must for any reason return or disgorge
such reimbursement, the Fronting Bank shall promptly notify each Lender of the
unreimbursed amount of such drawing and of such Lender's respective
participation therein. Each Lender shall make available to the Fronting Bank,
whether or not any Default shall have occurred and be continuing, an amount
equal to its respective participation in same day or immediately available funds
at the office of the Fronting Bank specified in such notice not later than 11:00
a.m., New York City time, on the Business Day after the date notified by the
Fronting Bank. In the event that any Lender fails to make available to the
Fronting Bank the amount of such Lender's participation in such Letter of Credit
as provided herein, the Fronting Bank shall be entitled to recover such amount
on demand from such Lender together with interest at the Federal Funds Rate from
the date such amount is due through (but excluding) the date such payment is
made (together with such other compensatory amounts as may be required to be
paid by such Lender to the Administrative Agent pursuant to the Rules for
Interbank Compensation of the council on International Banking or the
Clearinghouse Compensation Committee, as the case may be, as in effect from time
to time). Nothing in this Section shall be deemed to prejudice the right of any
Lender to recover from the Fronting Bank any amounts made available by such
Lender to the Fronting Bank pursuant to this Section in the event that it is
determined by a court of competent jurisdiction that the payment with respect to
a Letter of Credit by the Fronting Bank in respect of which payment was made by
such Lender constituted gross negligence or wilful misconduct on the part of the
Fronting Bank. The Fronting Bank shall distribute to each other Lender which has
paid all amounts payable by it under this Section with respect to any Letter of
Credit issued by the Fronting Bank such other Lender's Percentage of all
payments received by the
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Fronting Bank from the Borrowers in reimbursement of drawings honored by the
Fronting Bank under such Letter of Credit when such payments are received.
SECTION 4.5. Disbursements. The Fronting Bank will notify the
applicable Borrower and the Administrative Agent promptly of the presentment for
payment of any Letter of Credit, together with notice of the date (a
"Disbursement Date") such payment shall be made. Subject to the terms and
provisions of such Letter of Credit, and the delivery to the Fronting Bank of
all drafts, certificates, documents and/or instruments required as a condition
to making a Disbursement under such Letter of Credit, the Fronting Bank shall
make such payment to the beneficiary (or its designee) of such Letter of Credit.
If and to the extent that Loans are not made to fund a Reimbursement Obligation
pursuant to Section 2.3, then the Borrowers will reimburse the Fronting Bank
within one Business Day following the Disbursement Date for all amounts which
the Fronting Bank has disbursed under the Letter of Credit; provided, that the
Foreign Borrower shall only be obligated to reimburse the Fronting Bank for
disbursements under Letters of Credit issued for its account.
SECTION 4.6. Reimbursement; Outstanding Letters, etc.
(a) Each Borrower's obligation (a "Reimbursement Obligation") under
Section 4.5 to reimburse the Fronting Bank with respect to each Disbursement
(including fees and interest thereon payable pursuant to Section 3.2.2 and
Section 3.3.1), and each Lender's obligation to make participation payments
pursuant to Section 4.4 in each Disbursement, shall be absolute, unconditional
and irrevocable and shall not be reduced by any event or occurrence including,
without limitation,
(i) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any Letter of Credit or any document submitted by any
party in connection with the application for and issuance of a Letter of
Credit, even if it should in fact prove to be in any or all respects
invalid, insufficient, inaccurate, fraudulent or forged;
(ii) the form, validity, sufficiency, accuracy, genuineness
or legal effect of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or
benefits thereunder or the proceeds thereof in whole or in part, which
may prove to be invalid or ineffective for any reason;
(iii) failure of the beneficiary to comply fully with conditions
required in order to demand payment under a Letter of Credit;
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(iv) errors, omissions, interruptions or delays in transmission
or delivery of any messages, by mail, cable, telegraph, telex or
otherwise;
(v) any loss or delay in the transmission or otherwise of any
document or draft required in order to make a Disbursement under a
Letter of Credit;
(vi) any change in the time, manner or place of payment of, or in
any other term of, all or any of the Obligations in respect of any
Letter of Credit or any other amendment or waiver of or any consent to
departure from any Letter of Credit;
(vii) the existence of any claim, set-off, defense or other right
that either Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Fronting Bank or
any other Person, whether in connection with the transactions
contemplated by the applicable Letter of Credit or any unrelated
transaction;
(viii) payment by the Fronting Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(ix) any release or amendment or waiver of or consent to
departure from any guaranty, for all or any of the Obligations in
respect of the applicable Letter of Credit; or
(x) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, either Borrower or a guarantor.
The obligations of each Borrower and the Lenders hereunder shall remain in full
force and effect and shall apply to any alteration to or extension of the
expiration date of any Letter of Credit or any Letter of Credit issued to
replace, extend or alter any Letter of Credit during the term of this Agreement.
None of the foregoing shall affect, impair or prevent the vesting of any of the
rights or powers granted to the Fronting Bank or any Lender hereunder. In
furtherance and extension and not in limitation or derogation of any of the
foregoing, any action taken or omitted to be taken by the Fronting Bank in good
faith (and not constituting gross negligence or willful misconduct) shall be
binding upon each Borrower, each Obligor and each such Lender,
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and shall not put the Fronting Bank under any resulting liability to either
Borrower, any Obligor or any such Lender, as the case may be.
(b) The applicable Borrower shall pay to the Fronting Bank an amount
equal to the then Stated Amount and all unpaid fees in respect of (i) any
Letter of Credit outstanding under this Agreement upon any termination of this
Agreement and (ii) any Letter of Credit which is affected by, or becomes the
subject matter of, any order, judgment, injunction or other such determination
(an "Order") or any petition or other application for any Order by either
Borrower or any other party, restricting payment by the Fronting Bank under and
in accordance with such Letter of Credit or extending the Fronting Bank's or any
Lender's liability under such Letter of Credit beyond the expiration date stated
therein, or if not stated therein, which would otherwise apply to such Letter of
Credit. Payment in respect of each such Letter of Credit described in (i) and
(ii) in this clause shall be due forthwith upon demand and in Dollars.
(c) The Fronting Bank hereby agrees that it will, with respect to
each Letter of Credit subjected to any such demand for payment under the
preceding clause (b), upon the later of:
(i) the date on which any final and non-appealable order,
judgment or other such determination has been rendered or issued either
terminating any applicable Order or permanently enjoining the Fronting
Bank from paying under such Letter; and
(ii) the earlier of (x) the date on which either the original
counterpart of such Letter of Credit is returned to the Fronting Bank
for cancellation or the Fronting Bank is released by the beneficiary
thereof from any further obligations in respect of such Letter of
Credit, and (y) the expiry of such Letter of Credit;
pay to the applicable Borrower an amount in Dollars equal to any excess of the
amount received by the Fronting Bank pursuant to clause (b) above in respect of
such Letter of Credit (the "Received Amount") over the equivalent in Dollars of
the total of amounts applied to reimburse the Fronting Bank for amounts paid by
it under such Letter of Credit, if any (the Fronting Bank having the right to so
appropriate such funds), together with an additional amount in Dollars computed
by applying to the amount of such excess from time to time a per annum rate
equal to 3% less than the Alternate Base Rate. Such additional amount shall be
calculated daily on the basis of a 360 day year for the actual number of days
elapsed from and including the date of payment to the Fronting Bank of the
Received Amount to (but not including) the date of return to the applicable
Borrower of the excess.
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SECTION 4.7. Deemed Disbursements. Upon (i) the occurrence of any
Commitment Termination Event of the type described in clause (c) of the
definition of "Commitment Termination Event", (ii) the occurrence and during the
continuation of any event or condition specified in clause (e) of Section 6.01
of the U.S. Credit Agreement, or (iii) the occurrence and during the continuance
of any other Event of Default,
(a) an amount equal to that portion of Letter of Credit
Outstandings attributable to outstanding and undrawn Letters of Credit
shall, without demand upon or notice to either Borrower, be deemed to
have been paid or disbursed by the Fronting Bank under such Letters of
Credit (notwithstanding that such amount may not in fact have been so
paid or disbursed); and
(b) upon notification by the Fronting Bank to the Administrative
Agent and the U.S. Borrower of its obligations under this Section, the
Borrowers shall be immediately obligated to reimburse the Fronting Bank
the amount deemed to have been so paid or disbursed by the Fronting
Bank; provided, that the Foreign Borrower shall only be obligated to
reimburse the Fronting Bank for amounts deemed to have been disbursed
under Letters of Credit issued for its account.
Any amounts so received by the Fronting Bank from the Borrowers pursuant to this
Section shall be held as collateral security for the repayment of such
Borrower's Obligations in connection with the Letters of Credit issued by the
Fronting Bank. At any time when such Letters of Credit shall terminate and all
Obligations of the Fronting Bank are either terminated or paid or reimbursed to
the Fronting Bank in full, the Obligations of the Borrowers under this Section
shall be reduced accordingly (subject, however, to reinstatement in the event
any payment in respect of such Letters of Credit is recovered in any manner from
the Fronting Bank), and the Fronting Bank will return to the applicable Borrower
the excess, if any, of
(c) the aggregate amount deposited by the Borrowers with the
Fronting Bank and not theretofore applied by the Fronting Bank to any
Reimbursement Obligation
over
(d) the aggregate amount of all Reimbursement Obligations to the
Fronting Bank pursuant to this Section, as so adjusted.
At such time when all Events of Default shall have been cured or waived, the
Fronting Bank shall return to the applicable Borrower
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all amounts then on deposit with the Fronting Bank pursuant to this Section
together with an additional amount in dollars computed by applying to the amount
so returned to the applicable Borrower from time to time a per annum rate equal
to 3% less than the Alternate Base Rate. Such additional amount shall be
calculated daily on the basis of a 360 day year for the actual number of days
elapsed from and including the date of payment to the Fronting Bank by the
applicable Borrower to (but not including) the date of return to the applicable
Borrower of such amounts.
