Exhibit 10b
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1995 AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of September 22, 1995
among
LEVI XXXXXXX & CO.
and
LEVI XXXXXXX ASSOCIATES INC.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
as Agent for the Banks
and
THE BANKS PARTY HERETO
TABLE OF CONTENTS
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Page
ARTICLE I
DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.01 Defined Terms. . . . . . . . . . . . . . . . . . . . . . . 1
1.02 Other Definitional Provisions. . . . . . . . . . . . . . . 14
(a) Defined Terms . . . . . . . . . . . . . . . . . . . . 14
(b) The Agreement . . . . . . . . . . . . . . . . . . . . 14
(c) Certain Common Terms. . . . . . . . . . . . . . . . . 14
(d) Performance; Time . . . . . . . . . . . . . . . . . . 14
(e) Contracts . . . . . . . . . . . . . . . . . . . . . . 14
(f) Laws. . . . . . . . . . . . . . . . . . . . . . . . . 14
(g) Captions. . . . . . . . . . . . . . . . . . . . . . . 14
(h) Independence of Provisions. . . . . . . . . . . . . . 15
1.03 Accounting Principles. . . . . . . . . . . . . . . . . . . 15
ARTICLE II
THE CREDITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
2.01 Amounts and Terms of Commitments; the Credit . . . . . . . 15
2.02 Notes; Loan Accounts . . . . . . . . . . . . . . . . . . . 18
2.03 Procedure for Borrowing. . . . . . . . . . . . . . . . . . 18
2.04 Conversion and Continuation Elections. . . . . . . . . . . 19
2.05 Voluntary Termination or Reduction of Aggregate
Commitment. . . . . . . . . . . . . . . . . . . . . . . . 21
2.06 Optional Prepayments . . . . . . . . . . . . . . . . . . . 21
2.07 Repayment. . . . . . . . . . . . . . . . . . . . . . . . . 22
2.08 Interest . . . . . . . . . . . . . . . . . . . . . . . . . 22
2.09 Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(a) Agent's Fees. . . . . . . . . . . . . . . . . . . . . 24
(b) Commitment Fees . . . . . . . . . . . . . . . . . . . 24
2.10 Computation of Fees and Interest . . . . . . . . . . . . . 25
2.11 Payments by the Companies. . . . . . . . . . . . . . . . . 26
2.12 Payments by the Banks to the Agent . . . . . . . . . . . . 26
2.13 Sharing of Payments, Etc.. . . . . . . . . . . . . . . . . 27
2.14 Joint and Several Obligation of the Companies. . . . . . . 28
2.15 Notices of Borrowing, Conversion/Continuation;
Voluntary Termination or Reduction of Aggregate
Commitment; Optional Prepayment . . . . . . . . . . . . . 29
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY. . . . . . . . . . . . . . . . . 30
3.01 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . 30
3.02 Illegality . . . . . . . . . . . . . . . . . . . . . . . . 33
3.03 Increased Costs and Reduction of Return. . . . . . . . . . 33
3.04 Funding Losses . . . . . . . . . . . . . . . . . . . . . . 34
3.05 Inability to Determine Rates . . . . . . . . . . . . . . . 35
3.06 Reserves on Offshore Rate Loans. . . . . . . . . . . . . . 35
3.07 Certificates of Banks. . . . . . . . . . . . . . . . . . . 35
3.08 Replacement of Banks, Termination of Commitment. . . . . . 36
3.09 Reallocation of Commitments; New Banks . . . . . . . . . . 36
3.10 Nonapplicability of Article III. . . . . . . . . . . . . . 37
3.11 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE IV
CONDITIONS PRECEDENT. . . . . . . . . . . . . . . . . . . . . . . . . . 37
4.01 Conditions of Initial Loans. . . . . . . . . . . . . . . . 37
(a) Credit Agreement and Notes. . . . . . . . . . . . . . 37
(b) Resolutions; Incumbency . . . . . . . . . . . . . . . 37
(c) Payment of Fees . . . . . . . . . . . . . . . . . . . 37
4.02 Conditions to Each Borrowing . . . . . . . . . . . . . . . 38
(a) Notice of Borrowing . . . . . . . . . . . . . . . . . 38
(b) Continuation of Representations and Warranties. . . . 38
(c) No Existing Default . . . . . . . . . . . . . . . . . 38
ARTICLE V
REPRESENTATIONS AND WARRANTIES. . . . . . . . . . . . . . . . . . . . . 38
5.01 Organization, Powers, Good Standing and Business . . . . . 38
(a) Organization and Powers . . . . . . . . . . . . . . . 38
(b) Good Standing . . . . . . . . . . . . . . . . . . . . 38
(c) Conduct of Business . . . . . . . . . . . . . . . . . 39
5.02 Authorization of Borrowing, etc. . . . . . . . . . . . . . 39
(a) Authorization of Borrowing. . . . . . . . . . . . . . 39
(b) No Conflict . . . . . . . . . . . . . . . . . . . . . 39
(c) Governmental Consents . . . . . . . . . . . . . . . . 39
(d) Binding Obligation. . . . . . . . . . . . . . . . . . 39
5.03 Financial Condition. . . . . . . . . . . . . . . . . . . . 39
5.04 Title to Properties; Liens . . . . . . . . . . . . . . . . 40
5.05 Litigation; Adverse Facts. . . . . . . . . . . . . . . . . 40
5.06 Payment of Taxes . . . . . . . . . . . . . . . . . . . . . 40
5.07 Materially Adverse Agreements; Performance . . . . . . . . 41
(a) Agreements. . . . . . . . . . . . . . . . . . . . . . 41
(b) Performance . . . . . . . . . . . . . . . . . . . . . 41
5.08 Governmental Regulation. . . . . . . . . . . . . . . . . . 41
5.09 Employee Benefit Plans . . . . . . . . . . . . . . . . . . 41
5.10 Environmental Matters. . . . . . . . . . . . . . . . . . . 42
5.11 Compliance With Laws . . . . . . . . . . . . . . . . . . . 42
5.12 Regulation U . . . . . . . . . . . . . . . . . . . . . . . 42
5.13 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . 43
5.14 No Material Adverse Effect . . . . . . . . . . . . . . . . 43
ARTICLE VI
AFFIRMATIVE COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . 43
6.01 Financial Statements and Other Reports . . . . . . . . . . 43
6.02 Corporate Existence, etc.. . . . . . . . . . . . . . . . . 46
6.03 Compliance With Laws, etc. . . . . . . . . . . . . . . . . 46
6.04 Payment of Taxes and Claims. . . . . . . . . . . . . . . . 46
6.05 Maintenance of Properties; Insurance . . . . . . . . . . . 47
6.06 Inspection . . . . . . . . . . . . . . . . . . . . . . . . 47
6.07 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . 47
6.08 Opinions of Counsel. . . . . . . . . . . . . . . . . . . . 47
ARTICLE VII
NEGATIVE COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . 48
7.01 Limitation on Liens. . . . . . . . . . . . . . . . . . . . 48
7.02 Consolidations and Mergers; Sale of Assets . . . . . . . . 50
7.03 Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . 50
7.04 Funded Debt to EBITDA Ratio. . . . . . . . . . . . . . . . 50
7.05 EBITDA to Interest Ratio . . . . . . . . . . . . . . . . . 50
7.06 Deliberately left blank. . . . . . . . . . . . . . . . . . 50
7.07 Change in Business . . . . . . . . . . . . . . . . . . . . 50
7.08 ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . 50
ARTICLE VIII
EVENTS OF DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
8.01 Event of Default . . . . . . . . . . . . . . . . . . . . . 51
(a) Non-Payment . . . . . . . . . . . . . . . . . . . . . 51
(b) Cross Default . . . . . . . . . . . . . . . . . . . . 51
(c) Representation or Warranty. . . . . . . . . . . . . . 52
(d) Specific Defaults . . . . . . . . . . . . . . . . . . 52
(e) Other Defaults. . . . . . . . . . . . . . . . . . . . 52
(f) Involuntary Bankruptcy; Appointment of
Receiver, etc. . . . . . . . . . . . . . . . . . . . 52
(g) Voluntary Bankruptcy; Appointment of
Receiver, etc. . . . . . . . . . . . . . . . . . . . 53
(h) Judgments and Attachments . . . . . . . . . . . . . . 53
(i) Unfunded ERISA Liabilities. . . . . . . . . . . . . . 53
(j) Withdrawal Liability Under Multiemployer
Plan . . . . . . . . . . . . . . . . . . . . . . . . 53
8.02 Remedies . . . . . . . . . . . . . . . . . . . . . . . . . 54
8.03 Continuation and Conversion of Loans During the
Existence of Default. . . . . . . . . . . . . . . . . . . 54
8.04 Rights Not Exclusive . . . . . . . . . . . . . . . . . . . 55
ARTICLE IX
THE AGENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
9.01 Appointment and Authorization. . . . . . . . . . . . . . . 55
9.02 Delegation of Duties . . . . . . . . . . . . . . . . . . . 55
9.03 Liability of Agent . . . . . . . . . . . . . . . . . . . . 55
9.04 Reliance by Agent. . . . . . . . . . . . . . . . . . . . . 56
9.05 Notice of Default. . . . . . . . . . . . . . . . . . . . . 56
9.06 Credit Decision. . . . . . . . . . . . . . . . . . . . . . 57
9.07 Indemnification. . . . . . . . . . . . . . . . . . . . . . 57
9.08 Agent in Individual Capacity . . . . . . . . . . . . . . . 58
9.09 Successor Agent. . . . . . . . . . . . . . . . . . . . . . 59
9.10 Amendment and Not a Novation . . . . . . . . . . . . . . . 59
ARTICLE X
MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
10.01 Amendments and Waivers . . . . . . . . . . . . . . . . . . 59
10.02 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . 60
10.03 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . 61
10.04 Costs and Expenses . . . . . . . . . . . . . . . . . . . . 61
10.05 Indemnity. . . . . . . . . . . . . . . . . . . . . . . . . 61
10.06 Marshalling; Payments Set Aside. . . . . . . . . . . . . . 62
10.07 Successors and Assigns . . . . . . . . . . . . . . . . . . 62
10.08 Assignments, Participations, etc.. . . . . . . . . . . . . 62
10.09 Set-off. . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.10 Notification of Addresses, Lending Offices,
Etc.. . . . . . . . . . . . . . . . . . . . . . . . . . . 65
10.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 65
10.12 Severability . . . . . . . . . . . . . . . . . . . . . . . 65
10.13 No Third Parties Benefited . . . . . . . . . . . . . . . . 66
10.14 Change in Accounting Principles. . . . . . . . . . . . . . 66
10.15 Governing Law and Jurisdiction . . . . . . . . . . . . . . 66
10.16 Interpretation . . . . . . . . . . . . . . . . . . . . . . 67
10.17 Representation of Banks. . . . . . . . . . . . . . . . . . 67
List of Exhibits:
A - Note
B - Notice of Borrowing
C - Notice of Conversion/Continuation
D - Borrowing Resolutions
E - Certificates of Incumbency
F - Privity letter
G - Compliance Certificate
H - Assignment and Acceptance
Schedule 2.01 - Commitments of Banks
1995 AMENDED AND RESTATED CREDIT AGREEMENT
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This 1995 AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of
September 22, 1995 among Levi Xxxxxxx Associates Inc., a Delaware corporation
("LSAI"), Levi Xxxxxxx & Co., a Delaware corporation ("LS&CO.") (LSAI and
LS&CO. are referred to collectively in this Agreement as the "Companies" and
singly as a "Company"), the several financial institutions from time to time
party to this Agreement (collectively the "Banks" and individually, a
"Bank"), and Bank of America National Trust and Savings Association ("BofA"),
as agent for the Banks.
WHEREAS, the Companies, the Banks party thereto, and BofA as agent for
the Banks are parties to a Second Amended and Restated Credit Agreement dated
as of March 17, 1994 (this credit agreement as in effect as of the date of
this Agreement is referred to as the "Prior Credit Agreement");
WHEREAS, the parties to the Prior Credit Agreement desire to amend and
restate such agreement as set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree that from and after the
Effective Date, the Prior Credit Agreement is amended and restated in its
entirety to provide as follows:
ARTICLE I
DEFINITIONS
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1.01 Defined Terms. In addition to the terms defined elsewhere in this
Agreement, the following terms have the following meanings:
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the management
and policies of the other Person, whether through the ownership of
voting securities, by contract or otherwise. In no event shall any Bank
be deemed an "Affiliate" of either Company or of any Subsidiary of
either Company.
"Agent" means Bank of America National Trust and Savings
Association in its capacity as agent for the Banks hereunder, and any
successor agent.
"Agent-Related Persons" means BofA and any successor Agent arising
under Section 9.09, together with their respective Affiliates (including
in the case of BofA, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth
on the signature page hereto in relation to the Agent or such other
address as the Agent may from time to time specify in accordance with
Section 10.02.
"Aggregate Commitment" means the combined Commitments of the Banks
in the initial amount of $200,000,000, as such amount may be increased
or reduced from time to time pursuant to this Agreement.
"Agreement" means this 1995 Amended and Restated Credit Agreement,
as amended, supplemented or modified from time to time.
"Applicable Margin" means, with respect to Reference Rate Loans,
CD Rate Loans, and Offshore Rate Loans, the Applicable Margin determined
in accordance with the provisions of Section 2.08.
"Arranger" means BA Securities, Inc.
"Assignee" has the meaning specified in Section 10.08.
"Assignment and Acceptance" has the meaning specified in
subsection 10.08(a).
"Availability Period" means the period from the Effective Date to
the opening of business on the date which is five years after the
Effective Date, or such later date as may be agreed to among the
Companies, the Banks, and the Agent.
"Bank" has the meaning specified in the introductory clause
hereto.
"Bank Affiliate" means a Person engaged primarily in the business
of commercial banking and that is a Subsidiary of a Bank or of a Person
of which a Bank is a Subsidiary.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978
(11 U.S.C. Section 101, et seq.).
"BofA" means Bank of America National Trust and Savings
Association.
"Borrowing" means a borrowing hereunder consisting of Loans made
to the Companies on the same day by the Banks pursuant to Article II.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco,
California are authorized or required by law to close and, if the
applicable Business Day relates to any Offshore Rate Loan, means such a
day on which dealings are carried on in the applicable offshore dollar
interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"CD Rate" means, for any Interest Period with respect to CD Rate
Loans comprising part of the same Borrowing, the rate of interest
(rounded upward, if necessary, to the nearest 1/100th of 1%) determined
as follows:
CD Rate = Certificate of Deposit Rate + Assessment Rate
---------------------------
1.00 - Reserve Percentage
Where:
"Assessment Rate" means, for any day of such Interest Period,
the rate determined by the Agent as equal to the annual assessment
rate in effect on such day payable to the FDIC by a member of the
Bank Insurance Fund that is classified as adequately capitalized
and within supervisory subgroup "A" (or a comparable successor
assessment risk classification within the meaning of 12 C.F.R.
Section 327.3(d)) for insuring time deposits at offices of such
member in the United States; or, in the event that the FDIC shall
at any time hereafter cease to assess time deposits based upon
such classifications or successor classifications, equal to the
maximum annual assessment rate in effect on such day that is
payable to the FDIC by commercial banks (whether or not applicable
to any particular Bank) for insuring time deposits at offices of
such banks in the United States.
"Certificate of Deposit Rate" means the rate of interest per
annum determined by the Agent to be the arithmetic mean (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates
notified to the Agent as the rates of interest bid by two or more
certificate of deposit dealers of recognized standing selected by
the Agent for the purchase at face value of dollar certificates of
deposit issued by major United States banks, for a maturity
comparable to such Interest Period and in the approximate amount
of the CD Rate Loans to be made, at the time selected by the Agent
on the first day of such Interest Period.
"Reserve Percentage" means, for any day of such Interest
Period, the maximum reserve percentage (expressed as a decimal,
rounded upward, if necessary, to the nearest 1/100th of 1%), as
determined by the Agent, in effect on such day (including any
ordinary, marginal, emergency, supplemental, special and other
reserve percentages), prescribed by the Federal Reserve Board for
determining the maximum reserves to be maintained by member banks
of the Federal Reserve System with deposits exceeding
$1,000,000,000 for new non-personal time deposits for a period
comparable to such Interest Period and in an amount of $100,000 or
more.
The CD Rate shall be adjusted, as to all CD Rate Loans then
outstanding, automatically as of the effective date of any change in the
Assessment Rate or the Reserve Percentage.
"CD Rate Loan" means a Loan that bears interest based on the CD
Rate.
"Code" means the Internal Revenue Code of 1986 as amended and any
regulations promulgated thereunder.
"Commitment", with respect to each Bank, has the meaning specified
in Section 2.01.
"Commitment Percentage" means, as to any Bank, the percentage
equivalent of such Bank's Commitment divided by the Aggregate
Commitment.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument,
document or agreement to which such Person is a party or by which it or
any of its property is bound.
"Conversion Date" means any date on which the Companies convert a
Reference Rate Loan to an Offshore Rate Loan or a CD Rate Loan; a CD
Rate Loan to an Offshore Rate Loan or a Reference Rate Loan; or an
Offshore Rate Loan to a CD Rate Loan or a Reference Rate Loan.
