EXHIBIT 4.9
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CONFORMED COPY
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US$750,000,000
FIVE-YEAR REVOLVING CREDIT AGREEMENT
dated as of
July 13, 2001
among
THE LIMITED, INC.,
The Lenders Party Hereto
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
___________________________
J.P. MORGAN SECURITIES INC.,
as Arranger
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TABLE OF CONTENTS
Page
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ARTICLE I Definitions
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SECTION 1.01. Defined Terms.................................. 1
SECTION 1.02. Classification of Loans and Borrowings......... 19
SECTION 1.03. Terms Generally................................ 20
SECTION 1.04. Accounting Terms; GAAP......................... 20
ARTICLE II The Credits
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SECTION 2.01. Commitments.................................... 21
SECTION 2.02. Loans and Borrowings........................... 21
SECTION 2.03. Requests for Revolving Borrowings.............. 22
SECTION 2.04. Competitive Bid Procedure...................... 23
SECTION 2.05. Letters of Credit.............................. 26
SECTION 2.06. Funding of Borrowings.......................... 32
SECTION 2.07. Interest Elections............................. 32
SECTION 2.08. Termination and Reduction of Commitments....... 34
SECTION 2.09. Repayment of Loans; Evidence of Indebtedness... 35
SECTION 2.10. Prepayment of Loans............................ 36
SECTION 2.11. Fees........................................... 36
SECTION 2.12. Interest....................................... 38
SECTION 2.13. Alternate Rate of Interest..................... 40
SECTION 2.14. Increased Costs................................ 41
SECTION 2.15. Break Funding Payments......................... 43
SECTION 2.16. Taxes.......................................... 43
SECTION 2.17. Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.......................... 45
SECTION 2.18. Mitigation Obligations; Replacement of
Lenders...................................... 48
ARTICLE III Representations and Warranties
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SECTION 3.01. Corporate Existence and Power.................. 50
SECTION 3.02. Corporate and Governmental Authorization;
No Contravention............................. 50
SECTION 3.03. Binding Effect................................. 50
SECTION 3.04. Financial Information.......................... 50
SECTION 3.05. Litigation and Environmental Matters........... 51
SECTION 3.06. Subsidiaries................................... 51
SECTION 3.07. Not an Investment Company...................... 52
SECTION 3.08. ERISA.......................................... 52
SECTION 3.09. Taxes.......................................... 52
SECTION 3.10. Disclosure..................................... 52
ARTICLE IV Conditions
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SECTION 4.01. Effective Date................................. 53
SECTION 4.02. Each Credit Event.............................. 54
ARTICLE V Covenants
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SECTION 5.01. Information.................................... 55
SECTION 5.02. Maintenance of Properties...................... 57
SECTION 5.03. Maintenance of Insurance....................... 57
SECTION 5.04. Preservation of Corporate Existence............ 58
SECTION 5.05. Inspection of Property, Books and Records...... 58
SECTION 5.06. Fixed Charge Coverage Ratio.................... 58
SECTION 5.07. Debt to Capital Ratio.......................... 58
SECTION 5.08. Limitations on Liens........................... 58
SECTION 5.09. Compliance with Laws........................... 60
SECTION 5.10. Limitations on Subsidiary Indebtedness......... 60
SECTION 5.11. Transactions with Affiliates................... 60
SECTION 5.12. Consolidations, Mergers and Sales of Assets.... 61
ARTICLE VI Events of Default and Remedies
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SECTION 6.01. Events of Default.............................. 61
SECTION 6.02. Remedies....................................... 66
SECTION 6.03. Notice of Default.............................. 66
ARTICLE VII The Administrative Agent
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ARTICLE VIII Miscellaneous
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SECTION 8.01. Notices........................................ 69
SECTION 8.02. Waivers; Amendments............................ 70
SECTION 8.03. Expenses; Indemnity; Damage Waiver............. 71
SECTION 8.04. Successors and Assigns......................... 73
SECTION 8.05. Survival....................................... 76
SECTION 8.06. Counterparts; Integration; Effectiveness....... 76
SECTION 8.07. Severability................................... 77
SECTION 8.08. Right of Setoff................................ 77
SECTION 8.09. Governing Law; Jurisdiction; Consent to
Service of Process........................... 77
SECTION 8.10. WAIVER OF JURY TRIAL........................... 78
SECTION 8.11. Headings....................................... 79
SECTION 8.12. Confidentiality................................ 79
SECTION 8.13. Interest Rate Limitation....................... 80
SECTION 8.14. Waiver Under Existing Credit Agreement......... 80
SECTION 8.15. Collateral..................................... 80
Schedule 2.01 -- Commitments
Schedule 3.05 -- Disclosed Matters
Schedule 5.08 -- Existing Liens
EXHIBITS:
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Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Borrower's Counsel
Exhibit B-2 -- Form of Opinion of General Counsel
FIVE-YEAR REVOLVING CREDIT AGREEMENT
dated as of July 13, 2001 among THE LIMITED,
INC., the LENDERS party hereto and THE CHASE
MANHATTAN BANK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I
Definitions
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SECTION 1.01. Defined Terms. As used in this Agreement, the following
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terms have the meanings specified below:
"ABR", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Administrative Agent" means The Chase Manhattan Bank, in its capacity
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as administrative agent for the Lenders hereunder.
"Administrative Questionnaire" means an Administrative Questionnaire
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in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another Person
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that directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.
"Alternate Base Rate" means, for any day, a rate per annum equal to
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the greater of (a) the Prime Rate in effect on such day or (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective Rate
shall be effective from and including the effective date of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
"Applicable Percentage" means, with respect to any Lender, the
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percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.
"Applicable Rate" means, for any day, with respect to any Eurodollar
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Revolving Loan, or with respect to the participation fees and facility fees
payable hereunder, as the case may be, the applicable rate per annum set forth
2
below under the caption "Eurodollar Spread", "Participation Fee Rate" or
"Facility Fee Rate", as the case may be, based upon the ratings by Moody's and
S&P, respectively, applicable on such date to the Index Debt:
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Eurodollar Participation Facility Fee
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Index Debt Ratings: Spread Fee Rate Rate
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Category 1 0.170% 0.150% 0.080%
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**A/A2
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Category 2 0.285% 0.275% 0.090%
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A-/A3
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Category 3 0.375% 0.350% 0.125%
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BBB+/Baa1
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Category 4 0.475% 0.450% 0.150%
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BBB/Baa2
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Category 5 0.675% 0.650% 0.200%
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*BBB-/Baa3
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** More than or equal to.
* Less than or equal to.
For purposes of the foregoing, (a) if either Moody's or S&P shall not
have in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition) the
Applicable Rate shall be determined on the basis of the rating agency that does
then have a rating for the Index Debt in effect, (b) if neither Moody's nor S&P
has in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition) then the
Index Debt shall be deemed to be rated in Category 5, (c) the Index Debt shall
be deemed to be rated in Category 5 at any time that an Event of Default has
occurred and is continuing, (d) if the ratings established or deemed to have
been established by Moody's or S&P for the Index Debt are not in the same
Category, then the Applicable Rate will be determined by reference to the
Category next above that of the lower of the two ratings and (e) if the ratings
established or deemed to have been established by Moody's and S&P for the Index
Debt shall be changed (other than as a result of a change in the rating system
of Moody's or S&P), such change shall be effective as of the date on which it is
first announced by the applicable rating agency. Each change in an Applicable
Rate shall apply during the period commencing on the effective date of such
change and ending on the date immediately preceding the effective date of the
next such change. If the rating system of Moody's or S&P shall change, or if
either such rating agency shall cease to be in the business of rating corporate
debt obligations, the Borrower and the Lenders shall negotiate in good faith to
amend this definition to reflect such changed rating system, or the
unavailability of ratings from such
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rating agency and, pending the effectiveness of any such amendment, each
Applicable Rate shall be determined by reference to the rating most recently in
effect prior to such change or cessation.
"Assignment and Acceptance" means an assignment and acceptance entered
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into by a Lender and an assignee (with the consent of any party whose consent is
required by Section 8.04), and accepted by the Administrative Agent, in the form
of Exhibit A or any other form approved by the Administrative Agent.
"Availability Period" means the period from and including the
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Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"Board" means the Board of Governors of the Federal Reserve System of
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the United States of America.
"Borrower" means The Limited, Inc., a Delaware corporation.
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"Borrowing" means (a) Revolving Loans of the same Type made, converted
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or continued on the same date and, in the case of Eurodollar Loans, as to which
a single Interest Period is in effect or (b) a Competitive Loan or group of
Competitive Loans of the same Type made on the same date and as to which a
single Interest Period is in effect.
"Borrowing Request" means a request by the Borrower for a Revolving
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Borrowing in accordance with Section 2.03.
"Business Day" means any day that is not a Saturday, Sunday or other
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day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
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the term "Business Day" shall also exclude any day on which banks are not open
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for dealings in dollar deposits in the London interbank market.
"Capital" means, at any time of determination, the sum of Consolidated
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Debt plus Consolidated Tangible Net Worth.
"Capital Lease Obligations" of any Person means the obligations of
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such Person to pay rent or other amounts
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under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of such
Person under GAAP, and the amount of such obligations shall be the capitalized
amount thereof determined in accordance with GAAP.
"Change in Control" means (a) the acquisition of ownership, directly
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or indirectly, beneficially or of record, by any Person or group (within the
meaning of the Securities Exchange Act of 1934 and the rules of the Securities
and Exchange Commission thereunder as in effect on the date hereof) other than
the Permitted Holders of shares representing more than 30% of the aggregate
ordinary voting power represented by the issued and outstanding capital stock of
the Borrower or (b) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated by the board of directors of the Borrower nor (ii) appointed by
directors so nominated.
"Change in Law" means (a) the adoption of any law, rule or regulation
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after (i) with respect to any Revolving Loan or the Commitments, the date of
this Agreement or (ii) with respect to any Competitive Loan, the date of the
related Competitive Bid, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after (i)
with respect to any Revolving Loan or the Commitments, the date of this
Agreement or (ii) with respect to any Competitive Loan, the date of the related
Competitive Bid, or (c) compliance by any Lender or any Issuing Bank (or, for
purposes of Section 2.14(b), by any lending office of such Lender or by such
Lender's or such Issuing Bank's holding company, if any) with any request,
guideline or directive (whether or not having the force of law) of any
Governmental Authority made or issued after (i) with respect to any Revolving
Loan or the Commitments, the date of this Agreement or (ii) with respect to any
Competitive Loan, the date of the related Competitive Bid.
"Class", when used in reference to any Loan or Borrowing, refers to
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whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Competitive Loans.
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"Code" means the Internal Revenue Code of 1986, as amended from time
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to time.
"Commitment" means, with respect to each Lender, the commitment of
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such Lender to make Revolving Loans and to acquire participations in Letters of
Credit hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender's Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced or increased from time to time pursuant to Section 2.08 and
(b) reduced or increased from time to time pursuant to assignments by or to such
Lender pursuant to Section 8.04. The initial amount of each Lender's Commitment
is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to
which such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders' Commitments is $750,000,000.
"Competitive Bid" means an offer by a Lender to make a Competitive
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Loan in accordance with Section 2.04.
"Competitive Bid Rate" means, with respect to any Competitive Bid, the
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Margin or the Fixed Rate, as applicable, offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" means a request by the Borrower for
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Competitive Bids in accordance with Section 2.04.
"Competitive Loan" means a Loan made pursuant to Section 2.04.
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"Consolidated Debt" means, at any date of determination, the sum,
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without duplication, of (a) the total Indebtedness of the Borrower and the
Consolidated Subsidiaries at such date, (b) an amount equal to six times the
fixed minimum store rent commitments (less related sublease income) of the
Borrower and the Consolidated Subsidiaries for the then current Fiscal Year, as
reflected in the footnotes to the most recent audited financial statements of
the Borrower, and (c) an amount equal to six times the fixed minimum store rent
commitments (less related sublease income) for the then current Fiscal Year of
any Person other than the Borrower or a Consolidated Subsidiary to the extent
Guaranteed or assumed by the Borrower or any Consolidated Subsidiary, all
determined on a consolidated basis in accordance with GAAP; provided that, for
the
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purposes of calculating the fixed minimum store rent commitments referred to in
clause (b) or (c) above, if on or prior to the applicable date of determination
an acquisition or disposition outside of the ordinary course of business has
occurred that has the effect of increasing or decreasing any such fixed minimum
store rent commitments, then such fixed minimum store rent commitments shall be
determined on a pro forma basis to give effect to such acquisition or
disposition as if such acquisition or disposition had occurred immediately prior
to the commencement of the then current Fiscal Year.
"Consolidated EBITDA" means, for any period, Consolidated Net Income
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for such period plus (a) without duplication and to the extent deducted in
determining such Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense for such period,
(iii) all amounts attributable to depreciation and amortization for such period
and (iv) any extraordinary or nonrecurring charges for such period, and minus
(b) without duplication and to the extent included in determining such
Consolidated Net Income, any extraordinary or nonrecurring gains for such
period, all determined on a consolidated basis in accordance with GAAP.
"Consolidated EBITDAR" means, for any period, Consolidated EBITDA for
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such period plus, without duplication and to the extent deducted in the
determination of such Consolidated EBITDA, consolidated fixed minimum store
rental expense for such period, all determined on a consolidated basis in
accordance with GAAP; provided that, if on or prior to the applicable date of
determination of Consolidated EBITDAR, an acquisition or disposition outside of
the ordinary course of business has occurred that has the effect of increasing
or decreasing Consolidated EBITDAR, then Consolidated EBITDAR shall be
determined on a pro forma basis to give effect to such acquisition or
disposition as if such acquisition or disposition had occurred immediately prior
to the commencement of the period for which Consolidated EBITDAR is to be
determined.
"Consolidated Fixed Charges" means, for any period, the sum of (a)
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consolidated interest expense, both expensed and capitalized (including the
interest component in respect of Capital Lease Obligations), of the Borrower and
the Consolidated Subsidiaries for such period, plus (b) consolidated fixed
minimum store rental expense of the Borrower and the Consolidated Subsidiaries
for such period,
7
all determined on a consolidated basis in accordance with GAAP; provided that,
if on or prior to the applicable date of determination of Consolidated Fixed
Charges, an acquisition or disposition outside of the ordinary course of
business has occurred that has the effect of increasing or decreasing
Consolidated Fixed Charges, then Consolidated Fixed Charges shall be determined
on a pro forma basis to give effect to such acquisition or disposition as if
such acquisition or disposition had occurred immediately prior to the
commencement of the period for which Consolidated Fixed Charges is to be
determined.
"Consolidated Net Income" means, for any period, the net income or
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loss of the Borrower and the Consolidated Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Consolidated Subsidiary" means any Subsidiary (other than an
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Unrestricted Subsidiary), the accounts of which are, or are required to be,
consolidated with those of the Borrower in the Borrower's periodic reports filed
under the Securities Exchange Act of 1934.
"Consolidated Tangible Net Worth" means, at any date of determination
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(a) the aggregate amount of all common stock, preferred stock (except preferred
stock having sinking fund payments or other similar payments (but not dividends)
which are due prior to the Maturity Date), additional paid-in capital and
retained earnings (or deficit) less (b) the aggregate amount of (i) all
goodwill, licenses, patents, trademarks, copyrights, trade names, service marks,
experimental or organizational expenses and other similar intangibles and
unamortized debt discount and expense to the extent any of the foregoing arise
on or after July 6, 2001 and (ii) all investments, loans and advances by the
Borrower or any Consolidated Subsidiary in or to any Unrestricted Subsidiary,
all determined with respect to the Borrower and its Consolidated Subsidiaries on
a consolidated basis.
"Control" means, with respect to a specified Person, the possession,
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directly or indirectly, of the power to direct, or cause the direction of, the
management or policies of such Person, whether through the ability to exercise
voting power, by contract or otherwise. "Controlling" and "Controlled" have
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correlative meanings.
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"Default" means any event or condition which constitutes an Event of
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Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"Disclosed Matters" means the actions, suits and proceedings and the
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environmental matters disclosed in Schedule 3.05.
"dollars" or "$" refers to lawful money of the United States of
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America.
"Effective Date" means the date on which the conditions specified in
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Section 4.01 are satisfied (or waived in accordance with Section 8.02).
"Environmental Laws" means all applicable laws, rules, regulations,
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codes, ordinances, orders, decrees, judgments, injunctions or binding agreements
issued, promulgated or entered into by any Governmental Authority, relating to
the environment, preservation or reclamation of natural resources or the
management, release or threatened release of any Hazardous Material.