SECTION 4.8. Nature of Reimbursement Obligations. The Borrowers shall
assume all risks of the acts, omissions, or misuse of any Letter of Credit by
the beneficiary thereof. Any action, inaction or omission taken or suffered by
the Fronting Bank or any of the Fronting Bank's correspondents under or in
connection with a Letter of Credit or any Draft made under any Documentary
Letter of Credit or any document relating thereto, if in good faith and in
conformity with foreign or domestic laws, regulations or customs applicable
thereto shall be binding upon the Borrowers and shall not place the Fronting
Bank or any of its correspondents under any resulting liability to the
Borrowers. Without limiting the generality of the foregoing, the Fronting Bank
and its correspondents may receive, accept or pay as complying with the terms of
a Letter of Credit, any Draft under any Documentary Letter of Credit, otherwise
in order which may be signed by, or issued to, the administrator or any executor
of, or the trustee in bankruptcy of, or the receiver for any property of, or
other Person or entity acting as the representative or in the place of, such
beneficiary or its successors and assigns. The Borrowers covenant that they will
not take any steps, issue any instructions to the Fronting Bank or any of its
correspondents or institute any proceedings intended to derogate from the right
or ability of the Fronting Bank or its correspondents to honor and pay any Draft
or Drafts. Without in any way limiting the provisions of Section 4.6, and
notwithstanding anything to the contrary contained in this Agreement or in any
other Loan Document, each Borrower irrevocably acknowledges and agrees that it
is unconditionally liable for all Reimbursement Obligations with respect to each
Disbursement (including fees and interest thereon) under each Letter of Credit
issued for its account, regardless (in the case of the U.S. Borrower) of whether
such Letter of Credit was issued in respect of the sourcing or other corporate
requirements or needs of the U.S. Borrower or any Subsidiary of the U.S.
Borrower, or otherwise.
SECTION 4.9. Existing Letters of Credit. The Existing Letters of
Credit, and the amount and payment date of fees on Letters of Credit (including
such Existing Letters of Credit deemed to be Documentary Letters of Credit
hereunder), shall be
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governed by this Agreement. Simultaneously with the effectiveness of this
Agreement pursuant to Section 11.8, the Existing Credit Agreement shall be
superseded in its entirety by this Agreement, except to the extent of any
provisions of the Existing Credit Agreement which by their express terms survive
termination of the Existing Credit Agreement.
ARTICLE V
CERTAIN LIBO RATE AND OTHER PROVISIONS
SECTION 5.1. LIBO Rate Lending Unlawful. If any Lender shall determine
(which determination shall, upon notice thereof to the U.S. Borrower, be
conclusive and binding on the Borrowers) that the introduction of or any change
in or in the interpretation of any law makes it unlawful, or any central bank or
other governmental authority asserts that it is unlawful, for such Lender to
make, continue or maintain any Loan as, or to convert any Loan into, a LIBO Rate
Loan, the obligations of the Lenders to make, continue, maintain or convert into
any such Loans shall, upon such determination, forthwith be suspended until such
Lender shall notify the U.S. Borrower that the circumstances causing such
suspension no longer exist, and all LIBO Rate Loans shall automatically convert
into Base Rate Loans at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion.
SECTION 5.2. Deposits Unavailable. If any Lender shall have determined
that
(a) Dollar deposits in the relevant amount and for the relevant
Interest Period are not available to it in its relevant market; or
(b) by reason of circumstances affecting such Lender's relevant
market, adequate means do not exist for ascertaining the interest rate
applicable hereunder to LIBO Rate Loans,
then, upon notice from such Lender to the U.S. Borrower and the Administrative
Agent, the obligations of the Lenders under Section 2.3 and Section 2.4 to make
or continue any Loans as, or to convert any Loans into, LIBO Rate Loans shall
forthwith be suspended until such Lender shall notify the U.S. Borrower and the
Administrative Agent that the circumstances causing such suspension no longer
exist.
SECTION 5.3. Increased LIBO Rate Loan Costs, etc. The Borrowers agree to
reimburse each Lender for any increase in the cost to such Lender of, or any
reduction in the amount of any sum
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receivable by such Lender in respect of, making or continuing (or of its
obligation to make or continue) any Loans as, or of converting (or of its
obligation to convert) any Loans into, LIBO Rate Loans. Each Lender shall
promptly notify the U.S. Borrower and the Administrative Agent in writing of the
occurrence of any such event, such notice to state, in reasonable detail, the
reasons therefor and the additional amount required fully to compensate such
lender for such increased cost or reduced amount. Such additional amounts shall
be payable by the U.S. Borrower directly to such Lender within five Business
Days of its receipt of such notice, and such notice shall, in the absence of
manifest error, be conclusive and binding on the U.S. Borrower.
SECTION 5.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Loan
as, or to convert any portion of the principal amount of any Loan into, a LIBO
Rate Loan, but excluding the loss of any anticipated or expected profits in
respect of such LIBO Rate Loan) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any LIBO Rate Loans on a date other than the scheduled last
day of the Interest Period applicable thereto, whether pursuant to
Section 3.1 or otherwise;
(b) any Loans not being made as LIBO Rate Loans in accordance
with the Borrowing Request therefor; or
(c) any Loans not being continued as, or converted into, LIBO
Rate Loans in accordance with the Continuation/ Conversion Notice
therefor,
then, upon the written notice of such Lender to the U.S. Borrower and the
Administrative Agent, the U.S. Borrower shall, within five Business Days of its
receipt thereof, pay directly to such Lender such amount as will (in the
reasonable determination of such Lender) reimburse such Lender for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the U.S. Borrower.
SECTION 5.5. Increased Capital Costs, etc. If the implementation of or,
after the date hereof, the introduction or any change in the interpretation of,
or any change in its application to the Borrowers, the Fronting Bank and/or the
Lenders of, any law or any regulation or guideline issued by any central bank or
other governmental authority (whether or not having the force of law), including
any eurocurrency or other reserve or special deposit requirement or any tax
(other than tax
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which is on a Lender's general net or gross income or in respect of a Lender's
franchise taxes) or any capital requirement, has, due to a Lender's or the
Fronting Bank's compliance, the effect, directly or indirectly, of (i)
increasing the cost to such Lender or Fronting Bank of performing its
obligations hereunder or under any Letter of Credit or Loan; (ii) reducing any
amount received or receivable by such Lender or Fronting Bank or its effective
return hereunder or in respect of any Letter of Credit or Loan or on its
capital; or (iii) causing such Lender or Fronting Bank to make any payment or to
forgo any return based on any amount received or receivable by such Lender or
Fronting Bank hereunder or in respect of any Letter of Credit or Loan, then upon
demand from time to time the U.S. Borrower shall pay such amount as shall
compensate such Lender or Fronting Bank for any such cost, reduction, payment or
foregone return upon receipt of the certificate referred to in the last sentence
of this paragraph. The Borrowers shall further indemnify the Fronting Bank for
all costs, losses and expenses incurred by the Fronting Bank in connection with
any Letter of Credit and agrees that the Fronting Bank shall have no liability
to the Borrowers for any reason in respect of any Letter of Credit other than on
account of the Fronting Bank's gross negligence or wilful misconduct. Any
certificate of the Fronting Bank or any Lender in respect of the foregoing will
be conclusive and binding upon the Borrowers, except for manifest error, and
shall set forth a determination of the amounts owing to the Fronting Bank or
such Lender in good faith using any reasonable averaging and attribution
methods. Anything in this Agreement or any Loan Document to the contrary
notwithstanding, no Lender or Fronting Bank shall be indemnified for, exculpated
from, or relieved from liability, under this Agreement or any Loan Document, for
any act or omission constituting gross negligence or wilful misconduct.
SECTION 5.6. Taxes. (a) Each payment made by each Borrower under this
Agreement shall be made free and clear of, and without deduction for, any
present or future withholding or other taxes imposed on such payments by or on
behalf of any government or any political subdivision or agency thereof or
therein, except for any income, franchise and other taxes imposed on the Lender
(which for purposes of this Section 5.6 shall include any branch, affiliate or
international banking facility created by a Lender to make or maintain a LIBO
Rate Loan pursuant to Section 2.5) by the jurisdiction under the laws of which
such Lender is organized or any political subdivision or agency thereof or by
the jurisdiction of such Lender's branch or lending office or principal place of
business (all such non-excluded taxes being hereinafter referred to as "Taxes").
Whenever any Taxes are payable by either Borrower with respect to any payments
hereunder, such Borrower shall promptly furnish to the Administrative Agent for
the account of the applicable Lender official receipts (to the extent that the
relevant governmental
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authority delivers such receipts) evidencing payment of any such Taxes so
withheld or deducted.
(b) Each Lender that is not a "United States person" (as such term
is defined in Section 7701(a)(3) of the Internal Revenue Code of 1986) shall
submit to the U.S. Borrower on or before the Effective Date (or, in the case of
a Person that becomes a Lender after the Effective Date by assignment or
pursuant to Section 2.5 promptly upon such assignment or funding) two duly
completed and signed copies of either (1) Form 1001 of the United States
Internal Revenue Service entitling such Lender to a complete exemption from
withholding on all amounts to be received by such Lender pursuant to this
Agreement or (2) Form 4224 of the United States Internal Revenue Service
relating to all amounts to be received by such Lender pursuant to this
Agreement. Each such Lender shall, from time to time after submitting either
such form, submit to the U.S. Borrower and the Administrative Agent such
additional duly completed and signed copies of one or the other such forms (or
such successor forms or other documents as shall be adopted from time to time by
the relevant United States taxing authorities) as may be (1) reasonably
requested in writing by the U.S. Borrower or the Administrative Agent and (2)
appropriate under then current United States law or regulations to avoid United
States withholding taxes on payments in respect of any amounts to be received by
such Lender pursuant to this Agreement. Upon the reasonable request of the U.S.
Borrower or the Administrative Agent, each Lender that has not provided the
forms or other documents, as provided above, on the basis of being a "United
States person" shall submit to the U.S. Borrower and the Administrative Agent a
certificate to the effect that it is such a "United States person".
(c) If any Lender which is not a "United States person" determines
that it is unable to submit to the U.S. Borrower and the Administrative Agent
any form or certificate that such Lender is requested to submit pursuant to the
preceding paragraph, or that it is required to withdraw or cancel any such form
or certificate, or that any such form or certificate previously submitted has
otherwise become ineffective or inaccurate, such Lender shall promptly notify
the U.S. Borrower and the Administrative Agent of such fact.