"Default" means any event or circumstance which, with the giving
of notice, the lapse of time, or both, would (if not cured or otherwise
remedied) constitute an Event of Default.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Domestic Lending Office" means, with respect to each Bank, the
office of that Bank designated as such in the signature pages hereto or
such other office of the Bank as it may from time to time specify to the
Companies and the Agent.
"EBITDA" of the Companies means, for any period, the sum of the
Companies' net income, interest expense, taxes, depreciation,
amortization and non-cash items, computed on a consolidated basis for
the Companies for such period.
"EBITDA to Interest Ratio" means, with respect to any quarter, the
ratio of EBITDA to interest expense for such quarter. In calculating
this ratio, EBITDA and interest expense shall be calculated for four
consecutive quarters ending with the quarter for which the ratio is
being determined.
"Effective Date" means the date on which all conditions precedent
set forth in Section 4.01 are satisfied or waived by all Banks (or in
the case of Section 4.01(c), waived by the Person entitled to receive
such payment).
"Eligible Assignee" means (i) a commercial bank organized under
the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $100,000,000; (ii) a commercial
bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development (the "OECD"),
or a political subdivision of any such country, and having a combined
capital and surplus of at least $100,000,000, provided that such bank is
acting through a branch or agency located in the United States; and
(iii) any Bank Affiliate.
"Environmental Laws" means any Requirement of Law pertaining to
land use, air, soil, surface water, groundwater (including the protec-
tion, cleanup, removal, remediation or damage thereof), public or
employee health or safety or any other environmental matter; including
without limitation, the following laws as the same may be amended from
time to time:
(a) Clean Air Act (42 U.S.C. Section 7401, et seq.);
(b) Clean Water Act (33 U.S.C. Section 1251, et seq.);
(c) Resource Conservation and Recovery Act (42 U.S.C. Section
6901, et seq.);
(d) Comprehensive Environmental Response, Compensation and
Liability Act (42 U.S.C. Section 9601, et seq.);
(e) Safe Drinking Water Act (42 U.S.C. Section 300f, et
seq.);
(f) Toxic Substances Control Act (15 U.S.C. Section 2601, et
seq.);
(g) Rivers and Harbors Act (33 U.S.C. Section 401, et seq.);
(h) Endangered Species Act (16 U.S.C. Section 1531, et seq.);
and
(i) Occupational Safety and Health Act (29 U.S.C. Section
651, et seq.);
together with any other foreign or domestic laws (federal, state,
provincial or local) relating to emissions, discharges, releases or
threatened releases of any Hazardous Substance into ambient air, land,
surface water, groundwater, personal property or structures, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, discharge or handling of any
Hazardous Substance.
"ERISA" means the Employee Retirement Income Security Act of 1974
and regulations promulgated thereunder.
"ERISA Affiliate" as applied to any Company, means any trade or
business (whether or not incorporated) which is a member of a group of
which that Company is a member and which is under common control within
the meaning of the regulations promulgated under Section 414 of the
Code.
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934, and
regulations promulgated thereunder.
"Extension Request" has the meaning specified in
subsection 2.01(b).
"FDIC" means the Federal Deposit Insurance Corporation and any
Governmental Authority succeeding to any of its principal functions.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Board (including any such
successor, "H.15(519)") for such day opposite the caption "Federal Funds
(Effective)". If on any relevant day such rate is not yet published in
H.15(519), the rate for such day will be the rate set forth in the daily
statistical release designated as the Composite 3:30 p.m. Quotations for
U.S. Government Securities, or any successor publication, published by
the Federal Reserve Bank of New York (including any such successor, the
"Composite 3:30 p.m. Quotation") for such day under the caption "Federal
Funds Effective Rate". If on any relevant day the appropriate rate for
such day is not yet published in either H.15(519) or the Composite 3:30
p.m. Quotations, the rate for such day will be the arithmetic mean of
the rates for the last transaction in overnight Federal funds arranged
prior to 9:00 a.m. (New York City time) on that day by each of three
leading brokers of Federal funds transactions in New York City selected
by the Agent.
"Federal Reserve Board" means the Board of Governors of the
Federal Reserve System and any Governmental Authority succeeding to any
of its principal functions.
"Funded Debt" of the Companies for any period means the total
consolidated Indebtedness of the Companies for such period.
"Funded Debt to EBITDA Ratio" means, with respect to any quarter,
the ratio of Funded Debt to EBITDA for such quarter. In calculating
this ratio, Funded Debt shall be the Funded Debt for the quarter for
which the ratio is being determined and EBITDA shall be calculated for
four consecutive quarters ending with the quarter for which the ratio is
being determined.
"GAAP" means generally accepted accounting principles set
forth from time to time in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of Certified
Public Accountants and statements and pronouncements of the
Financial Accounting Standards Board (or agencies with similar
functions of comparable stature and authority within the accounting
profession), or in such other statements by such other entity as
may be in general use by significant segments of the U.S.
accounting profession, which are applicable to the circumstances as
of the date of determination.
"Governmental Authority" means any nation or government, any state
or other political subdivision thereof, any central bank (or similar
monetary or regulatory authority) thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by
any of the foregoing.
"Hazardous Substance" means any substance, material or waste which
is regulated by any state or local governmental authority or the United
States Government, including any material or substance which is
(i) asbestos, (ii) polychlorinated biphenyls, (iii) designated as a
"hazardous substance" pursuant to Section 311 of the Clean Water Act,
33 U.S.C. Section 1251 et seq. (33 U.S.C. Section 1317), (iv) defined as
a "hazardous waste" pursuant to Section 1004 of the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C.
Section 6903) or (v) defined as a "hazardous substance" pursuant to
Section 101 of the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. Section 9601 (42 U.S.C. Section 9601), but
excluding materials which are (A) contained solely in office supplies or
cleaning materials or other materials typically used or kept
incidentally to activities conducted in offices, or (B) in
concentrations, locations or uses that are not proscribed by law.
"Indebtedness" of any Person means without duplication:
(a) all indebtedness for borrowed money;
(b) all obligations issued, undertaken or assumed as the
deferred purchase price of property or services which purchase price is:
(i) due more than six months from the date of
incurrence of the obligation in respect thereof, or
(ii) evidenced by a note or similar written instrument;
(c) all reimbursement obligations with respect to surety
bonds, letters of credit, bankers' acceptances and similar instruments
(in each case, to the extent material and non-contingent);
(d) all indebtedness secured by any Lien on any property or
asset owned or held by that Person, which indebtedness, if nonrecourse
to the credit of that Person, shall be considered to be in an amount not
greater than the fair market value of such property or asset;
(e) all obligations evidenced by notes, bonds, debentures or
similar instruments;
(f) that portion of any monetary obligations under any
capital lease or similar arrangement which, in accordance with GAAP, is
classified as a liability on a balance sheet;
(g) notes payable and drafts accepted representing
extensions of credit, whether or not representing obligations for
borrowed money; and
(h) all guaranties and other direct or indirect liabilities
of such Person with respect to any indebtedness or obligation of others
of the kinds referred to in clauses (a) through (g) above.
"Indemnified Person" has the meaning specified in subsection
10.05.
"Indemnified Liabilities" has the meaning specified in subsection
10.05.
"Insolvency Law" means any foreign, federal, or state bankruptcy,
insolvency, or other similar law relating to or for the relief of
debtors, now or hereafter in effect.
"Insolvency Proceeding" means (a) any case, action or proceeding
before any court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors
or other, similar arrangement in respect of its creditors generally or
any substantial portion of its creditors; in each case (a) and (b)
undertaken under U.S. Federal, State or foreign law, including the
Bankruptcy Code.
"Interest Payment Date" means, with respect to any CD Rate Loan or
Offshore Rate Loan, the last day of each Interest Period applicable to
such Loan and, with respect to Reference Rate Loans, the last Business
Day of each calendar quarter and each date a Reference Rate Loan is
converted into an Offshore Rate Loan or a CD Rate Loan, provided,
however, that if any Interest Period for a CD Rate Loan or Offshore Rate
Loan exceeds 90 days or three months, respectively, interest shall also
be paid on the date which falls 90 days or three months after the
beginning of such Interest Period.
"Interest Period" means, (a) with respect to any Offshore Rate
Loan, the period commencing on the Business Day the Loan is disbursed or
continued or on the Conversion Date on which the Loan is converted to
the Offshore Rate Loan and ending on the date two weeks, or one, two,
three, or six months thereafter, as selected by the Companies in their
Notice of Borrowing or Notice of Conversion/Continuation; and (b) with
respect to any CD Rate Loan, the period commencing on the Business Day
the CD Rate Loan is disbursed or continued or on the Conversion Date on
which a Loan is converted to the CD Rate Loan and ending 30, 60, 90 or
180 days thereafter, as selected by the Companies in their Notice of
Borrowing or Notice of Conversion/Continuation;
provided that:
(i) if any Interest Period pertaining to an Offshore Rate
Loan or CD Rate Loan would otherwise end on a day which is not a
Business Day, that Interest Period shall be extended to the next
succeeding Business Day unless, in the case of an Offshore Rate
Loan, the result of such extension would be to carry such Interest
Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Business Day;
(ii) any Interest Period, other than a two week Interest
Period, pertaining to an Offshore Rate Loan that begins on the
last Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at the
end of such Interest Period) shall end on the last Business Day of
the calendar month at the end of such Interest Period;
(iii) each Interest Period that commences prior to the last
day of the Availability Period must terminate on or before such
last day.
"Lending Office" means, with respect to any Bank, the office or
offices of the Bank specified as its "Lending Office" or "Domestic
Lending Office" or "Offshore Lending Office", as the case may be,
opposite its name on the signature pages hereto, or such other office or
offices of the Bank as it may from time to time specify to the Companies
and the Agent.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, charge or deposit arrangement, encumbrance, lien (statutory
or other) or preference, priority or other security interest or
preferential arrangement of any kind or nature whatsoever (including
those created by, arising under or evidenced by any conditional sale or
other title retention agreement, the interest of a lessor under any
leasing or similar arrangement which, in accordance with GAAP, is
classified as a capital lease, any financing lease having substantially
the same economic effect as any of the foregoing, or the filing of any
financing statement naming the owner of the asset to which such lien
relates as debtor, under the Uniform Commercial Code of any jurisdiction
or any comparable law) and any contingent or other agreement to provide
any of the foregoing, but not including the interest of a lessor under
an operating lease.
"Loan" means an extension of credit by a Bank to the Companies
pursuant to Article II, and may be a Reference Rate Loan, CD Rate Loan
or Offshore Rate Loan.
"Loan Documents" means, together with all amendments,
modifications or supplements to any of the following, this Agreement,
the Notes, and any other written agreement between the Companies or
either Company and Agent or Banks which either states that it is a Loan
Document or otherwise expressly provides (without requiring any
particular wording or phrasing) that it is entered into, signed,
delivered or otherwise furnished with respect to or in connection with
or pursuant to this Agreement.
"LOS/DOS Business" means the ownership and operation by LS&CO. or
a Subsidiary of LS&CO., whether directly or through joint ventures with
third parties in partnership, corporate or other form, of businesses
engaged solely in selling apparel and accessories and related products
including, without limitation, selling through retail stores, mail
orders, and electronic sales. LOS/DOS Business shall not include any
business engaging in manufacturing or in selling and in manufacturing.
"Majority Banks" means at any time Banks holding at least 66-2/3%
of the then aggregate unpaid principal amount of the Loans, or, if no
such principal amount is then outstanding, Banks having at least 66-2/3%
of the Aggregate Commitment.
"Margin Stock" means "margin stock" as such term is defined in
Regulation U of the Federal Reserve Board.
"Material Adverse Effect" means a material adverse effect (a) on
the business, properties, assets, operations or condition (financial or
otherwise) of LSAI and its Subsidiaries, taken as a whole, or (b) on the
ability of the Companies to repay the Loans and make other payments due
hereunder or any other Loan Document to Agent or any Bank.
"Material Subsidiary" of a Company means a Subsidiary of the
Company whose assets have a total book value of more than $50,000,000.
"Multiemployer Plan" means a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which either Company or any ERISA
Affiliate of either Company is or was required to contribute within the
three immediately preceding calendar years.
"New Bank" has the meaning specified in Section 3.09.
"Note" means a promissory note of the Companies payable to the
order of a Bank in substantially the form of Exhibit A, evidencing the
aggregate indebtedness of the Companies to such Bank resulting from
Loans made by such Bank.
"Notice of Borrowing" means a notice, signed by the Companies, and
given to the Agent pursuant to Section 2.03, in substantially the form
of Exhibit B.
"Notice of Conversion/Continuation" means a notice, signed by the
Companies, and given to the Agent pursuant to Section 2.04, in
substantially the form of Exhibit C.
"Obligations" of a Company means all Loans, and other
Indebtedness, advances, debts, liabilities, obligations, covenants and
duties, in each case arising under this Agreement or any other Loan
Document, owing by the Company to any Bank, the Agent, or any other
Person required to be indemnified under any Loan Document, of any kind
or nature, present or future, whether or not evidenced by any note,
guaranty or other instrument, whether or not for the payment of money,
whether arising by reason of an extension of credit, loan, guaranty,
indemnification or in any other manner, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due or
to become due, now existing or hereafter arising and however acquired.
"Offshore Lending Office" means with respect to each Bank, the
office of such Bank designated as such in the signature pages hereto or
such other office of such Bank as such Bank may from time to time
specify to the Companies and the Agent.
"Offshore Rate" means, for each Interest Period for Offshore Rate
Loans comprising the same Borrowing, the rate of interest per annum
determined by the Agent to be the arithmetic mean (rounded upward, if
necessary, to the nearest whole multiple of 1/16th of 1%) of the rates
of interest per annum notified to the Agent by each Reference Bank as
the rate at which dollar deposits for such Interest Period and in an
amount approximately equal to the amount of the Offshore Rate Loan of
such Reference Bank during such Interest Period would be offered by its
Offshore Lending Office to major banks in the London eurodollar market
at or about 11:00 a.m. (London time) on the second Business Day before
the first day of such Interest Period.
"Offshore Rate Loan" means a Loan that bears interest based on the
Offshore Rate.
"Originating Bank" has the meaning specified in
subsection 10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation or any
entity succeeding to any or all of its functions under ERISA.
"Participant" has the meaning specified in subsection 10.08(d).
"Pension Plan" means any employee plan which is subject to the
provisions of Title IV of ERISA and which is maintained for employees of
either Company or any ERISA Affiliate of either Company, other than a
Multiemployer Plan.
"Permitted Liens" has the meaning specified in Section 7.01.
"Person" means an individual, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, joint
venture or Governmental Authority.
"Prior Credit Agreement" has the meaning specified in the recitals
of this Agreement.
"Property" means any estate or interest in any kind of property or
asset, whether real, personal or mixed, and whether tangible or
intangible.
"Reference Banks" means BofA, Citibank, N.A., and National
Westminster Bank PLC, or such other Banks as may from time to time be
agreed to by the Companies and Agent.
"Reference Rate" means the higher of:
(a) the rate of interest publicly announced from time to
time by BofA in San Francisco, California, as its "reference
rate." It is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate; and
(b) one-half percent per annum above the latest Federal
Funds Rate.
Any change in the reference rate announced by BofA shall take effect at
the opening of business on the day specified in the public announcement
of such change.
"Reference Rate Loan" means a Loan that bears interest based on
the Reference Rate.
"Requirement of Law" means, as to any Person, any law (statutory
or common), treaty, rule or regulation or determination of an arbitrator
or of a Governmental Authority, in each case applicable to or binding
upon the Person or any of its property or to which the Person or any of
its property is subject.
"Responsible Officer" of a Company means the chief financial
officer or the treasurer of the Company, or any other officer having
substantially the same authority and responsibility.
"SEC" means the Securities and Exchange Commission, or any
successor thereto.
"Subsidiary" of a Person means any corporation, association,
partnership, joint venture or other business entity of which more than
50% of the voting stock or other equity interests (in the case of
Persons other than corporations), is owned or controlled directly or
indirectly by the Person, or one or more of the Subsidiaries of the
Person, or a combination thereof.
"Taxes" has the meaning specified in subsection 3.01(a).
"Terminated Bank" has the meaning specified in Section 3.09.
"Termination Event" means (i) a "Reportable Event" described in
Section 4043 of ERISA and the regulations issued thereunder (other than
a "Reportable Event" not subject to the provision for 30 day notice to
the PBGC under such regulations), or (ii) the withdrawal of LSAI or any
of its ERISA Affiliates from a Pension Plan during a plan year in which
it was a "substantial employer" as defined in Section 4001(a)(2) of
ERISA, or (iii) the filing of a notice of intent to terminate a Pension
Plan or the treatment of a Pension Plan amendment as a termination under
Section 4041 of ERISA, or (iv) the institution of proceedings to
terminate a Pension Plan by the PBGC, or (v) any other event or
condition that would constitute grounds under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any
Pension Plan.
"Transferee" has the meaning specified in subsection 10.08(e).
"United States" and "U.S." each means the United States of
America.