"Environmental Liability" means any liability, contingent or otherwise
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(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower or any Consolidated Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"Equity Interests" means shares of capital stock, partnership
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interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
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incorporated) that, together with the
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Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code or, solely for purposes of Section 302 of ERISA and Section 412 of the
Code, is treated as a single employer under Section 414 of the Code.
"Eurodollar", when used in reference to any Loan or Borrowing, refers
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to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
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VI.
"Excluded Taxes" means, with respect to the Administrative Agent, any
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Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, (b) income, franchise or similar taxes imposed by the jurisdiction
under the laws of which such recipient is organized or in which its principal
office is located or, in the case of any Lender, in which its applicable lending
office is located, or which are imposed by reason of any present or former
connection between such Lender and the jurisdiction imposing such taxes, other
than solely as a result of this Agreement or any Loan or transaction
contemplated thereby, (c) any branch profits taxes imposed by the United States
of America or any similar tax imposed by any other jurisdiction described in
clause (a) or (b) above and (d) in the case of a Foreign Lender (other than an
assignee pursuant to a request by the Borrower under Section 2.18(b)), any
withholding tax that (i) is in effect and would apply to amounts payable to such
Foreign Lender under applicable law at the time such Foreign Lender becomes a
party to this Agreement (or designates a new lending office), except to the
extent that such Foreign Lender (or its assignor, if any) was entitled, under
applicable law at the time of designation of a new lending office (or
assignment), to receive additional amounts from the Borrower with respect to any
withholding tax pursuant to Section 2.16(a), or (ii) is attributable to such
Foreign Lender's failure to comply with Section 2.16(e).
"Federal Funds Effective Rate" means, for any day, the weighted
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average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next
10
succeeding Business Day by the Federal Reserve Bank of New York, or, if such
rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Administrative Agent from three
Federal funds brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
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accounting officer, treasurer or controller of the Borrower.
"Fiscal Year" means the fiscal year of the Borrower which shall
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commence on the Sunday following the Saturday on or nearest (whether following
or preceding) January 31 of one calendar year and end on the Saturday on or
nearest (whether following or preceding) January 31 of the following calendar
year.
"Fixed Rate" means, with respect to any Competitive Loan (other than a
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Eurodollar Competitive Loan), the fixed rate of interest per annum specified by
the Lender making such Competitive Loan in its related Competitive Bid.
"Fixed Rate Loan" means a Competitive Loan bearing interest at a Fixed
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Rate.
"Foreign Lender" means any Lender that is organized under the laws of
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a jurisdiction other than that in which the Borrower is located. For purposes of
this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in the United
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States of America.
"Governmental Authority" means the government of the United States of
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America, any other nation or any political subdivision thereof, whether state or
local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
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obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of
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guaranteeing any Indebtedness or other obligation of any other Person (the
"primary obligor") in any manner, whether directly or
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indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued to support such
Indebtedness or obligation; provided, that the term Guarantee shall not include
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endorsements for collection or deposit in the ordinary course of business.
"Hazardous Materials" means all explosive or radioactive substances
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or wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes in
each case which are regulated pursuant to any Environmental Law.
"Hedging Agreement" means any interest rate protection agreement,
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foreign currency exchange agreement, commodity price protection agreement or
other interest or currency exchange rate or commodity price hedging arrangement.
"Indebtedness" of any Person means, without duplication, (a) all
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obligations of such Person for borrowed money, (b) all obligations of such
Person evidenced by bonds, debentures, notes or similar instruments, (c) all
obligations of such Person in respect of the deferred purchase price of property
(other than inventory) or services (excluding accruals and trade accounts
payable arising in the ordinary course of business), (d) all Indebtedness of
others secured by any Lien on property owned or acquired by such Person, whether
or not the Indebtedness secured thereby has been assumed, (e) all Guarantees by
such Person of Indebtedness of others, (f) all Capital Lease Obligations of such
Person and (g) all obligations,
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contingent or otherwise, of such Person in respect of bankers' acceptances.
"Indemnified Taxes" means Taxes other than Excluded Taxes and Other
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Taxes.
"Index Debt" means senior, unsecured, long-term indebtedness for
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borrowed money of the Borrower that is not guaranteed by any other Person or
subject to any other credit enhancement.
"Information Memorandum" means the Confidential Information Memorandum
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dated June, 2001 relating to the Borrower and the Transactions.
"Interest Election Request" means a request by the Borrower to convert
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or continue a Revolving Borrowing in accordance with Section 2.07.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
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last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period and (c) with respect to any Fixed
Rate Loan, the last day of the Interest Period applicable to the Borrowing of
which such Loan is a part and, in the case of a Fixed Rate Borrowing with an
Interest Period of more than 90 days' duration (unless otherwise specified in
the applicable Competitive Bid Request), each day prior to the last day of such
Interest Period that occurs at intervals of 90 days' duration after the first
day of such Interest Period, and any other dates that are specified in the
applicable Competitive Bid Request as Interest Payment Dates with respect to
such Borrowing.
"Interest Period" means (a) with respect to any Eurodollar Borrowing,
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the period commencing on the date of such Borrowing and ending on (i) the date
that is one or two weeks thereafter or (ii) the numerically corresponding day in
the calendar month that is one, two, three or six months thereafter, in each
case as the Borrower may elect and (b) with respect to any Fixed Rate Borrowing,
the period (which shall not be less than seven days or more than
13
180 days) commencing on the date of such Borrowing and ending on the date
specified in the applicable Competitive Bid Request; provided, that (i) if any
--------
Interest Period would end on a day other than a Business Day, such Interest
Period shall be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Borrowing with an Interest Period of an integral number of
months only, such next succeeding Business Day would fall in the next calendar
month, in which case such Interest Period shall end on the next preceding
Business Day, (ii) any Interest Period pertaining to a Eurodollar Borrowing with
an Interest Period of an integral number of months that commences on the last
Business Day of a calendar month (or on a day for which there is no numerically
corresponding day in the last calendar month of such Interest Period) shall end
on the last Business Day of the last calendar month of such Interest Period and
(iii) any Interest Period that would otherwise end after the Maturity Date will
end on the Maturity Date. For purposes hereof, the date of a Borrowing initially
shall be the date on which such Borrowing is made and, in the case of a
Revolving Borrowing, thereafter shall be the effective date of the most recent
conversion or continuation of such Borrowing.
"Issuing Bank" means, as applicable, (a) The Chase Manhattan Bank, in
------------
its capacity as the issuer of Letters of Credit hereunder, (b) any other Lender
or Affiliate of a Lender designated by the Borrower (with such Lender's consent)
as an Issuing Bank in a written notice to the Administrative Agent and (c) their
respective successors in such capacity as provided in Section 2.05(i). Any
Issuing Bank may, in its discretion, arrange for one or more Letters of Credit
to be issued by Affiliates of such Issuing Bank, in which case the term "Issuing
Bank" shall include any such Affiliate with respect to Letters of Credit issued
by such Affiliate.
"LC Disbursement" means a payment made by any Issuing Bank pursuant to
---------------
a Letter of Credit.
"LC Exposure" means, at any time, the sum of (a) the aggregate undrawn
-----------
amount of all outstanding Letters of Credit at such time plus (b) the aggregate
amount of all LC Disbursements that have not yet been reimbursed by or on behalf
of the Borrower at such time. The LC Exposure of any Lender at any time shall
be its Applicable Percentage of the total LC Exposure at such time.
14
"Lenders" means the Persons listed on Schedule 2.01 and any other
-------
Person that shall have become a party hereto pursuant to an Assignment and
Acceptance, other than any such Person that ceases to be a party hereto pursuant
to an Assignment and Acceptance.
"Letter of Credit" means any letter of credit issued pursuant to this
----------------
Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
---------
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market Service
(or on any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
---------
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any asset, any mortgage, deed of trust,
----
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset.
"Loans" means the loans made by the Lenders to the Borrower pursuant
-----
to this Agreement.
"Margin" means, with respect to any Competitive Loan bearing interest
------
at a rate based on the LIBO Rate, the marginal rate of interest, if any, to be
added to or subtracted from the LIBO Rate to determine the rate of interest
applicable to such Loan, as specified by the Lender making such Loan in its
related Competitive Bid.
15
"Material Adverse Effect" means a material adverse effect on (a) the
-----------------------
business, financial position or results of operations, of the Borrower and the
Consolidated Subsidiaries, taken as a whole, (b) the ability of the Borrower to
perform any of its obligations under this Agreement or (c) the rights of or
benefits available to the Lenders under this Agreement.
"Material Indebtedness" means Indebtedness (other than the Loans and
---------------------
Letters of Credit), or obligations in respect of one or more Hedging Agreements,
of any one or more of the Borrower and its Consolidated Subsidiaries in an
aggregate principal amount exceeding $75,000,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Consolidated Subsidiary in respect of any Hedging Agreement at any time
shall be the maximum aggregate amount (giving effect to any netting agreements)
that the Borrower or such Consolidated Subsidiary would be required to pay if
such Hedging Agreement were terminated at such time.
"Maturity Date" means July 13, 2006.
-------------
"Minority Interest Disposition" means a sale, transfer or other
-----------------------------
disposition by the Borrower or any of the Subsidiaries (including the issuer
thereof) of up to 20% of the Equity Interests in any Subsidiary of the Borrower.
"Moody's" means Moody's Investors Service, Inc.
-------
"Multiemployer Plan" means a multiemployer plan as defined in Section
------------------
4001(a)(3) of ERISA.
"Other Taxes" means any and all present or future recording, stamp,
-----------
documentary, excise, property or similar taxes, charges or levies imposed by the
United States of America or any political subdivision thereof arising from any
payment made hereunder or from the execution, delivery or enforcement of, or
otherwise with respect to, this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation referred to and
----
defined in ERISA and any successor entity performing similar functions.
"Permitted Encumbrances" means:
----------------------
16
(a) Liens imposed by law for taxes that are not yet due;
(b) carriers', warehousemen's, mechanics', materialmen's, repairmen's
and other like Liens imposed by law, arising in the ordinary course of business
and security obligations that are not overdue by more than 30 days;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations;
(d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course of
business;
(e) judgment liens in respect of judgments that do not constitute an
Event of Default under clause (j) of Section 6.01; and
(f) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property imposed by law or arising in the ordinary course
of business that do not secure any monetary obligations and do not materially
detract from the value of the affected property or interfere with the ordinary
conduct of business of the Borrower or any Subsidiary;
provided that the term "Permitted Encumbrances" shall not include any Lien
--------
securing Indebtedness.
"Permitted Holders" means Leslie H. Wexner, all descendants of any of
-----------------
his grandparents, any spouse or former spouse of any of the foregoing, any
descendant of any such spouse or former spouse, the estate of any of the
foregoing, any trust for the benefit, in whole or in part, of one or more of the
foregoing and any corporation, limited liability company, partnership or other
entity Controlled by one or more of the foregoing.
"Person" means any natural person, corporation, limited liability
------
company, trust, joint venture, association, company, partnership, Governmental
Authority or other entity.
"Plan" means any employee pension benefit plan (other than a
----
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or
17
Section 302 of ERISA, and in respect of which the Borrower or any ERISA
Affiliate is (or, if such plan were terminated, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of ERISA.
"Prime Rate" means the rate of interest per annum publicly announced
----------
from time to time by The Chase Manhattan Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as being
effective.
"Register" has the meaning set forth in Section 8.04.
--------
"Related Parties" means, with respect to any specified Person, such
---------------
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving Credit
----------------
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time; provided
--------
that, for purposes of declaring the Loans to be due and payable pursuant to
Article VI, and for all purposes after the Loans become due and payable pursuant
to Article VI or the Commitments expire or terminate, the outstanding
Competitive Loans of the Lenders shall be included in their respective Revolving
Credit Exposures in determining the Required Lenders.
"Revolving Credit Exposure" means, with respect to any Lender at any
-------------------------
time, the sum of the outstanding principal amount of such Lender's Revolving
Loans and its LC Exposure at such time.
"Revolving Loan" means a Loan made pursuant to Section 2.03.
--------------
"S&P" means Standard & Poor's Ratings Services.
---
"Statutory Reserve Percentage" means for any day the percentage
----------------------------
(expressed as a decimal) that is in effect on such day, as prescribed by the
Board, for determining the maximum reserve requirement for a member bank of the
Federal Reserve System for eurocurrency funding (currently referred to as
"Eurocurrency Liabilities" in Regulation D of the Board). Such reserve
percentage shall include those imposed pursuant to such Regulation D. The
Statutory Reserve
18
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
---------- ------
date, any corporation, limited liability company, partnership, association or
other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent or
by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
----------
"Taxes" means any and all present or future taxes, levies, imposts,
-----
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"364-Day Credit Agreement" means the 364-day Revolving Credit
------------------------
Agreement dated as of July 13, 2001 among the Borrower, the lenders, party
thereto and the Chase Manhattan Bank, as "Administrative Agent" under and as
defined in the 364-Day Credit Agreement.
"Transactions" means the execution, delivery and performance by the
------------
Borrower of this Agreement, the borrowing of Loans, the use of the proceeds
thereof and the issuance of Letters of Credit hereunder.
"Type", when used in reference to any Loan or Borrowing, refers to
----
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the LIBO Rate, the Alternate Base Rate
or a Fixed Rate.
"Unfunded Liabilities" means, with respect to any Plan at any time,
--------------------
the amount (if any) by which (a) the present value of all benefits under such
Plan exceeds (b) the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent
19
valuation date for such Plan, but only (i) to the extent that such excess
represents a potential liability of the Borrower or any ERISA Affiliate to the
PBGC or any other Person under Title IV of ERISA or (ii) with respect to a Plan
which is a Multiemployer Plan as described in Section 4001(a)(3) of ERISA, to
the extent of the Unfunded Liabilities of such Plan allocable to the Borrower or
any ERISA Affiliate under Section 4212 of ERISA.
"Unrestricted Subsidiary" means any Subsidiary designated as an
-----------------------
Unrestricted Subsidiary in a written notice sent at any time after the date of
this Agreement by the Borrower to the Administrative Agent which is engaged (a)
primarily in the business of making or discounting loans, making advances,
extending credit or providing financial accommodation to, or purchasing the
obligations of, others; (b) primarily in the business of insuring property
against loss and subject to regulation as an insurance company by any
Governmental Authority; (c) exclusively in the business of owning or leasing,
and operating, aircraft and/or trucks; (d) primarily in the ownership,
management, leasing or operation of real estate, other than parcels of real
estate with respect to which 51% or more of the rentable space is used by the
Borrower or a Consolidated Subsidiary in the normal course of business; or (e)
primarily as a carrier transporting goods in both intrastate and interstate
commerce, provided that (i) the Borrower may by notice to the Administrative
--------
Agent change the designation of any Subsidiary described in subparagraphs (a)
through (e) above, but may do so only once during the term of this Agreement,
(ii) the designation of a Subsidiary as an Unrestricted Subsidiary more than 30
days after the creation or acquisition of such Subsidiary where such Subsidiary
was not specifically so designated within such 30 days shall be deemed to be the
only permitted change in designation and (iii) immediately after the Borrower
designates any Subsidiary whether now owned or hereafter acquired or created as
an Unrestricted Subsidiary or changes the designation of a Subsidiary from an
Unrestricted Subsidiary to a Consolidated Subsidiary, the Borrower and all
Consolidated Subsidiaries would be in compliance with all of the provisions of
this Agreement.
"Value" means, when used in Section 6.01(e) with respect to
-----
investments in and advances to a Consolidated Subsidiary, the book value thereof
immediately before the relevant event or events referred to in Section 6.01(e)
occurred with respect to such Consolidated Subsidiary.
20
"Withdrawal Liability" means liability to a Multiemployer Plan as a
--------------------
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
SECTION 1.02. Classification of Loans and Borrowings. For purposes
---------------------------------------
of this Agreement, Loans may be classified and referred to by Class (e.g., a
----
"Revolving Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type
----
(e.g., a "Eurodollar Revolving Loan"). Borrowings also may be classified and
-----
referred to by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a
---- ----
"Eurodollar Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving
----
Borrowing").
SECTION 1.03. Terms Generally. The definitions of terms herein shall
----------------
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phrase "without limitation". The word
"will" shall be construed to have the same meaning and effect as the word
"shall". Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.
SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
-----------------------
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time;
21
provided that, if the Borrower notifies the Administrative Agent that the
--------
Borrower requests an amendment to any provision hereof to eliminate the effect
of any change occurring after the date hereof in GAAP or in the application
thereof on the operation of such provision (or if the Administrative Agent
notifies the Borrower that the Required Lenders request an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until such
notice shall have been withdrawn or such provision amended in accordance
herewith.