(d) The Borrowers shall not be required to pay any additional
amount in respect of Taxes to any Lender if and only to the extent that (A) such
Lender is subject to such Taxes on the Effective Date (or in the case of a
Person that became a Lender after the Effective Date by assignment or pursuant
to Section 2.5 on the date of such assignment or funding) or would be subject to
such Taxes on such date if a payment under this Agreement has been received by
it on such date; (B) such Lender
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becomes subject to such Taxes subsequent to the date referred to in clause (A)
above (or in the case of a Lender which is not a "United States person", the
first date on which it delivers the appropriate form or certificate to the U.S.
Borrower as referred to in clause (b) of this Section) as a result of a change
in the circumstances of such Lender (other than a change in applicable law),
including a change in the residence, place of incorporation or principal place
of business of the Lender, a change in the branch or lending office of the
Lender participating in the transactions set forth herein or as a result of the
sale by the Lender of participating interests in such Lender's creditor
position(s) hereunder; or (C) such Taxes would not have been incurred but for
the failure of such Lender to file with the appropriate tax authorities and/or
provide to the U.S. Borrower any form or certificate that it was required so to
do pursuant to clause (b) of this Section, unless the Lender is not entitled to
provide such form or certificate as a result of a change in applicable law after
the Effective Date (or in the case of a Person that became a Lender after the
Effective Date by assignment or pursuant to Section 2.5 the date of such
assignment or funding).
(e) Within thirty (30) days after the written reasonable request of
the U.S. Borrower, each Lender shall execute and deliver to the U.S. Borrower
such certificates, forms or other documents which can be furnished consistent
with the facts and which are reasonably necessary to assist the U.S. Borrower in
applying for refunds of Taxes paid by the U.S. Borrower hereunder or making
payment of Taxes hereunder; provided, however, that no Lender shall be required
to furnish to the U.S. Borrower any financial information with respect to itself
or other information which it considers confidential.
(f) The U.S. Borrower shall have the right to require any Lender
which is not a "United States person" to which the U.S. Borrower is required to
make additional payments pursuant to Section 5.6 hereof on account of Taxes (or
would, upon payment to such Lender of an amount hereunder, be so required) to
assign such Lender's total Loans and Commitments to one or more banks or
financial institutions identified by the U.S. Borrower and acceptable to the
Administrative Agent at a purchase price equal to the then outstanding amount of
all principal, interest, fees and other amounts then owed to such Lender.
SECTION 5.7. Payments, Computations, etc. Unless otherwise expressly
provided herein (including as set forth in Section 2.3 and Section 4.5), all
payments by the Borrowers pursuant to this Agreement, the Notes or any other
Loan Document shall be made by the Borrowers to the Administrative Agent for the
account of the Lenders entitled to receive such payment. All such payments
required to be made to the Administrative Agent shall be made,
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without setoff, deduction or counterclaim, not later than 11:00 a.m., Applicable
Time, on the date due, in same day or immediately available funds, to such
account as the Administrative Agent shall specify from time to time by notice to
the U.S. Borrower. To the extent the Administrative Agent receives such funds
prior to 12:00 noon, Applicable Time, the Administrative Agent shall promptly
remit in same day funds to each Lender its share, if any, of such payments
received by the Administrative Agent for the account of such Lender. All
interest and fees shall be computed on the basis of the actual number of days
(including the first day but excluding the last day) occurring during the period
for which such interest or fee is payable over a year comprised of 360 days.
Whenever any payment to be made shall otherwise be due on a day which is not a
Business Day in New York, such payment shall (except as otherwise required by
clause (b) of the definition of the term "Interest Period") be made on the next
succeeding Business Day and such extension of time shall be included in
computing interest and fees, if any, in connection with such payment.
SECTION 5.8. Sharing of Payments. If any Lender shall obtain any
payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Letter of Credit or Loan in excess of its
Percentage of payments then or therewith obtained by all Lenders, such Lender
shall purchase from the other Lenders such participations in Letters of Credit
or Loans, as the case may be, as shall be necessary to cause such purchasing
Lender to share the excess payment or other recovery ratably with each of them;
provided, however, that if all or any portion of the excess payment or other
recovery is thereafter recovered from such purchasing Lender, the purchase shall
be rescinded and each Lender which has sold a participation to the purchasing
Lender shall repay to the purchasing Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Lender's
ratable share (according to the proportion of
(a) the amount of such selling Lender's required repayment to the
purchasing Lender
to
(b) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. Each Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including pursuant to Section 5.9) with respect to such
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participation as fully as if such Lender were the direct creditor of such
Borrower in the amount of such participation. If under any applicable
bankruptcy, insolvency or other similar law, any Lender receives a secured claim
in lieu of a setoff to which this Section applies, such Lender shall, to the
extent practicable, exercise its rights in respect of such secured claim in a
manner consistent with the rights of the Lenders entitled under this Section to
share in the benefits of any recovery on such secured claim.
SECTION 5.9. Setoff. Each Lender shall, upon the occurrence of any
event or condition described in clause (e) of Section 6.01 of the U.S. Credit
Agreement or, with the consent of the Required Lenders, upon the occurrence of
any other Event of Default, have the right to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due) any and all
balances, credits, deposits, accounts or moneys of the applicable Borrower then
or thereafter maintained with or otherwise held by such Lender; provided,
however, that any such appropriation and application shall be subject to the
provisions of Section 5.8. Each Lender agrees promptly to notify the U.S.
Borrower and the Administrative Agent after any such setoff and application made
by such Lender; provided, however, that the failure to give such notice shall
not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff under applicable law or otherwise) which such
Lender may have.
SECTION 5.10. Use of Proceeds. Each Borrower shall apply the proceeds of
each Credit Extension in accordance with the fifth recital.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Initial Credit Extension. The amendment and restatement of
the Existing Credit Agreement on the terms set forth in this Agreement and the
obligations of the Lenders to make any Credit Extension and the Fronting Bank to
issue any Letters of Credit shall be subject to the delivery to the Managing
Agents of this Agreement duly executed and delivered by each Lender, each Agent,
each Borrower and Group, and the prior or concurrent satisfaction of each of the
conditions precedent set forth below in this Section 6.1.
SECTION 6.1.1. Resolutions, etc. The Managing Agents shall have received
from each Borrower originally executed copies of a
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certificate, each dated the date of the Effective Date, of its Secretary or
Assistant Secretary as to
(a) resolutions of its Board of Directors then in full force and
effect authorizing the execution, delivery and performance of this
Agreement, the Notes and each other Loan Document to be executed by it;
and
(b) the incumbency and signatures of those of its officers
authorized to act with respect to this Agreement, the Notes and each
other Loan Document executed by it,
upon which certificate each Lender may conclusively rely until it shall have
received a further certificate of the Secretary of such Obligor canceling or
amending such prior certificate.
SECTION 6.1.2. Delivery of Notes. Each Lender shall have received its
Notes duly executed and delivered by each Borrower.
SECTION 6.1.3. Guarantees. The Managing Agents shall have received
originally executed counterparts for each Lender of (a) the Group Guaranty,
dated as of the date hereof, duly executed by an Authorized Officer of Group and
(b) the Subsidiary Guaranty, dated as of the date hereof, duly executed by an
Authorized Officer of each Domestic Subsidiary that is a party thereto.
SECTION 6.1.4. Delivery of Form 1001 or 4224. The Administrative Agent
shall have received two executed copies of either Internal Revenue Service Form
1001 or Form 4224, as applicable, from each non-U.S. Lender.
SECTION 6.1.5. Certificates as to No Default, etc. No default shall have
occurred in the performance of any affirmative or negative covenants contained
in the U.S. Credit Agreement, none of the events described in clauses (a), (b),
(d), (e), (f), (g), (h), (i) or (j) of Section 6.01 of the U.S. Credit Agreement
shall have occurred, and no Event of Default shall have occurred or would occur
under the U.S. Credit Agreement or would result from the execution and delivery
of, or the performance by the Borrowers of their obligations under, this
Agreement or the issuance of any Letter of Credit or the making of any Loan, and
the Managing Agents shall have received originally executed certificates for
each Lender dated the Effective Date from an Authorized Officer of the U.S.
Borrower certifying as to the above.
SECTION 6.1.6. No Material Adverse Change. Since January 4, 1997, there
shall have been no material adverse change in the business, condition (financial
or otherwise), operations,
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performance, properties or prospects of (i) the U.S. Borrower or (ii) Group and
its Subsidiaries, taken as a whole.
SECTION 6.1.7. Tradexpress Agreement. The Administrative Agent shall
have received the completed Tradexpress Agreements, in each case duly executed
and delivered by the Borrower party thereto and the Fronting Bank.
SECTION 6.1.8. U.S. Credit Agreement. Prior to or concurrently with the
Effective Date, the U.S. Borrower shall have executed and delivered the U.S.
Credit Agreement. The U.S. Credit Agreement shall be in full force and effect.
SECTION 6.1.9. Opinions of Counsel. The Managing Agents shall have
received opinions, dated the Effective Date and addressed to the Agents and all
Lenders, from (i) Skadden, Arps, Slate, Meagher & Flom LLP, New York counsel to
the Obligors, substantially in the form of Exhibit G hereto, (ii) Stanley P.
Silverstein, General Counsel for the U.S. Borrower, substantially in the form of
Exhibit H hereto and (iii) Thompson & Patterson, Barbados counsel to the Foreign
Borrower, substantially in the form of Exhibit I hereto.
SECTION 6.2. All Credit Extensions. The obligation of each Lender or
the Fronting Bank to make any Credit Extension on any date other than a Funding
Date shall be subject to the satisfaction of each of the conditions precedent
set forth in this Section 6.2.