1.02 Other Definitional Provisions.
(a) Defined Terms. Except as provided in Section 10.14, unless
otherwise specified herein or therein, all terms defined in this Agreement
shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto. The meaning of defined terms
shall be equally applicable to the singular and plural forms of the defined
terms. Terms (including uncapitalized terms) not otherwise defined herein
and that are defined in the Uniform Commercial Code of California shall have
the meanings therein described.
(b) The Agreement. The words "hereof", "herein", "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement;
and section and exhibit references are to this Agreement unless otherwise
specified.
(c) Certain Common Terms.
(i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means
"including without limitation."
(d) Performance; Time. Whenever any performance obligation
hereunder (other than a payment obligation) shall be stated to be due or
required to be satisfied on a day other than a Business Day, such performance
shall be made or satisfied on the next succeeding Business Day. In the
computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including"; the words "to" and "until"
each mean "to but excluding," and the word "through" means "to and
including". If any provision of this Agreement refers to any action taken or
to be taken by any Person, or which such Person is prohibited from taking,
such provision shall be interpreted to encompass any and all means, direct or
indirect, of taking, or not taking, such action.
(e) Contracts. Unless otherwise expressly provided herein,
references to agreements and other contractual instruments shall be deemed to
include all subsequent amendments and other modifications thereto, but only
to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document.
(f) Laws. References to any statute or regulation are to be
construed as including all statutory and regulatory provisions consolidating,
amending or replacing the statute or regulation.
(g) Captions. The captions and headings of this Agreement are
for convenience of reference only and shall not affect the construction of
this Agreement.
(h) Independence of Provisions. The parties acknowledge that
this Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters,
and that such limitations, tests and measurements are cumulative and must
each be performed, except as expressly stated to the contrary in this
Agreement.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all accounting
terms not expressly defined herein shall be construed, and all financial
computations required under this Agreement shall be made, in accordance with
GAAP, consistently applied.
(b) References herein to "fiscal year" and "fiscal quarter" refer
to such fiscal periods of the Companies.
(c) References herein to "consolidated" and "consolidated basis"
with reference to LSAI or the Companies are to LSAI and its Subsidiaries on
a consolidated basis.
ARTICLE II
THE CREDITS
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2.01 Amounts and Terms of Commitments; the Credit.
(a) Each Bank severally agrees, on the terms and conditions
hereinafter set forth, to make Loans to the Companies from time to time on
any Business Day during the Availability Period in an aggregate amount
outstanding at any time not to exceed the amount set forth opposite the
Bank's name in Schedule 2.01 under the heading "Commitment" (such amount as
the same may be reduced or increased pursuant to Section 2.05 or Section
3.09, the Bank's "Commitment"); provided, however, that after giving effect
to any Borrowing of Loans, the aggregate principal amount of all outstanding
Loans shall not exceed the Aggregate Commitment. During the Availability
Period, within the limits of each Bank's Commitment, and subject to the other
terms and conditions hereof, the Companies may borrow under this Section
2.01, prepay pursuant to Section 2.06 and reborrow pursuant to this Section
2.01.
(b) (i) Upon written request from the Companies (an "Extension
Request"), received by the Agent not more than 30 days and not less than 15
days prior to the last day of the then current Availability Period, the
Availability Period may be extended for an additional year commencing on the
last day of the then current Availability Period with respect to any Bank
consenting to such Extension Request.
(ii) Each Bank shall use reasonable commercial efforts to
notify the Agent and the Companies by facsimile, telegram, telex or otherwise
in writing within ten days after receipt of an Extension Request as to
whether it consents to the extension requested. If a Bank has not replied by
facsimile, telegram, telex or otherwise in writing to the Agent and to the
Companies by the end of such ten day period, that Bank shall be deemed not to
have consented to the requested extension.
(iii) The Agent shall promptly notify each Bank and the
Companies of any Bank's decision to reject the proposed extension.
(c) (i) If, in accordance with the provisions of subsection
2.01(b), a Bank consents to the extension of the Availability Period with
respect to its commitment to lend under this Agreement, the Availability
Period for such Bank shall be extended, without any further action by the
Companies or such Bank.
(ii) If any Bank rejects a request for an extension of the
Availability Period with respect to its commitment to lend under this
Agreement, or is deemed not to have consented to the requested extension, and
the Availability Period has been extended for the other Bank(s):
(A) The Companies may, prior to the end of the non-
extended Availability Period terminate such Bank's commitment to lend
under this Agreement upon payment in full of principal of and interest
on all Loans made by such Bank together with such other sums, if any,
that may be due by reason of such prepayment.
(B) If the Companies have not previously terminated
such Bank's commitment to lend under this Agreement and have not
previously paid principal and interest on the Loans held by such Bank,
then such principal and interest shall be due and payable on the last
day of the non-extended Availability Period.
(C) The Availability Period shall not be extended
insofar as such non-consenting Bank is concerned.
(d) The Companies may request Banks, through the Agent, to
increase their respective Commitments in the amounts specified by the
Companies such that the Aggregate Commitments, after such increase, will not
exceed $500,000,000 (each such request a "Requested Increase").
(i) Each Bank shall use reasonable commercial efforts to
respond to the Companies, through the Agent, not later than 30 days after its
receipt of its Requested Increase, as to whether it consents to its share of
the increase requested. If a Bank has not replied in writing to the
Companies through the Agent by the end of such period, that Bank shall be
deemed not to have consented to its share of the requested increase.
(ii) The Agent shall promptly notify each Bank and the
Companies of any Bank's decision to reject or accept its share of the
requested increase.
(iii) After lapse of the period provided for in clause (i) of
this subsection:
(A) The Companies, Agent, and the Banks shall enter
into an amendment to this Agreement (in form and substance acceptable to
the Companies, the Agent, and the Banks) which shall amend Schedule 2.01
by amending the Banks' Commitments to reflect the appropriate increases
in such Commitments and the corresponding increase in the Aggregate
Commitment; and
(B) If all of the Banks have not agreed to their share
of the requested increase, (i) the Agent shall cause the Arranger to use
commercially reasonable efforts to identify other commercial banks,
reasonably satisfactory to the Companies, which are willing to become
parties to this Agreement and to extend credit to the Companies
hereunder, and (ii) the Companies may approach the Banks and any other
commercial banks (provided that such other commercial banks are
reasonably satisfactory to the Agent) and request that, (A) in the case
of Banks, they increase their Commitments and (B) in the case of other
commercial banks, they become parties to this Agreement and extend
credit to the Companies hereunder, such that the Aggregate Commitment
equals the sum of (y) the increase specified in the Requested Increase
plus (z) the Aggregate Commitment prior to the Requested Increase. Such
commercial banks shall become party to this Agreement by execution of an
amendment hereto in form and substance acceptable to the Companies, the
Agent, the Banks, and the new banks.
(C) a) After the execution of each amendment under
subclause (A) or (B) of this clause, subject to the other provisions of
this Agreement, if there are outstanding Loans the Companies shall
borrow only from (i) the Banks whose Commitments are being increased and
(ii) the commercial banks becoming party to this Agreement (if
applicable), until the ratio of (y) the total outstanding principal
amount of Loans owing to each Bank to (z) such Bank's Commitment, will
be the same for all Banks having Commitments. Thereafter, the Companies
shall borrow from all Banks (including the commercial banks, if any,
that have become Banks under this Agreement).]
b) All Borrowings under this subclause (C) which
are not made proportionately from all the Banks shall be comprised of
(i) Reference Rate Loans or (ii) CD Rate Loans or Offshore Rate Loans
with Interest Periods which do not mature beyond the last day of the
Interest Period with the longest tenor in effect prior to the amendment
increasing the Aggregate Commitment.
If an Event of Default should occur, each Bank agrees to purchase from
the other Banks such participations in the other Banks' Loans as shall
be necessary to cause the ratio of (1) the total outstanding principal
amount of Loans owing to each Bank to (2) such Bank's Commitment, to be
the same for each Bank.
2.02 Notes; Loan Accounts.
(a) The Loans made by each Bank requesting a Note shall be
evidenced by a Note payable to the order of that Bank in an amount equal to
its Commitment. Each Bank requesting a Note shall endorse on the schedules
annexed to its Note, the date, amount and maturity of each Loan made by it
and the date and amount of each payment of principal and interest made by the
Companies with respect thereto. Each Bank requesting a Note is irrevocably
authorized by each of the Companies to make such endorsements on its Note.
(b) The Loans made by each Bank not requesting a Note shall be
evidenced by one or more loan accounts maintained by such Bank in the
ordinary course of business.
(c) The Agent shall maintain loan accounts evidencing the date,
amount, and maturity of each Loan made by the Banks to the Companies and the
date and amount of each payment of principal or interest made by the
Companies through the Agent with respect thereto. The Notes and the loan
accounts maintained by the Agent and the Banks not requiring a Note shall be
evidence of the amount of the Loans made by the Banks to the Companies and
the interest and payments thereon. Any failure so to record on any Note or
any loan account or any error in doing so shall not, however, limit,
increase, or otherwise affect the obligation of the Companies hereunder (and
under any Note) to pay any amount owing with respect to the Loans.
2.03 Procedure for Borrowing.
(a) (i) Each Borrowing shall be made upon the irrevocable
written notice (including notice via facsimile confirmed immediately by a
telephone call) of the Companies in the form of a Notice of Borrowing (which
notice must be received by the Agent not later than 9:00 a.m. San Francisco,
California time) (x) three Business Days prior to the requested borrowing
date, in the case of Offshore Rate Loans; (y) two Business Days prior to the
requested borrowing date, in the case of CD Rate Loans, and (z) on the
requested borrowing date, in the case of Reference Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be in an
aggregate minimum principal amount of $10,000,000 or any multiple of
$1,000,000 in excess thereof;
(B) the requested borrowing date, which shall be a
Business Day;
(C) whether the Borrowing is to be comprised of
Offshore Rate Loans, CD Rate Loans or Reference Rate Loans;
(D) the duration of the Interest Period applicable to
the Loans included in such notice which are CD Rate Loans or Offshore
Rate Loans. If the Notice of Borrowing shall fail to specify the
duration of the Interest Period for any Borrowing comprised of CD Rate
Loans or Offshore Rate Loans, such Interest Period shall be 90 days or
three months, respectively;
provided, however, that with respect to any Borrowing to be made on the
Effective Date, the Notice of Borrowing shall be delivered to the Agent no
later than 10:00 a.m. San Francisco, California time, one Business Day before
the Effective Date for Base Rate Loans, two Business Days before the
Effective Date for CD Rate Loans, and three Business Days before the
Effective Date for Offshore Rate Loans.
(b) Upon receipt of the Notice of Borrowing (or telephonic notice
in lieu thereof pursuant to Section 2.15), the Agent will promptly notify
each Bank thereof and of the amount of such Bank's Commitment Percentage of
the Borrowing.
(c) Each Bank will make the amount of its Commitment Percentage
of the Borrowing available to the Agent, in funds immediately available to
the Agent, for the account of the Companies at the Agent's Payment Office by
(i) 11:00 a.m. San Francisco, California time on the borrowing date requested
by the Companies if the Borrowing requested is to consist solely of Reference
Rate Loans, or (ii) 10:00 a.m. San Francisco, California time on the
borrowing date requested by the Companies if the Borrowing requested includes
Offshore Rate Loans or CD Rate Loans. The proceeds of all such Loans will
then be made available to the Companies by the Agent at such office by
crediting the LS&CO. concentration account #12335-0225 on the books of BofA
(or such other account with BofA as the Companies may hereafter designate in
a written notice to the Agent) with the aggregate of the amounts made
available to the Agent by the Banks not later than 11:00 a.m. San Francisco,
California time on such borrowing date if the proposed Borrowing consist of
CD Rate Loans or Offshore Rate Loans, and not later than 12:00 noon San
Francisco, California time on the borrowing date if the proposed Borrowing
consists of Reference Rate Loans. To the extent that Loans made by Banks
mature on any borrowing date, each Bank shall apply the proceeds of any Loans
made on such borrowing date, to the extent thereof, to the repayment of such
maturing Loans, such Loans and repayments intended to be a contemporaneous
exchange.
2.04 Conversion and Continuation Elections.
(a) The Companies may upon irrevocable notice to the Agent in
accordance with subsection 2.04(b):
(i) elect to convert on any Business Day, any Reference
Rate Loans (or any part thereof in an amount not less than $10,000,000
or that is in an integral multiple of $1,000,000 in excess thereof) into
Offshore Rate Loans or CD Rate Loans or;
(ii) elect to convert on any Interest Payment Date any
Offshore Rate Loans maturing on such Interest Payment Date (or any part
thereof in an amount not less than $10,000,000 or that is in an integral
multiple of $1,000,000 in excess thereof) into CD Rate Loans or
Reference Rate Loans; or
(iii) elect to convert on any Interest Payment Date any CD
Rate Loans maturing on such Interest Payment Date (or any part thereof
in an amount not less than $10,000,000 or that is in an integral
multiple of $1,000,000 in excess thereof) into Offshore Rate Loans or
Reference Rate Loans; or
(iv) elect to renew on any Interest Payment Date any
Offshore Rate Loans or CD Rate Loans maturing on such Interest Payment
Date (or any part thereof in an amount not less than $10,000,000 or that
is in an integral multiple of $1,000,000 in excess thereof);
provided, that if the Aggregate Commitment shall have been reduced to be less
than $10,000,000, on and after such reduction the right of the Companies to
elect to convert or continue Offshore Rate Loans or CD Rate Loans shall
terminate.
(b) The Companies shall deliver by telex, cable or facsimile,
confirmed immediately in writing, a Notice of Conversion/Continuation to be
received by the Agent not later than 9:00 a.m. (San Francisco, California
time) at least (i) three Business Days in advance of the Conversion Date or
continuation date, if the Loans are to be converted into or continued as
Offshore Rate Loans; (ii) two Business Days in advance of the Conversion Date
or continuation date, if the Loans are to be converted into or continued as
CD Rate Loans; and (iii) on the Conversion Date, if the Loans are to be
converted into Reference Rate Loans, specifying:
(i) the proposed Conversion Date or continuation date;
(ii) the aggregate amount of Loans to be converted or
continued;
(iii) the nature of the proposed conversion or continuation;
and
(iv) with respect to Offshore Rate Loans and CD Rate Loans,
the duration of the requested Interest Period.
In lieu of delivering the above-described Notice of Conversion/Continuation,
the Companies, pursuant to Section 2.15, may give the Agent telephonic notice
(followed by prompt written confirmation) of such conversion or continuation.
(c) If upon the expiration of any Interest Period applicable to
CD Rate Loans or Offshore Rate Loans, the Companies have failed to select a
new Interest Period to be applicable to such CD Rate Loans or Offshore Rate
Loans, as the case may be, or (subject to subsection (d) below) if any Event
of Default shall then exist, the Companies shall be deemed to have elected to
convert such CD Rate Loans or Offshore Rate Loans into Reference Rate Loans
effective as of the expiration date of such current Interest Period.
(d) The provisions of Section 8.03 shall govern the Companies'
ability to elect to have a Loan converted into or continued as, an Offshore
Rate Loan or a CD Rate Loan during the existence of a Default or Event of
Default.
(e) Upon receipt of a Notice of Conversion/ Continuation (or
telephonic notice in lieu thereof), the Agent will promptly notify each Bank
thereof, or, if no timely notice is provided, the Agent will promptly notify
each Bank of the details of any automatic conversion. All conversions and
continuations shall be made pro rata according to the respective outstanding
principal amounts of the Loans with respect to which the notice was given or
which are subject to automatic conversion held by each Bank.
2.05 Voluntary Termination or Reduction of Aggregate Commitment. The
Companies may, upon not less than five Business Days' prior irrevocable
notice to the Agent, terminate the Aggregate Commitment or permanently reduce
the Aggregate Commitment by any whole multiple of $10,000,000; provided that
no such reduction or termination shall be permitted if, after giving effect
thereto and to any prepayments of the Loans made on the effective date
thereof, the then outstanding principal amount of the Loans would exceed the
amount of the Aggregate Commitment then in effect and, provided, further,
that once reduced in accordance with this Section 2.05, the Aggregate
Commitment may not be increased. Any reduction of the Aggregate Commitment
shall be applied to each Bank's Commitment in accordance with such Bank's
Commitment Percentage. If the Aggregate Commitment is terminated in its
entirety, all accrued commitment fees to, but not including the effective
date of such termination shall be payable on the effective date of such
termination without any premium or penalty.
Notice to the Agent under this Section shall be in writing, signed by the
Companies or may be by telephonic notice promptly confirmed in writing, as
set forth in Section 2.15.
2.06 Optional Prepayments. Subject to Section 3.04, the Companies may,
at any time or from time to time, upon notice to the Agent given (i) at least
five Business Days' prior to the proposed prepayment date for CD Rate Loans
and Offshore Rate Loans and (ii) not later than 9:00 a.m. on the Business Day
of prepayment for Reference Rate Loans, ratably prepay Loans in whole or in
part, in amounts of $10,000,000 or any multiple of $1,000,000 in excess
thereof. Such notice of prepayment shall specify the date and amount of such
prepayment and whether such prepayment is of Reference Rate Loans, CD Rate
Loans or Offshore Rate Loans, or any combination thereof. Such notice shall
not thereafter be revocable by the Companies and the Agent will promptly
notify each Bank thereof and the amount of such Bank's Commitment Percentage
of such prepayment. If such notice is given by the Companies, the Companies
shall make such prepayment and the payment amount specified in such notice
shall be due and payable on the date specified therein, together with accrued
interest to each such date on the amount prepaid and the amounts required
pursuant to Section 3.04.