ARTICLE II
The Credits
-----------
SECTION 2.01. Commitments. Subject to the terms and conditions set
------------
forth herein, each Lender agrees to make Revolving Loans to the Borrower from
time to time during the Availability Period in an aggregate principal amount
that (after giving effect to the making of such Revolving Loans and any
concurrent repayment of Loans) will not result in (a) such Lender's Revolving
Credit Exposure exceeding such Lender's Commitment or (b) the sum of the total
Revolving Credit Exposures plus the aggregate principal amount of outstanding
Competitive Loans exceeding the total Commitments. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Loans.
SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall
---------------------
be made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. Each Competitive Loan
shall be made in accordance with the procedures set forth in Section 2.04. The
failure of any Lender to make any Loan required to be made by it shall not
relieve any other Lender of its obligations hereunder; provided that the
--------
Commitments and Competitive Bids of the Lenders are several and no Lender shall
be responsible for any other Lender's failure to make Loans as required.
(b) Subject to Section 2.13, (i) each Revolving Borrowing shall be
comprised entirely of ABR Loans or
22
Eurodollar Loans as the Borrower may request in accordance herewith, and (ii)
each Competitive Borrowing shall be comprised entirely of Eurodollar Loans or
Fixed Rate Loans as the Borrower may request in accordance herewith. Each Lender
at its option may make any Eurodollar Loan by causing any domestic or foreign
branch or Affiliate of such Lender to make such Loan; provided that any exercise
--------
of such option shall not affect the obligation of the Borrower to repay such
Loan in accordance with the terms of this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $20,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $1,000,000 and not less than $20,000,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
--------
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.05(e). Each Competitive Borrowing shall be in an aggregate amount that is an
integral multiple of $1,000,000 and not less than $20,000,000. Borrowings of
more than one Type and Class may be outstanding at the same time; provided that
--------
there shall not at any time be more than a total of 12 Eurodollar Revolving
Borrowings outstanding.
SECTION 2.03. Requests for Revolving Borrowings. To request a
----------------------------------
Revolving Borrowing, the Borrower shall notify the Administrative Agent of such
request by telephone (a) in the case of a Eurodollar Borrowing, not later than
11:00 a.m., New York City time, three Business Days before the date of the
proposed Borrowing and (b) in the case of an ABR Borrowing, not later than 11:00
a.m., New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
23
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a Eurodollar
Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
SECTION 2.04. Competitive Bid Procedure. (a) Subject to the terms
--------------------------
and conditions set forth herein, from time to time during the Availability
Period the Borrower may request Competitive Bids and may (but shall not have any
obligation to) accept Competitive Bids and borrow Competitive Loans; provided
--------
that the sum of the total Revolving Credit Exposures plus the aggregate
principal amount of outstanding Competitive Loans at any time (after giving
effect to the borrowing of such Competitive Loans and any concurrent repayment
of Loans) shall not exceed the total Commitments. To request Competitive Bids,
the Borrower shall notify the Administrative Agent of such request by telephone,
(a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m., New York
City time, four Business Days before the date of the proposed Borrowing and (b)
in the case of a Fixed Rate Borrowing, not later than 10:00 a.m., New York City
time, one Business Day before the date of the proposed Borrowing; provided that
--------
the Borrower may submit up to (but not more than) five Competitive Bid Requests
on the same day, but a Competitive Bid Request shall not be made within three
Business Days after the date of any previous Competitive Bid Request,
24
unless any and all such previous Competitive Bid Requests shall have been
withdrawn or all Competitive Bids received in response thereto rejected. Each
such telephonic Competitive Bid Request shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Competitive Bid
Request in a form approved by the Administrative Agent and signed by the
Borrower. Each such telephonic and written Competitive Bid Request shall specify
the following information in compliance with Section 2.02:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business Day;
(iii) whether such Borrowing is to be a Eurodollar Borrowing or a
Fixed Rate Borrowing;
(iv) the Interest Period to be applicable to such Borrowing, which
shall be a period contemplated by the definition of the term "Interest
Period"; and
(v) the location and number of the Borrower's account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.06.
Promptly following receipt of a Competitive Bid Request in accordance with this
Section, the Administrative Agent shall notify the Lenders of the details
thereof by telecopy, inviting the Lenders to submit Competitive Bids.
(b) Each Lender may (but shall not have any obligation to) make one
or more Competitive Bids to the Borrower in response to a Competitive Bid
Request. Each Competitive Bid by a Lender must be in a form approved by the
Administrative Agent and must be received by the Administrative Agent by
telecopy, (x) in the case of a Eurodollar Competitive Borrowing, not later than
9:30 a.m., New York City time, three Business Days before the proposed date of
such Competitive Borrowing and (y) in the case of a Fixed Rate Borrowing, not
later than 9:30 a.m., New York City time, on the proposed date of such
Competitive Borrowing. Competitive Bids that do not conform substantially to
the form approved by the Administrative Agent may be rejected by the
Administrative Agent, and the Administrative Agent shall notify the applicable
Lender as promptly as practicable. Each Competitive Bid shall specify (i) the
25
principal amount (which shall be a minimum of $5,000,000 and an integral
multiple of $1,000,000 and which may equal the entire principal amount of the
Competitive Borrowing requested by the Borrower) of the Competitive Loan or
Loans that the Lender is willing to make, (ii) the Competitive Bid Rate or Rates
at which the Lender is prepared to make such Loan or Loans (expressed as a
percentage rate per annum in the form of a decimal to no more than four decimal
places) and (iii) the Interest Period applicable to each such Loan and the last
day thereof.
(c) The Administrative Agent shall promptly notify the Borrower by
telecopy of the Competitive Bid Rate and the principal amount specified in each
Competitive Bid and the identity of the Lender that shall have made such
Competitive Bid.
(d) Subject only to the provisions of this paragraph, the Borrower
may accept or reject any Competitive Bid. The Borrower shall notify the
Administrative Agent by telephone, confirmed by telecopy in a form approved by
the Administrative Agent, whether and to what extent it has decided to accept or
reject each Competitive Bid, (x) in the case of a Eurodollar Competitive
Borrowing, not later than 10:30 a.m., New York City time, three Business Days
before the date of the proposed Competitive Borrowing and (y) in the case of a
Fixed Rate Borrowing, not later than 10:30 a.m., New York City time, on the
proposed date of the Competitive Borrowing; provided that (i) the failure of the
--------
Borrower to give such notice shall be deemed to be a rejection of each
Competitive Bid, (ii) the Borrower shall not accept a Competitive Bid made at a
particular Competitive Bid Rate if the Borrower rejects a Competitive Bid made
at a lower Competitive Bid Rate, (iii) the aggregate amount of the Competitive
Bids accepted by the Borrower shall not exceed the aggregate amount of the
requested Competitive Borrowing specified in the related Competitive Bid
Request, (iv) to the extent necessary to comply with clause (iii) above, the
Borrower may accept Competitive Bids at the same Competitive Bid Rate in part,
which acceptance, in the case of multiple Competitive Bids at such Competitive
Bid Rate, shall be made pro rata in accordance with the amount of each such
Competitive Bid, and (v) except pursuant to clause (iv) above, no Competitive
Bid shall be accepted for a Competitive Loan unless such Competitive Loan is in
a minimum principal amount of $5,000,000 and an integral multiple of $1,000,000;
provided further that if a Competitive Loan must be in an amount less than
----------------
$5,000,000 because of the
26
provisions of clause (iv) above, such Competitive Loan may be for a minimum of
$1,000,000 or any integral multiple thereof, and in calculating the pro rata
allocation of acceptances of portions of multiple Competitive Bids at a
particular Competitive Bid Rate pursuant to clause (iv) the amounts shall be
rounded to integral multiples of $1,000,000 in a manner determined by the
Borrower. A notice given by the Borrower pursuant to this paragraph shall be
irrevocable.
(e) The Administrative Agent shall promptly notify each bidding
Lender by telecopy whether or not its Competitive Bid has been accepted (and, if
so, the amount and Competitive Bid Rate so accepted), and each successful bidder
will thereupon become bound, subject to the terms and conditions hereof, to make
the Competitive Loan in respect of which its Competitive Bid has been accepted.
(f) If the Administrative Agent shall elect to submit a Competitive
Bid in its capacity as a Lender, it shall submit such Competitive Bid directly
to the Borrower at least one quarter of an hour earlier than the time by which
the other Lenders are required to submit their Competitive Bids to the
Administrative Agent pursuant to paragraph (b) of this Section.
SECTION 2.05. Letters of Credit. (a) General. Subject to the terms
------------------ --------
and conditions set forth herein, the Borrower may request the issuance of
Letters of Credit, in a form reasonably acceptable to the Administrative Agent
and any Issuing Bank, at any time and from time to time during the Availability
Period. In the event of any inconsistency between the terms and conditions of
this Agreement and the terms and conditions of any form of letter of credit
application or other agreement submitted by the Borrower to, or entered into by
the Borrower with, any Issuing Bank relating to any Letter of Credit, the terms
and conditions of this Agreement shall control. The parties hereto acknowledge
and agree that (i) Letters of Credit may be issued to support obligations of
Subsidiaries of the Borrower as well as the Borrower, (ii) Letters of Credit
issued to support obligations of a Subsidiary may state that they are issued for
such Subsidiary's account and (iii) regardless of any such statement in any
Letter of Credit, the Borrower is the "account party" in respect of all Letters
of Credit and will be responsible for reimbursement of LC Disbursements as
provided herein.
27
(b) Notice of Issuance, Amendment, Renewal, Extension; Certain
----------------------------------------------------------
Conditions. To request the issuance of a Letter of Credit (or the amendment,
-----------
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or telecopy (or transmit by electronic communication, if
arrangements for doing so have been approved by the relevant Issuing Bank) to
the relevant Issuing Bank and the Administrative Agent (reasonably in advance of
the requested date of issuance, amendment, renewal or extension) a notice
requesting the issuance of a Letter of Credit, or identifying the Letter of
Credit to be amended, renewed or extended, and specifying the date of issuance,
amendment, renewal or extension (which shall be a Business Day), the date on
which such Letter of Credit is to expire (which shall comply with paragraph (c)
of this Section), the amount of such Letter of Credit, the name and address of
the beneficiary thereof and such other information as shall be necessary to
prepare, amend, renew or extend such Letter of Credit. If requested by the
relevant Issuing Bank, the Borrower also shall submit a letter of credit
application on such Issuing Bank's standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed or
extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the LC
Exposure shall not exceed $500,000,000 and (ii) the sum of the total Revolving
Credit Exposures plus the aggregate principal amount of outstanding Competitive
Loans shall not exceed the total Commitments.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
----------------
to the close of business on the earlier of (i) the date one year after the date
of the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is five Business Days prior to the Maturity Date.
(d) Participations. By the issuance of a Letter of Credit (or an
---------------
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the relevant Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit equal to such
Lender's Applicable Percentage of the aggregate amount available to be drawn
28
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent, for the account of such Issuing Bank, such Lender's
Applicable Percentage of each LC Disbursement made by such Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrower
for any reason. Each Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
(e) Reimbursement. If any Issuing Bank shall make any LC
--------------
Disbursement in respect of a Letter of Credit, the Borrower shall reimburse such
LC Disbursement by paying to the Administrative Agent an amount equal to such LC
Disbursement not later than 12:00 noon, New York City time, on the next Business
Day after the date that such LC Disbursement is made, if the Borrower shall have
received notice of such LC Disbursement prior to 10:00 a.m., New York City time,
on such date, or, if such notice has not been received by the Borrower prior to
such time on such date, then not later than 12:00 noon, New York City time, on
(i) the Business Day that the Borrower receives such notice, if such notice is
received prior to 10:00 a.m., New York City time, on the day of receipt, or (ii)
the Business Day immediately following the day that the Borrower receives such
notice, if such notice is not received prior to such time on the day of receipt;
provided that the Borrower may, subject to the conditions to borrowing set forth
--------
herein, request in accordance with Section 2.03 that such payment be financed
with an ABR Revolving Borrowing in an equivalent amount and, to the extent so
financed, the Borrower's obligation to make such payment shall be discharged and
replaced by the resulting ABR Revolving Borrowing. If the Borrower fails to
make such payment when due, the Administrative Agent shall notify each Lender of
the applicable LC Disbursement, the payment then due from the Borrower in
respect thereof and such Lender's Applicable Percentage thereof. Promptly
following receipt of such notice, each Lender shall pay to the Administrative
Agent
29
its Applicable Percentage of the payment then due from the Borrower, in the same
manner as provided in Section 2.06 with respect to Loans made by such Lender
(and Section 2.06 shall apply, mutatis mutandis, to the payment obligations of
------- --------
the Lenders), and the Administrative Agent shall promptly pay such Issuing Bank
the amounts so received by it from the Lenders. Promptly following receipt by
the Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to such
Issuing Bank or, to the extent that Lenders have made payments pursuant to this
paragraph to reimburse such Issuing Bank, then to such Lenders and such Issuing
Bank as their interests may appear. Any payment made by a Lender pursuant to
this paragraph to reimburse such Issuing Bank for any LC Disbursement (other
than the funding of ABR Revolving Loans as contemplated above) shall not
constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.
30
(f) Obligations Absolute. The Borrower's obligation to reimburse LC
---------------------
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit or any other term or provision in this Agreement, (ii) any draft or other
document presented under a Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or inaccurate in
any respect, (iii) payment by any Issuing Bank under a Letter of Credit against
presentation of a draft or other document that does not comply with the terms of
such Letter of Credit, or (iv) any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might, but for the
provisions of this Section, constitute a legal or equitable discharge of, or
provide a right of setoff against, the Borrower's obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of any
Issuing Bank; provided that the foregoing shall not be construed to excuse any
--------
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by such Issuing Bank's failure to exercise care
when determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof or such Issuing Bank's failure to make an
LC Disbursement under a Letter of Credit upon presentation to it of documents
strictly complying with such Letter of Credit. The parties hereto expressly
agree that, in the absence of gross negligence or wilful misconduct on the part
of any Issuing Bank (as finally determined by a court of competent
jurisdiction), such Issuing Bank shall be deemed to have exercised care in each
such determination. In
31
furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, such
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
(g) Disbursement Procedures. Any Issuing Bank shall, promptly
------------------------
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Such Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
--------
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse such Issuing Bank and the Lenders with respect to any such LC
Disbursement.
(h) Interim Interest. If any Issuing Bank shall make any LC
-----------------
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date when such reimbursement is due pursuant to paragraph (e) of
this Section, the unpaid amount thereof shall bear interest, for each day from
and including the date such reimbursement is due pursuant to such paragraph (e)
to but excluding the date that the Borrower reimburses such LC Disbursement, at
the rate provided in Section 2.12(d). Interest accrued pursuant to this
paragraph shall be for the account of such Issuing Bank, except that interest
accrued on and after the date of payment by any Lender pursuant to paragraph (e)
of this Section, to reimburse such Issuing Bank shall be for the account of such
Lender to the extent of such payment.
(i) Replacement of an Issuing Bank. Any Issuing Bank may be replaced
-------------------------------
at any time by written agreement among the Borrower and the successor Issuing
Bank. The Borrower shall notify the Administrative Agent, the replaced Issuing
Bank and the Lenders of any such replacement of any Issuing Bank. At the time
any such replacement shall become effective, the Borrower shall pay all unpaid
fees payable by the Borrower that have accrued for the account of any replaced
Issuing Bank pursuant to Section 2.11(b). From and after the effective date of
any such replacement, (i) the
32
successor Issuing Bank shall have all the rights and obligations of an Issuing
Bank under this Agreement with respect to Letters of Credit to be issued
thereafter and (ii) references herein to the term "Issuing Bank" shall be deemed
to refer to such successor or to any previous Issuing Bank, or to such successor
and all previous Issuing Banks, as the context shall require. After the
replacement of any Issuing Bank hereunder, the replaced Issuing Bank shall
remain a party hereto and shall continue to have all the rights and obligations
of any Issuing Bank under this Agreement with respect to Letters of Credit
issued by it prior to such replacement, but shall not be required to issue
additional Letters of Credit.