SECTION 6.2.1. Compliance with Warranties, No Default, etc. Both before
and after giving effect to any Credit Extension the following statements shall
be true and correct:
(a) no event or circumstances has occurred and is continuing, or
would result from the making of such Credit Extension, which constitutes
a Default, or which when considered by itself or together with other
past or then existing events or circumstances, constitutes or would
constitute a material adverse change in the business, condition
(financial or otherwise), operations, performance, properties or
prospects of the U.S. Borrower or of Group and its Subsidiaries taken as
a whole;
(b) no event of default or any condition, occurrence or event
which, after notice or lapse of time or both, would constitute an event
of default shall have occurred (unless otherwise waived by the Required
Lenders) in the performance of any affirmative and negative covenants
contained in Sections 5.01, 5.02 or 5.03 of the U.S. Credit Agreement
and regardless of whether such U.S. Credit Agreement is terminated,
unless in connection with such termination a
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replacement credit facility which the Required Lenders hereunder have
approved is entered into in which case, the affirmative and negative
covenants in such facility shall become the subject of this clause;
(c) none of the events described in clauses (a), (b), (d), (e),
(f), (g), (h), (i) or (j) of Section 6.01 of the U.S. Credit Agreement
(without giving effect to any termination of the U.S. Credit Agreement,
unless in connection with such termination a replacement credit facility
to which the Required Lenders hereunder have approved, in which case the
analogous provisions of such replacement credit facility shall become
the subject of this clause), shall have occurred (unless, in the case of
other than such clause (e), otherwise waived by the Required Lenders);
and
(d) the representations and warranties set forth in Article VII,
Article III of the Subsidiary Guaranty and Article III of the Group
Guaranty shall, in each case, be true and correct with the same effect
as if then made (unless stated to relate solely to an earlier date, in
which case such representations and warranties shall be true and correct
as of such earlier date).
SECTION 6.2.2. Credit Request. To the extent that Loans are made in
accordance with clause (b) of Section 2.3 or a Borrower requests that the
Fronting Bank issue a Documentary Letter of Credit other than by means of
notification in accordance with the terms of the Tradexpress Agreement or a
Standby Letter of Credit, the Administrative Agent shall have received a
Borrowing Request or Issuance Request, as the case may be, for such Credit
Extension, executed and delivered by the applicable Borrower. Each of the
delivery (or deemed delivery pursuant to the terms of this Agreement) of a
Borrowing Request or an Issuance Request and the acceptance by either Borrower
of the proceeds of the Borrowing or the issuance of the Letter of Credit, or the
making of a Loan upon a Disbursement, as applicable, shall constitute a
representation and warranty by the Borrowers that on the date of such Credit
Extension (both immediately before and after giving effect to such Credit
Extension and the application of the proceeds thereof) or the issuance of the
Letter of Credit, as applicable, the statements made in Section 6.2.1 are in
each case true and correct.
SECTION 6.2.3. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of Group or any of its Subsidiaries
shall be satisfactory in form and substance to the Managing Agents; the Managing
Agents shall have received all information, approvals, opinions, documents or
instruments as the Managing Agents may reasonably request.
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ARTICLE VII
REPRESENTATIONS AND WARRANTIES
In order to induce the Fronting Bank, the Lenders and the Agents to
enter into this Agreement and to make Loans and issue Letters of Credit
hereunder, each of the U.S. Borrower and Group represents and warrants unto each
Agent, each Lender and the Fronting Bank, as set forth in this Article VII.
SECTION 7.1. Organization, etc. Group and each of its Subsidiaries is a
corporation or limited liability company, as the case may be, validly organized
and existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, is duly qualified to do business and is in good
standing as a foreign corporation or foreign entity, as applicable, in each
jurisdiction where the nature of its business requires such qualification,
except where the failure to so qualify would not have a Material Adverse Effect
(as defined in the U.S. Credit Agreement), and each Obligor has full power and
authority and holds all requisite governmental licenses, permits and other
approvals to enter into and perform its Obligations under this Agreement, the
Notes and each other Loan Document to which it is a party and to own and hold
under lease its property and to conduct its business substantially as currently
conducted by it.
SECTION 7.2. Due Authorization, Non-Contravention, etc. The execution,
delivery and performance (i) by the Borrowers and Group of this Agreement, the
Notes and each other Loan Document executed or to be executed by it, and (ii) by
each other Obligor of each Loan Document executed and delivered by it, are, in
each case, within such Obligor's corporate (or other, as applicable) powers,
have been duly authorized by all necessary corporate (or other, as applicable)
action, and do not
(a) contravene such Obligor's Organic Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting such
Obligor; or
(c) result in, or require the creation or imposition of, any Lien
on any of such Obligor's properties.
SECTION 7.3. Government Approval, Regulation, etc. No authorization or
approval or other action by, and no notice to or filing with, any governmental
authority or regulatory body or other Person is required for the due execution,
delivery or performance by either Borrower, Group or any other Obligor of
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this Agreement, the Notes or any other Loan Document to which it is a party.
Neither Group nor any of its Subsidiaries is an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, or a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as amended.
SECTION 7.4. Validity, etc. This Agreement constitutes, and the Notes
and each other Loan Document executed by the Borrowers and each other Obligor
will, on the due execution and delivery thereof, constitute, the legal, valid
and binding obligations of such Borrower or such Obligor enforceable in
accordance with their respective terms, except as the enforceability thereof may
be limited by bankruptcy, insolvency, moratorium and other similar laws
affecting the enforcement of creditors rights generally and by general equity
principles.
SECTION 7.5. No Material Adverse Change. Since January 4, 1997, there
has been no material adverse change in the business, condition (financial or
otherwise), operations, performance, properties or prospects of (i) the U.S.
Borrower or (ii) Group and its Subsidiaries, taken a whole.
SECTION 7.6. Litigation, etc. There is no action, suit, investigation or
proceeding affecting any Obligor or any of its Subsidiaries, including any
Environmental Action, pending or threatened before any court, governmental
agency or arbitrator that (i) purports to affect the legality, validity or
enforceability of this Agreement or any other Loan Document or the consummation
of the transactions contemplated hereby or (ii) is or would be reasonably likely
to materially adversely affect the business, condition (financial or otherwise),
operations, performance, properties or prospects of the U.S. Borrower or Group
and its Subsidiaries, taken as a whole.
SECTION 7.7. Regulations G, U and X. Neither Borrower is engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock, and no proceeds of any Loans will be used for a purpose which violates,
or would be inconsistent with, F.R.S. Board Regulation G, U or X. Terms for
which meanings are provided in F.R.S. Board Regulation G, U or X or any
regulations substituted therefor, as from time to time in effect, are used in
this Section with such meanings.
SECTION 7.8. Accuracy of Information. All factual information
heretofore or contemporaneously furnished by or on behalf of either Borrower or
Group in writing to any Agent or any Lender for purposes of or in connection
with this Agreement or any transaction contemplated hereby is, and all other
such
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factual information hereafter furnished by or on behalf of either Borrower
to any Agent or any Lender will be, true and accurate in every material respect
on the date as of which such information is dated or certified and as of the
date of execution and delivery of this Agreement by such Agent and such Lender,
and such information is not, or shall not be, as the case may be, incomplete by
omitting to state any material fact necessary to make such information not
misleading. The parties acknowledge and agree that nothing contained in this
Section shall constitute a representation or warranty by either Borrower or
Group as to the future financial performance or the results of operations of
either Borrower or Group; provided, however, that any projections delivered
pursuant to this Agreement have been (and will be) prepared on the basis of the
assumptions accompanying them, and such projections and assumptions, as of the
date of preparation thereof and as of the date hereof, are reasonable and
represent the U.S. Borrower's or Group's good faith estimate of its future
financial performance.
SECTION 7.9. U.S. Credit Agreement Representations and Warranties. As
to all representations and warranties contained in Article IV of the U.S. Credit
Agreement and each Loan Document (as such term is defined by the U.S. Credit
Agreement) insofar as applicable to the Borrowers, Group or any other Obligor,
the properties of the Borrowers, Group or any other Obligor or the obligations
of the Borrowers, Group or any other Obligor under the documents executed and
delivered in connection with the U.S. Credit Agreement, each such representation
and warranty set forth in such Article (insofar as so applicable) and all other
terms of the U.S. Credit Agreement and each Loan Document (as such term is
defined by the U.S. Credit Agreement) to which reference is made therein,
together with all related definitions and ancillary provisions, are hereby
incorporated into this Agreement by reference with respect to each Borrower,
Group or any other Obligor as though specifically set forth in this Section 7.9.
ARTICLE VIII
COVENANTS
SECTION 8.1. Covenants. Each of the U.S. Borrower and Group agrees with
each Agent, each Lender and the Fronting Bank that, until all Commitments have
terminated and all Obligations have been paid and performed in full, the U.S.
Borrower and Group will perform, and will cause each of their respective
Subsidiaries to perform, the obligations set forth in this Section 8.1.
SECTION 8.1.1. Financial Information, Reports, Notices, etc. Unless the
information set forth below is otherwise
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delivered to a Lender under the terms of the U.S. Credit Agreement, Group will
furnish, or will cause to be furnished, to each Lender and each Agent copies of
the financial statements, reports, notices and information required pursuant to
clause (j) of Section 5.01 of the U.S. Credit Agreement.
SECTION 8.1.2. Future Subsidiaries of Group. Group covenants and agrees
that, upon any Person becoming a Subsidiary after the Effective Date, Group
shall cause such Person to become party to the Subsidiary Guaranty if such
Person is required to deliver a guaranty pursuant to clause (k) of Section 5.01
of the U.S. Credit Agreement (without giving effect to any waiver of such
Section's requirements unless consented to by the Required Lenders).
SECTION 8.1.3. U.S. Credit Agreement Covenants. Each of the U.S.
Borrower and Group will comply with and be bound by, and will cause each of the
Subsidiaries to comply with and be bound by, all of the agreements, covenants
and obligations contained in Article V of the U.S. Credit Agreement. Each such
agreement, covenant and obligation contained in such Sections and all other
terms of the U.S. Credit Agreement and the documents executed in connection
therewith to which reference is made therein, together with all related
definitions and ancillary provisions is hereby incorporated into this Agreement
by reference as though specifically set forth in this Section 8.1.3, and each
such agreement, covenant and obligation shall, for purposes hereof, survive the
termination of the U.S. Credit Agreement.
SECTION 8.1.4. Default Notice. The U.S. Borrower will furnish, or will
cause to be furnished, to each Lender as soon as possible and in any event
within two Business Days after the occurrence of each Default a statement of its
chief financial officer setting forth details of such Default and the action
that the U.S. Borrower has taken and proposes to take with respect thereto.