Notice to the Agent under this Section shall be in writing, signed by the
Companies or may be by telephonic notice promptly confirmed in writing as set
forth in Section 2.15.
2.07 Repayment. The Companies shall repay the principal amount of the
Loans on the last day of the Availability Period.
2.08 Interest.
(a) Subject to subsection 2.08(d), each Loan shall bear interest
on the outstanding principal amount thereof from the date when made until it
becomes due at a rate per annum equal to the CD Rate, the Offshore Rate or
the Reference Rate, as the case may be, plus the Applicable Margin. The
initial Applicable Margins, subject to adjustment as provided below, are
0.350% for CD Rate Loans, 0.225% for Offshore Rate Loans, and 0.000% for
Reference Rate Loans, and thereafter shall be determined as follows:
For each fiscal
quarter following
a fiscal quarter
where the Funded
For CD For Offshore For Reference Debt to EBITDA Ratio
Rate Loans Rate Loans Rate Loans was:
---------- ------------ ------------- -----------------
0.350% 0.225% 0.000% Less than .75
0.425% 0.300% 0.000% Equal to or more than
.75 but less than
1.25
0.500% 0.375% 0.000% Equal to or more than
1.25 but less than
1.75
0.625% 0.450% 0.000% Equal to or more than
1.75
If the compliance certificate required under Section 6.01(a) setting forth
the Funded Debt to EBITDA Ratio for the third fiscal quarter of the 1995
fiscal year requires a change in the initial Applicable Margins provided
above, such change shall be effective as of the Effective Date. Thereafter,
any change in the Applicable Margins for any period shall take effect as of
the first day of the fiscal quarter in which the Agent receives the
compliance certificate required under Section 6.01(a) setting forth the
Funded Debt to EBITDA Ratio requiring a change in the Applicable Margins.
(b) If the Applicable Margins are increased or reduced with
respect to any period for which the Companies have already paid interest, the
Agent shall recalculate the additional interest due from or to the Companies
and shall, with reasonable promptness, give the Companies and the Banks
notice of such recalculation.
(i) Any additional interest due from the Companies shall be
paid to the Agent for the account of the Banks on the next date on which
an interest payment is due; provided, however, that if there are no
Loans outstanding or if the Loans are due and payable, such additional
interest shall be paid promptly after receipt of written request for
payment from the Agent.
(ii) Any interest refund due to the Companies shall be
credited against payments otherwise due from the appropriate Companies
on the next interest payment due date or, if the Loans have been repaid
and the Banks are no longer committed to lend under this Agreement, the
Banks shall pay the Agent for the account of the Companies such interest
refund not later than five Business Days after written notice from the
Agent to the Banks.
(c) Interest on each Loan shall be payable in arrears on each
Interest Payment Date. Interest shall also be payable on the date of any
prepayment of Loans pursuant to Section 2.06 for the portion of the Loans so
prepaid and upon payment (including prepayment) in full thereof and, during
any period when principal of the Loans is due and payable, interest shall be
payable on request for such payment by the holders of the Loans.
(d) While any Event of Default under subsections 8.01(a), (f), or
(g) exists or after acceleration of the Loans by reason of any Event of
Default, the Companies shall pay interest (after as well as before entry of
judgment thereon to the extent permitted by law) on the principal amount of
all Loans due and unpaid, at a rate per annum which is determined by adding
2% per annum to the Applicable Margin then in effect for such Loans;
provided, however, that on and after the expiration of any Interest Period
applicable to any outstanding Offshore Rate Loan or outstanding CD Rate Loan
while any Event of Default under subsections 8.01(a), (f), or (g) or
acceleration by reason of any Event of Default exists, the principal amount
of such Loan shall, during the continuation of such Event of Default or after
such acceleration, bear interest at a rate per annum equal to the Reference
Rate plus the Applicable Margin for Reference Rate Loans plus 2%.
(e) Anything herein to the contrary notwithstanding, the
obligations of the Companies hereunder shall be subject to the limitation
that payments of interest shall not be required, for any period for which
interest is computed hereunder, to the extent (but only to the extent) that
contracting for or receiving such payment by the respective Bank would be
contrary to the provisions of any law applicable to such Bank limiting the
highest rate of interest which may be lawfully contracted for, charged or
received by such Bank, and in such event the Companies shall pay such Bank
interest at the lower of (i) the highest rate permitted by applicable law or
(ii) the rates required by this Agreement.
(f) If the Agent designates the credit extended under this
Agreement as a "highly leveraged transaction" or "HLT" in accordance with the
definition adopted on October 30, 1989 by the Office of the Comptroller of
the Currency, the Federal Deposit Insurance Corporation, and the Federal
Reserve Board, or any successor definition, or as a similarly denominated
transaction under other similar applicable regulatory guidelines in effect
from time to time, the Companies and the Agent shall enter into negotiations
for the purpose of agreeing on adjustments to the Applicable Margins so as to
reflect the HLT designation.
2.09 Fees.
(a) Agent's Fees. The Companies shall pay to the Agent for the
Agent's own account the fees in the amounts and at the times set forth in a
letter agreement between the Companies and the Agent dated January 15, 1993.
(b) Commitment Fees.
(i) The Companies shall pay to the Agent during the
Availability Period for the account of each Bank a commitment fee on the
average daily unused portion of such Bank's Commitment, computed on a
quarterly basis in arrears on the last day of each calendar quarter
based upon the daily utilization for that quarter, determined for the
period from the Effective Date through September 30, 1995 at 0.08% per
annum and thereafter as set forth in the table below and computed on the
basis of a 360 day year and actual days elapsed.
(ii) The commitment fee shall be calculated for the period
commencing on the Effective Date through September 30, 1995, each
calendar quarter thereafter, and for the period ending on the last day
of the Availability Period and shall be payable on the later of (x) the
fifth Business Day after the end of the period with respect to which
such payment was calculated or (y) the fifth Business Day after receipt
by the Companies of a written notice from the Agent stating the amount
of such commitment fee.
(iii) The commitment fees provided in this subsection shall
accrue at all times during the Availability Period including at any time
during which one or more conditions in Article IV are not met.
Commitment Fee: For each fiscal quarter following the fiscal
quarter where the Funded Debt to EBITDA Ratio
is:
0.080% per annum Less than .75
0.100% per annum Equal to or more than .75 but less than 1.25
0.125% per annum Equal to or more than 1.25 but less than 1.75
0.150% per annum Equal to or more than 1.75.
2.10 Computation of Fees and Interest.
(a) All computations of (x) Commitment Fees, (y) interest based
on the Federal Funds Rate, and (z) interest payable in respect of Offshore
Rate Loans, CD Rate Loans, and Reference Rate Loans when interest is based on
the Federal Funds Rate shall be made on the basis of a year of 360 days and
actual days elapsed. All other computations of fees and interest under this
Agreement shall be made on the basis of a year of 365 or 366 days, as the
case may be, and actual days elapsed. Interest and fees shall accrue during
each period during which interest or such fees are computed from the first
day thereof to the last day thereof.
(b) The Agent will, with reasonable promptness, notify the
Companies and the Banks of each determination of an Offshore Rate or of a CD
Rate; provided that any failure to do so shall not relieve the Companies of
any liability hereunder or provide the basis for any claim against the Agent.
Any change in the interest rate on a Loan resulting from a change in the
Applicable Margin, Reserve Percentage, or the Assessment Rate shall become
effective as of the opening of business on the day on which such change in
the Applicable Margin, Reserve Percentage, or the Assessment Rate becomes
effective. The Agent will with reasonable promptness notify the Companies
and the Banks of the effective date and the amount of each such change,
provided that any failure to do so shall not relieve the Companies of any
liability hereunder or provide the basis for any claim against the Agent.
(c) Each determination of an interest rate by the Agent pursuant
to any provision of this Agreement shall be conclusive and binding on the
Companies and the Banks in the absence of manifest error.
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any of the
Reference Banks shall be unable or otherwise fails to supply such rates to
the Agent upon its request, the rate of interest shall be determined on the
basis of the quotations of the remaining Reference Banks or Reference Bank.
2.11 Payments by the Companies.
(a) All payments (including prepayments) to be made by the
Companies on account of principal, interest, fees and other amounts required
hereunder shall be made without set-off or counterclaim and shall, except as
otherwise expressly provided herein, be made to the Agent for the ratable
account of the Banks at the Agent's Payment Office, in dollars and in
immediately available funds, no later than 11:00 a.m. (San Francisco,
California time) on the date specified herein. The Agent will promptly
distribute to each Bank the amount of its Commitment Percentage (or other
applicable share as expressly provided herein) of such principal, interest,
fees or other amounts, in like funds as received. Any payment which is
received by the Agent later than 11:00 a.m. (San Francisco, California time)
shall be deemed to have been received on the immediately succeeding Business
Day and any applicable interest or fee shall continue to accrue.
(b) Whenever any payment hereunder shall be stated to be due on
a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of interest or fees, as the case may be; subject
to the provisions set forth in the definition of "Interest Period" herein.
(c) Unless the Agent shall have received notice from the
Companies prior to the date on which any payment is due to the Banks
hereunder from such Companies that the Companies will not make such payment
in full, the Agent may assume that the Companies have made such payment in
full to the Agent on such date and the Agent may (but shall not be so
required), in reliance upon such assumption, cause to be distributed to each
Bank on such due date an amount equal to the amount then due such Bank. If
and to the extent the Companies shall not have made such payment in full to
the Agent, each Bank shall repay to the Agent, on request made by the Agent,
such amount distributed to such Bank, together with interest thereon for each
day from the date such amount is distributed to such Bank until the date such
Bank repays such amount to the Agent, at the Federal Funds Rate as in effect
for each such day.
2.12 Payments by the Banks to the Agent.
(a) Unless the Agent shall have received notice from a Bank on
the Effective Date or, with respect to each Borrowing after the Effective
Date, at least one Business Day prior to the date of any proposed Borrowing
(but prior to 10:00 a.m. on the same day with respect to a Borrowing
consisting of Reference Rate Loans) that such Bank will not make available to
the Agent for the account of the Companies the amount of that Bank's
Commitment Percentage of the Borrowing, the Agent may assume that each Bank
has made such amount available to the Agent on the borrowing date and the
Agent may (but shall not be so required), in reliance upon such assumption,
make available to the Companies on such date a corresponding amount. If and
to the extent any Bank shall not have made its full amount available to the
Agent and the Agent in such circumstances has made available to the Companies
such amount, that Bank shall on the next Business Day following the date of
such Borrowing make such amount available to the Agent, together with
interest at the Federal Funds Rate for and determined as of each day during
such period. A certificate of the Agent submitted to any Bank with respect
to amounts owing under this subsection 2.12(a) shall be conclusive, absent
manifest error. If such amount is so made available, such payment to the
Agent shall constitute such Bank's Loan on the date of Borrowing for all
purposes of this Agreement. If such amount is not made available to the
Agent on the next Business Day following the date of such Borrowing, the
Agent shall notify the Companies of such failure to fund and, upon request
for payment made by the Agent, the Companies shall pay such amount to the
Agent for the Agent's account, together with interest thereon for each day
elapsed since the date of such Borrowing, at a rate per annum equal to the
interest rate applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any date of
Borrowing shall not relieve any other Bank of any obligation hereunder to
make a Loan on the date of such Borrowing, but no Bank shall be responsible
for the failure of any other Bank to make the Loan to be made by such other
Bank on the date of any Borrowing.
2.13 Sharing of Payments, Etc. If, other than as expressly
contemplated elsewhere herein, any Bank shall obtain on account of the Loans
made by it any payment (whether voluntary, involuntary, through the exercise
of any right of set-off, or otherwise) in an amount in excess of its
Commitment Percentage of payments on account of the Loans obtained by all the
Banks, such Bank shall forthwith (a) notify the Agent of such fact, and (b)
purchase from the other Banks such participations in the Loans made by them
as shall be necessary to cause such purchasing Bank to share the excess
payment ratably with each of them; provided, however, that if all or any
portion of such excess payment is thereafter recovered from the purchasing
Bank, such purchase shall to that extent be rescinded and each other Bank
shall repay to the purchasing Bank the purchase price paid therefor, together
with an amount equal to such paying Bank's Commitment Percentage (according
to the proportion of (i) the amount of such paying Bank's required repayment
to (ii) the total amount so recovered from the purchasing Bank) of any
interest or other amount paid or payable by the purchasing Bank in respect of
the total amount so recovered. Each of the Companies agrees that any Bank so
purchasing a participation from another Bank pursuant to this Section 2.13
may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off but subject to Section 10.09) with
respect to such participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation. The Agent will
keep records (which shall be conclusive and binding in the absence of
manifest error), of participations purchased pursuant to this Section 2.13
and will in each case notify the Banks following any such purchases.
2.14 Joint and Several Obligation of the Companies. All obligations of
the Companies arising under this Agreement (including but not limited to
payment of principal and interest on the Loans) and any other Loan Document
shall be joint and several. A separate action or actions may be brought and
prosecuted against either Company whether action is brought against the other
Company or whether the other Company is joined in any such action or
actions. Each Company waives the benefit of any statute of limitations
applicable to the other Company but not to it and affecting its liability
hereunder.
(a) Each Company authorizes Agent and Banks, without notice,
demand, or request and without affecting its liability hereunder, from time
to time to:
(i) with the consent of the other Company if required,
renew, compromise, extend, accelerate or otherwise change the time for
payment, or otherwise change the terms, of the indebtedness of the Companies
under this Agreement to Agent or to Banks including increase or decrease of
the rate of interest thereon, or otherwise change the terms of this Agreement
with respect to the Companies;
(ii) receive and hold security for the payment of any
indebtedness to Agent and to Banks under this Agreement and exchange,
enforce, waive, release, fail to perfect, sell, or otherwise dispose of any
such security;
(iii) apply such security and direct the order or manner of
sale thereof as Agent and Banks in their discretion may determine; and
(iv) release or substitute any one or more of any endorsers
or guarantors of the indebtedness under this Agreement.
(b) Each Company waives any right to require Agent and Banks to:
(i) proceed against the other Company;
(ii) proceed against or exhaust any security for any
indebtedness to Agent and Banks under this Agreement; or
(iii) pursue any other remedy in Agent's, Banks', or any
Bank's power whatsoever.
(c) Each Company waives any defense arising by reason of any
disability or other defense of the other Company, or the cessation from any
cause whatsoever, other than payment, of the liability of the other Company,
or any claim that such Company's obligations exceed or are more burdensome
than those of the other Company.
(d) Each Company waives any right of subrogation, reimbursement,
indemnification, and contribution (contractual, statutory or otherwise),
including without limitation, any claim or right of subrogation under the
Bankruptcy Code (Title 11 of the U.S. Code) or any successor statute, against
the other Company arising from the existence or performance of its joint and
several liability.
(e) Each Company waives any right to enforce any remedy which
Agent and Banks now have or may hereafter have against the other Company, and
waives any benefit of, and any right to participate in, any security now or
hereafter held by Agent and Banks securing the indebtedness under this
Agreement.
(f) The waivers contained in this Section 2.14 shall not apply to
any right or defense of the Companies which such Companies could assert
against the Banks and the Agent if the right or defense were available to
both Companies based on the same circumstances. For example if both
Companies have the defense of mistake because Agent and Banks mistakenly show
in their records that $10,000,000 has been advanced to the Companies but in
fact no Loans were made and there are no Loans outstanding under this
Agreement, this defense of mistake shall not be waived by this Section 2.14.
2.15 Notices of Borrowing, Conversion/Continuation; Voluntary
Termination or Reduction of Aggregate Commitment; Optional Prepayment.
(a) In lieu of delivering a Notice of Borrowing, a Notice of
Conversion/Continuation, a notice of voluntary termination or reduction of
the Aggregate Commitment, or a notice of an optional prepayment, the
Companies may give the Agent telephonic notice of such action or proposed
action by the required time for delivery of such notice; provided, however,
that such telephonic notice must be promptly confirmed in writing by delivery
of the appropriate written notice on or prior to the requested borrowing,
conversion, continuation, termination or reduction, or optional prepayment
(as appropriate) date.
(b) Each of the Companies authorizes the Agent to accept
telephonic notice given on its behalf by the other Company.
(c) Neither the Agent nor any Bank shall incur any liability to
the Companies for acting upon any telephonic notice which the Agent believes
in good faith to have been given by a duly authorized officer or other person
authorized to act on behalf of one of the Companies, and, upon the taking of
any action by the Agent and the Banks pursuant to telephonic notice, such
action shall be deemed to have been made pursuant hereto.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
--------------------------------------
3.01 Taxes.
(a) Subject to subsection 3.01(f), any and all payments by either
or both Companies to each Bank or the Agent under this Agreement shall be
made free and clear of, and without deduction or withholding for, (i) any and
all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, and (ii) any present
or future stamp or documentary taxes or any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or from
the execution, delivery or registration of, or otherwise with respect to,
this Agreement or any other Loan Document, excluding, from both clause (i)
and clause (ii), such taxes as are imposed by reason of a present or former
connection between the jurisdiction imposing such tax and such Bank or the
Agent, other than a connection arising solely from the Agent or such Bank
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or any other Loan Document (all such non-
excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes").