(j) Cash Collateralization. If any Event of Default shall occur and
-----------------------
be continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
--------
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (e) of Section 6.01. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent
shall have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Other than any interest earned on the investment
of such deposits, which investments shall be made at the option and sole
discretion of the Administrative Agent and at the Borrower's risk and expense,
such deposits shall not bear interest. Interest or profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall be
applied by the Administrative Agent to reimburse any Issuing Bank for LC
Disbursements for which it has not been reimbursed and, to the extent not so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has
33
been accelerated (but subject to the consent of Lenders with LC Exposure
representing greater than 50% of the total LC Exposure), be applied to satisfy
other obligations of the Borrower under this Agreement. If the Borrower is
required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not applied as
aforesaid) shall be returned to the Borrower within three Business Days after
all Events of Default have been cured or waived.
SECTION 2.06. Funding of Borrowings. (a) Each Lender shall make
----------------------
each Loan to be made by it hereunder on the proposed date thereof by wire
transfer of immediately available funds by 12:00 noon, New York City time, to
the account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such Loans
available to the Borrower by promptly crediting the amounts so received, in like
funds, to an account of the Borrower maintained with the Administrative Agent in
New York City and designated by the Borrower in the applicable Borrowing Request
or Competitive Bid Request; provided that ABR Revolving Loans made to finance
--------
the reimbursement of an LC Disbursement as provided in Section 2.05(e) shall be
remitted by the Administrative Agent to the applicable Issuing Bank.
(b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its share
of the applicable Borrowing available to the Administrative Agent, then the
applicable Lender and the Borrower severally agree to pay to the Administrative
Agent forthwith on demand such corresponding amount with interest thereon, for
each day from and including the date such amount is made available to the
Borrower to but excluding the date of payment to the Administrative Agent, at
(i) in the case of such Lender, the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation or (ii) in the case of the Borrower,
the greater of the interest rate applicable to the Loans of the other Lenders
included in the
34
applicable Borrowing and a rate determined by the Administrative Agent to equal
its cost of funds for funding such amount. If such Lender pays such amount to
the Administrative Agent, then such amount shall constitute such Lender's Loan
included in such Borrowing.
SECTION 2.07. Interest Elections. (a) Each Revolving Borrowing
-------------------
initially shall be of the Type specified in the applicable Borrowing Request
and, in the case of a Eurodollar Revolving Borrowing, shall have an initial
Interest Period as specified in such Borrowing Request. Thereafter, the
Borrower may elect to convert such Borrowing to a different Type or to continue
such Borrowing and, in the case of a Eurodollar Revolving Borrowing, may elect
Interest Periods therefor, all as provided in this Section. The Borrower may
elect different options with respect to different portions of the affected
Borrowing, in which case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans comprising
each such portion shall be considered a separate Borrowing. This Section shall
not apply to Competitive Borrowings, which may not be converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.02:
(i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);
35
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing.
SECTION 2.08. Termination and Reduction of Commitments. (a) Unless
-----------------------------------------
previously terminated, the Commitments shall terminate on the Maturity Date.
(b) The Borrower may at any time terminate, or from time to time
reduce, the Commitments; provided that (i) each reduction of the Commitments
--------
shall be in an amount that is an integral multiple of $1,000,000 and not less
than $25,000,000 and (ii) the Borrower shall not terminate or reduce the
Commitments if, after giving effect to any concurrent prepayment of the Loans in
accordance with Section 2.10, the sum of the Revolving Credit Exposures plus the
aggregate principal amount of outstanding Competitive Loans would exceed the
total Commitments.
(c) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (b) of this
Section at least three Business
36
Days prior to the effective date of such termination or reduction, specifying
such election and the effective date thereof. Promptly following receipt of any
notice, the Administrative Agent shall advise the Lenders of the contents
thereof. Each notice delivered by the Borrower pursuant to this Section shall be
irrevocable; provided that a notice of termination of the Commitments delivered
--------
by the Borrower may state that such notice is conditioned upon the effectiveness
of other credit facilities, in which case such notice may be revoked by the
Borrower (by notice to the Administrative Agent on or prior to the specified
effective date) if such condition is not satisfied. Any termination or reduction
of the Commitments shall be permanent. Each reduction of the Commitments shall
be made ratably among the Lenders in accordance with their respective
Commitments.
SECTION 2.09. Repayment of Loans; Evidence of Indebtedness. (a) The
---------------------------------------------
Borrower hereby unconditionally promises to pay (i) to the Administrative Agent
for the account of each Lender the then unpaid principal amount of each
Revolving Loan on the Maturity Date and (ii) to the Administrative Agent for the
account of each Lender that shall have made any Competitive Loan the then unpaid
principal amount of each Competitive Loan of such Lender on the last day of the
Interest Period applicable to such Loan.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and the Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to paragraph
(b) or (c) of this Section shall be prima facie evidence of the existence and
----- -----
amounts of the obligations recorded therein; provided that the failure of any
--------
Lender or the Administrative Agent to maintain such
37
accounts or any error therein shall not in any manner affect the obligation of
the Borrower to repay the Loans in accordance with the terms of this Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent. Thereafter, the Loans evidenced by
such promissory note and interest thereon shall at all times (including after
assignment pursuant to Section 8.04) be represented by one or more promissory
notes in such form payable to the order of the payee named therein (or, if such
promissory note is a registered note, to such payee and its registered assigns).
SECTION 2.10. Prepayment of Loans. (a) The Borrower shall have the
--------------------
right at any time and from time to time to prepay any Borrowing in whole or in
part, subject to prior notice in accordance with paragraph (b) of this Section;
provided that the Borrower shall not have the right to prepay any Competitive
--------
Loan without the prior consent of the Lender thereof.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment hereunder (i) in the case of
prepayment of a Eurodollar Revolving Borrowing, not later than 11:00 a.m., New
York City time, one Business Day before the date of prepayment and (ii) in the
case of prepayment of an ABR Revolving Borrowing, not later than 11:00 a.m., New
York City time, on the date of prepayment. Each such notice shall be
irrevocable and shall specify the prepayment date and the principal amount of
each Borrowing or portion thereof to be prepaid; provided that, if a notice of
--------
prepayment is given in connection with a conditional notice of termination of
the Commitments as contemplated by Section 2.08, then such notice of prepayment
may be revoked if such notice of termination is revoked in accordance with
Section 2.08. Promptly following receipt of any such notice relating to a
Revolving Borrowing, the Administrative Agent shall advise the Lenders of the
contents thereof. Each partial prepayment of any Revolving Borrowing shall be
in an amount that would be permitted in the case of an advance of a Revolving
Borrowing of the same Type as provided in Section 2.02. Each prepayment of a
Revolving Borrowing shall be applied ratably to the Loans included in the
38
prepaid Borrowing. Prepayments shall be accompanied by accrued interest to the
extent required by Section 2.12.
SECTION 2.11. Fees. (a) The Borrower agrees to pay to the
-----
Administrative Agent for the account of each Lender a facility fee, which shall
accrue at the Applicable Rate on the daily amount of the Commitment of such
Lender (whether used or unused) during the period from and including the
Effective Date to but excluding the date on which such Commitment terminates;
provided that, if such Lender continues to have any Revolving Credit Exposure
--------
after its Commitment terminates, then such facility fee shall continue to accrue
on the daily amount of such Lender's Revolving Credit Exposure from and
including the date on which its Commitment terminates to but excluding the date
on which such Lender ceases to have any Revolving Credit Exposure. Accrued
facility fees shall be payable in arrears on the last day of March, June,
September and December of each year and on the Maturity Date, commencing on the
first such date to occur after the date hereof; provided that any facility fees
--------
accruing after the Maturity Date shall be payable on demand. All facility fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).
(b) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at the Applicable Rate
used to determine the interest rate applicable to Eurodollar Revolving Loans on
the daily amount of the LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) during the period from and including the
Effective Date to but excluding the later of the date on which such Lender's
Commitment terminates and the date on which such Lender ceases to have any LC
Exposure, and (ii) to the relevant Issuing Bank a fronting fee, which shall
accrue at the rate or rates per annum separately agreed upon between the
Borrower and such Issuing Bank on the daily amount of the LC Exposure (excluding
any portion thereof attributable to unreimbursed LC Disbursements) during the
period from and including the Effective Date to but excluding the later of the
date of termination of the Commitments and the date on which there ceases to be
any LC Exposure, as well as such Issuing Bank's standard fees with respect to
the issuance, amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder.
39
Participation and fronting fees accrued through and including the last day of
March, June, September and December of each year shall be payable on the third
Business Day following such last day, commencing on the first such date to occur
after the Effective Date, provided that all such fees shall be payable on the
--------
date on which the Commitments terminate and any such fees accruing after the
date on which the Commitments terminate shall be payable on demand. Any other
fees payable by the Borrower to any Issuing Bank pursuant to this paragraph
shall be payable within 10 days after demand. All participation and fronting
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day). In addition to the fees referred to above, each Issuing Bank (i) may
collect customary drawing fees from beneficiaries of Letters of Credit issued by
it and (ii) may require that Letters of Credit issued by it contain customary
provisions for such drawing fees.
(c) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender a utilization fee, which shall accrue at a rate of 0.125%
per annum on all Revolving Loans during any period that the sum of (i) the
aggregate Competitive Loans and Revolving Loans and (ii) the aggregate
"Competitive Loans" and "Revolving Loans" under and as defined in the 364-Day
Credit Agreement are equal to or in excess of 50% of the sum of the aggregate
Commitments and the aggregate "Commitments" under and as defined in the 364-Day
Credit Agreement. Accrued utilization fees shall be payable in arrears on the
last day of March, June, September and December of each year and on the Maturity
Date (or the date on which such term loan is repaid in full), commencing on the
first such date to occur after the date hereof; provided that any utilization
--------
fees accruing after the Maturity Date shall be payable on demand. All
utilization fees will be calculated on the basis of actual days elapsed in a
year of 360 days (including the first day but excluding the last day).
(d) The Borrower agrees to pay to the Administrative Agent, for its
own account, fees in the amounts and at the times separately agreed upon between
the Borrower and the Administrative Agent.
(e) All fees payable by the Borrower hereunder shall be paid on the
dates due, in immediately available funds, to the Administrative Agent (or to
the relevant
40
Issuing Bank, in the case of fees payable by the Borrower to it) for
distribution, in the case of facility fees and utilization fees, to the Lenders.
Fees paid by the Borrower shall not be refundable under any circumstances.
SECTION 2.12. Interest. (a) The Loans comprising each ABR Borrowing
---------
shall bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest (i) in the case of a Eurodollar Revolving Loan, at the LIBO Rate for
the Interest Period in effect for such Borrowing plus the Applicable Rate, or
(ii) in the case of a Eurodollar Competitive Loan, at the LIBO Rate for the
Interest Period in effect for such Borrowing plus (or minus, as applicable) the
Margin applicable to such Loan.
(c) Each Fixed Rate Loan shall bear interest at the Fixed Rate
applicable to such Loan.
(d) Notwithstanding the foregoing, if any principal of or interest on
any Loan or any fee or other amount payable by the Borrower hereunder is not
paid when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus the
rate otherwise applicable to such Loan as provided in the preceding paragraphs
of this Section or (ii) in the case of any other amount, 2% plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) (i) For so long as any Lender maintains reserves against
"Eurocurrency liabilities" (or any other category of liabilities which includes
deposits by reference to which the interest rate on Eurodollar Revolving Loans
is determined or any category of extensions of credit or other assets which
includes loans by a non-United States office of any Lender to United States
residents), and as a result the cost to such Lender (or its lending office for
Eurodollar Revolving Loans) of making or maintaining its Eurodollar Revolving
Loans is increased, then such Lender may require the Borrower to pay,
contemporaneously with each payment of interest on any Eurodollar Revolving Loan
of such Lender, additional interest on such Eurodollar Revolving Loan for the
Interest Period of such Eurodollar Revolving Loan at a rate per annum up to but
not exceeding the excess of (A)(x) the applicable LIBO Rate divided by (y) one
minus the
41
Statutory Reserve Percentage over (B) the rate specified in the preceding clause
(x).
(ii) Any Lender wishing to require payment of additional interest (x)
shall so notify the Borrower and the Administrative Agent, in which case such
additional interest on the Eurodollar Revolving Loans of such Lender shall be
payable to such Lender at the place indicated in such notice with respect to
each Interest Period commencing at least three Business Days after the giving of
such notice and (y) shall furnish to the Borrower at least five Business Days
prior to each date on which interest is payable on the Eurodollar Revolving
Loans an officer's certificate setting forth the amount to which such Lender is
then entitled under this Section (which shall be consistent with such Lender's
good faith estimate of the level at which the related reserves are maintained by
it). Each such certificate shall be accompanied by such information as the
Borrower may reasonably request as to the computation set forth therein.
(f) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and, in the case of Revolving Loans, upon
termination of the Commitments; provided that (i) interest accrued pursuant to
--------
paragraph (d) of this Section shall be payable on demand, (ii) in the event of
any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued interest on
the principal amount repaid or prepaid shall be payable on the date of such
repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(g) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate, or
LIBO Rate shall be determined by the Administrative Agent, and such
determination shall be conclusive absent manifest error.
42
SECTION 2.13. Alternate Rate of Interest. If prior to the
---------------------------
commencement of any Interest Period for a Eurodollar Borrowing:
(a) the Administrative Agent determines (which determination shall be
conclusive absent manifest error) that adequate and reasonable means do not
exist for ascertaining the LIBO Rate for such Interest Period; or
(b) the Administrative Agent is advised by the Required Lenders (or,
in the case of a Eurodollar Competitive Loan, the Lender that is required
to make such Loan) that the LIBO Rate for such Interest Period will not
adequately and fairly reflect the cost to such Lenders (or Lender) of
making or maintaining their Loans (or its Loan) included in such Borrowing
for such Interest Period;
then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter, but not
later than 10:00 A.M. (New York City time) on the first day of such Interest
Period, and, until the Administrative Agent notifies the Borrower and the
Lenders that the circumstances giving rise to such notice no longer exist, (i)
any Interest Election Request that requests the conversion of any Revolving
Borrowing to, or continuation of any Revolving Borrowing as, a Eurodollar
Borrowing shall be ineffective, (ii) if any Borrowing Request requests a
Eurodollar Revolving Borrowing, then, unless the Borrower notifies the
Administrative Agent by 12:00 noon (New York City time) on the date of such
Borrowing that it elects not to borrow on such date, such Borrowing shall be
made as an ABR Borrowing and (iii) any request by the Borrower for a Eurodollar
Competitive Borrowing shall be ineffective; provided that if the circumstances
--------
giving rise to such notice do not affect all the Lenders, then requests by the
Borrower for Eurodollar Competitive Borrowings may be made to Lenders that are
not affected thereby.
SECTION 2.14. Increased Costs. (a) If any Change in Law shall:
----------------
(i) impose, modify or deem applicable any reserve, special deposit or
similar requirement against assets of, deposits with or for the account of,
or credit extended by, any Lender (except any such reserve
43
requirement reflected in the Statutory Reserve Percentage) or any Issuing
Bank; or
(ii) impose on any Lender or any Issuing Bank or the London interbank
market any other condition affecting this Agreement or Eurodollar Loans
made by such Lender or any Letter of Credit or participation therein (other
than an imposition or change in Taxes, Other Taxes or Excluded Taxes, or
any Change in Law relating to capital requirements or the rate of return on
capital, with respect to which Section 2.16 and paragraph (b) of this
Section, respectively, shall apply);
and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining, or reduce the amount receivable by any Lender
with respect to, any Eurodollar Loan (or of maintaining its obligation to make
any such Loan) or to increase the cost to such Lender or such Issuing Bank of
participating in, issuing or maintaining any Letter of Credit, then the Borrower
will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or any Issuing Bank determines that any Change in
Law regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender's or such Issuing Bank's capital or on the capital
of such Lender's or such Issuing Bank's holding company, if any, as a
consequence of this Agreement or the Loans made by, or participations in Letters
of Credit held by, such Lender, or the Letters of Credit issued by such Issuing
Bank, to a level below that which such Lender or such Issuing Bank or such
Lender's or such Issuing Bank's holding company could have achieved but for such
Change in Law (taking into consideration such Lender's or such Issuing Bank's
policies and the policies of such Lender's or such Issuing Bank's holding
company with respect to capital adequacy), then from time to time the Borrower
will pay to such Lender or such Issuing Bank, as the case may be, such
additional amount or amounts as will compensate such Lender or such Issuing Bank
or such Lender's or such Issuing Bank's holding company for any such reduction
suffered.
(c) A certificate of a Lender or an Issuing Bank setting forth the
amount or amounts necessary to compensate
44
such Lender or such Issuing Bank or its holding company, as the case may be, as
specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower and shall be conclusive absent manifest error. The Borrower shall pay
such Lender or such Issuing Bank, as the case may be, the amount shown as due on
any such certificate within 15 days after receipt thereof.