ARTICLE IX
EVENTS OF DEFAULT
SECTION 9.1. Listing of Events of Default. Each of the following events
or occurrences described in this Section 9.1 shall constitute an "Event of
Default".
SECTION 9.1.1. Non-Payment of Obligations. Either Borrower shall
default in the payment or prepayment when due of (i) any principal of or
interest on any Loan, (ii) any Reimbursement Obligation, or (iii) any fee or of
any other Obligation, and in each case such default in payment or prepayment
shall continue
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unremedied for more than three Business Days from the date such payment or
prepayment was due.
SECTION 9.1.2. Breach of Warranty. Any representation or warranty of
either Borrower or any other Obligor made or deemed to be made hereunder or in
any other Loan Document executed by it (including any certificates delivered
pursuant to Article VI) is or shall be incorrect when made or deemed made in any
material respect.
SECTION 9.1.3. Non-Performance of Certain Covenants and Obligations.
The U.S. Borrower or Group shall default in the due performance and observance
of any of its obligations under Sections 8.1.2 or 8.1.4, or any Obligor shall
default in the due performance or observance of any of its obligations under any
other covenant in a Loan Document which is impossible to remedy.
SECTION 9.1.4. Non-Performance of Other Covenants and Obligations.
Either Borrower or any other Obligor shall default in the due performance and
observance of any other agreement contained herein or in any other Loan Document
executed by it, and such default shall continue unremedied for a period of 30
days (a) after notice thereof shall have been given to the U.S. Borrower by any
Agent or any Lender or (b) after any officer of either Borrower obtains
knowledge thereof.
SECTION 9.1.5. Default Under U.S. Credit Agreement. Any Event of
Default under (and as defined in) the U.S. Credit Agreement or any replacement
credit facility shall have occurred whether or not such Event of Default is
waived by the lenders under the U.S. Credit Agreement, or an amendment of the
U.S. Credit Agreement is entered into with the effect of waiving or curing such
Event of Default.
SECTION 9.1.6. Bankruptcy, Insolvency, etc. Any event or condition
described in clause (e) of Section 6.01 of the U.S. Credit Agreement (or similar
provision of any replacement credit facility) shall have occurred and be
continuing.
SECTION 9.1.7. Termination, etc. of Loan Documents. Any Loan Document
shall (except in accordance with its terms), in whole or in part, terminate,
cease to be effective or cease to be the legally valid, binding and enforceable
obligation of the Obligor that is a party thereto; or either Borrower (including
the U.S. Borrower with respect to its Guaranty set forth in Section 3.4) or any
other Obligor shall, directly or indirectly, contest in any manner such
effectiveness, validity, binding nature or enforceability (except as aforesaid).
SECTION 9.2. Action Upon Bankruptcy. If any Event of Default described
in Section 9.1.6 shall occur, the Commitments
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(if not theretofore terminated) shall automatically terminate and the
outstanding principal amount of all outstanding Loans and all other Obligations
shall automatically be and become immediately due and payable, without notice or
demand.
SECTION 9.3. Action Upon Other Event of Default. If any Event of
Default (other than any Event of Default described in Section 9.1.6) shall occur
for any reason, whether voluntary or involuntary, and be continuing, the
Administrative Agent, upon the direction of the Required Lenders, shall by
notice to the U.S. Borrower declare all or any portion of the outstanding
principal amount of the Loans and other Obligations in respect of the Loans or
otherwise to be due and payable and/or the Commitments (if not theretofore
terminated) to be terminated, whereupon the full unpaid amount of such Loans and
other Obligations which shall be so declared due and payable shall be and become
immediately due and payable, without further notice, demand or presentment,
and/or, as the case may be, the Commitments shall terminate.
ARTICLE X
THE AGENTS
SECTION 10.1. Actions. Each Lender hereby appoints Scotiabank as its
Administrative Agent and Citibank as its Documentation Agent under and for
purposes of this Agreement, the Notes and each other Loan Document. Each Lender
authorizes each Agent to act on behalf of such Lender under this Agreement, the
Notes and each other Loan Document and, in the absence of other written
instructions from the Required Lenders received from time to time by such Agent
(with respect to which the such Agent agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of such Agent by the terms hereof and thereof, together with such
powers as may be reasonably incidental thereto. Each Lender hereby indemnifies
(which indemnity shall survive any termination of this Agreement) each Agent,
pro rata according to such Lender's Percentage, from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any kind
or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, such Agent in any way relating to or arising out of this
Agreement, the Notes and any other Loan Document, including reasonable
attorneys' fees, and as to which such Agent is not reimbursed by the Borrowers;
provided, however, that no Lender shall be liable for the payment of any portion
of such liabilities, obligations, losses, damages, claims, costs or expenses
which are determined by a court of competent jurisdiction in a final proceeding
to
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have resulted from such Agent's gross negligence or wilful misconduct. Each
Agent shall not be required to take any action hereunder, under the Notes or
under any other Loan Document, or to prosecute or defend any suit in respect of
this Agreement, the Notes or any other Loan Document, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of any Agent shall be
or become, in such Agent's determination, inadequate, such Agent may call for
additional indemnification from the Lenders and cease to do the acts indemnified
against hereunder until such additional indemnity is given.
SECTION 10.2. Copies, etc. Each Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to such Agent
by the Borrowers pursuant to the terms of this Agreement (unless concurrently
delivered to the Lenders by a Borrower). Each Agent will distribute to each
Lender each document or instrument received for its account and copies of all
other communications received by such Agent from the Borrowers for distribution
to the Lenders by such Agent in accordance with the terms of this Agreement.
SECTION 10.3. Exculpation. Neither any Agent nor any of its affiliates,
directors, officers, employees or agents shall be liable to any Lender for any
action taken or omitted to be taken by it under this Agreement or any other Loan
Document, or in connection herewith or therewith, except for its own wilful
misconduct or gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Loan Document, nor for the creation,
perfection or priority of any Liens (if any) purported to be created by any of
the Loan Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of collateral security (if any), nor to make any inquiry
respecting the performance by either Borrower of its obligations hereunder or
under any other Loan Document. Any such inquiry which may be made by any Agent
shall not obligate it to make any further inquiry or to take any action. Each
Agent shall be entitled to rely upon advice of counsel concerning legal matters
and upon any notice, consent, certificate, statement or writing which such Agent
believes to be genuine and to have been presented by a proper Person.
SECTION 10.4. Successor. Each Agent may resign as such at any time upon
at least 30 days' prior notice to the U.S. Borrower and all Lenders. If such
Agent at any time shall resign, the Required Lenders may appoint another Lender
as a successor Agent which shall thereupon become an Agent in the capacity of
the resigning Agent hereunder. If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving notice of resignation, then the
retiring Agent may, on
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behalf of the Lenders, appoint a successor Agent, which shall be one of the
Lenders or a commercial banking institution organized under the laws of the U.S.
(or any State thereof) or a U.S. branch or agency of a commercial banking
institution, and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as an Agent hereunder by a successor
Agent, such successor Agent shall be entitled to receive from the retiring Agent
such documents of transfer and assignment as such successor Agent may reasonably
request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Agent's resignation hereunder as an Agent, the provisions of
(a) this Article X shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was an Agent under this
Agreement; and
(b) Section 11.3 and Section 11.4 shall continue to inure to its
benefit.
SECTION 10.5. Loans Made or Letters of Credit Issued by Scotiabank and
Loans made by Citibank. Each of Scotiabank and Citibank shall have the same
rights and powers with respect to (x) the Loans made by it or any of its
affiliates, (y) the Notes held by it or any of its affiliates, and (z) its
participating interests in the Letters of Credit as any other Lender and may
exercise the same as if it were not an Agent. Each of Scotiabank, Citibank and
their respective affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the U.S. Borrower or any
Subsidiary or affiliate of the U.S. Borrower as if Scotiabank or Citibank were
not Agents hereunder.
SECTION 10.6. Credit Decisions. Each Lender acknowledges that it has,
independently of each Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrowers, this Agreement, the other
Loan Documents (the terms and provisions of which being satisfactory to such
Lender) and such other documents, information and investigations as such Lender
has deemed appropriate, made its own credit decision to extend its Commitment.
Each Lender also acknowledges that it will, independently of each Agent and each
other Lender, and based on such other documents, information and investigations
as it shall deem appropriate at any time, continue to make its own credit
decisions as to exercising or not exercising from time to time any rights and
privileges available to it under this Agreement or any other Loan Document.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this Agreement
and of each other Loan Document may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrowers and the Required Lenders; provided, however, that no such
amendment, modification or waiver which would:
(a) modify any requirement hereunder that any particular action
be taken by all the Lenders or by the Required Lenders shall be
effective unless consented to by each Lender;
(b) modify this Section 11.1, change the definition of "Required
Lenders", increase the Commitment Amount or (except as otherwise
contemplated by this Agreement) the Percentage of any Lender, reduce any
fees described in Article III, release any guarantor under the
Subsidiary Guaranty or the Group Guaranty, or extend any Commitment
Termination Date shall be made without the consent of each Lender;
(c) extend the due date for, or reduce the amount of, (i) any
scheduled repayment or prepayment of principal of or interest on or fees
payable in respect of any Loan (or reduce the principal amount of or
rate of interest on or fees payable in respect of any Loan) shall be
made without the consent of the holder of that Note evidencing such
Loan, or (ii) any Reimbursement Obligation shall be made without the
consent of the Lender to whom such Reimbursement Obligation is owed;
(d) affect adversely the interests, rights or obligations of the
Fronting Bank in its capacity as the Fronting Bank shall be made without
the consent of the Fronting Bank;
(e) affect adversely the interests, rights or obligations of the
Documentation Agent in its capacity as the Documentation Agent shall be
made without the consent of the Documentation Agent; or
(f) affect adversely the interests, rights or obligations of the
Administrative Agent in its capacity as the Administrative Agent shall
be made without consent of the Administrative Agent.