(b) If either of the Companies fails to pay any Taxes when due
under subsection 3.01(a) or fails to furnish receipts required under
subsection 3.01(d), the Companies shall indemnify and hold harmless each Bank
and the Agent for the full amount of Taxes (including any Taxes imposed by
any jurisdiction on amounts payable under this Section 3.01) paid by the Bank
or the Agent and any liability (including penalties, interest, additions to
tax and expenses) arising therefrom or with respect thereto, whether or not
such Taxes were correctly or legally asserted. Payment under this
indemnification shall be made within 30 days from the date the Bank or the
Agent makes written demand therefor.
(c) If either or both of the Companies shall be required by law
to deduct or withhold any amounts from or in respect of any sum payable
hereunder to any Bank or the Agent, and such amounts are Taxes subject to
payment without deduction or withholding under subsection 3.01(a), 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 3.01) such Bank or the Agent,
as the case may be, receives an amount equal to the sum it would have
received had no such deductions been made;
(ii) the Company or Companies, as appropriate, shall make
such deductions (but without duplications); and
(iii) the Company or Companies, as appropriate, shall pay the
full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law.
(d) Within 30 days after the date of any payment by the Company
or Companies of Taxes, or, if later, the date such documents are made
available to the Company or Companies by the relevant authorities upon prompt
demand therefor, the Company or Companies shall furnish to the Agent the
original or a certified copy of a receipt evidencing payment thereof, or
other evidence of payment satisfactory to the Agent.
(e) Each Bank which is not incorporated under the laws of the
United States of America or a state thereof agrees that:
(i) it shall, no later than the Effective Date (or, in the
case of a Bank which becomes a party hereto after the Effective Date,
the date upon which the Bank becomes a party hereto) deliver to the
Companies through the Agent two accurate and complete signed originals
of Internal Revenue Service Form 4224 or any successor thereto
("Form 4224"), or two accurate and complete signed originals of Internal
Revenue Service Form 1001 or any successor thereto ("Form 1001"), as
appropriate, in each case certifying that the Bank is on the date of
delivery thereof entitled to receive payments of principal, interest and
fees under this Agreement free from withholding of United States Federal
income tax, and one accurate and complete signed original of Internal
Revenue Service Form W-8 or W-9 or successor applicable form, as
appropriate, certifying that it is entitled to an exemption from United
States backup withholding;
(ii) if at any time the Bank makes any changes necessitating
a new Form 4224 or Form 1001, it shall with reasonable promptness
deliver to the Companies through the Agent in replacement for, or in
addition to, the forms previously delivered by it hereunder, two
accurate and complete signed originals of Form 4224, or two accurate and
complete signed originals of Form 1001, as appropriate, in each case
certifying that the Bank is on the date of delivery thereof entitled to
receive payments of principal, interest and fees under this Agreement
free from withholding of United States Federal income tax, and one
accurate and complete signed original of Internal Revenue Form W-8 or
W-9 or successor applicable form as appropriate, certifying that it is
entitled to an exemption from United States backup withholding;
(iii) it shall, before or promptly after the occurrence of
any event (including the passing of time but excluding any event
mentioned in (ii) above) requiring a change in or renewal of the most
recent Form 4224 or Form 1001 or Form W-8 or W-9 previously delivered by
such Bank, deliver to the Companies through the Agent two accurate and
complete original signed copies of Form 4224 or Form 1001, and one
accurate and complete original signed copy of Form W-8 or W-9 in
replacement for the forms previously delivered by the Bank; and
(iv) it shall, promptly upon either Company's reasonable
request to that effect, deliver to the Company such other forms or
similar documentation as may be required from time to time by any
applicable law, treaty, rule or regulation in order to establish such
Bank's tax status for withholding purposes.
(f) The Companies will not be required to pay any additional
amounts in respect of subsection 3.01(a) to any Bank or the Agent:
(i) if the obligation to pay such additional amounts would
not have arisen but for a failure by such Bank to comply with its
obligations under subsection 3.01(e);
(ii) if such Bank shall have delivered to the Companies a
Form 4224 pursuant to subsection 3.01(e), and such Bank shall not at any
time be entitled to exemption from deduction or withholding of United
States Federal income tax in respect of payments by the Companies
hereunder for any reason other than a change in United States law or
regulations or in the official interpretation of such law or regulations
by any Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form 4224;
(iii) if such Bank shall have delivered to the Companies a
Form 1001 pursuant to subsection 3.01(e), and such Bank shall not at any
time be entitled to exemption from deduction or withholding of United
States Federal income tax in respect of payments by the Companies
hereunder for any reason other than a change in United States law or
regulations or any applicable tax treaty or regulations or in the
official interpretation of any such law, treaty or regulations by any
Governmental Authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the date of
delivery of such Form 1001; or
(iv) if such Bank shall have delivered to the Companies a
Form W-8 or W-9, and such Bank shall not at any time be entitled to an
exemption from United States backup withholding in respect of payments
by the Companies hereunder for any reason other than a change in United
States law or regulations or any applicable tax treaty or regulations or
in the official interpretation of any such law, treaty or regulations by
any Governmental Authority charged with the interpretation or
administration thereof (whether or not having the force of law) after
the date of delivery of such Form W-8 or W-9.
(g) If, at any time, either Company requests any Bank to deliver
any forms or other documentation pursuant to subsection 3.01(e)(iv), then the
Companies shall, on demand of such Bank through the Agent, reimburse such
Bank for any costs and expenses (including the fees and expenses of any law
firm or other external counsel, the allocated cost of internal legal services
and all disbursements of internal counsel) reasonably incurred by such Bank
in the preparation or delivery of such forms or other documentation.
(h) If either or both Companies are required to pay additional
amounts to any Bank or the Agent pursuant to this Section 3.01, then such
Bank or the Agent, as the case may be, shall use its reasonable best efforts
(consistent with legal and regulatory restrictions) to change the
jurisdiction of its Lending Office or take any other reasonable action so as
to eliminate any such additional payment by such Company or Companies which
may thereafter accrue if such change, in the reasonable judgment of such
Bank, is not otherwise materially disadvantageous to such Bank or the Agent.
3.02 Illegality.
(a) Except with respect to those tax matters which are covered by
Section 3.01, if any Bank shall determine that the introduction of any
Requirement of Law, or any change in any Requirement of Law or in the
interpretation or administration thereof, has made it unlawful, or that any
central bank or other Governmental Authority has asserted that it is
unlawful, for any Bank or its Lending Office to make Offshore Rate Loans,
then, on notice thereof by the Bank to the Companies through the Agent, the
obligation of that Bank to make Offshore Rate Loans shall be suspended until
the Bank shall have notified the Agent and the Companies that the
circumstances giving rise to such determination no longer exists.
(b) If a Bank shall determine that it is unlawful to maintain any
Offshore Rate Loan, the Companies shall prepay in full all Offshore Rate
Loans of that Bank then outstanding, together with interest accrued thereon,
either on the last day of the Interest Period thereof if the Bank may
lawfully continue to maintain such Offshore Rate Loans to such day, or
immediately, if the Bank may not lawfully continue to maintain such Offshore
Rate Loans, together with any amounts required to be paid in connection
therewith pursuant to Section 3.04.
(c) If the Companies are required to prepay any Offshore Rate
Loan immediately as provided in subsection 3.02(b), then concurrently with
such prepayment, the Companies shall borrow from the affected Bank, in the
amount of such repayment, a Reference Rate Loan.
3.03 Increased Costs and Reduction of Return.
(a) If any Bank shall determine that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation after January 1, 1994, or (ii) the compliance with any guideline
or request from any central bank or other Governmental Authority (whether or
not having the force of law) promulgated after January 1, 1994, there shall
be any increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any Offshore Rate Loans or CD Rate Loans, then the
Companies shall be liable for, and shall from time to time, upon request
therefor by such Bank (with a copy of such request to the Agent), pay to the
Agent for the account of such Bank, additional amounts as are sufficient to
compensate such Bank for such increased costs.
(b) If any Bank shall have determined that (i) the introduction
of any Capital Adequacy Regulation, (ii) any change in any Capital Adequacy
Regulation, (iii) any change in the interpretation or administration of any
Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by the Bank (or its Lending Office) or any corporation controlling
the Bank, with any Capital Adequacy Regulation; affects or would affect the
amount of capital required or expected to be maintained by the Bank or any
corporation controlling the Bank and (taking into consideration such Bank's
or such corporation's policies with respect to capital adequacy and such
Bank's desired return on capital) determines that the amount of such capital
is increased as a consequence of its loans, credits or obligations under this
Agreement, then, upon request of such Bank (with a copy to the Agent), the
Companies shall immediately pay to the Bank, from time to time as specified
by the Bank, additional amounts sufficient to compensate the Bank for such
increase.
3.04 Funding Losses. The Companies agree to reimburse each Bank and to
hold each Bank harmless from any loss, cost or expense which the Bank may
sustain or incur as a consequence of:
(a) any failure of the Companies to make any payment or
prepayment of principal of any Offshore Rate Loan or CD Rate Loan (including
payments made after any acceleration thereof);
(b) any failure of the Companies to borrow, continue or convert
a Loan after the Companies have given (or are deemed to have given) a Notice
of Borrowing or a Notice of Conversion/Continuation;
(c) any failure of the Companies to make any prepayment after the
Companies have given a notice in accordance with Section 2.06;
(d) any prepayment of an Offshore Rate Loan or a CD Rate Loan on
a day which is not the last day of the Interest Period with respect thereto;
or
(e) any conversion pursuant to subsection 2.04 of any Offshore
Rate Loan or CD Rate Loan to a Reference Rate Loan on a day that is not the
last day of the respective Interest Period;
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate Loans or
CD Rate Loans hereunder or from fees payable to terminate the deposits from
which such funds were obtained.
3.05 Inability to Determine Rates. If the Majority Banks shall have
determined that for any reason adequate and reasonable means do not exist for
ascertaining the Offshore Rate or the CD Rate for any requested Interest
Period with respect to a proposed Offshore Rate Loan or CD Rate Loan or that
the Offshore Rate or the CD Rate applicable pursuant to Section 2.08 for any
requested Interest Period with respect to a proposed Offshore Rate Loan or CD
Rate Loan does not adequately and fairly reflect the cost to the Banks of
funding such Loan, the Agent will forthwith give notice of such determination
to the Companies and each Bank. Thereafter, the obligation of the Banks to
make or maintain CD Rate Loans or Offshore Rate Loans, as the case may be,
hereunder shall be suspended until the Agent upon the instruction of the
Majority Banks revokes such notice in writing. Upon receipt of such notice,
the Companies may revoke any Notice of Borrowing or Notice of Conversion/
Continuation then submitted by them. If the Companies do not revoke such
notice, the Banks shall make, convert or continue the Loans, as proposed by
the Companies, in the amount specified in the applicable notice submitted by
the Companies, but such Loans shall be made, converted or continued as
Reference Rate Loans instead of CD Rate Loans or Offshore Rate Loans, as the
case may be.
3.06 Reserves on Offshore Rate Loans. The Companies shall pay to each
Bank, as long as such Bank shall be required under regulations of the Federal
Reserve Board to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known as
"Eurocurrency liabilities"), additional costs on the unpaid principal amount
of each Offshore Rate Loan equal to actual costs of such reserves allocated
to such Loan by the Bank (as determined by the Bank in good faith, which
determination shall be conclusive), payable on each date on which interest is
payable on such Loan provided the Companies shall have received at least 15
days' prior written notice (with a copy to the Agent) of such additional
interest from the Bank. If a Bank fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be payable 15
days from receipt of such notice.
3.07 Certificates of Banks. Any Bank claiming reimbursement or
compensation pursuant to this Article III shall deliver to the Companies
(with a copy to the Agent) a certificate setting forth in reasonable detail
the amount payable to the Bank hereunder and such certificate shall be
conclusive and binding on the Companies in the absence of manifest error.
Each certificate submitted under this Section may not claim reimbursement or
compensation for a period earlier than 30 days prior to the date of such
certificate unless interpretation of the law or regulation or the guideline
or request in question is retroactive in effect in which case the certificate
can cover such retroactive period.
3.08 Replacement of Banks, Termination of Commitment. The Companies
may, with respect to any Bank which claims reimbursement or compensation
pursuant to Sections 3.01 or 3.03, or which exercises its right under Section
3.02 to refrain from making Offshore Rate Loans, upon at least 30 Business
Days prior written notice to such Bank through Agent, terminate the
commitment of such Bank to lend under this Agreement. Each such termination
shall be accompanied by payment or prepayment in full, on the effective date
of such termination, of principal and interest on all outstanding Loans made
by such Bank, together with all other sums due such Bank by reason of
prepayment.
3.09 Reallocation of Commitments; New Banks.
(a) If a Bank's commitment to lend under this Agreement
terminates pursuant to subsection 2.01(c) or if the Companies terminate the
Commitments of any Bank (in both instances, a "Terminated Bank") pursuant to
Section 3.08, then the Companies may, but need not, during the Availability
Period, (i) add, with the Agent's consent, which shall not be unreasonably
withheld, one or more commercial banking institutions ("New Banks") which
agree to extend credit under this Agreement in amounts up to the Commitment
of the Terminated Bank, (ii) reallocate all or part of the Terminated Bank's
Commitment among one or more of the remaining Banks with the consent of such
remaining Bank or Banks, or (iii) exercise its rights under both clause (i)
and (ii).
(b) If the Companies add one or more New Banks, the Companies,
the Agent and each New Bank shall execute a counterpart of this Agreement,
whereupon, effective as of such date as may be agreed, such New Bank shall
become a "Bank" for all purposes under this Agreement. The Companies shall,
no later than the effective date of such substitution, execute and deliver to
such New Bank requesting it, a Note evidencing the Commitment of such New
Bank.
(c) In the event of any termination of a Bank Commitment, or of
the addition of a New Bank or reallocation to any of the remaining Banks of
a Terminated Bank's Commitment, calculation adjustments shall be made to the
definition of each Bank's Commitment Percentage and of the Aggregate
Commitment, if applicable, in order to give effect to the termination of the
Commitment of the Terminated Bank, and to the addition of a New Bank or the
reallocation of the Terminated Bank's Commitment to any remaining Bank. On
each date on which a Terminated Bank's Loans are prepaid in connection with
the termination of such Bank's Commitment in accordance with Section 3.08,
the Companies may simultaneously make borrowings from any New Bank or from
any remaining Bank which elected to increase its Commitment as provided
above. Such borrowings will be in amounts so that ratio of (i) the total
outstanding principal amount of Loans owing to each Bank to (ii) such Bank's
Commitment, will be the same for all Banks having Commitments.
3.10 Nonapplicability of Article III. The Companies shall have no
obligation to make any payment pursuant to this Article III to any Bank
Affiliate to which the respective Bank has assigned and delegated all or part
of the Loans, the commitment to make Loans, and the other rights and
obligations of such Bank hereunder if such payment is not required to be made
to such Bank if at the time of such payment such Bank has retained a portion
of the Loans, or if at the time of such payment such Bank has not retained a
portion of the Loans, such payment would not have been required under this
Article III to have been made to such Bank.
3.11 Survival. The agreements and obligations of the Companies in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
--------------------
4.01 Conditions of Initial Loans. The effectiveness of this Agreement
and the obligation of each Bank to make its first Loan hereunder is subject
to the condition that, the Agent shall have received on or before the
Effective Date all of the following, in form and substance satisfactory to
the Agent and in sufficient copies for Agent and each Bank:
(a) Credit Agreement and Notes. This Agreement executed by the
Companies, the Agent and each of the Banks and the requested Notes executed
by the Companies;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of
the Companies (or authorized committees thereof) approving and
authorizing the execution, delivery, and performance by the Companies of
this Agreement and the other Loan Documents, and authorizing the
borrowing of the Loans, certified as of the Effective Date by the
Secretary or an Assistant Secretary of the Companies substantially in
the form of Exhibit D;
(ii) A certificate of the Secretary or Assistant Secretary
of each Company certifying, as of the Effective Date, the names and true
signatures of the officers of the Company authorized to execute and
deliver, as applicable, this Agreement, and all other Loan Documents to
be delivered hereunder, substantially in the form of Exhibit E;
(c) Payment of Fees. The Companies shall have paid the commitment
fee accrued through the Effective Date, which commitment fee is referred to
in Section 2.09(b) of the Prior Credit Agreement, all other sums due under
the Prior Credit Agreement, and all costs, accrued and unpaid fees and
expenses payable hereunder to the extent then due and payable on the
Effective Date.