(d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender's or such Issuing Bank's right to demand such compensation; provided
--------
that the Borrower shall not be required to compensate a Lender or an Issuing
Bank pursuant to this Section for any increased costs or reductions incurred
more than 180 days prior to the date that such Lender or such Issuing Bank, as
the case may be, notifies the Borrower of the Change in Law giving rise to such
increased costs or reductions and of such Lender's or such Issuing Bank's
intention to claim compensation therefor; provided further that, if the Change
-------- -------
in Law giving rise to such increased costs or reductions is retroactive, then
the 180-day period referred to above shall be extended to include the period of
retroactive effect thereof.
(e) Notwithstanding the foregoing provisions of this Section, a
Lender shall not be entitled to compensation pursuant to this Section in respect
of any Competitive Loan if the Change in Law that would otherwise entitle it to
such compensation shall have been publicly announced prior to submission of the
Competitive Bid pursuant to which such Loan was made.
SECTION 2.15. Break Funding Payments. In the event of (a) the
-----------------------
payment of any principal of any Eurodollar Loan or Fixed Rate Loan other than on
the last day of an Interest Period applicable thereto (including as a result of
an Event of Default), (b) the conversion of any Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, (c) the failure to
borrow, convert, continue or prepay any Revolving Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.10(b) and is revoked in accordance therewith), (d) the
failure to borrow any Competitive Loan after accepting the Competitive Bid to
make such Loan, or (e) the assignment of any Eurodollar Loan or Fixed Rate Loan
other than on the last day of the Interest Period applicable thereto as a result
of
45
a request by the Borrower pursuant to Section 2.18, then, in any such event, the
Borrower shall compensate each Lender for the loss, cost and expense
attributable to such event which, in the reasonable judgment of such Lender,
such Lender (or an existing or prospective participant in a related Loan)
incurred, including any loss incurred in obtaining, liquidating or employing
deposits from third parties, but excluding loss of margin for the period after
any such payment. A certificate of any Lender setting forth any amount or
amounts that such Lender is entitled to receive pursuant to this Section shall
be delivered to the Borrower and shall be conclusive absent manifest error. The
Borrower shall pay such Lender the amount shown as due on any such certificate
within 15 days after receipt thereof.
SECTION 2.16. Taxes. (a) Any and all payments by or on account of
------
any obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if the
--------
Borrower shall be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
Issuing Bank (as the case may be) receives an amount equal to the sum it would
have received had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each
Lender and any Issuing Bank, within 15 days after written demand therefor, for
the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, on
or with respect to any payment by or on account of any obligation of the
Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) and any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or
legally imposed or asserted by the relevant Governmental
46
Authority; provided, that the Borrower shall not be obligated to make payment to
--------
such Lender or Administrative Agent for penalties, interest or expenses
attributable to the gross negligence or wilful misconduct of such Lender or
Administrative Agent. A certificate as to the amount of such payment or
liability delivered to the Borrower by a Lender or an Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or an Issuing
Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or
Other Taxes by the Borrower to a Governmental Authority, the Borrower shall
deliver to the Administrative Agent the original or a certified copy of a
receipt issued by such Governmental Authority evidencing such payment, a copy of
the return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or
reduction of withholding tax under the law of the jurisdiction in which the
Borrower is located, or any treaty to which such jurisdiction is a party, with
respect to payments under this Agreement shall deliver to the Borrower (with a
copy to the Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by applicable
law or reasonably requested by the Borrower as will permit such payments to be
made without withholding or at a reduced rate, provided that such Foreign Lender
has received written notice from the Borrower advising it of the availability of
such exemption or reduction and containing all applicable documentation.
(f) If the Administrative Agent or a Lender determines, in its sole
discretion, that it has received a refund of any Taxes or Other Taxes as to
which it has been indemnified by the Borrower or with respect to which the
Borrower has paid additional amounts pursuant to this Section, it shall pay over
such refund to the Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section with respect to
the Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket
expenses of the Administrative Agent or such Lender and without interest (other
than any interest paid by the relevant Governmental Authority with respect to
such refund); provided, that the Borrower, upon the request of the
--------
Administrative Agent or
47
such Lender, agrees to repay the amount paid over to the Borrower (plus any
penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent or such Lender in the event the
Administrative Agent or such Lender is required to repay such refund to such
Governmental Authority. This Section shall not be construed to require the
Administrative Agent or any Lender to make available its tax returns (or any
other information relating to its taxes which it deems confidential) to the
Borrower or any other Person.
SECTION 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-
------------------------------------------------------
offs. (a) The Borrower shall make each payment required to be made by it
-----
hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.14, 2.15 or 2.16, or
otherwise) on the date when due, in immediately available funds, without set-off
or counterclaim, and the Borrower agrees to instruct its bank which will be
transmitting such funds with respect to such payments not later than 10:00 A.M.
(New York City time) on the date when due. All such payments shall be made to
the Administrative Agent at its offices at 270 Park Avenue, New York, New York,
except payments to be made directly to an Issuing Bank as expressly provided
herein and except that payments pursuant to Sections 2.14, 2.15, 2.16 and 8.03
shall be made directly to the Persons entitled thereto. The Administrative
Agent shall distribute any such payments received by it for the account of any
other Person to the appropriate recipient promptly following receipt thereof.
If any payment hereunder shall be due on a day that is not a Business Day, the
date for payment shall be extended to the next succeeding Business Day, and, in
the case of any payment accruing interest, interest thereon shall be payable for
the period of such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due from the Borrower hereunder, such
funds shall be applied (i) first, towards payment of principal, interest and
fees then due from the Borrower hereunder, ratably among the parties entitled
thereto in accordance with the amounts of such principal, interest and fees then
due to such parties, and (ii) second, towards payment of principal and
unreimbursed LC Disbursements then due hereunder, ratably among the parties
48
entitled thereto in accordance with the amounts of principal and unreimbursed LC
Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in LC Disbursements
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in LC
Disbursements of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in LC Disbursements; provided that (i) if any
--------
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than to
the Borrower or any Subsidiary or Affiliate thereof (as to which the provisions
of this paragraph shall apply). The Borrower consents to the foregoing and
agrees, to the extent it may effectively do so under applicable law, that any
Lender acquiring a participation pursuant to the foregoing arrangements may
exercise against the Borrower rights of set-off and counterclaim with respect to
such participation as fully as if such Lender were a direct creditor of the
Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or any Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or such Issuing
49
Bank, as the case may be, the amount due. In such event, if the Borrower has
not in fact made such payment, then each of the Lenders or such Issuing Bank, as
the case may be, severally agrees to repay to the Administrative Agent forthwith
on demand the amount so distributed to such Lender or such Issuing Bank with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Lender shall fail to make any payment required to be made
by it pursuant to Section 2.05(d) or (e), 2.06(b) or 2.17(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid.
SECTION 2.18. Mitigation Obligations; Replacement of Lenders. (a)
-----------------------------------------------
If any Lender requests compensation under Section 2.14, or additional interest
under Section 2.12(e) or if the Borrower is required to pay any additional
amount to any Lender or any Governmental Authority for the account of any Lender
pursuant to Section 2.16, then such Lender shall use reasonable efforts to
designate a different lending office for funding or booking its Loans hereunder
or to assign its rights and obligations hereunder to another of its offices,
branches or affiliates, if, in the judgment of such Lender, such designation or
assignment (i) would eliminate or reduce amounts payable pursuant to Section
2.14, 2.12(e) or 2.16, as the case may be, in the future and (ii) would not
subject such Lender to any unreimbursed cost or expense and would not otherwise
be disadvantageous to such Lender. The Borrower hereby agrees to pay all
reasonable costs and expenses incurred by any Lender in connection with any such
designation or assignment.
(b) If any Lender requests compensation under Section 2.15, or
additional interest under Section 2.12(e), or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.17, or if any Lender defaults in its
obligation to fund Loans hereunder, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the Administrative Agent, require
such
50
Lender to assign and delegate, without recourse (in accordance with and subject
to the restrictions contained in Section 8.04), all its interests, rights and
obligations under this Agreement (other than any outstanding Competitive Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided that (i)
--------
the Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Commitment is being assigned, the relevant Issuing Bank), which
consent shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans (other than
Competitive Loans) and participations in LC Disbursements, accrued interest
thereon, accrued fees and all other amounts, in each case payable to it by the
Borrower hereunder, from the assignee (to the extent of such outstanding
principal and accrued interest and fees) or the Borrower (in the case of all
other amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Section 2.15, additional interest under Section
2.12(e) or payments required to be made pursuant to Section 2.17, such
assignment will result in a material reduction in such compensation or payments.
A Lender shall not be required to make any such assignment and delegation if,
prior thereto, as a result of a waiver by such Lender or otherwise, the
circumstances entitling the Borrower to require such assignment and delegation
cease to apply.
(c) In connection with any proposed amendment, modification or waiver
of or with respect to any provision of this Agreement (a "Proposed Change")
---------------
requiring the consent of all Lenders, if the consent of the Required Lenders to
such Proposed Change is obtained, but the consent to such Proposed Change of
other Lenders whose consent is required is not obtained (any such Lender whose
consent is not obtained as described in this Section 2.18(c) being referred to
as a "Non-Consenting Lender"), then the Borrower may, at its sole expense and
---------------------
effort, upon notice to each Non-Consenting Lender and the Administrative Agent,
require each Non-Consenting Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 8.04) all
its interests, rights and obligations under this Agreement (other than any
outstanding Competitive Loans held by it) to an assignee that shall assume such
obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) the Borrower shall have received the prior
--------
written
51
consent of the Administrative Agent, which consent shall not be unreasonably
withheld, (ii) such Non-Consenting Lender shall have received payment of an
amount equal to the outstanding principal of its Loans (other than Competitive
Loans), accrued interest thereon, accrued fees and all other amounts, in each
case payable to it by the Borrower hereunder, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (iii) the Borrower shall not be permitted to
require any Non-Consenting Lender to make any such assignment unless all Non-
Consenting Lenders are required to make such assignments and, as a result
thereof, the Proposed Change will become effective.
ARTICLE III
Representations and Warranties
------------------------------
The Borrower represents and warrants to the Lenders that:
SECTION 3.01. Corporate Existence and Power. The Borrower is a
------------------------------
corporation duly incorporated, validly existing and in good standing under the
laws of the State of Delaware and has all corporate power and authority required
to carry on its business as now conducted.
SECTION 3.02. Corporate and Governmental Authorization; No
--------------------------------------------
Contravention. The execution, delivery and performance by the Borrower of this
--------------
Agreement and the Transactions are within the Borrower's corporate power, have
been duly authorized by all necessary corporate action, require no action by or
in respect of, or filing with, any governmental body, agency or official (other
than the filing of reports with the Securities and Exchange Commission) and do
not contravene, or constitute a default under, any provision of applicable law
or regulation or of the certificate of incorporation or bylaws of the Borrower
or of any agreement, judgment, injunction, order, decree or other instrument
binding upon the Borrower.
SECTION 3.03. Binding Effect. This Agreement has been duly executed
---------------
and delivered by the Borrower and constitutes a valid and binding obligation of
the Borrower, enforceable in accordance with its terms, subject to
52
applicable bankruptcy, insolvency and other similar laws affecting creditors'
rights generally and subject to general principles of equity, regardless of
whether considered in a proceeding in equity or at law.
SECTION 3.04. Financial Information. (a) The consolidated balance
----------------------
sheet of the Borrower and the Subsidiaries and the related consolidated
statements of income, shareholders' equity and cash flows as of and for (i)
Fiscal Year 2000, reported on by PricewaterhouseCoopers L.L.P. and set forth in
the Borrower's Annual Report on Form 10-K for Fiscal Year 2000, a copy of which
has been delivered to each of the Lenders, and (ii) the first fiscal quarter of
Fiscal Year 2001, certified by a Financial Officer, in each case fairly present,
in conformity with GAAP, the consolidated financial position of the Borrower and
the Subsidiaries as of such date and their consolidated results of operations
and cash flows for such Fiscal Year or portion of such Fiscal Year, as
applicable.
(b) From February 3, 2001 to the Effective Date, there has been no
material adverse change in the business, financial position or results of
operations of the Borrower and the Consolidated Subsidiaries, considered as a
whole.
SECTION 3.05. Litigation and Environmental Matters. (a) There is no
-------------------------------------
action, suit or proceeding pending against, or to the knowledge of the Borrower
threatened against or affecting, the Borrower or any Consolidated Subsidiaries
before any court or arbitrator or any governmental body, agency or official in
which there is, in the good faith judgment of the Borrower (which shall be
conclusive), a reasonable possibility of an adverse decision which could
materially adversely affect the business, consolidated financial position or
consolidated results of operations of the Borrower and the Consolidated
Subsidiaries, considered as a whole, or which in any manner draws into question
the validity or enforceability of this Agreement.
(b) Except for the Disclosed Matters and except with respect to any
other matters that, individually or in the aggregate, are not reasonably
expected in the good faith judgment of the Borrower (which shall be conclusive)
to materially adversely affect the business, financial position or results of
operations of the Borrower and the Consolidated Subsidiaries considered as a
whole, neither the Borrower nor any of the Consolidated Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain,
53
maintain or comply with any permit, license or other approval required under any
Environmental Law, (ii) has become subject to any Environmental Liability, (iii)
has received notice of any claim with respect to any Environmental Liability or
(iv) knows of any basis for any Environmental Liability.
(c) Since the date of this Agreement, there has been no change in the
status of the Disclosed Matters that, individually or in the aggregate in the
good faith judgment of the Borrower (which shall be conclusive), has resulted in
a material adverse effect on the business, financial position or results of
operations of the Borrower and the Consolidated Subsidiaries considered as a
whole.
SECTION 3.06. Subsidiaries. Each of the Consolidated Subsidiaries is
-------------
a corporation duly incorporated, validly existing and, to the extent applicable,
in good standing under the laws of its jurisdiction of incorporation, and has
all corporate power and authority required to carry on its business as now
conducted except to the extent that the failure of any such Consolidated
Subsidiary to be so incorporated, existing or in good standing or to have such
power and authority is not reasonably expected by the Borrower to have a
material adverse effect on the business, financial position or results of
operations of the Borrower and the Consolidated Subsidiaries considered as a
whole.
SECTION 3.07. Not an Investment Company. The Borrower is not an
--------------------------
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 3.08. ERISA. The Borrower and its ERISA Affiliates (a) have
------
fulfilled their material obligations under the minimum funding standards of
ERISA and the Code with respect to each Plan, (b) are in compliance in all
material respects with the presently applicable provisions of ERISA and the Code
and (c) have not incurred any liability in excess of $75,000,000 to the PBGC or
a Plan under Title IV of ERISA other than a liability to PBGC for premiums under
Section 4007 of ERISA; provided, that this sentence shall not apply to (i) any
--------
ERISA Affiliate as described in Section 414(m) of the Code (other than the
Borrower or a Subsidiary) or any Plan maintained by such an ERISA Affiliate or
(ii) any Multiemployer Plan. The Borrower and its Subsidiaries have made all
material payments to Multiemployer Plans which they have been
54
required to make under the related collective bargaining agreement or applicable
law.
SECTION 3.09. Taxes. The Borrower and its Subsidiaries have filed
------
all United States federal income tax returns and all other material tax returns
which, in the opinion of the Borrower, are required to be filed by them and have
paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Borrower or any Subsidiary, except for assessments which are
being contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Borrower and Subsidiaries in respect of taxes
or other governmental charges are, in the opinion of the Borrower, adequate.
SECTION 3.10. Disclosure. The Information Memorandum, the financial
-----------
statements delivered pursuant to Section 5.01(a)(i) and (ii), the registration
statements delivered pursuant to Section 5.01(a)(vi) (in each case in the form
in which such registration statements were declared effective, as amended by any
post-effective amendments thereto) and the reports on Forms 10-K, 10-Q and 8-K
delivered pursuant to Section 5.01(a)(vi), do not, taken as a whole and in each
case as of the date thereof, contain any material misstatement of fact or omit
to state any material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading; provided
--------
that, with respect to projected financial information, the Borrower represents
only that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time.