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No failure or delay on the part of any Agent, any Lender or the holder of any
Note in exercising any power or right under this Agreement or any other Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand on
either Borrower in any case shall entitle it to any notice or demand in similar
or other circumstances. No waiver or approval by any Agent or any Lender under
this Agreement or any other Loan Document shall, except as may be otherwise
stated in such waiver or approval, be applicable to subsequent transactions. No
waiver or approval hereunder shall require any similar or dissimilar waiver or
approval thereafter to be granted hereunder.
SECTION 11.2. Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Loan Document shall be in
writing or by facsimile and addressed, delivered or transmitted to such party at
its address, or facsimile number set forth below its signature hereto or set
forth in the Lender Assignment Agreement or at such other address or facsimile
number as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
transmitted.
SECTION 11.3. Payment of Costs and Expenses. The U.S. Borrower agrees
to pay on demand all reasonable expenses of the Agents (including the reasonable
fees and out-of-pocket expenses of counsel to the Agents and of local counsel,
if any, who may be retained by counsel to the Agents) in connection with
(a) the negotiation, preparation, execution and delivery of this
Agreement and of each other Loan Document, including schedules and
exhibits, and any amendments, waivers, consents, supplements or other
modifications to this Agreement or any other Loan Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby are consummated, and
(b) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Loan Document.
Each Borrower covenants to pay on demand all reasonable costs and expenses of
the Agents, the Fronting Bank and the Lenders incurred in the enforcement of any
Agent's, the Fronting Bank's or any Lender's rights under this Agreement and any
Loan Document (including the reasonable fees and expenses of counsel for such
Agent, the Fronting Bank and such Lender with respect thereto)
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and, further, covenants that it will indemnify the Agents, the Fronting Bank and
the Lenders on demand against all loss or damage to such Persons arising out of
the issuance of or other action taken by such Persons in connection with any
Letter of Credit or Loan including the costs relating to any legal process
instituted by any party restraining or seeking to restrain the Fronting Bank
from accepting or paying any Letter of Credit or Draft. Each Borrower also
agrees that neither any Agent, the Fronting Bank nor any Lender shall have any
liability to it for any reason in respect of the issuance of any Letter of
Credit or Loan other than on account of such Agent's, Fronting Bank's or
Lender's gross negligence or wilful misconduct. All payments to be made to such
Agent, the Fronting Bank and such Lender hereunder shall, subject to Section
5.6, be made for value on the date due and free of any withholding tax or levy,
other than taxes imposed on the net income of such Agent, the Fronting Bank or
such Lender, and each Borrower covenants that such taxes or levies, other than
as excepted, shall be paid by such Borrower. The provisions of this paragraph
will survive payment in full hereunder.
SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Commitments,
each Borrower hereby indemnifies, exonerates and holds each Agent, the Fronting
Bank and each Lender and each of their respective affiliates, officers,
directors, employees and agents (collectively, the "Indemnified Parties") free
and harmless from and against any and all actions, causes of action, suits,
losses, costs, liabilities and damages, and expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought), including the reasonable
fees and expenses of counsel for such Agent, the Fronting Bank and such Lender
with respect thereto (collectively, the "Indemnified Liabilities"), incurred by
the Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Loan or the use
of any Letter of Credit; or
(b) the entering into and performance of this Agreement and any
other Loan Document by any of the Indemnified Parties (including any
action brought by or on behalf of the Borrower as the result of any
determination by the Required Lenders pursuant to Article VI not to make
any Credit Extension);
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the
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relevant Indemnified Party's gross negligence or wilful misconduct.
SECTION 11.5. Survival. The obligations of each Borrower under Sections
5.3, 5.4, 5.5, 5.6, 11.3 and 11.4, and the obligations of the Lenders under
Section 10.1, shall in each case survive any termination of this Agreement, the
payment in full of all Obligations and the termination of all Commitments. The
representations and warranties made by the Borrowers in this Agreement and in
each other Loan Document shall survive the execution and delivery of this
Agreement and each such other Loan Document.
SECTION 11.6. Severability. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Loan Document or affecting the validity or
enforceability of such provision in any other jurisdiction.
SECTION 11.7. Headings. The various headings of this Agreement and of
each other Loan Document are inserted for convenience only and shall not affect
the meaning or interpretation of this Agreement or such other Loan Document or
any provisions hereof or thereof.
SECTION 11.8. Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be executed by each Borrower and each Agent and be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when counterparts hereof
executed on behalf of each Borrower and each Lender (or notice thereof
satisfactory to the Agents) shall have been received by the Agents and notice
thereof shall have been given by the Agents to the U.S. Borrower and each
Lender.
SECTION 11.9. Governing Law; Entire Agreement. THIS AGREEMENT, THE
NOTES AND EACH OTHER LOAN DOCUMENT SHALL EACH BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. This
Agreement, the Notes and the other Loan Documents constitute the entire
understanding among the parties hereto with respect to the subject matter hereof
and supersede any prior agreements, written or oral, with respect thereto.
SECTION 11.10. Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the
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parties hereto and their respective successors and assigns; provided, however,
that:
(a) neither Borrower may assign or transfer its rights or
obligations hereunder without the prior written consent of the Agents
and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Loans and Notes; Participations in
Loans and Notes. Each Lender may assign, or sell participations in, its Loans
and Commitments to one or more other Persons in accordance with this Section
11.11.
SECTION 11.11.1. Assignments. Any Lender,
(a) with the written consent of the U.S. Borrower (which consent
shall not be unreasonably delayed or withheld), the Fronting Bank and
the Administrative Agent may at any time assign and delegate to one or
more commercial banks or other financial institutions; and
(b) with the consent of the Fronting Bank, and notice to the U.S.
Borrower and the Administrative Agent, but without the consent of the
U.S. Borrower or the Administrative Agent, may assign and delegate to
any other Lender or any Lender (as defined in the U.S. Credit
Agreement),
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or a fraction of such Lender's total Loans and
Commitments in a minimum amount of $10,000,000 of Loans and Commitments (other
than in the case of an assignment to any other Lender or any Affiliate of a
Lender or an assignment of the remaining Loans and Commitments of such assignor
Lender), that neither Borrower shall be required to pay an amount under Section
5.6 that is greater than the amount which it would have been required to pay had
no assignment been made and provided, however, that, the Borrowers and the
Administrative Agent shall be entitled to continue to deal solely and directly
with such Lender in connection with the interests so assigned and delegated to
an Assignee Lender until
(c) written notice of such assignment and delegation, together
with payment instructions, addresses and related information with
respect to such Assignee Lender, shall have been given to the U.S.
Borrower and the Administrative Agent by such Lender and such Assignee
Lender,
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(d) such Assignee Lender shall have executed and delivered to the
U.S. Borrower and the Administrative Agent a Lender Assignment
Agreement, accepted by the Administrative Agent, and
(e) the processing fees described below shall have been paid.
From and after the date that the Administrative Agent accepts such Lender
Assignment Agreement, (x) the Assignee Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Lender
in connection with such Lender Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and under the other Loan Documents, and (y)
the assignor Lender, to the extent that rights and obligations hereunder have
been assigned and delegated by it in connection with such Lender Assignment
Agreement, shall be released from its obligations hereunder and under the other
Loan Documents. Within five Business Days after its receipt of notice that the
Administrative Agent has received an executed Lender Assignment Agreement with
respect to the assignment of Loans, the Borrowers shall execute and deliver to
the Administrative Agent (for delivery to the relevant Assignee Lender) new
Notes evidencing such Assignee Lender's assigned Loans and Commitments and, if
the assignor Lender has Loans and Commitments hereunder, replacement Notes in
the principal amount of the Loans and Commitments retained by the assignor
Lender hereunder (such Notes to be in exchange for, but not in payment of, those
Notes then held by such assignor Lender). Each such Note shall be dated the date
of the predecessor Notes. The assignor Lender shall mark the predecessor Notes
"exchanged" and deliver them to the U.S. Borrower. Accrued interest on that part
of the predecessor Notes evidenced by the new Notes, and accrued fees, shall be
paid as provided in the Lender Assignment Agreement. Accrued interest on that
part of the predecessor Notes evidenced by the replacement Notes shall be paid
to the assignor Lender. Accrued interest and accrued fees shall be paid at the
same time or times provided in the predecessor Notes and in this Agreement. Such
assignor Lender or such Assignee Lender must also pay a processing fee to the
Administrative Agent upon delivery of any Lender Assignment Agreement in the
amount of $3,500. Any attempted assignment and delegation not made in accordance
with this Section 11.11.1 shall be null and void. Nothing in this Section shall
prevent or prohibit any Lender from pledging its rights (but not its obligations
to make Loans and to issue or participate in Letters of Credit) under this
Agreement and/or its Loans and/or Notes hereunder to a Federal Reserve Bank in
support of borrowing made by such Lender from such Federal Reserve Bank.
-65-
SECTION 11.11.2. Participations. Any Lender may at any time sell to one
or more commercial banks or other Persons (each of such commercial banks and
other Persons being herein called a "Participant") participating interests (or a
sub-participating interest, in the case of a Lender's participating interest in
a Letter of Credit) in any of the Loans, Commitments, or other interests of such
Lender hereunder; provided, however, that
(a) no participation or sub-participation contemplated in this
Section 11.11 shall relieve such Lender from its Commitments or its
other obligations hereunder or under any other Loan Document,
(b) such Lender shall remain solely responsible for the
performance of its Commitments and such other obligations,
(c) the Borrowers and the Administrative Agent shall continue to
deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and each of the
other Loan Documents,
(d) no Participant, unless such Participant is an affiliate of
such Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Loan Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clause (b) or (c) of
Section 11.1, and
(e) neither Borrower shall be required to pay any amount under
Section 5.6 that is greater than the amount which it would have been
required to pay had no participating interest been sold.