4.02 Conditions to Each Borrowing. The obligation of each Bank to make
any Loan to be made by it hereunder (including its initial Loan) is subject
to the satisfaction of the following conditions precedent on the date of such
Borrowing:
(a) Notice of Borrowing. The Agent shall have received a Notice
of Borrowing;
(b) Continuation of Representations and Warranties. The
representations and warranties made by the Companies contained in Article V
shall be true and correct in all material respects on and as of such
borrowing date with the same effect as if made on and as of such borrowing
date (except to the extent such representations and warranties expressly
refer to an earlier date, in which case they shall be true and correct in all
material respects as of such earlier date); and
(c) No Existing Default. No Default or Event of Default shall
exist or shall result from such Borrowing.
Each oral request made by a Company for a Borrowing or a conversion or
continuation of Loans and each Notice of Borrowing submitted by the Companies
hereunder shall constitute a representation and warranty by both Companies
hereunder, as of the date of each such request, notice, and Borrowing, that
the conditions in Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
------------------------------
Each Company represents and warrants to the Agent and each Bank that:
5.01 Organization, Powers, Good Standing and Business.
(a) Organization and Powers. Each Company is a corporation duly
organized, validly existing and in good standing under the laws of the State
of Delaware and has all requisite corporate power and authority to own and
operate its properties, to carry on its business as now conducted and
proposed to be conducted, to enter into each Loan Document, to issue the
Notes and to carry out the transactions contemplated hereby and thereby.
(b) Good Standing. Each Company is duly qualified to do business
and is in good standing wherever necessary to carry on its respective present
business and operations, except in jurisdictions in which the failure to be
so qualified or to be in good standing has not had and will not have a
Material Adverse Effect.
(c) Conduct of Business. LSAI and its Subsidiaries, considered
together, are engaged only in businesses related or incidental to the
manufacture and sale of clothing.
5.02 Authorization of Borrowing, etc.
(a) Authorization of Borrowing. The execution, delivery and
performance by each of the Companies of each Loan Document to which it is a
party and the issuance, delivery and payment of the Notes by the Companies as
contemplated herein have been duly authorized by all necessary corporate
action by the Companies.
(b) No Conflict. The execution, delivery and performance by the
Companies of each Loan Document to which it is a party and the issuance,
delivery and performance of the Notes by the Companies do not and will not
(i) violate the Companies' Certificates of Incorporation or Bylaws or any
order, judgment or decree of any court or other Governmental Authority
binding on the Companies, (ii) conflict with, result in a breach of,
constitute a default under, or require the termination of, any Contractual
Obligation of the Companies, except where such conflicts, breaches, defaults
and terminations, in the aggregate, would not have a Material Adverse Effect,
(iii) result in or require the creation or imposition of any Lien of any
nature whatsoever upon any of the properties or assets of either of the
Companies, or (iv) require any approval of stockholders or any approval or
consent of any Person under any Contractual Obligation of the Companies
except for such approvals or consents which will be obtained on or before the
Effective Date or where the failure to obtain such approvals and consents
would not, in the aggregate, have a Material Adverse Effect.
(c) Governmental Consents. The execution, delivery and
performance by the Companies of the Loan Documents, the application of the
proceeds of the Loans and the issuance, delivery and performance of the Notes
by the Companies do not and will not require any registration with, consent
or approval of, or notice to, or other action to, with or by, any
Governmental Authority except actions which are required due to a change in
applicable law after the date hereof and which have been or will be duly
taken within the time period prescribed by any such law.
(d) Binding Obligation. Each of the Loan Documents (other than
the Notes) to which the Companies are parties is, and the Notes, when
executed and delivered, will be, the legally valid and binding obligations of
each Company that is a party thereto, enforceable against each Company in
accordance with its terms, except as enforcement may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating
to or limiting creditors' rights generally or by equitable principles
relating to enforceability, whether enforcement is sought in a proceeding at
law or in equity.
5.03 Financial Condition. LSAI has heretofore delivered to the Agent
the audited consolidated financial statements of LSAI and its Subsidiaries as
and for the period ending November 27, 1994. The foregoing financial
statements were prepared in conformity with GAAP, and fairly present, in all
material respects, the consolidated financial position of LSAI and its
Subsidiaries as of the date thereof and the consolidated results of
operations and cash flows of LSAI and its Subsidiaries for the period covered
thereby. As of the date hereof, LSAI and its Subsidiaries, taken as a whole,
have no material contingent obligation, contingent liability or liability for
taxes, long-term lease or unusual forward or long-term commitment, which is
not reflected in the foregoing financial statements, the notes thereto, or
the most recent financial statements delivered pursuant to Section 6.01 (if
any), and which is required by GAAP to be reflected therein.
5.04 Title to Properties; Liens. Each of LSAI and its Subsidiaries has
good, sufficient and legal title to all of its respective properties and
assets reflected in the balance sheets referred to in Section 5.03 or in the
most recent financial statements delivered pursuant to Section 6.01 (if any),
except for assets acquired or disposed of in the ordinary course of business
since the date of such balance sheet and assets disposed of where such
disposition would not be prohibited by Section 7.02 of this Agreement and
except for those imperfections of title which would not in the aggregate have
a Material Adverse Effect. Except as permitted hereunder, all such
properties and assets are free and clear of Liens.
5.05 Litigation; Adverse Facts. Except as to any confidential
governmental proceeding of which the Companies are unaware, there is no
action, suit, proceeding, claim or dispute (whether or not purportedly on
behalf of the Companies) at law or in equity or before or by any Governmental
Authority, pending or, to the knowledge of the Companies, threatened in
writing against or affecting LSAI or any of its Subsidiaries or any property
of LSAI or any of its Subsidiaries, which the Companies reasonably expect to
(a) result in any Material Adverse Effect, or (b) materially and adversely
affect the ability of the Companies, taken as a whole, to perform the
Obligations or the ability of the Banks to enforce the Obligations. Neither
LSAI nor any of its Subsidiaries is (i) in violation of any applicable
Requirement of Law which (as to all such violations in the aggregate) would
have a Material Adverse Effect, or (ii) subject to or in default with respect
to any final judgment, writ, injunction, decree, rule or regulation of any
Governmental Authority, domestic or foreign, which (as to all such matters in
the aggregate) would have a Material Adverse Effect. There is no action,
suit or proceeding pending or, to the knowledge of the Companies, threatened
in writing against or affecting the Companies which challenges the validity
or the enforceability of this Agreement, the Notes or the other Loan
Documents.
5.06 Payment of Taxes. All federal and state tax returns and reports
of LSAI and each of its Subsidiaries required to be filed by such Person,
where the failure to file such returns or reports would have a Material
Adverse Effect, have been timely filed, and all taxes, assessments, fees and
other governmental charges upon such Persons and upon their respective
properties, assets, income and franchises which are due and payable, where
the failure to pay such amounts when due and payable would in the aggregate
have a Material Adverse Effect, have been paid when due and payable. The
Companies know of no proposed tax assessment against LSAI or any of its
Subsidiaries that would have a Material Adverse Effect which is not being
actively contested in good faith by the applicable corporation to the extent
affected thereby (and as to which any provision therefor required pursuant to
Section 6.04 has been made).
5.07 Materially Adverse Agreements; Performance.
(a) Agreements. Neither LSAI nor any of its Subsidiaries is a
party to or subject to any material agreement or instrument or charter or
other internal restriction which (in the aggregate as to all such matters)
would have a Material Adverse Effect.
(b) Performance. Neither LSAI nor any of its Subsidiaries is in
default in the performance, observance or fulfillment of any of the
obligations, covenants or conditions contained in any Contractual Obligation
of LSAI or any of its Subsidiaries and no condition exists which, with the
giving of notice or the lapse of time or both, would constitute such a
default, except where the consequences, direct or indirect, of such default
or defaults, if any, would not have a Material Adverse Effect.
5.08 Governmental Regulation. Neither LSAI nor any of its Subsidiaries
is subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act, the Investment
Company Act of 1940, any state public utilities code or to any federal or
state statute or regulation limiting its ability to incur Indebtedness for
money borrowed.
5.09 Employee Benefit Plans.
(a) The Companies and each of their respective ERISA Affiliates
are in compliance in all material respects with any applicable provisions of
ERISA and the regulations and published interpretations thereunder with
respect to all Pension Plans and Multiemployer Plans, except for non-
compliance which would not have a Material Adverse Effect.
(b) No Termination Event has occurred or is reasonably expected
to occur with respect to any Pension Plan.
(c) There is no amount of unfunded benefit liabilities (within
the meaning of Section 4001(a)(18) of ERISA) with respect to any Pension
Plan, which amount or the payment thereof would have a Material Adverse
Effect.
(d) Neither the Companies nor any of their ERISA Affiliates has
incurred or reasonably expects to incur any withdrawal liability under
Title IV of ERISA to any Multiemployer Plan in excess of $7,000,000.
5.10 Environmental Matters. Except where the failure of any of the
following to be true would not in the aggregate have a Material Adverse
Effect, to the best knowledge of the Companies, (i) the properties and opera-
tions of LSAI and its Subsidiaries comply in all respects with all applicable
Environmental Laws; (ii) none of the properties or operations of LSAI or any
of its Subsidiaries is subject to any judicial or administrative proceeding
alleging the violation of any Environmental Law; (iii) none of the properties
or operations of LSAI or any of its Subsidiaries is the subject of any fed-
eral or state investigation concerning any use or release of any Hazardous
Substance; (iv) none of LSAI, any of LSAI's Subsidiaries, or any predecessor
of any such Person has filed any notice under any federal or state law
indicating past or present treatment, storage or disposal of a hazardous
waste or reporting a spill or release of a Hazardous Substance into the
environment; (v) none of LSAI nor any of its Subsidiaries has any contingent
obligation in connection with any release of any Hazardous Substance into the
environment and no release which could require remediation has occurred;
(vi) none of LSAI's nor any of its Subsidiaries' operations involve the
generation, transportation, treatment, storage or disposal of Hazardous
Substances (other than in the normal course of and incidental to any
manufacturing process); (vii) none of LSAI nor any of its Subsidiaries has
disposed of any material amount of any Hazardous Substance in, on or about
any premises owned, leased or used by LSAI or any of its Subsidiaries nor has
any lessee, prior owner or other Person; (viii) no surface impoundments or
underground storage tanks are located in, on or about any of the premises
owned, leased or used by LSAI or any of its Subsidiaries; and (ix) no lien in
favor of any Governmental Authority for (A) any liability under Environmental
Laws, or (B) damages arising from or costs incurred by such Governmental
Authority in response to a release of any Hazardous Substance into the
environment has been filed or attached to any of the premises owned, leased
or used by LSAI or any of its Subsidiaries.
5.11 Compliance With Laws. Each of LSAI and its Subsidiaries is in
compliance with all Requirements of Law applicable to their properties,
assets and business where the failure to so comply would (as to all such
failures to comply in the aggregate) have a Material Adverse Effect. There
are no proceedings pending or, to the knowledge of the Companies, threatened
in writing, to terminate or modify any license, permit or other approval
issued by a Governmental Authority, the termination or modification of which
(in the aggregate as to all such matters) would have a Material Adverse
Effect.
5.12 Regulation U. None of LSAI nor any of its Subsidiaries is engaged
principally, nor as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying any Margin Stock.
No part of the proceeds of the Loans will be used to purchase or carry any
Margin Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock. No part of the proceeds of the Loans will be used
for any purpose which violates, or which is inconsistent with, the provisions
of Regulation G, T, U or X of the Federal Reserve Board.
5.13 Disclosure. No representation or warranty of the Companies
contained in this Agreement or any other document, certificate or written
statement furnished to the Agent or any Bank by the Companies for use in
connection with any transactions contemplated by this Agreement contains or
will contain any untrue statement of a material fact or omits to state or
will omit to state a material fact known to the Companies necessary in order
to make the statements contained herein or therein, in light of the
circumstances under which they were made, not misleading. The projections
and pro forma information, together with any notes relating thereto,
contained in such materials are based upon good faith estimates and
assumptions believed by the Companies to be reasonable at the time made, it
being recognized by the Agent and the Banks that actual results during the
period or periods covered by any such projections may differ from the
projected results.
5.14 No Material Adverse Effect. To the knowledge of the Responsible
Officers of each Company, since November 27, 1994, there has been no event or
occurrence which has had a Material Adverse Effect.
ARTICLE VI
AFFIRMATIVE COVENANTS
---------------------
The Companies jointly and severally covenant and agree that, so long as
any Bank shall have any commitment to lend under this Agreement and until
full and final payment of all Loans and other Obligations, unless the
Majority Banks waive compliance in writing the Companies shall perform and
comply with all covenants in this Article.
6.01 Financial Statements and Other Reports.
(a) Each of the Companies shall maintain a system of accounting
established and administered in accordance with sound business practices to
permit preparation of financial statements in conformity with GAAP. Subject
to the second sentence of subsection (b) below, the Companies shall deliver
to the Agent with sufficient copies for each Bank:
(i) as soon as practicable and in any event within
45 days after the end of each of the first three fiscal quarters of
the fiscal year of LSAI, a copy of the consolidated balance sheet
of LSAI and its Subsidiaries, as at the end of such period, and the
related consolidated statements of income and cash flows of LSAI
and its Subsidiaries for such fiscal quarter or for the fiscal year
to date, certified by the chief financial officer, treasurer or
controller of LSAI as fairly presenting the financial condition of
LSAI and its Subsidiaries in all material respects as at the dates
indicated and the results of their operations and changes in cash
flows for the periods indicated in accordance with GAAP, except for
the absence of footnotes and subject to changes resulting from
audit and normal year-end adjustment;
(ii) as soon as practicable and in any event within
90 days after the end of each fiscal year of LSAI, commencing with
fiscal year 1995, a copy of the consolidated balance sheet of LSAI
and its Subsidiaries as at the end of such year and the related
consolidated statements of income, stockholders' equity and cash
flows of LSAI and its Subsidiaries for such fiscal year,
accompanied by a report thereon of and a letter from Xxxxxx
Xxxxxxxx & Co. or other independent public accountants of
recognized national standing selected by LSAI and satisfactory to
the Majority Banks substantially in the form of Exhibit F; which
report shall be unqualified as to going concern and scope of audit
and shall state that such consolidated financial statements present
fairly in all material respects the financial position of LSAI and
its Subsidiaries as at the dates indicated and the results of
operations and cash flows for the periods indicated in conformity
with GAAP (except as otherwise stated therein) and that the
examination by such accountants in connection with such
consolidated financial statements has been made in accordance with
generally accepted auditing standards;
(iii) together with each delivery of any financial
statements pursuant to subsections 6.01(a)(i) or 6.01(a)(ii) a
compliance certificate, substantially in the form of Exhibit G,
from each of the Companies executed by a Responsible Officer,
stating that the signer does not have knowledge of the existence as
at the date of such certificate, of any condition or event which
constitutes a Default or Event of Default, or, if any such
condition or event existed at such date or exists, specifying the
nature and period of existence thereof and what action LSAI or
LS&CO., as the case may be, has taken, is taking and proposes to
take with respect thereto, and demonstrating in reasonable detail
compliance during or at the end of such accounting periods, as
applicable, with Sections 7.04 and 7.05; and
(iv) promptly upon any Responsible Officer of either of
the Companies obtaining knowledge of (A) any condition or event
which constitutes a Default or Event of Default, or becoming aware
that any Bank has given any written notice of a claimed Default or
Event of Default, or (B) any condition or event which would be
required to be disclosed in a current report filed by the Companies
with the SEC on Form 8-K pursuant to Items 1, 2, 4 or 5 of Form 8-K
as in effect on the date hereof if the Companies were required to
file such reports under the Exchange Act, a certificate executed by
a Responsible Officer of the Company specifying the nature and
period of existence of any such condition or event, or specifying
the notice given or action taken, and the nature of such claimed
Default or Event of Default, event or condition, and what action
either or both Companies have taken, are taking, and propose to
take with respect thereto;
(v) promptly upon any Responsible Officer of either of
the Companies obtaining knowledge of (A) the institution of, or
non-frivolous threat of, any action, suit, proceeding or
arbitration against or affecting LSAI or any of its Subsidiaries or
any property of LSAI or any of its Subsidiaries not previously
disclosed in writing by the Companies to the Agent, or (B) any
material development in any action, suit, proceeding or arbitration
already disclosed, and in each case the Companies reasonably expect
such institution, threat, or material development to result in any
Material Adverse Effect or materially and adversely to affect the
ability of the Companies and their Subsidiaries, taken as a whole,
to perform the Obligations or the ability of the Banks to enforce
the Obligations, the Companies shall promptly give notice thereof
to the Agent and provide such other information (excluding
communications covered by the attorney-client privilege) as may be
reasonably requested by the Agent or a Bank to enable their counsel
to evaluate such matters;
(vi) promptly upon any Responsible Officer of either of
the Companies becoming aware of the occurrence of any
(A) Termination Event, or (B) material "prohibited transaction," as
such term is defined in Section 4975 of the Code, in
connection with any Pension Plan or any trust created thereunder,
a notice specifying the nature thereof, what action LSAI or any
ERISA Affiliate of LSAI, as applicable, has taken, is taking or
proposes to take with respect thereto, and, when known, any action
taken or threatened by the Internal Revenue Service or the PBGC
with respect thereto; and
(vii) with reasonable promptness copies of (A) all
notices received by LSAI or any of its ERISA Affiliates of the
intent of the PBGC to terminate any Pension Plan or to have a
trustee appointed to administer any Pension Plan; (B) upon the
request of any Bank, each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) filed by LSAI or any of its ERISA
Affiliates with the Internal Revenue Service with respect to each
Pension Plan; and (C) all notices received by LSAI or any of its
ERISA Affiliates from a Multiemployer Plan sponsor concerning the
imposition or amount of withdrawal liability pursuant to
Section 4202 of ERISA.