ARTICLE IV
Conditions
----------
SECTION 4.01. Effective Date. The obligations of the Lenders to make
---------------
Loans and of any Issuing Bank to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 8.02):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the
Administrative Agent (which may include telecopy transmission of a signed
signature page of this
55
Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent shall have received a written opinion
(addressed to the Administrative Agent and the Lenders and dated the
Effective Date) of each of (i) Samuel P. Fried, Esq., General Counsel of
the Borrower, and (ii) Davis Polk & Wardwell, counsel for the Borrower,
substantially in the form of Exhibits B-1 and B-2, respectively, and
covering such other matters relating to the Borrower, this Agreement or the
Transactions as the Required Lenders shall reasonably request. The
Borrower hereby requests such counsel to deliver such opinions.
(c) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Borrower, the authorization of the Transactions and any other legal matters
relating to the Borrower, this Agreement or the Transactions, all in form
and substance satisfactory to the Administrative Agent and its counsel.
(d) The Administrative Agent shall have received a certificate, dated
the Effective Date and signed by the President, a Vice President or a
Financial Officer of the Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.
(e) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket expenses
required to be reimbursed or paid by the Borrower hereunder.
(f) The Administrative Agent shall have received evidence
satisfactory to it of the termination of lending commitments under, and the
payment of all amounts outstanding under, the Credit Agreement dated as of
September 25, 1997, among the Borrower, the banks party thereto and Morgan
Guaranty Trust Company of New York, as agent for such banks.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding. Notwithstanding
the foregoing, the obligations of the Lenders to make Loans and of any Issuing
Bank to issue Letters of Credit hereunder shall not become
56
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 8.02) at or prior to 3:00 p.m., New York City time, on July
16, 2001 (and, in the event such conditions are not so satisfied or waived, the
Commitments shall terminate at such time).
SECTION 4.02. Each Credit Event. The obligation of each Lender to
------------------
make a Loan on the occasion of any Borrowing, and of any Issuing Bank to issue,
amend, renew or extend any Letter of Credit, is subject to the satisfaction of
the following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement shall be true and correct on and as of the date of such
Borrowing or the date of issuance, amendment, renewal or extension of such
Letter of Credit, as applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be continuing.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.
ARTICLE V
Covenants
----------
The Borrower agrees that, so long as any Lender has any Commitment
hereunder or any amount payable hereunder remains unpaid:
SECTION 5.01. Information. (a) The Borrower will deliver to the
------------
Administrative Agent and each of the Lenders:
(i) as soon as available and in any event within 120 days after the
end of each Fiscal Year, the Annual Report of the Borrower on Form 10-K for
such Fiscal Year, containing financial statements reported on in a manner
acceptable to the Securities and Exchange Commission by
PricewaterhouseCoopers L.L.P. or other independent public accountants of
nationally recognized standing selected by the Borrower;
57
(ii) as soon as available and in any event within 60 days after the
end of each of the first three quarters of each Fiscal Year, a copy of the
Borrower's report on Form 10-Q for such quarter with the financial
statements therein contained to be certified (subject to normal year end
adjustments) as to fairness of presentation, generally accepted accounting
principles (except footnotes) and consistency, by a Financial Officer;
(iii) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of a
Financial Officer (1) setting forth in reasonable detail the calculations
required to establish whether the Borrower was in compliance with the
requirements of Sections 5.06 and 5.07 on the date of such financial
statements and (2) stating whether, to the best knowledge of such Financial
Officer, any Default exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
(iv) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements whether
anything has come to their attention to cause them to believe that any
Default existed on the date of such statements (insofar as such pertains to
accounting matters);
(v) promptly upon the mailing thereof to the stockholders of the
Borrower generally, copies of all financial statements, reports and
proxy statements so mailed;
(vi) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits, thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q
and 8-K (or their equivalents) which the Borrower shall have filed with the
Securities and Exchange Commission;
(vii) within four Business Days of any executive officer of the
Borrower or any Financial Officer obtaining knowledge of any condition or
event recognized by such officer to be a Default, a
58
certificate of a Financial Officer setting forth the details thereof and
the action which the Borrower is taking or proposes to take with respect
thereto;
(viii) if and when any executive officer of the Borrower or any
Financial Officer obtains knowledge that any ERISA Affiliate (1) has given
or is required to give notice to the PBGC of any "reportable event" (as
defined in Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under Title IV of ERISA,
or knows that the plan administrator of any Plan has given or is required
to give notice of any such reportable event, a copy of the notice of such
reportable event given or required to be given to the PBGC, (2) has
received notice of complete or partial withdrawal liability under Title IV
of ERISA, a copy of such notice or (3) has received notice from the PBGC
under Title IV of ERISA of an intent to terminate or appoint a trustee to
administer any Plan, a copy of such notice; and
(ix) from time to time such additional information regarding the
financial position or business of the Borrower and Subsidiaries as the
Administrative Agent, at the request of any Lender, may reasonably request.
(b) Certificates delivered pursuant to this Section shall be signed
manually or shall be copies of a manually signed certificate.
SECTION 5.02. Maintenance of Properties. The Borrower will, and will
--------------------------
cause each Consolidated Subsidiary to, maintain and keep in good condition,
repair and working order all properties used or useful in the conduct of its
business and supply such properties with all necessary equipment and make all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Borrower may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided that nothing in this Section shall prevent the Borrower
--------
or any Consolidated Subsidiary from discontinuing the operation and maintenance
of any of such properties if such discontinuance is, in the judgment of the
Borrower, desirable in the conduct of the business of the Borrower or such
Consolidated
59
Subsidiary, as the case may be, and not disadvantageous in any material respect
to the Lenders.
SECTION 5.03. Maintenance of Insurance. The Borrower will, and will
-------------------------
cause each Consolidated Subsidiary to, insure and keep insured, with reputable
insurance companies, so much of its properties and such of its liabilities for
bodily injury or property damage, to such an extent and against such risks
(including fire), as companies engaged in similar businesses customarily insure
properties and liabilities of a similar character; or, in lieu thereof, the
Borrower will maintain, or cause each Consolidated Subsidiary to maintain, a
system or systems of self-insurance which will be in accord with the customary
practices of companies engaged in similar businesses in maintaining such
systems.
SECTION 5.04. Preservation of Corporate Existence. The Borrower
------------------------------------
shall preserve and maintain its corporate existence, rights, franchises and
privileges in the State of Delaware or in any other State of the United States
which it shall select as its jurisdiction of incorporation, and qualify and
remain qualified as a foreign corporation in each jurisdiction in which such
qualification is necessary, except such jurisdictions, if any, where the failure
to preserve and maintain its corporate existence, rights, franchises and
privileges, or qualify or remain qualified will not have a material adverse
effect on the business or property of the Borrower.
SECTION 5.05. Inspection of Property, Books and Records. The
------------------------------------------
Borrower will, and will cause each Consolidated Subsidiary to, make and keep
books, records and accounts in which transactions are recorded as necessary to
(a) permit preparation of the Borrower's consolidated financial statements in
accordance with generally accepted accounting principles and (b) otherwise
comply with the requirements of Section 13(b)(2) of the Securities Exchange Act
of 1934 as in effect from time to time. At any reasonable time during normal
business hours and from time to time, the Borrower will permit the
Administrative Agent or any of the Lenders or any agents or representatives
thereof at their expense (to the extent not in violation of applicable law) to
examine and make copies of and abstracts from the records and books of account
of, and visit the properties of, the Borrower and any Consolidated Subsidiaries
and to discuss the affairs, finances and accounts of the Borrower and any
Consolidated Subsidiaries
60
with any of their respective officers or directors. Any information obtained
pursuant to this Section or Section 5.01(a)(i) shall be subject to Section 8.12.
SECTION 5.06. Fixed Charge Coverage Ratio. The Borrower will not
----------------------------
permit the ratio of Consolidated EBITDAR to Consolidated Fixed Charges for any
period of four consecutive fiscal quarters to be less than 1.75 to 1.00.
SECTION 5.07. Debt to Capital Ratio. The Borrower will not permit
----------------------
the ratio of Consolidated Debt to Capital to exceed 0.825 to 1.
SECTION 5.08. Limitations on Liens. The Borrower will not, and will
---------------------
not permit any Consolidated Subsidiary to, create, incur, assume or permit to
exist any Lien on any property or asset now owned or hereafter acquired by it,
or assign or sell any income or revenues (including accounts receivable) or
rights in respect of any thereof, except:
(a) Permitted Encumbrances;
(b) any Lien on any property or asset of the Borrower or any
Consolidated Subsidiary existing on the date hereof and set forth in
Schedule 5.08; provided that (i) such Lien shall not apply to any other
--------
property or asset of the Borrower or any Consolidated Subsidiary and (ii)
such Lien shall secure only those obligations which it secures on the date
hereof and extensions, renewals and replacements thereof that do not
increase the outstanding principal amount thereof;
(c) any Lien existing on any property or asset prior to the
acquisition thereof by the Borrower or any Consolidated Subsidiary or
existing on any property or asset of any Person that becomes a Consolidated
Subsidiary after the date hereof prior to the time such Person becomes a
Consolidated Subsidiary; provided that (i) such Lien is not created in
--------
contemplation of or in connection with such acquisition or such Person
becoming a Consolidated Subsidiary, as the case may be, (ii) such Lien
shall not apply to any other property or assets of the Borrower or any
Consolidated Subsidiary and (iii) such Lien shall secure only those
obligations which it secures on the date of such acquisition or the date
such Person becomes a Consolidated Subsidiary, as the case may be and
extensions, renewals and
61
replacements thereof that do not increase the outstanding principal amount
thereof;
(d) Liens on fixed or capital assets acquired, constructed or improved
by the Borrower or any Consolidated Subsidiary; provided that (i) with
--------
respect to a Consolidated Subsidiary, such security interests secure
Indebtedness permitted by Section 5.10, (ii) such security interests and
the Indebtedness secured thereby are incurred prior to or within 90 days
after such acquisition or the completion of such construction or
improvement, (iii) the Indebtedness secured thereby does not exceed the
cost of acquiring, constructing or improving such fixed or capital assets
and (iv) such security interests shall not apply to any other property or
assets of the Borrower or any Consolidated Subsidiary; and
(e) other Liens securing obligations in an aggregate principal amount
not exceeding 15% of Consolidated Tangible Net Worth.
SECTION 5.09. Compliance with Laws. The Borrower will, and will
---------------------
cause each Consolidated Subsidiary to, comply in all material respects with all
applicable laws, ordinances, rules, regulations, and requirements of
governmental authorities (including ERISA and the rules and regulations
thereunder), except to the extent that (a) the necessity of compliance therewith
is contested in good faith by appropriate proceedings or (b) the failure to so
comply would not result in any material adverse effect on the business,
financial condition or results of operations of the Borrower and Consolidated
Subsidiaries taken as a whole.
SECTION 5.10. Limitations on Subsidiary Indebtedness. The Borrower
---------------------------------------
will not permit any Consolidated Subsidiary to create, incur, assume or suffer
to exist any Indebtedness except:
(a) Indebtedness of any Consolidated Subsidiary which is, or the
direct or indirect parent of which is, acquired by the Borrower or any
other Consolidated Subsidiary after the Effective Date, which Indebtedness
is in existence at the time such Consolidated Subsidiary (or parent) is so
acquired; provided such Indebtedness was not created at the request or with
--------
the consent of the Borrower or any Subsidiary, and such Indebtedness may
not be extended other than pursuant to
62
the terms thereof as in existence at the time such Consolidated Subsidiary
(or parent) was acquired; and
(b) other Indebtedness in an aggregate principal amount for all
Consolidated Subsidiaries not exceeding 10% of Consolidated Tangible Net
Worth.
SECTION 5.11. Transactions with Affiliates. The Borrower will not,
-----------------------------
and will not permit any of its Consolidated Subsidiaries to, sell, lease or
otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) at prices and on terms and
conditions not less favorable to the Borrower or such Consolidated Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) any transaction determined by a majority of the disinterested directors of
the Borrower's board of directors to be fair to the Borrower and its
Subsidiaries, (c) transactions between or among the Borrower and its
Consolidated Subsidiaries not involving any other Affiliate and (d) any
transaction with respect to which neither the fair market value of the related
property or assets, nor the consideration therefor, exceeds $5,000,000.
SECTION 5.12. Consolidations, Mergers and Sales of Assets. The
--------------------------------------------
Borrower will not (a) consolidate or merge with or into any other Person, (b)
liquidate or dissolve or (c) sell, lease or otherwise transfer all or any
substantial part of the assets of the Borrower and its Consolidated
Subsidiaries, taken as a whole, to any other Person; provided that the Borrower
--------
may merge with another Person if (i) the corporation surviving the merger is the
Borrower or a corporation organized under the laws of a State of the United
States into which the Borrower desires to merge for the purpose of becoming
incorporated in such State (in which case such corporation shall assume all of
the Borrower's obligations under this Agreement by an agreement satisfactory to
the Required Lenders (and the Required Lenders shall not unreasonably withhold
their consent to the form of such agreement) and shall deliver to the
Administrative Agent and the Lenders such legal opinions and other documents as
the Administrative Agent may reasonably request to evidence the due
authorization, validity and binding effect thereof) and (ii) immediately after
giving effect to such merger, no Default shall have occurred and be continuing;
and provided further that the foregoing shall
-------- -------
63
not be construed to prohibit any Minority Interest Disposition or any other
sale, lease or other transfer of assets (including by means of dividends, share
repurchases or recapitalizations) that does not involve all or any substantial
part of the assets of the Borrower and its Consolidated Subsidiaries taken as a
whole.