SECTION 11.11.3. Fronting Bank Assignments. In the event that S&P,
Moody's or Thompson's BankWatch (or InsuranceWatch Ratings Service, in the case
of Lenders that are insurance companies (or Best's Insurance Reports, if such
insurance company is not rated by InsuranceWatch Ratings Service)) shall, after
the date that any Lender becomes a Lender, downgrade the long-term certificate
of deposit ratings of such Lender, and the resulting ratings shall be below
BBB-, Baa3 and B (or BB, in the case of Lender that is an insurance company (or
B, in the case of an insurance company not rated by InsuranceWatch Ratings
Service)), then each of the Fronting Bank and the U.S. Borrower shall have the
individual right, but not the obligation, upon notice to such Lender, to replace
(or, in the case of a request by the Fronting Bank, to request the U.S. Borrower
to use its reasonable efforts to replace) such Lender with an Assignee Lender
(in accordance
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with and subject to the restrictions contained in Section 11.11.1), and such
affected Lender hereby agrees to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 11.11.1)
all of its interests, rights and obligations in respect of its Commitment, Loans
and other Obligations owing to it, together with the obligations of such
affected Lender hereunder, to such Assignee Lender; provided, however, that (i)
no such assignment shall conflict with any law, rule and regulation or order of
any governmental authority and (ii) such Assignee Lender shall pay to such
affected Lender in immediately available funds on the date of such assignment
the principal of and interest accrued to the date of payment on the Loans made
by such Lender hereunder and all other amounts accrued for such Lender's account
or owed to it hereunder.
SECTION 11.12. Other Transactions. Nothing contained herein shall
preclude any Agent, the Fronting Lender or any other Lender from engaging in any
transaction, in addition to those contemplated by this Agreement or any other
Loan Document, with the Borrowers or any of their affiliates in which such
Borrower or such affiliate is not restricted hereby from engaging with any other
Person.
SECTION 11.13. Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENTS, THE
LENDERS, GROUP OR THE BORROWERS SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN
THE COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN NEW YORK COUNTY, NEW YORK. THE
PARTIES HERETO HEREBY EXPRESSLY AND IRREVOCABLY SUBMIT TO THE JURISDICTION OF
THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF NEW YORK LOCATED IN NEW YORK COUNTY, NEW YORK FOR THE
PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE AND IRREVOCABLY AGREE TO BE
BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH SUCH LITIGATION. THE
FOREIGN BORROWER HEREBY IRREVOCABLY APPOINTS THE U.S. BORROWER (IN SUCH
CAPACITY, THE "PROCESS AGENT"), WITH AN OFFICE ON THE DATE HEREOF AT 90 PARK
AVENUE, NEW YORK, NEW YORK 10016, UNITED STATES, AS ITS AGENT TO RECEIVE, ON THE
FOREIGN BORROWER'S BEHALF AND ON BEHALF OF THE FOREIGN BORROWER'S PROPERTY,
SERVICE OF COPIES OF THE SUMMONS AND COMPLAINT AND ANY OTHER PROCESS WHICH MAY
BE SERVED IN ANY SUCH ACTION OR PROCEEDING. SUCH SERVICE MAY BE MADE BY MAILING
OR DELIVERING A COPY OF SUCH PROCESS TO THE FOREIGN BORROWER IN CARE OF THE
PROCESS AGENT AT THE PROCESS AGENT'S ABOVE ADDRESS, AND THE FOREIGN BORROWER
HEREBY IRREVOCABLY AUTHORIZES AND DIRECTS THE PROCESS AGENT TO ACCEPT SUCH
SERVICE ON ITS BEHALF. AS AN ALTERNATIVE METHOD OF SERVICE, EACH
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BORROWER FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED
MAIL, POSTAGE PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW
YORK. EACH BORROWER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY HAVE OR HEREAFTER MAY HAVE
TO THE LAYING OF VENUE OF ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED
TO ABOVE AND ANY CLAIM THAT ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM. TO THE EXTENT THAT EITHER BORROWER HAS OR HEREAFTER MAY
ACQUIRE ANY IMMUNITY FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS
(WHETHER THROUGH SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN
AID OF EXECUTION OR OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, SUCH
BORROWER HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS
UNDER THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
SECTION 11.14. Waiver of Jury Trial. THE PARTIES HERETO HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE AGENTS, THE LENDERS, THE FRONTING BANK, GROUP OR THE BORROWERS.
THE PARTIES HERETO ACKNOWLEDGE AND AGREE THAT THEY HAVE RECEIVED FULL AND
SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH
OTHER LOAN DOCUMENT TO WHICH IT IS A PARTY) AND GROUP AND EACH BORROWER
ACKNOWLEDGES THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE AGENTS, THE
FRONTING BANK AND THE LENDERS ENTERING INTO THIS AGREEMENT AND EACH SUCH OTHER
LOAN DOCUMENT.
SECTION 11.15. UCP; etc. (a) The Uniform Customs and Practice for
Documentary Credits as most recently published by the International Chamber of
Commerce (the "UCP") shall in all respects apply to each Letter of Credit issued
hereunder and shall be deemed for such purpose to be a part hereof as if fully
incorporated herein. In the event of any conflict between the UCP and the
governing law of the Agreement, the UCP shall prevail to the extent necessary to
remove the conflict.
(b) In the event of any issuance of a Letter of Credit for which either
Borrower may apply from time to time hereafter, or, of any extension of the
maturity or time for presentation of any Draft, or, of any renewal, extension or
increase in the amount of a Letter of Credit or any other modifications of its
terms, in each case with the consent or at the request of the U.S. Borrower, the
terms of the Agreement shall continue in force and apply to the Letter of Credit
so issued, or, to a Letter of Credit so renewed, extended, increased or
otherwise modified, or, to any, Draft, document or property covered thereby and
to any action taken by the Fronting Bank or its agents or correspondents
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in accordance with such issuance, renewal, extension, increase or other
modification.
SECTION 11.16. Usury Restraint. The provisions of this Agreement shall
be subject to any applicable law, regulation, order, rule or direction (a "Usury
Restraint") which prohibits or restricts the charging, receipt or retention of
interest or other amounts at the rates and amounts set forth herein (the "Stated
Rate") in excess (the "Excess") of the maximum rates or amount (the "Maximum
Rate") stipulated in the Usury Restraint. The provisions of this Agreement shall
not require the payment or permit the collection of interest in excess of the
Maximum Rate from time to time. If the Lenders comply (whether or not required
to do so at law) with such Usury Restraint then, to the extent permitted by law,
a subsequent reduction in the Stated Rate below the Maximum Rate shall be deemed
not to reduce the Stated Rate below the Maximum Rate until the total amount of
interest and other amounts earned and retained, measured by a dollar amount,
equals the amount of interest and other amounts which would have been earned and
retained hereunder, inclusive of the Excess, measured by a dollar amount, if the
Stated Rate had not been held at the Maximum Rate or any amount had not been
refunded to the Borrower.
SECTION 11.17. Judgment Currency. The Obligations of the Borrowers,
Group and each other Obligor in respect of any sum due to any Lender, the
Fronting Bank or the Administrative Agent hereunder, under the Notes or under or
in respect of any other Loan Document shall, notwithstanding any judgment in a
currency (the "Judgment Currency") other than Dollars, be discharged only to the
extent that on the Business Day following receipt by such Lender, the Fronting
Bank or the Administrative Agent of any sum adjudged to be so due in the
Judgment Currency, such Lender, the Fronting Bank or the Administrative Agent,
in accordance with normal banking procedures, purchases Dollars with the
Judgment Currency. If the amount of Dollars so purchased is less than the sum
originally due to such Lender, the Fronting Bank or the Administrative Agent,
each Borrower and Group agrees as a separate obligation and notwithstanding any
such judgment, to indemnify each Lender, the Fronting Bank and the
Administrative Agent, as the case may be, against such loss.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
WARNACO INC.
By /s/ WILLIAM S. FINKELSTEIN
----------------------------------
Title:
Address: 90 Park Avenue
New York, New York 10016
Facsimile No.: 212-687-0480
Attention: Chief Financial Officer
General Counsel
WARNACO (HK) LTD.
By /s/ WILLIAM S. FINKELSTEIN
----------------------------------
Title:
Address: 2A, Jing Hin Industrial
Bldg.
5 Wang Kee Street
Kowloon Bay, Kowloon
Hong Kong
Facsimile No.: 852-2755-2265
Attention: Director of Finance
THE WARNACO GROUP, INC.
By /s/ WILLIAM S. FINKELSTEIN
----------------------------------
Title:
Address: 90 Park Avenue
New York, New York 10016
Facsimile No.: 212-687-0480
Attention: Chief Financial Officer
General Counsel
S-1
THE BANK OF NOVA SCOTIA, as
Administrative Agent
By: /s/ JOHN HOPMANS
---------------------------------
Title:
Address: One Liberty Plaza
New York, New York 10006
Facsimile No.: 212-225-5090
Attention: John Hopmans
CITIBANK, N.A., as
Documentation Agent
By: /s/ ROBERT D. WETRUN
---------------------------------
Title: Attorney-in-Fact
Address: 399 Park Avenue
New York, New York 10043
Facsimile No.: 212-793-7585
Attention: Mark Merlino
S-2
PERCENTAGE LENDERS
- ---------- -------
8.8888888889% THE BANK OF NOVA SCOTIA
By: /s/ JOHN HOPMANS
---------------------------------
Title:
Domestic
Office: One Liberty Plaza
New York, New York 10006
Facsimile No.: 212-225-5090
Attention: John Hopmans
LIBOR
Office: One Liberty Plaza
New York, New York 10006
Facsimile No.: 212-225-5090
Attention: John Hopmans
S-3
PERCENTAGE LENDERS
- ---------- -------
8.8888888889% CITIBANK, N.A.