(b) As soon as possible after the same are available to the
Companies, the Companies will deliver to the Agent with sufficient copies for
distribution to each Bank copies of all financial statements, reports,
notices and proxy statements, if any, sent or made available generally by
each Company to its stockholders, of all regular and periodic reports and
other filings made by either Company with any securities exchange, the SEC or
any other governmental or private regulatory authority, and of all press
releases and other statements made available generally by either Company to
the public concerning material developments in the business of LSAI and its
Subsidiaries taken as a whole. As to any information contained in materials
furnished pursuant to the preceding sentence, the Companies shall not be
separately required to furnish such information under subsection (a) above,
but the foregoing shall not derogate the obligation of the Companies to
furnish the information and materials described in subsection (a) above at
the times specified therein.
6.02 Corporate Existence, etc. The Companies shall at all times
preserve and keep in full force and effect their corporate existence and
rights and franchises material to their business and the business of each of
their Subsidiaries, except where the failure to do so would not in the
aggregate have a Material Adverse Effect.
6.03 Compliance With Laws, etc. The Companies shall exercise all due
diligence in order to comply with the requirements of all applicable
Requirement of Law, except where the failure to do so would not in the
aggregate have a Material Adverse Effect.
6.04 Payment of Taxes and Claims. The Companies shall pay, and cause
each of their Subsidiaries to pay, all taxes, assessments and other
governmental charges (other than taxes, assessments and other governmental
charges not exceeding $5,000,000 in the aggregate) imposed upon them or any
of their properties or assets or in respect of any of their franchises,
business, income or property before any penalty or interest accrues thereon,
and all claims (including, without limitation, claims for labor, services,
materials and supplies) for sums (other than claims not exceeding $5,000,000
in the aggregate) which have become due and payable and which by law have or
may become a Lien upon any of their properties or assets, prior to the time
when any penalty or fine shall be incurred with respect thereto; provided
that no such governmental charge or claim need be paid if it is being
contested in good faith by appropriate proceedings and if such reserve or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor.
6.05 Maintenance of Properties; Insurance. The Companies shall
maintain or cause to be maintained in good repair, working order and
condition all properties used or useful in the business of LSAI and its
Subsidiaries and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof, if the failure to
perform such actions would in the aggregate have a Material Adverse Effect.
The Companies shall maintain or cause to be maintained, through self-
insurance or with financially sound and reputable insurers, insurance with
respect to their properties and business and the properties and business of
their Subsidiaries against loss or damage of the kinds customarily insured
against by corporations of established reputation engaged in the same or
similar businesses and similarly situated, of such types and in such amounts
as are customarily carried under similar circumstances by such other
corporations, if the failure to do so would (as to all such failures in the
aggregate) have a Material Adverse Effect.
6.06 Inspection. The Companies shall permit any authorized
representatives designated by a Bank, at the expense of that Bank, to visit
and inspect any of the properties of the Companies or any of their
Subsidiaries, including their financial and accounting records, and to make
copies and take extracts therefrom, and to discuss their affairs, finances
and accounts with their officers and independent public accountants, all upon
reasonable notice and at such reasonable times during normal business hours
and as often as may be reasonably requested.
6.07 Use of Proceeds. The Companies shall use the proceeds of the
Loans solely as follows: (a) to repay sums outstanding under the Prior
Credit Agreement, and (b) for working capital and other general corporate
purposes not in contravention of any applicable Requirement of Law.
6.08 Opinions of Counsel. The Companies shall, within the 90 day
period commencing on the date of this Agreement, deliver to the Agent, in
sufficient number of copies for each Bank:
(a) Legal Opinion of Outside Counsel for the Companies. An
opinion of Heller, Ehrman, White & XxXxxxxxx, counsel to the Companies and
addressed to the Agent and the Banks, dated the date of its delivery, and in
form and substance acceptable to Majority Banks; and
(b) Opinion of General Counsel. An opinion of Xxxxxx X. Xxxxx,
Esq., Senior Vice President and General Counsel of the Companies, addressed
to the Agent and the Banks, dated the date of its delivery, and in form and
substance acceptable to Majority Banks.
ARTICLE VII
NEGATIVE COVENANTS
------------------
The Companies jointly and severally covenant and agree that, so long as
any Bank shall have any commitment to lend under this Agreement and any Loan
or other Obligation shall remain unpaid or unsatisfied, unless the Majority
Banks waive compliance in writing the Companies shall perform and comply with
all covenants in this Article.
7.01 Limitation on Liens. The Companies shall not, and shall not
suffer or permit any Subsidiary of a Company to, directly or indirectly,
make, create, incur, assume or suffer to exist any Lien upon or with respect
to any part of its Property, whether now owned or hereafter acquired, other
than the following ("Permitted Liens"):
(a) any Lien existing on the Property of either Company or its
Subsidiaries on the Effective Date;
(b) Liens for taxes, fees, assessments or other governmental
charges which are not delinquent or remain payable without penalty, or to the
extent that non-payment thereof is permitted by Section 6.04;
(c) carriers', warehousemen's, mechanics', landlords',
materialmen's, repairmen's or other similar Liens arising in the ordinary
course of business which are not delinquent or remain payable without penalty
or which are being contested in good faith and by appropriate proceedings,
which proceedings have the effect of preventing the forfeiture or sale of the
Property subject thereto or if such reserve or other appropriate provision,
if any, required by GAAP shall have been made therefor;
(d) Liens (other than any Lien imposed by ERISA) consisting of
pledges or deposits required in the ordinary course of business in connection
with workers' compensation, unemployment insurance and other social security
legislation;
(e) Liens securing (i) the performance of tenders, bids, trade
contracts (other than for borrowed money), government contracts, leases,
statutory obligations, and performance and return-of-money bonds, (ii)
contingent obligations on surety and appeal bonds, and (iii) other
obligations of a like nature; in each case, incurred in the ordinary course
of business;
(f) Liens consisting of judgment or judicial attachment liens,
provided that the judgment secured by any such Lien shall, within 45 days
after the entry thereof, have been discharged or execution thereof stayed
pending appeal, or shall have been discharged within 45 days after the
expiration of any such stay and such Liens do not constitute an Event of
Default;
(g) easements, rights-of-way, restrictions and other similar
encumbrances which do not interfere with the ordinary conduct of the
businesses of either Company and its Subsidiaries;
(h) Liens on assets of entities which become Subsidiaries after
the date of this Agreement, provided, however, that such Liens existed at the
time the respective entities became Subsidiaries and were not created in
anticipation thereof;
(i) purchase money mortgages (including chattel mortgages) or
other purchase money liens or conditional sale or other title retention or
security agreements incurred in connection with the acquisition or
construction of any real or personal property, or mortgages or liens or
conditional sale or other title retention agreements or security agreements
existing on any such property at the time of acquisition or construction or
placed thereon within one year of the acquisition or completion of
construction thereof; provided that every such mortgage, lien or agreement
shall apply only to the property originally subject thereto and fixed
improvements, if any, then existing or thereafter erected thereon;
(j) any interest or title of a lessor under any capital or
operating lease;
(k) Liens arising solely by virtue of any statutory or common law
provision relating to banker's liens, rights of set-off or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Company, the Companies or the Subsidiary owning the affected
deposit account or other funds maintained with a creditor depository
institution in excess of those set forth by regulations promulgated by the
Federal Reserve Board, and (ii) such deposit account is not intended by the
affected Company or any of its Subsidiaries to provide collateral to the
depository institution;
(l) Leases or subleases granted to others in the ordinary course
of business not interfering with the ordinary conduct of the business of the
grantor thereof;
(m) Liens created pursuant to applications or reimbursement
agreements pertaining to documentary letters of credit which encumber
documents and other property relating to such documentary letters of credit
and the products and proceeds thereof;
(n) the extension, renewal or replacement of any Lien permitted
by this Section 7.01 in respect of all or part of the same property
theretofore subject thereto or the extension, renewal or replacement or all
or part of the Indebtedness secured thereby immediately prior to such
extension, renewal or replacement so long as the aggregate principal amount
of Indebtedness secured by all or any such property immediately prior to such
extension, renewal or replacement is not increased;
(o) Liens attaching to ownership interests in joint ventures
(whether in partnership, corporate or other form) engaged in the LOS/DOS
Business or attaching to intellectual property rights relating to the LOS/DOS
Business; and
(p) Liens which do not fall in any of the foregoing subsections
so long as the aggregate outstanding amount of Indebtedness secured by such
Liens does not exceed $25,000,000.
7.02 Consolidations and Mergers; Sale of Assets. The Companies shall
not:
(a) merge or consolidate with or into any other Person unless the
relevant Company is the surviving corporation and as a result of such merger
or consolidation there does not exist a Default or an Event of Default;
(b) convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) 90% or more of the assets of
LSAI and its Subsidiaries taken as a whole (whether now owned or hereafter
acquired) to or in favor of any Person.
7.03 Use of Proceeds. The Companies shall not use any portion of the
Loan proceeds, directly or indirectly, (i) to purchase or carry Margin Stock,
(ii) to repay or otherwise refinance indebtedness of a Company or others
incurred to purchase or carry Margin Stock, (iii) to extend credit for the
purpose of purchasing or carrying any Margin Stock, or (iv) to acquire any
security in any transaction that is subject to Section 13 or 14 of the
Exchange Act.
7.04 Funded Debt to EBITDA Ratio. The Companies shall not permit their
Funded Debt to EBITDA Ratio to be more than 2.00 to 1.00 at any time.
7.05 EBITDA to Interest Ratio. The Companies shall not permit their
EBITDA to Interest Ratio to be less than 5.00 to 1.00 at any time.
7.06 Deliberately left blank.
7.07 Change in Business. The Companies shall not, and shall not permit
any Subsidiary of a Company to, engage in any business not related or
incidental to the manufacture and sale of clothing. The LOS/DOS Business is
a business that is related or incidental to the manufacture and sale of
clothing within the meaning of the preceding sentence.
7.08 ERISA. Neither LSAI nor any of its Subsidiaries shall, or shall
permit any of its respective ERISA Affiliates to:
(a) engage in any transaction in connection with which LSAI or
any of its Subsidiaries or any of their respective ERISA Affiliates would be
subject to either a civil penalty assessed pursuant to Section 502(i) or
502(l) of ERISA or a tax imposed by Section 4975 of the Code, in either case
in an amount in excess of $5,000,000;
(b) fail to make full payment within five Business Days after the
date when due of all amounts exceeding $2,000,000 which, under the provisions
of any Pension Plan, LSAI or any of its Subsidiaries or any of their
respective ERISA Affiliates is required to pay as contributions thereto, or
(as to any Subsidiary organized under the laws of any of the United States)
permit to exist any accumulated funding deficiency, whether or not waived,
with respect to any Pension Plan in an aggregate amount greater than
$5,000,000;
(c) permit the sum of the amounts of unfunded benefit liabilities
under all Pension Plans (calculated separately for each Pension Plan) to
exceed $20,000,000; or
(d) fail to make any payments in an aggregate amount greater than
$7,000,000 to any Multiemployer Plan that LSAI or any of its Subsidiaries, or
any of their respective ERISA Affiliates may be required to make under any
agreement relating to such Multiemployer Plan, or any law pertaining thereto.
As used in this Section, the term "accumulated funding deficiency" has the
meaning specified in Section 3(23) of ERISA and Section 412 of the Code, the
term "accrued benefit" has the meaning specified in Article 3 of ERISA and
the term "amount of unfunded benefit liabilities" has the meaning specified
in Section 4001(a)(18) of ERISA.
ARTICLE VIII
EVENTS OF DEFAULT
-----------------
8.01 Event of Default. Any of the following shall constitute an "Event
of Default":
(a) Non-Payment. Failure to pay any installment of principal of
any of the Loans when due, whether at stated maturity, by acceleration, by
notice of prepayment or otherwise; or failure to pay any interest on any of
the Loans or any other amount due under this Agreement or any other Loan
Document within three Business Days after the due date; or
(b) Cross Default. Failure of LSAI or any of its Subsidiaries to
pay, or any default in the payment of, any principal or interest on any
Indebtedness beyond any period of grace provided; or breach or default with
respect to any other material term of any evidence of any Indebtedness, or of
any loan agreement, mortgage, indenture or other agreement relating thereto,
if such breach or default continues beyond any applicable period of grace
provided, if and for so long as the effect of such failure, default or breach
is to cause or permit the holder or holders of that Indebtedness (or a
trustee on behalf of such holder or holders) to cause, with or without the
giving of notice, that Indebtedness to become or be declared due prior to its
stated maturity; provided, however that this subsection shall not apply with
respect to Indebtedness that does not exceed $25,000,000 in the aggregate; or
(c) Representation or Warranty. Any representation or warranties
made by the Companies herein or in any other Loan Document or any representa-
tions or warranties in any statement or certificate at any time given by the
Companies in writing pursuant to any of the Loan Documents or in
connection herewith shall be false in any material respect on the date as of
which made; or
(d) Specific Defaults. Failure to perform or observe any term,
covenant or agreement contained in Sections 6.07, 7.01, 7.02, 7.04, or 7.05;
or
(e) Other Defaults. Failure to perform or observe any term
contained in this Agreement or any other Loan Document and such default shall
not have been remedied or waived within 30 days after receipt of notice from
Agent or any Bank of such default; or
(f) Involuntary Bankruptcy; Appointment of Receiver, etc.
(1) A court having jurisdiction shall enter a decree or
order for relief in respect of LSAI or any of its Material Subsidiaries in an
involuntary case under any applicable Insolvency Law, which decree or order
is not stayed; or any other similar relief shall be granted under any
applicable Insolvency Law; or
(2) A decree or order of a court having jurisdiction for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian
or other officer having similar powers over LSAI or any of its Material
Subsidiaries or over all or a substantial part of its property, shall have
been entered; or the involuntary appointment of an interim receiver, trustee
or other custodian of LSAI or any of its Material Subsidiaries for all or a
substantial part of its property; or the issuance of a warrant of attachment,
execution or similar process against any substantial part of the property of
LSAI or any of its Material Subsidiaries, and the continuance of any such
events described in this subsection (f)(2) for 60 days unless stayed,
dismissed, bonded or discharged; or
(3) an involuntary case under any applicable Insolvency Law
shall have been commenced against LSAI or any of its Material Subsidiaries
and shall not have been dismissed within 120 days after the commencement of
such case;
provided, however, that the entry of a decree or order described in this
subsection 8.01(f) shall not constitute an Event of Default where the effect
of such decree or order is the confiscation or expropriation by a country
which is not a member of the OECD (or a Governmental Authority of such a
country) of the equity interests or substantially all of the assets of a
Material Subsidiary; or
(g) Voluntary Bankruptcy; Appointment of Receiver, etc. LSAI or
any of its Material Subsidiaries shall commence a voluntary case under any
applicable Insolvency Law, or shall consent to the entry of an order for
relief in an involuntary case, or to the conversion of an involuntary case to
a voluntary case, under any such Insolvency Law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; the making by LSAI or any of
its Material Subsidiaries of any assignment for the benefit of creditors; or
the inability or failure of LSAI or any of its Material Subsidiaries or the
admission by LSAI or any of its Material Subsidiaries in writing of its
inability to pay its debts as such debts become due; or the Board of
Directors of LSAI or any of its Material Subsidiaries (or any committee
thereof) adopts any resolution or otherwise authorizes action to approve any
of the foregoing; or
(h) Judgments and Attachments. Any money judgment, writ or
warrant of attachment, or similar process involving in any case an amount in
excess of $10,000,000 shall be entered or filed against LSAI or any of its
Material Subsidiaries or any of their respective assets and shall remain
undischarged, unvacated, unbonded and unstayed for a period of 45 days or in
any event later than five days prior to the date of any proposed sale
thereunder; or
(i) Unfunded ERISA Liabilities. Any Pension Plan maintained by
LSAI or any of its ERISA Affiliates shall be terminated within the meaning of
Title IV of ERISA or a trustee shall be appointed by an appropriate United
States district court to administer any Pension Plan, or the PBGC (or any
successor thereto) shall institute proceedings to terminate any Pension Plan
or to appoint a trustee to administer any Pension Plan, in each case, if as
of the date thereof LSAI's or any such ERISA Affiliate's liability (after
giving effect to the tax consequences thereof) to the PBGC (or any successor
thereto) for unfunded guaranteed vested benefits under such Pension Plan
exceeds the then current value of assets accumulated in such Pension Plan by
more than $20,000,000 (or in the case of a termination involving LSAI or any
of its ERISA Affiliates as a "substantial employer" (as defined in
Section 4001(a)(2) of ERISA) the withdrawing employer's proportionate share
of such liability shall exceed such amount); or
(j) Withdrawal Liability Under Multiemployer Plan. LSAI or any
of its ERISA Affiliates as employer under a Multiemployer Plan shall have
made a complete or partial withdrawal from such Multiemployer Plan and the
plan sponsor of such Multiemployer Plan shall have notified such withdrawing
employer that such employer has incurred a withdrawal liability in an amount
exceeding $7,000,000.