ARTICLE VI
Events of Default and Remedies
------------------------------
SECTION 6.01. Events of Default. Any of the following shall be an
------------------
"Event of Default":
(a) The Borrower shall fail to make any payment of principal of or
interest on any Loan or any obligation in respect of any LC Disbursement
when due or to pay any fees or other amounts payable by it hereunder when
due, and such failure remains unremedied for three Business Days after the
Borrower's actual receipt of notice of such failure from the Administrative
Agent at the request of any Lender;
(b) Any statement of fact or representation made or deemed to be made
by the Borrower in this Agreement or by the Borrower or any of its officers
in any certificate delivered pursuant to this Agreement shall prove to have
been incorrect in any material respect when made or deemed made, and, if
the consequences of such representation or statement being incorrect shall
be susceptible of remedy in all material respects, such consequences shall
not be remedied in all material respects within 30 days after any executive
officer of the Borrower or any Financial Officer first becomes aware of or
is advised that such representation or statement was incorrect in a
material respect;
(c) The Borrower shall fail to comply with any of the provisions of
Sections 5.06 or 5.07 and, if the consequences of such failure shall be
susceptible of remedy in all material respects, such consequences shall not
be remedied in all material respects within 20 days after any executive
officer of the Borrower or any Financial Officer first becomes aware or is
advised of such failure to comply;
64
(d) (i) The Borrower or any Consolidated Subsidiary shall fail to pay
principal of or interest on any Material Indebtedness and the longer of any
periods within which the Borrower or such Consolidated Subsidiary shall be
allowed to cure such nonpayment shall have elapsed, or 10 days shall have
passed since such failure, in either case without curing such nonpayment,
(ii) any event or condition shall occur which enables the holder of any
Material Indebtedness or any Person acting on such holder's behalf to
accelerate the maturity thereof, and the longer of any periods within which
the Borrower or such Consolidated Subsidiary shall be allowed to cure such
condition or event shall have elapsed, or 10 days shall have passed since
the occurrence of such event or condition, in either case without curing
such event or condition, or (iii) the holder of any Material Indebtedness
shall accelerate the maturity of such Material Indebtedness and such
acceleration shall not have been rescinded within 20 days of such
acceleration, provided no Default under this clause (d) shall be deemed to
--------
occur if (1) at the time the relevant event or condition described in this
clause (d) occurs, the Borrower's Index Debt is rated (A) Baa3 or better by
Moody's and BBB- or better by S&P, if both Moody's and S&P shall have in
effect a rating for the Borrower's Index Debt, or (B) Baa3 or better by
Moody's or BBB- or better by S&P, if both Moody's and S&P shall not have in
effect a rating for the Borrower's Index Debt,(2) the Borrower's Index Debt
does not cease to have the ratings described in clause (1) above for
reasons attributable to the relevant event or condition described in this
clause (d), and (3) all Material Indebtedness that is affected by any event
or condition described in this clause (d) is either (A) owed by a
Consolidated Subsidiary not incorporated under the laws of any State of the
United States, the District of Columbia or Canada or any province thereof,
or (B) permitted under clause (a) of Section 5.10;
(e) The Borrower or any Consolidated Subsidiary shall (i) make a
general assignment for the benefit of creditors, (ii) apply for or consent
(by admission of material allegations of a petition or otherwise) to the
appointment of a receiver, custodian, trustee or liquidator of the Borrower
or any Consolidated Subsidiary or any substantial part of the properties of
65
the Borrower or any Consolidated Subsidiary or authorize such application
or consent, or proceedings seeking such appointment shall be commenced
without such authorization, consent or application against the Borrower or
any Consolidated Subsidiary and continue undismissed for 30 days (or if
such dismissal of such unauthorized proceedings cannot reasonably be
obtained within such 30 day period, the Borrower or any Consolidated
Subsidiary shall fail either to proceed with due diligence to seek to
obtain dismissal within such 30 day period or to obtain dismissal within 60
days), (iii) authorize or file a voluntary petition in bankruptcy, suffer
an order for relief under any federal bankruptcy law, or apply for or
consent (by admission of material allegations of a petition or otherwise)
to the application of any bankruptcy, reorganization, arrangement,
readjustment of debt, insolvency, dissolution, liquidation or other similar
law of any jurisdiction, or authorize such application or consent, or
proceedings to such end shall be instituted against the Borrower or any
Consolidated Subsidiary without such authorization, application or consent
which are not vacated within 30 days from the date thereof (or if such
vacation cannot reasonably be obtained within such 30 day period, the
Borrower shall fail either to proceed with due diligence to seek to obtain
vacation within such 30 day period or to obtain vacation within 60 days),
(iv) permit or suffer all or any substantial part of its properties to be
sequestered, attached, or subjected to a Lien (other than a Lien expressly
permitted by the exception to Section 5.08) through any legal proceeding or
distraint which is not vacated within 30 days from the date thereof (or if
such vacation cannot reasonably be obtained within such 30 day period, the
Borrower shall fail either to proceed with due diligence to seek to obtain
vacation within such 30 day period or to obtain vacation within 60 days),
(v) generally not pay its debts as such debts become due or admit in
writing its inability to do so, or (vi) conceal, remove, or permit to be
concealed or removed, any material part of its property, with intent to
hinder, delay or defraud its creditors or any of them; provided, however,
-------- -------
that the foregoing events will not constitute an Event of Default if such
events occur with respect to any Subsidiary which is: (1) a Consolidated
Subsidiary not incorporated under the laws of any State of the United
States, the District of Columbia or Canada or any
66
province thereof and not engaged in the retail business, if the aggregate
Value of the Borrower's and all Consolidated Subsidiaries' investments in
and advances to such Consolidated Subsidiary and all such other
Consolidated Subsidiaries to which these tests are being applied within a
period of 18 months ending on the date of determination, does not exceed
$75,000,000, or (2) a Consolidated Subsidiary incorporated under the laws
of any State of the United States, the District of Columbia or Canada or
any province thereof and not engaged in the retail business, if (A) at the
time the relevant event or condition described in this clause (e) occurs,
the Borrower's Index Debt is rated (x) Baa3 or better by Moody's and BBB-
or better by S&P, if both Moody's and S&P shall have in effect a rating for
the Borrower's Index Debt, or (y) Baa3 or better by Moody's or BBB- or
better by S&P, if both Moody's and S&P shall not have in effect a rating
for the Index Debt, (B) the Borrower's Index Debt does not cease to have
the rankings described in clause (A) above for reasons attributable to the
relevant event or condition described in this clause (e) and (C) the
aggregate Value of the Borrower's and all Consolidated Subsidiaries'
investments and advances to such Consolidated Subsidiary and all other such
Consolidated Subsidiaries to which these tests are being applied within a
period of 18 months ending on the date of determination, does not exceed
$37,500,000;
(f) The Borrower or any ERISA Affiliate shall fail to pay when due an
amount or amounts aggregating in excess of $25,000,000 which it shall have
become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or
notice of intent to terminate a Plan or Plans having aggregate Unfunded
Liabilities in excess of $75,000,000 (collectively a "Material Plan") shall
be filed under Title IV of ERISA by the Borrower or any ERISA Affiliate,
any plan administrator or any combination of the foregoing; or the PBGC
shall institute proceedings under Title IV of ERISA to terminate or to
cause a trustee to be appointed to administer any Material Plan or a
proceeding shall be instituted by a fiduciary of any Material Plan against
the Borrower or any ERISA Affiliate to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of
67
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated;
(g) The Borrower shall fail to perform or observe in any material
respect any other term, covenant or agreement contained in this Agreement
(including without limitation Section 5.01) on its part to be performed or
observed and any such failure remains unremedied for 30 days after the
Borrower shall have received written notice thereof from the Administrative
Agent at the request of any Lender;
(h) a Change in Control shall occur; or
(i) one or more judgments for the payment of money in an aggregate
amount in excess of $75,000,000, exclusive of amounts covered by third
party insurance, shall be rendered against the Borrower, any Consolidated
Subsidiary or any combination thereof and the same shall remain
undischarged for a period of 60 consecutive days during which execution
shall not be effectively stayed, or any action shall be legally taken by a
judgment creditor to attach or levy upon any assets of the Borrower or any
Consolidated Subsidiary to enforce any such judgment; provided that in
--------
calculating the amounts covered by third party insurance, amounts covered
by third party insurance shall not include amounts for which the third
party insurer has denied liability.
SECTION 6.02. Remedies. If any Event of Default shall occur and be
---------
continuing, the Administrative Agent shall (a) if requested by the Required
Lenders, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, and (b) if requested by Lenders holding more than 50% of
the aggregate unpaid principal amount of the Loans, by notice to the Borrower
declare the Loans (together with accrued interest thereon and all other amounts
payable by the Borrower hereunder) to be, and the Loans (together with accrued
interest thereon and all other amounts payable by the Borrower hereunder) shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that in the case of any of the bankruptcy Events of Default
--------
specified in Section 6.01(e) with respect to the Borrower, without any notice to
the Borrower or any other act by the Administrative Agent or the Lenders, the
Commitments shall
68
thereupon terminate and the Loans (together with accrued interest thereon and
all other amounts payable by the Borrower hereunder) shall become immediately
due and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Borrower.
SECTION 6.03. Notice of Default. The Administrative Agent shall give
------------------
notice to the Borrower under Section 6.01(a) or 6.01(g) promptly upon being
requested to do so by any Lender and shall thereupon notify all the Lenders
thereof.
ARTICLE VII
The Administrative Agent
------------------------
Each of the Lenders and any Issuing Bank hereby irrevocably appoints
the Administrative Agent as its agent and authorizes the Administrative Agent to
take such actions on its behalf and to exercise such powers as are delegated to
the Administrative Agent by the terms hereof, together with such actions and
powers as are reasonably incidental thereto.
The bank serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent, and such bank
and its Affiliates may accept deposits from, lend money to and generally engage
in any kind of business with the Borrower or any Subsidiary or other Affiliate
thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 8.02), and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to
69
disclose, any information relating to the Borrower or any of its Subsidiaries
that is communicated to or obtained by the bank serving as Administrative Agent
or any of its Affiliates in any capacity. The Administrative Agent shall not be
liable for any action taken or not taken by it with the consent or at the
request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
8.02) or in the absence of its own gross negligence or wilful misconduct. The
Administrative Agent shall be deemed not to have knowledge of any Default unless
and until written notice thereof is given to the Administrative Agent by the
Borrower or a Lender, and the Administrative Agent shall not be responsible for
or have any duty to ascertain or inquire into (i) any statement, warranty or
representation made in or in connection with this Agreement, (ii) the contents
of any certificate, report or other document delivered hereunder or in
connection herewith, (iii) the performance or observance of any of the
covenants, agreements or other terms or conditions set forth herein, (iv) the
validity, enforceability, effectiveness or genuineness of this Agreement or any
other agreement, instrument or document, or (v) the satisfaction of any
condition set forth in Article IV or elsewhere herein, other than to confirm
receipt of items expressly required to be delivered to the Administrative Agent.
The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper Person. The Administrative Agent
also may rely upon any statement made to it orally or by telephone and believed
by it to be made by the proper Person, and shall not incur any liability for
relying thereon. The Administrative Agent may consult with legal counsel (who
may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by it
in accordance with the advice of any such counsel, accountants or experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The
70
exculpatory provisions of the preceding paragraphs shall apply to any such sub-
agent and to the Related Parties of the Administrative Agent and any such sub-
agent, and shall apply to their respective activities in connection with the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Lenders, any Issuing Bank and the Borrower.
Upon any such resignation, the Required Lenders shall have the right, in
consultation with the Borrower, to appoint a successor. If no successor shall
have been so appointed by the Required Lenders and shall have accepted such
appointment within 30 days after the retiring Administrative Agent gives notice
of its resignation, then the retiring Administrative Agent may, on behalf of the
Lenders and any Issuing Bank, appoint a successor Administrative Agent which
shall be a bank with an office in New York, New York, or an Affiliate of any
such bank. Upon the acceptance of its appointment as Administrative Agent
hereunder by a successor, such successor shall succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Administrative
Agent, and the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder. The fees payable by the Borrower to a successor
Administrative Agent shall be the same as those payable to its predecessor
unless otherwise agreed between the Borrower and such successor. After the
Administrative Agent's resignation hereunder, the provisions of this Article and
Section 8.03 shall continue in effect for the benefit of such retiring
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Lender acknowledges that it has, independently and without
reliance upon the Administrative Agent or any other Lender and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under
71
or based upon this Agreement, any related agreement or any document furnished
hereunder or thereunder.
ARTICLE VIII
Miscellaneous
-------------
SECTION 8.01. Notices. Except in the case of notices and other
--------
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at Three Limited Parkway, P.O. Box
16000, Columbus, Ohio 43216, Attention of Assistant Treasurer (Telecopy No.
(614) 415-7060);
(b) if to the Administrative Agent, to The Chase Manhattan Bank, Loan
and Agency Services Group, One Chase Manhattan Plaza, 8th Floor, New York,
New York 10081, Attention of Mary McCormack (Telecopy No. (212) 552-5650),
with a copy to The Chase Manhattan Bank, 270 Park Avenue, New York 10017,
Attention of Ruby Tulloch (Telecopy No. (212) 270-7594);
(c) if to an Issuing Bank, as applicable, to it at The Chase Manhattan
Bank, Attention of Mary McCormack (Telecopy No. (212) 552-5650) or to it at
its address (or telecopy number) specified in writing to the Borrower and
the Administrative Agent in accordance with this Section 8.01; and
(d) if to any other Lender, to it at its address (or telecopy number)
set forth in its Administrative Questionnaire.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
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SECTION 8.02. Waivers; Amendments. (a) No failure or delay by the
--------------------
Administrative Agent, any Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, any Issuing Bank and the
Lenders hereunder are cumulative and are not exclusive of any rights or remedies
that they would otherwise have. No waiver of any provision of this Agreement or
consent to any departure by the Borrower therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan or issuance of a Letter of Credit shall not be
construed as a waiver of any Default, regardless of whether the Administrative
Agent, any Lender or any Issuing Bank may have had notice or knowledge of such
Default at the time.
(b) Neither this Agreement nor any provision hereof may be waived,
amended or modified except pursuant to an agreement or agreements in writing
entered into by the Borrower and the Required Lenders or by the Borrower and the
Administrative Agent with the consent of the Required Lenders; provided that no
--------
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable by the Borrower hereunder, without the written consent of each Lender
affected thereby, (iii) postpone the scheduled date of payment of the principal
amount of any Loan or LC Disbursement, or any interest thereon, or any fees
payable by the Borrower hereunder, or reduce the amount of, waive or excuse any
such payment, or postpone the scheduled date of expiration of any Commitment,
without the written consent of each Lender affected thereby, (iv) change Section
2.17(b) or (c) in a manner that would alter the pro rata sharing of payments
required thereby, without the written consent of each Lender, or (v) change any
of the provisions of this Section or the definition of "Required Lenders" or any
other provision hereof specifying the number or percentage of Lenders required
to waive, amend or modify any rights hereunder or make any determination or
grant any consent hereunder, without the written consent of
73
each Lender; provided further that no such agreement shall amend, modify or
----------------
otherwise affect the rights or duties of the Administrative Agent or any Issuing
Bank hereunder without the prior written consent of the Administrative Agent or
any Issuing Bank, as the case may be. Notwithstanding the foregoing, any
provision of this Agreement may be amended by an agreement in writing entered
into by the Borrower, the Required Lenders and the Administrative Agent (and, if
their rights or obligations are affected thereby, any Issuing Bank) if (i) by
the terms of such agreement the Commitment of each Lender not consenting to the
amendment provided for therein shall terminate upon the effectiveness of such
amendment and (ii) at the time such amendment becomes effective, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under this Agreement.
SECTION 8.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower
-----------------------------------
shall pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates, including the reasonable fees, charges
and disbursements of a single counsel for Administrative Agent, in connection
with the syndication of the credit facilities provided for herein, the
preparation and administration of this Agreement or any amendments,
modifications or waivers of the provisions hereof (whether or not the
transactions contemplated hereby or thereby shall be consummated) and (ii) if an
Event of Default occurs, all reasonable out-of-pocket expenses incurred by the
Administrative Agent, any Issuing Bank or any Lender, including the fees,
charges and disbursements of any counsel for the Administrative Agent, any
Issuing Bank or any Lender, in connection with the enforcement or protection of
its rights in connection with this Agreement.
(b) The Borrower shall indemnify the Administrative Agent, any
Issuing Bank and each Lender, and each Related Party of any of the foregoing
Persons (each such Person being called an "Indemnitee") against, and hold each
----------
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the reasonable fees, charges and disbursements of
any counsel for any Indemnitee in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitee shall be
designated a party thereto, which may be incurred by any Indemnitee, relating to
or arising out of
74
any actual or proposed use of proceeds of Loans hereunder for the purpose of
acquiring equity securities of any Person; provided, that no Indemnitee shall
--------
have the right to be indemnified hereunder (i) with respect to the acquisition
of equity securities of a wholly-owned Subsidiary, or of a Person who prior to
such acquisition did not conduct any business, or (ii) for its own gross
negligence or willful misconduct.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent or any Issuing Bank under paragraph
(a) or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or such Issuing Bank, as the case may be, such Lender's
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
--------
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or such Issuing Bank in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof;
provided that the foregoing waiver shall not apply to special, indirect or
--------
consequential damages (but shall apply to punitive damages) attributable to the
failure of a Lender to fund Loans, when required to do so hereunder, promptly
after the receipt of notice of such failure.