By: /s/ ROBERT D. WETRUS
---------------------------------
Title: Attorney-in-Fact
Domestic
Office: 399 Park Avenue
New York, New York 10043
Facsimile No.: 212-793-7585
Attention: Mark Merlino
LIBOR
Office: 399 Park Avenue
New York, New York 10043
Facsimile No.: 212-793-7585
Attention: Mark Merlino
S-4
PERCENTAGE LENDERS
- ---------- -------
6.1111111111% THE BANK OF NEW YORK
By: /s/ ELIZA ADAMS
---------------------------------
Title: Vice President
Domestic
Office: One Wall Street
New York, New York 10286
Facsimile No.: 212-635-1480
Attention: Eliza Adams
LIBOR
Office: One Wall Street
New York, New York 10286
Facsimile No.: 212-635-1480
Attention: Eliza Adams
S-5
PERCENTAGE LENDERS
- ---------- -------
6.1111111111% COMMERZBANK AG, NEW YORK BRANCH
By: /s/ CARL H. JACKSON
---------------------------------
Name: Carl H. Jackson
Title: Vice President
By: /s/ PETER T. DOYLE
---------------------------------
Name: Peter T. Doyle
Title: Assistant Treasurer
Domestic
Office: 2 World Financial Center
New York, New York 10281
Facsimile No.: 212-266-7235
Attention: Bob Donohue
LIBOR
Office: 2 World Financial Center
New York, New York 10281
Facsimile No.: 212-266-7235
Attention: Bob Donohue
S-6
PERCENTAGE LENDERS
- ---------- -------
6.1111111111% THE DAI-ICHI KANGYO BANK, LIMITED
By: /s/ TINA BRUCCULERI
---------------------------------
Title: Vice President
Domestic
Office: One World Trade Center
New York, New York 10048
Facsimile No.: 212-912-1879
Attention: Tina Brucculeri
LIBOR
Office: One World Trade Center
New York, New York 10048
Facsimile No.: 212-912-1879
Attention: Tina Brucculeri
S-7
PERCENTAGE LENDERS
- ---------- -------
6.1111111111% FIRST UNION NATIONAL BANK
By:
---------------------------------
Title: Vice President
Domestic
Office: 190 River Road
2nd Floor
Summit, New Jersey 07901
Facsimile No.: 908-598-03085
Attention: Robert Doherty
LIBOR
Office: 190 River Road
2nd Floor
Summit, New Jersey 07091
Facsimile No.: 908-598-0385
Attention: Robert Doherty
S-8
PERCENTAGE LENDERS
- ---------- -------
6.1111111111% FLEET BANK, N.A.
By: /s/ ELIZABETH ALLEN
---------------------------------
Title: Vice President
Domestic
Office: 1185 Avenue of the Americas
2nd Floor
New York, New York 10036
Facsimile No.: 212-819-4105
Attention: Elizabeth Allen
LIBOR
Office: 1185 Avenue of the Americas
2nd Floor
New York, New York 10036
Facsimile No.: 212-819-4108
Attention: Nancy Mejias
S-9
PERCENTAGE LENDERS
- ---------- -------
6.1111111111% SOCIETE GENERALE
By: /s/ SEDARE CORADIN
---------------------------------
Title: Vice President
Domestic
Office: 1221 Avenue of the Americas
New York, New York 10020
Facsimile No.: 212-278-7430
Attention: Sedare Coradin
LIBOR
Office: 1221 Avenue of the Americas
New York, New York 10020
Facsimile No.: 212-278-7430
Attention: Sedare Coradin
S-10
PERCENTAGE LENDERS
- ---------- -------
4.4444444444% GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ PEGGY ERLENKOTTER
---------------------------------
Title: Duly Authorized Secretary
Domestic
Office: 201 High Ridge Road
Stamford, Connecticut 06927
Facsimile No.: 203-357-6443/6573
Attention: Pat Evans
LIBOR
Office: 201 High Ridge Road
Stamford, Connecticut 06927
Facsimile No.: 203-357-6443/6573
Attention: Pat Evans
S-11
PERCENTAGE LENDERS
- ---------- -------
4.4444444444% NATIONSBANK, N.A.
By: /s/ J. TIMOTHY MARTIN
----------------------------------
Name: J. Timothy Martin
Title: Senior Vice President
Domestic
Office: 101 North Tryon Street
15th Floor
NC1-001-15-003
Charlotte, North Carolina 28255
Facsimile No.: 704-386-8694
Attention: Dawn Long
LIBOR
Office: 101 North Tryon Street
15th Floor
NC1-001-15-003
Facsimile No.: 704-386-8694
Attention: Dawn Long
S-12
PERCENTAGE LENDERS
- ---------- -------
3.0555555555% UNION BANK OF CALIFORNIA, N.A.
By: /s/ DENTON FOWLES
---------------------------------
Title: Vice President
By: /s/ LEONARDO R. FERNANDEZ, JR.
---------------------------------
Title: Credit Officer
Domestic
Office: 446 South Figueroa Street
16th Floor
Los Angeles, California 90071
Facsimile No.: 213-236-7636
Attention: Leonardo R. Fernandez, Jr.
LIBOR
Office: 446 South Figueroa Street
16th Floor
Los Angeles, California 90071
Facsimile No.: 213-236-7636
Attention: Leonardo R. Fernandez
S-13
PERCENTAGE LENDERS
- ---------- -------
3.0555555555% BANK OF TOKYO-MITSUBISHI TRUST COMPANY
By:
---------------------------------
Title:
Domestic
Office: 1251 Avenue of the Americas
12th Floor
New York, New York 10020-1104
Facsimile No.: 212-782-4358
Attention: Jim Brown, VP
LIBOR
Office: 1251 Avenue of the Americas
12th Floor
New York, New York 10020-1104
Facsimile No.: 212-782-6441
Attention: Joan Sanderman
S-14
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% BANKBOSTON, N.A.
By:
---------------------------------
Title: Director
Domestic
Office: 100 Federal Street
Boston, Massachusetts 02110
Facsimile No.: 617-434-0637
Attention: Susan Santos
LIBOR
Office: 100 Federal Street
Boston, Massachusetts 02110
Facsimile No.: 617-434-0637
Attention: Susan Santos
S-15
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% CORESTATES BANK, N.A.
By: /s/ IRENE ROSEN MARKS
---------------------------------
Title: Vice President
Domestic
Office: Commercial Loan Accounting
FC 1-3-17-70
15th and Market, CTSQ Bldg.
Philadelphia, PA 19101
Facsimile No.: 215-973-2045
Attention: Joy Ditre
LIBOR
Office: Commercial Loan Accounting
FC 1-3-17-70
15th and Market, CTSQ Bldg.
Philadelphia, PA 19101
Facsimile No.: 215-973-2045
Attention: Joy Ditre
S-16
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% CREDIT ITALIANO
By: /s/ HARMON P. BUTLER
---------------------------------
Name: Harmon P. Butler
Title: First Vice President &
Deputy Manager
By: /s/ PIERLUIGI MAINARDI
---------------------------------
Name: Pierluigi Mainardi
Title: Assistant Vice President
Domestic
Office: 375 Park Avenue
New York, New York 10152
Facsimile No.: 212-546-9675
Attention: Harmon P. Butler
LIBOR
Office: 375 Park Avenue
New York, New York 10152
Facsimile No.: 212-546-9675
Attention: Harmon P. Butler
S-17
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% THE FUJI BANK, LIMITED,
NEW YORK BRANCH
By: /s/ RAYMOND VENTURA
---------------------------------
Title: Vice President and Manager
Domestic
Office: 2 World Trade Center
New York, New York 10048
Facsimile No.: 212-912-0516
Attention: Chigusa Tada
LIBOR
Office: 2 World Trade Center
New York, New York 10048
Facsimile No.: 212-912-0516
Attention: Chigusa Tada
S-18
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% THE INDUSTRIAL BANK OF JAPAN
By: /s/ KENNETH BIEGEN
---------------------------------
Title:
Domestic
Office: New York Branch
1251 Avenue of the Americas
New York, New York 10020
Facsimile No.: 212-282-4480
Attention: Atsushi Kawai
LIBOR
Office: New York Branch
1251 Avenueof the Americas
New York, New York 10020
Facsimile No.: 212-282-4480
Attention: Atsushi Kawai
S-19
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% KREDIETBANK, N.V.
By: /s/ ARMEN KAROZICHIAN
---------------------------------
Name: Armen Karozichian
Title: Vice President
Domestic
Office: 125 W. 55th Street
New York, New York 10019
Facsimile No.: 212-541-0793
Attention: Armen Karozichian
LIBOR
Office: 125 W. 55th Street
New York, New York 10019
Facsimile No.: 212-541-0793
Attention: Armen Karozichian
S-20
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% MARINE MIDLAND BANK
By: /s/ PAUL J. DECHAGAS
---------------------------------
Title: Vice President
Domestic
Office: 1 Marine Midland Center
Buffalo, New York 14240
Facsimile No.: 716-841-2067
Attention: Patti M. Michalek
LIBOR
Office: 1 Marine Midland Center
Buffalo, New York 14240
Facsimile No.: 716-841-2067
Attention: Patti M. Michalek
S-21
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% MERITA BANK LTD. - NEW YORK BRANCH
By:
---------------------------------
Title: Vice President
By:
---------------------------------
Title: Vice President
Domestic
Office: 437 Madison Avenue
New York, New York 10022
Facsimile No.: 212-421-4420
Attention: Thelma Dongallo
LIBOR
Office: 437 Madison Avenue
New York, New York 10022
Facsimile No.: 212-421-4420
Attention: Thelma Dongallo
S-22
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ JAMES E. CONDON
------------------------------------
Name: James E. Condon
Title: Vice President
Domestic
Office: Loan Department
60 Wall Street
New York, New York 10260-0060
Facsimile No.: 302-634-1852
Attention: Bernadette A. Dorsey,
Associate
LIBOR
Office: Loan Department
60 Wall Street
New York, New York 10260-0060
Facsimile No.: 302-634-1852
Attention: Bernadette A. Dorsey,
Associate
S-23
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% THE SANWA BANK, LIMITED,
NEW YORK BRANCH
By: /s/ PAUL JUDICKE
---------------------------------
Title: Vice President
Domestic
Office: 55 East 52nd Street
New York, New York 10055
Facsimile No.: 212-754-1304
Attention: Paul Judicke
LIBOR
Office: 55 East 52nd Street
New York, New York 10055
Facsimile No.: 212-754-2368
Attention: Renko Hara
S-24
PERCENTAGE LENDERS
- ---------- -------
2.7777777778% WACHOVIA BANK, N.A.
By: /s/ J. BARWIS
---------------------------------
Title: Vice President
Domestic
Office: 191 Peachtree Street
Atlanta, Georgia 30303
Facsimile No.: 404-332-6898
Attention: James Barwis
LIBOR
Office: 191 Peachtree Street
Atlanta, Georgia 30303
Facsimile No.: 404-332-6898
Attention: James Barwis
- ------
100%
S-25