(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
SECTION 8.04. Successors and Assigns. (a) The provisions of this
-----------------------
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that the
Borrower may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender (and any attempted
assignment or transfer by the Borrower
75
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
(including any Affiliate of any Issuing Bank that issues any Letter of Credit)
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent, any Issuing Bank and the Lenders) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment and the Loans at the time owing to it); provided that (i)
--------
except in the case of an assignment to a Lender or an Affiliate of a Lender,
each of the Borrower and the Administrative Agent (and, in the case of an
assignment of all or a portion of a Commitment or any Lender's obligations in
respect of its LC Exposure, any Issuing Bank) must give their prior written
consent to such assignment (which consent shall not be unreasonably withheld),
(ii) except in the case of an assignment to a Lender or an Affiliate of a Lender
or an assignment of the entire remaining amount of the assigning Lender's
Commitment, the amount of the Commitment of the assigning Lender subject to each
such assignment (determined as of the date the Assignment and Acceptance with
respect to such assignment is delivered to the Administrative Agent) shall not
be less than $10,000,000 unless each of the Borrower and the Administrative
Agent otherwise consent, (iii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender's rights and
obligations under this Agreement, except that this clause (iii) shall not apply
to rights in respect of outstanding Competitive Loans, (iv) the parties to each
assignment shall execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of $3,500, and
(v) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and provided further that
----------------
any consent of the Borrower otherwise required under this paragraph shall not be
required if an Event of Default has occurred and is continuing. Subject to
acceptance and recording thereof pursuant to paragraph (d) of this Section, from
and after the effective date specified in each Assignment and Acceptance the
assignee thereunder shall be a party hereto and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights
76
and obligations of a Lender under this Agreement, and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Acceptance, be released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all of the assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections 2.14,
2.15, 2.16 and 8.03). Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (e) of
this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans and LC Disbursements owing to, each Lender
pursuant to the terms hereof from time to time (the "Register"). The entries in
--------
the Register shall be conclusive, in the absence of manifest error, and the
Borrower, the Administrative Agent, any Issuing Bank and the Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Borrower, any Issuing Bank and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower, the
Administrative Agent or any Issuing Bank, sell participations to one or more
banks or other entities (a
77
"Participant") in all or a portion of such Lender's rights and/or obligations
-----------
under this Agreement (including all or a portion of its Commitment and the Loans
owing to it); provided that (i) such Lender's obligations under this Agreement
--------
shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii) the
Borrower, the Administrative Agent, any Issuing Bank and the other Lenders shall
continue to deal solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement. Any agreement or
instrument pursuant to which a Lender sells such a participation shall provide
that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
--------
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver described in clause (i), (ii) (iii) or (iv) of the first
proviso to Section 8.02(b) that affects such Participant. Subject to paragraph
(f) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.14, 2.15 and 2.16 to the same extent as if it were
a Lender and had acquired its interest by assignment pursuant to paragraph (b)
of this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 8.08 as though it were a Lender, provided
such Participant agrees to be subject to Section 2.17(c) as though it were a
Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.16 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(e) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations
of such Lender, including any pledge or assignment to secure obligations to a
Federal Reserve Bank, and this Section shall not apply to
78
any such pledge or assignment of a security interest; provided that no such
--------
pledge or assignment of a security interest shall release a Lender from any of
its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
SECTION 8.05. Survival. All covenants, agreements, representations
---------
and warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of this Agreement and the making of any Loans
and issuance of any Letters of Credit, regardless of any investigation made by
any such other party or on its behalf and notwithstanding that the
Administrative Agent, any Issuing Bank or any Lender may have had notice or
knowledge of any Default or incorrect representation or warranty at the time any
credit is extended hereunder, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loan or any fee or any
other amount payable under this Agreement is outstanding and unpaid or any
Letter of Credit is outstanding and so long as the Commitments have not expired
or terminated. The provisions of Sections 2.14, 2.15, 2.16 and 8.03 and Article
VII shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
SECTION 8.06. Counterparts; Integration; Effectiveness. This
-----------------------------------------
Agreement may be executed in counterparts (and by different parties hereto on
different counterparts), each of which shall constitute an original, but all of
which when taken together shall constitute a single contract. This Agreement
and any separate letter agreements with respect to fees payable to the
Administrative Agent constitute the entire contract among the parties relating
to the subject matter hereof and supersede any and all previous agreements and
understandings, oral or written, relating to the subject matter hereof. Except
as provided in Section 4.01, this Agreement shall become effective when it shall
have been executed by the Administrative Agent and when the Administrative Agent
shall have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
79
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature page
of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
SECTION 8.07. Severability. Any provision of this Agreement held to
-------------
be invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 8.08. Right of Setoff. If any Event of Default shall have
----------------
occurred and be continuing, each Lender and each of its Affiliates is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other obligations at any time
owing by such Lender or Affiliate to or for the credit or the account of the
Borrower against any of and all the obligations then due of the Borrower now or
hereafter existing under this Agreement held by such Lender. The rights of each
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which such Lender may have.
SECTION 8.09. Governing Law; Jurisdiction; Consent to Service of
--------------------------------------------------
Process. (a) This Agreement shall be construed in accordance with and governed
--------
by the law of the State of New York.
(b) The Borrower hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees, to the fullest
extent permitted under applicable law, that all claims in respect of any such
action or proceeding may be heard and determined in such New York
80
State or, to the extent permitted by law, in such Federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Administrative Agent, any Issuing Bank or any Lender
may otherwise have to bring any action or proceeding relating to this Agreement
against the Borrower or its properties in the courts of any jurisdiction.
(c) The Borrower hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any court referred to
in paragraph (b) of this Section. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 8.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 8.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES,
---------------------
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 8.11. Headings. Article and Section headings and the Table
---------
of Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
81
SECTION 8.12. Confidentiality. Each of the Administrative Agent, any
----------------
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates' directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to any assignee of or Participant in, or any prospective
assignee of or Participant in, any of its rights or obligations under this
Agreement, (g) with the consent of the Borrower or (h) to the extent such
Information (i) becomes publicly available other than as a result of a breach of
this Section or (ii) becomes available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis from a source other than the
Borrower. For the purposes of this Section, "Information" means all information
-----------
received from the Borrower relating to the Borrower or its business, other than
any such information that is available to the Administrative Agent, any Issuing
Bank or any Lender on a nonconfidential basis prior to disclosure by the
Borrower. Any Person required to maintain the confidentiality of Information as
provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information.
SECTION 8.13. Interest Rate Limitation. Notwithstanding anything
-------------------------
herein to the contrary, if at any time the interest rate applicable to any Loan,
together with all fees, charges and other amounts which are treated as interest
on such Loan under applicable law (collectively the "Charges"), shall exceed the
-------
maximum lawful rate (the "Maximum Rate") which may be contracted for, charged,
------------
taken, received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable
82
in respect of such Loan hereunder, together with all Charges payable in respect
thereof, shall be limited to the Maximum Rate and, to the extent lawful, the
interest and Charges that would have been payable in respect of such Loan but
were not payable as a result of the operation of this Section shall be cumulated
and the interest and Charges payable to such Lender in respect of other Loans or
periods shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Effective
Rate to the date of repayment, shall have been received by such Lender.
SECTION 8.14. Waiver Under Existing Credit Agreement. By their
---------------------------------------
execution hereof, the undersigned Lenders that are also parties to the Credit
Agreement dated as of September 25, 1997, among the Borrower, the banks party
thereto and Morgan Guaranty Trust Company of New York, as agent for such banks,
which Lenders constitute, in the aggregate, "Required Banks" thereunder, and as
defined therein, hereby waive the provisions of such Credit Agreement that would
otherwise require advance notice for the termination of commitments thereunder
or the prepayment of loans thereunder; provided that the foregoing waiver shall
--------
apply only to the termination of all commitments under such Credit Agreement and
repayment of all loans outstanding thereunder, in each case in connection with
the effectiveness of this Agreement.
SECTION 8.15. Collateral. Each of the Lenders represents to the
-----------
Administrative Agent and each of the other Lenders that it in good faith is not
relying upon any "margin stock" (as defined in Regulation U of the Board) as
collateral in the extension or maintenance of the credit provided for in this
Agreement. In addition, the Borrower will not use or permit any proceeds of the
Loans to be used in any manner which would violate or cause any Lender to be in
violation of Regulation U of the Board.
83
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
THE LIMITED, INC.,
by
/s/ Timothy J. Faber
-------------------------
Name: Timothy J. Faber
Title: Vice President, Treasury/Mergers &
Acquisitions
THE CHASE MANHATTAN BANK,
individually and as
Administrative Agent,
by
/s/ Barry Bergman
-------------------------
Name: Barry Bergman
Title: Vice President
THE CHASE MANHATTAN BANK
by
/s/ Barry Bergman
-------------------------
Name: Barry Bergman
Title: Vice President
CITIBANK, N.A.
by
/s/ Charles C. Philipp
--------------------------
Name: Charles C. Philipp
Title: Vice President
BANK OF AMERICA, N.A.
by
/s/ Timothy H. Spanos
-------------------------
Name: Timothy H. Spanos
Title: Managing Director
84
HSBC BANK USA
by
/s/ Steve Trepiccione
--------------------------
Name: Steve Trepiccione
Title: First Vice President
FLEET NATIONAL BANK
by
/s/ Judith C.E. Kelly
-------------------------
Name: Judith C.E. Kelly
Title: Director
FIRST UNION NATIONAL BANK
by
/s/ William F. Fox
-------------------------
Name: William F. Fox
Title: Vice President
THE BANK OF NEW YORK
by
/s/ Howard F. Bascom
-------------------------
Name: Howard F. Bascom
Title: Vice President
NATIONAL CITY BANK
by
/s/ Brian T. Strayton
-------------------------
Name: Brian T. Strayton
Title: Vice President
BANK ONE, N.A.
by
/s/ Debora K. Oberling
-------------------------
Name: Debora K. Oberling
Title: Director
85
STANDARD CHARTERED BANK
by
/s/ Shafiq Ur Rahman
-------------------------
Name: Shafiq Ur Rahman
Title: Senior Vice President
by
/s/ David B. Edwards
-------------------------
Name: David B. Edwards
Title: Senior Vice President
HUNTINGTON NATIONAL BANK
by
/s/ John M. Luehmann
--------------------------
Name: John M. Luehmann
Title: Assistant Vice President
KEY BANK, N.A.
by
/s/ Brendan A. Lawlor
--------------------------
Name: Brendan A. Lawlor
Title: Vice President
FIFTH THIRD BANK
by
/s/ Mark Ransom
-------------------------
Name: Mark Ransom
Title: Vice President
THE NORTHERN TRUST COMPANY
by
/s/ Chris McKean
-------------------------
Name: Chris McKean
Title: Second Vice President
86
WELLS FARGO BANK, NATIONAL
ASSOCIATION
by
/s/ Mary D. Falck
-------------------------
Name: Mary D. Falck
Title: Senior Vice President
by
/s/ Scott Miller
-------------------------
Name: Scott Miller
Title: Vice President
BANCA DI ROMA
by
/s/ Aurora Pensa
-------------------------
Name: Aurora Pensa
Title: Vice President
by
/s/ Enrico Verdoscia
-------------------------
Name: Aurora Pensa
Title: Senior Vice President
and Branch Manager
BANCA NAZIONALE DEL LAVORO S.P.A. -
NEW YORK BRANCH
by
/s/ Leonardo Valentini
---------------------------
Name: Leonardo Valentini
Title: First Vice President
by
/s/ Juan J. Cortes
---------------------------
Name: Juan J. Cortes
Title: Vice President
SCHEDULE 2.01
TO THE FIVE-YEAR
CREDIT AGREEMENT
LENDER COMMITMENT
------ ----------
--------------------------------------------------------------------------------
The Chase Manhattan Bank $117,000,000
270 Park Avenue
New York, NY 10017
Attention: Mary McCormack
Telephone: (212) 552-7997
Telecopy: (212) 552-5650
--------------------------------------------------------------------------------
Citibank, N.A. $ 81,000,000
388 Greenwich Street (21st Floor)
New York, NY 10013
Attention: Robert S. Snell
Telephone: (212) 816-8169
Telecopy: (212) 816-8242
--------------------------------------------------------------------------------
Bank of America, N.A. $ 81,000,000
100 N. Tryon Street
Charlotte, NC 28255
Attention: Tim Spanos
Telephone: (704) 386-4507
Telecopy: (704) 388-8268
--------------------------------------------------------------------------------
HSBC Bank USA $ 75,000,000
Agent Servicing Dept. (26th Floor)
One HSBC Center
Buffalo, NY 14203
Attention: Donna L. Riley
Telephone: (716) 841-4178
Telecopy: (716) 841-0269
--------------------------------------------------------------------------------
Fleet National Bank $ 75,000,000
100 Federal Street
Boston, MA 02110
--------------------------------------------------------------------------------
Attention: Judith C. E. Kelly
Telephone: (617) 434-5280
Telecopy: (617) 434-6685
--------------------------------------------------------------------------------
First Union National Bank $ 60,000,000
One South Pennsylvania Square
Philadelphia, PA 19102
Attention: Bill Fox
Telephone: (215) 786-8633
Telecopy: (215) 786-2877
--------------------------------------------------------------------------------
The Bank of New York $ 60,000,000
One Wall Street
New York, NY 10286
Attention: Bill Barnum
Telephone: (212) 635-1019
Telecopy: (212) 635-1481
--------------------------------------------------------------------------------
National City Bank $ 30,000,000
155 East Broad Street
Columbus, OH 43215-0077
Attention: Joseph L. Kwasny
Telephone: (614) 463-7108
Telecopy: (614) 463-8572
--------------------------------------------------------------------------------
Bank One, N.A. $ 30,000,000
1 Bank One Plaza, 14th Floor, Suite 86
Chicago, IL 60670
Attention: Deborah Oberling
Telephone: (312) 732-4644
Telecopy: (312) 336-4380
--------------------------------------------------------------------------------
Standard Chartered Bank $ 30,000,000
7 World Trade Center
New York, NY 10048
Attention: Shafiq Rahman
Telephone: (212) 667-0366
Telecopy: (212) 667-0193
--------------------------------------------------------------------------------
Huntington National Bank $ 21,000,000
41 South High Street (8th Floor)
Columbus, OH 43215
Attention: John Luehmann
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Telephone: (614) 480-4400
Telecopy: (614) 480-5791
--------------------------------------------------------------------------------
KeyBank, N.A. $ 21,000,000
127 Public Square
Cleveland, OH 44114
Attention: Brendan Lawlor
Telephone: (216) 689-5642
Telecopy: (216) 689-4981
--------------------------------------------------------------------------------
Fifth Third Bank $ 15,000,000
21 East State Street
Columbus, OH 43215
Attention: Mark Ranson
Telephone: (614) 233-3929
Telecopy: (614) 341-2606
--------------------------------------------------------------------------------
The Northern Trust Company $ 15,000,000
50 South LaSalle
Chicago, IL 60675
Attention: Chris McKean
Telephone: (312) 557-2638
Telecopy: (312) 444-5055
--------------------------------------------------------------------------------
Wells Fargo Bank, N.A. $ 15,000,000
230 West Monroe, Suite 2900
MAC E2616-190
Chicago, IL 60606
Attention: James Heinz
Telephone: (312) 845-4523
Telecopy: (312) 553-4783
--------------------------------------------------------------------------------
Banca di Roma $ 15,000,000
225 West Washington, Suite 1200
Chicago, IL 60606
Attention: Mr. James Semonchik
Telephone: (312) 704-2629
Telecopy: (312) 726-3058
--------------------------------------------------------------------------------
Banca Nazionale del Lavoro S.p.A. $ 9,000,000
(New York Branch)
25 West 51st Street
New York, NY 10019
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Attention: Juan J. Cortes
Telephone: (212) 314-0295
Telecopy: (212) 765-2978
--------------------------------------------------------------------------------
TOTAL $750,000,000
--------------------------------------------------------------------------------
EXHIBIT A
TO THE FIVE-YEAR
CREDIT AGREEMENT
[FORM OF]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Credit Agreement dated as of July 13, 2001 (as
amended and in effect on the date hereof, the "Credit Agreement"), among The
Limited, Inc., the Lenders named therein and The Chase Manhattan Bank, as
Administrative Agent for the Lenders. Terms defined in the Credit Agreement are
used herein with the same meanings.
The Assignor named on the reverse hereof hereby sells and assigns, without
recourse, to the Assignee named on the reverse hereof, and the Assignee hereby
purchases and assumes, without recourse, from the Assignor, effective as of the
Assignment Date set forth on the reverse hereof, the interests set forth on the
reverse hereof (the "Assigned Interest") in the Assignor's rights and
obligations under the Credit Agreement, including, without limitation, the
interests set forth on the reverse hereof in the Commitment of the Assignor on
the Assignment Date and Competitive Loans and Revolving Loans owing to the
Assignor which are outstanding on the Assignment Date, together with the
participations in Letters of Credit and LC Disbursements held by the Assignor on
the Assignment Date, but excluding accrued interest and fees to and excluding
the Assignment Date. The Assignee hereby acknowledges receipt of a copy of the
Credit Agreement. From and after the Assignment Date (i) the Assignee shall be
a party to and be bound by the provisions of the Credit Agreement and, to the
extent of the Assigned Interest, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent of the Assigned Interest,
relinquish its rights and be released from its obligations under the Credit
Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.16(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] shall pay the fee payable to the
Administrative Agent pursuant to Section 8.04(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of New York.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment
("Assignment Date"):
================================================================================
Percentage Assigned of
Facility/Commitment (set
Principal Amount Assigned forth, to at least 8
(and identifying decimals, as a percentage of
information as to the Facility and the
Facility individual Competitive aggregate Commitments of all
-------- -----------
Loans) Lenders thereunder)
--------------------------------------------------------------------------------
Commitment $ %
Assigned:
--------------------------------------------------------------------------------
Revolving Loans:
--------------------------------------------------------------------------------
Competitive Loans:
================================================================================
The terms set forth above and on the reverse side hereof are hereby agreed to:
[Name of Assignor] , as Assignor
---------------------
By:
____________________
Name:
Title:
[Name of Assignee] , as Assignee
---------------------
By:
____________________
Name:
Title:
The undersigned hereby consent to the within assignment: 1/
-
The Limited, Inc., The Chase Manhattan Bank, as
Administrative Agent,
By: By:
_____________________ ____________________
Name: Name:
Title: Title:
[Name of Issuing Bank], as
----------------------
Issuing Bank,
By:
_______________________
Name:
Title:
______________________
1/ Consents to be included to the extent required by Section 8.04(b) of the
-
Credit Agreement.