8.02 Remedies. If any Event of Default occurs, the Agent shall, at the
request of, or may, with the consent of, the Majority Banks,
(a) declare the commitment of each Bank to make Loans to be
terminated, whereupon such commitments shall forthwith be terminated;
(b) declare the unpaid principal amount of all outstanding Loans,
all interest accrued and unpaid thereon, and all other amounts owing or
payable hereunder or under any other Loan Document to be immediately due and
payable; without presentment, demand, request, protest or other notice of any
kind, all of which are hereby expressly waived by the Companies; and
(c) exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or applicable
law;
provided, however, that upon the occurrence of any event specified in
subsection 8.01(f) or (g) above (after the expiration of any grace or cure
period provided therein), the obligation of each Bank to make Loans shall
automatically terminate and the unpaid principal amount of all outstanding
Loans and all interest and other amounts as aforesaid shall automatically
become due and payable without further act of the Agent or any Bank.
8.03 Continuation and Conversion of Loans During the Existence of
Default.
(a) If an Event of Default under subsections 8.01(b), (c), (d),
(e), (h), (i), or (j) occurs and is continuing, the Companies may, during the
30 day period commencing with the date the first such Event of Default
occurs, elect to have a Loan converted into, or continued as an Offshore Rate
Loan or a CD Rate Loan subject to the following:
(i) The 30 day period provided for in this subsection shall
start on the date such event occurs after any required notice has been
given and any specified period of time has elapsed in order for the
event to be an Event of Default;
(ii) There shall be but one 30 day period at any one time so
that the occurrence of another Events of Default in such period shall
not extend such 30 day period; and
(iii) During the 30 day period the Majority Banks have not
instructed the Agent (A) to declare the commitments of the Banks to make
Loans under this Agreement terminated, or (B) to declare all Loans due
and payable.
(b) Notwithstanding the provisions of subsection (a) of this
Section, the Majority Banks may, before, during, and after the 30 day period
described in the foregoing subsection (a) of this Section, instruct the Agent
to declare the commitments of the Banks to make Loans under this Agreement
terminated or declare all Loans to be due and payable if such action or
actions are permitted under Section 8.02, and thereupon the Companies shall
no longer have the ability to ask that a Loan be converted into, or continued
as an Offshore Rate Loan or a CD Rate Loan.
8.04 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any
other rights, powers, privileges or remedies provided by law or in equity, or
under any other instrument, document or agreement now existing or hereafter
arising.
ARTICLE IX
THE AGENT
---------
9.01 Appointment and Authorization. Each Bank hereby irrevocably
appoints, designates and authorizes the Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document
and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties
or responsibilities, except those expressly set forth herein, nor shall the
Agent have or be deemed to have any fiduciary relationship with any Bank, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent.
9.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall (i)
be liable for any action taken or omitted to be taken by any of them under or
in connection with this Agreement or any other Loan Document or the
transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the Banks
for any recital, statement, representation or warranty made by each Company
or any Subsidiary or Affiliate of a Company, or any officer thereof,
contained in this Agreement or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or
any other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document,
or for any failure of either Company or any other party to any Loan Document
to perform its obligations hereunder or thereunder. No Agent-Related Person
shall be under any obligation to any Bank to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
Properties, books or records of each Company or any of each Company's
Subsidiaries or Affiliates.
9.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telecopy, telex or
telephone message, statement or other document or conversation believed by it
to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons, and upon advice and statements of legal counsel (including
counsel to the Company or Companies), independent accountants and other
experts selected by the Agent. The Agent shall be fully justified in failing
or refusing to take any action under this Agreement or any other Loan
Document unless it shall first receive such advice or concurrence of the
Majority Banks as it deems appropriate and, if it so requests, it shall first
be indemnified to its satisfaction by the Banks against any and all liability
and expense which may be incurred by it by reason of taking or continuing to
take any such action. The Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any other Loan
Document in accordance with a request or consent of the Majority Banks and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Sections 4.01 and 4.02, each Bank that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter either sent by the Agent to such
Bank for consent, approval, acceptance, or satisfaction, required thereunder
to be consented to or approved by or acceptable or satisfactory to the Bank,
unless an officer of the Agent responsible for the transactions contemplated
by the Loan Documents shall have received notice from the Bank prior to the
initial Borrowing specifying its objection thereto and either such objection
shall not have been withdrawn by notice to the Agent to that effect or the
Bank shall not have made available to the Agent the Bank's ratable portion of
such Borrowing.
9.05 Notice of Default. The Agent shall not be deemed to have
knowledge or notice of the occurrence of any Default or Event of Default,
except with respect to defaults in the payment of principal, interest and
fees required to be paid to the Agent for the account of the Banks, unless
the Agent shall have received written notice from a Bank or either Company
referring to this Agreement, describing such Default or Event of Default and
stating that such notice is a "notice of default". In the event that the
Agent receives such a notice, the Agent shall give notice thereof to the
Banks. The Agent shall take such action with respect to such Default or
Event of Default as shall be requested by the Majority Banks in accordance
with Article VIII; provided, however, that unless and until the Agent shall
have received any such request, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best
interest of the Banks.
9.06 Credit Decision. Each Bank expressly acknowledges that none of
the Agent-Related Persons has made any representation or warranty to it, and
that no act by the Agent hereinafter taken, including any review of the
affairs of each Company and each Subsidiary of a Company shall be deemed to
constitute any representation or warranty by the Agent and any Agent-Related
Person to any Bank. Each Bank represents to the Agent that it has,
independently and without reliance upon the Agent and Agent-Related Person,
and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of
each Company and each Subsidiary of a Company, and all applicable bank
regulatory laws relating to the transactions contemplated thereby, and made
its own decision to enter into this Agreement and extend credit to the
Companies hereunder. Each Bank also represents that it will, independently
and without reliance upon the Agent and any Agent-Related Person and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan Documents, and
to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of each Company. Except for notices, reports and other
documents expressly herein required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business, prospects,
operations, property, financial and other condition or creditworthiness of
each Company which may come into the possession of any of the Agent-Related
Persons.
9.07 Indemnification. Whether or not the transactions contemplated
hereby shall be consummated, the Banks shall indemnify upon request the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the
Companies and without limiting the obligation of the Companies to do so),
ratably from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses and
disbursements of any kind whatsoever which may at any time (including at any
time following the repayment of the Loans and the termination or resignation
of the related Agent) be imposed on, incurred by or asserted against any such
Person any way relating to or arising out of this Agreement or any document
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by any such
Person under or in connection with any of the foregoing; provided, however,
that no Bank shall be liable for the payment to the Agent-Related Persons of
any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements resulting solely
from such Person's gross negligence or willful misconduct. Without
limitation of the foregoing, each Bank shall reimburse the Agent upon request
for its ratable share of any costs or out-of-pocket expenses (including all
fees and disbursements of any law firm or other external counsel, the
allocated cost of internal legal services and all disbursements of internal
counsel) incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein to the extent
that the Agent is not reimbursed for such expenses by or on behalf of the
Companies. Without limiting the generality of the foregoing, if the Internal
Revenue Service or any other authority of the United States or other
jurisdiction asserts a claim that Agent did not properly withhold tax from
amounts paid to or for the account of any Bank (because the appropriate form
was not delivered, was not properly executed, or because such Bank failed to
notify Agent of a change in circumstances which rendered the exemption from,
or reduction of, withholding tax ineffective, or for any other reason) such
Bank shall indemnify the Agent fully for all amounts paid, directly or
indirectly, by the Agent as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Agent under this Section 9.07, together with all costs,
expenses and attorneys' fees (including allocated costs for inhouse legal
services). The obligation of the Banks in this Section shall survive the
payment of all Obligations hereunder and the resignation or replacement of
the Agent.
9.08 Agent in Individual Capacity. BofA and its Affiliates may make
loans to, issue letters of credit for the account of, accept deposits from,
acquire equity interests in and generally engage in any kind of banking,
trust, financial advisory or other business with either Company and
Subsidiary and Affiliate of a Company as though BofA were not the Agent
hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, BofA or its Affiliates may
receive information regarding either or both Companies or any of either
Company's Affiliates (including information that may be subject to
confidentiality obligations in favor of such Company or such Subsidiary) and
acknowledge that the Agent shall be under no obligation to provide such
information to them.With respect to its Loans, BofA shall have the same
rights and powers under this Agreement as any other Bank and may exercise the
same as though it were not the Agent, and the terms "Bank" and "Banks" shall
include BofA in its individual capacity.
9.09 Successor Agent. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days' prior notice of its
intention to do so to the Banks and the Companies. If the Agent shall resign
as Agent under this Agreement, the Companies, subject to the approval of the
Majority Banks (which consent shall not be unreasonably withheld) shall
appoint a successor agent for the Banks. If no successor Agent is appointed
prior to the tenth day before the effective date of the resignation of the
Agent, the Agent shall appoint, with the consent of the Companies (which
consent shall not be unreasonably withheld), a successor agent from among the
Banks. Upon the acceptance of its appointment as successor agent hereunder,
such successor agent shall succeed to all the rights, powers and duties of
the retiring Agent and the term "Agent" shall mean such successor agent, and
the retiring Agent's rights, powers and duties as Agent shall be terminated.
After any retiring Agent's resignation hereunder as Agent, the provisions of
Article IX and Sections 10.04 and 10.05 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor Agent has accepted appointment as Agent by the
date which is 30 days following a retiring Agent's notice of resignation, the
retiring Agent's resignation shall nevertheless thereupon become effective
and the Banks shall perform all of the duties of the Agent hereunder until
such time, if any, as the Majority Banks appoint a successor Agent.
9.10 Amendment and Not a Novation. This Agreement is intended to
completely amend, restate, and replace the Prior Credit Agreement without
novation. The Companies hereby acknowledge and agree that if, pursuant to
the Prior Credit Agreement, the Banks have made Loans to the Companies that
are outstanding as of the date of this Agreement, those Loans shall continue
and constitute Loans under this Agreement, subject to the terms and
provisions of this Agreement.
ARTICLE X
MISCELLANEOUS
-------------
10.01 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect to
any departure therefrom, shall be effective unless the same shall be in
writing and signed by the Majority Banks and the Companies and acknowledged
by the Agent, and then such waiver, amendment or consent shall be effective
only in the specific instance and for the specific purpose for which given,
except that written agreement from all of the Banks is required for any
waiver, amendment, or consent which does any of the following:
(a) increases the Commitment of any Bank or subjects any Bank to
any additional obligations (but written consent of all the Banks is not
required for instances subject to Section 3.09);
(b) postpones or delays any date fixed for any payment of
principal, interest, fees or other amounts due to the Banks (or any of them)
hereunder or under any Loan Document;
(c) reduces the principal of, or the rate of interest specified
herein on any Loan, or of any fees or other amounts payable hereunder or
under any Loan Document;
(d) changes the Commitment Percentage or of the aggregate unpaid
principal amount of the Loans which shall be required for the Banks or any of
them to take any action hereunder; or
(e) amends this Section 10.01 or Section 2.13 or 2.14;
and, provided that no amendment, waiver or consent shall, unless in writing
and signed by the Agent in addition to the Majority Banks or all the Banks,
as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document.
10.02 Notices.
(a) Unless otherwise specifically provided in this Agreement, all
notices, requests and other communications provided for hereunder shall be in
writing (including, unless the context expressly otherwise provides,
telegraphic, telex, facsimile transmission or cable communication, provided
that any matter transmitted by facsimile transmission (i) shall be
immediately confirmed by a telephone call to the recipient at the number
specified on the applicable signature page hereof, and (ii) shall be followed
promptly by a hard copy original thereof) and mailed, telegraphed, telexed,
sent by facsimile transmission, or delivered, to the address or number
specified for notices on the applicable signature page hereof; or, as to the
Companies or the Agent, to such other address as shall be designated by such
party in a written notice to the other parties, and as to each other party,
at such other address as shall be designated by such party in a written
notice to the Companies and the Agent.
(b) All such notices and communications shall, when transmitted
by overnight delivery, telegraphed, telecopied by facsimile, telexed or
cabled, be effective when delivered for overnight delivery or to the
telegraph company, transmitted by telecopier, confirmed by telex answerback
or delivered to the cable company, respectively, or if delivered, upon
delivery, except that notices pursuant to Article II or VIII shall not be
effective until actually received by the Agent.
(c) The Companies acknowledge and agree that any agreement of the
Agent and the Banks at Article II herein to receive certain notices by
telephone and facsimile is solely for the convenience and at the request of
the Companies. The Agent and the Banks shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by either or
both Companies to give such notice and the Agent and the Banks shall not have
any liability to the Companies or other Person on account of any action taken
or not taken by the Agent and the Banks in reliance upon such telephonic or
facsimile notice. The obligation of the Companies to repay the Loans shall
not be affected in any way or to any extent by any failure by the Agent and
the Banks to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Agent and the Banks of a confirmation which is
at variance with the terms understood by the Agent and the Banks to be
contained in the telephonic or facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent or any Bank, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege.
10.04 Costs and Expenses. Whether or not the transactions contemplated
by this Agreement are consummated, the Companies agree to promptly pay (i)
the reasonable fees, expenses and disbursements of counsel (including
allocated costs of internal legal services and all disbursements of internal
counsel) to the Agent and to the Arranger incurred in connection with the
negotiation, preparation and execution of this Agreement, the Notes, and the
Loan Documents, and any amendments, consents and waivers hereto or thereto,
and (ii) after the occurrence and during the continuation of an Event of
Default, all costs and expenses, including attorney's fees (including
allocated costs of internal legal services and all disbursements of internal
counsel), incurred by the Agent or the Banks in enforcing any obligation of,
or in collecting payments due from, the Companies hereunder, under the Notes
or under any of the other Loan Documents by reason of such Event of Default
or in connection with any refinancing or restructuring of the credit
arrangements provided under this Agreement in the nature of a "work-out" or
in any Insolvency Proceeding.
10.05 Indemnity. The Companies shall pay, indemnify, and hold each
Bank, the Agent, the Arranger, and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including all fees and disbursements of
any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel) of any kind or nature
whatsoever with respect to the execution, delivery, enforcement, performance
and administration of this Agreement and any other Loan Documents, or the
transactions contemplated hereby and thereby, and with respect to any
investigation, litigation or proceeding related to this Agreement or the
Loans or the use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided, that the Companies shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities
arising from the gross negligence or willful misconduct of such Indemnified
Person. The agreements in this Section shall survive payment of all other
Obligations.
10.06 Marshalling; Payments Set Aside. Neither the Agent nor the Banks
shall be under any obligation to xxxxxxxx any assets in favor of the
Companies or any other Person or against or in payment of any or all of the
Obligations. To the extent that either Company makes a payment or payments
to the Agent or the Banks, or the Agent or the Banks enforce their Liens or
exercise their rights of set-off, and such payment or payments or the
proceeds of such enforcement or set-off or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
to be repaid to a trustee, receiver or any other party in connection with any
Insolvency Proceeding, or otherwise, then to the extent of such recovery the
obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not
been made or such enforcement or set-off had not occurred.
10.07 Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective permitted (and those arising by operation of law) successors and
assigns, except that the Companies may not assign or transfer any rights or
obligations under this Agreement without the prior written consent of the
Agent and each Bank and no Bank may assign or transfer any of its rights or
obligations under this Agreement except in accordance with Sections 3.09,
10.08, and by operation of law.
10.08 Assignments, Participations, etc.
(a) Any Bank may, with the written consent of the Companies at
all times other than during the existence of an Event of Default and the
Agent (which consent of the Companies may be withheld for any reason, and
which consent of the Agent shall not be unreasonably withheld) at any time
assign and delegate to one or more Eligible Assignees (provided that no
written consent of the Agent shall be required in connection with any
assignment and delegation by a Bank to a Bank Affiliate of such Bank and the
consent of the Companies in connection with any assignment and delegation by
a Bank to a Bank Affiliate of such Bank shall not be unreasonably withheld)
(each an "Assignee") all, or any ratable part of all, of the Loans, the
commitment to make Loans, and the other rights and obligations of such Bank
hereunder, in a minimum amount of $20,000,000; provided, however, that
(i) the Companies and the Agent may continue to deal solely and directly with
such Bank in connection with the interest so assigned to an Assignee until
(A) written notice of such assignment, together with payment instructions,
addresses and related information with respect to the Assignee, shall have
been given to the Companies and the Agent by such Bank and the Assignee; and
(B) such Bank and its Assignee shall have delivered to the Companies and the
Agent an Assignment and Acceptance in the form of Exhibit H ("Assignment and
Acceptance") and any Note or Notes subject to such assignment.
(b) From and after the date that the Agent notifies the assignor
Bank that it has received an executed Assignment and Acceptance and payment
of the processing fee of $3,500, (i) the Assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the
rights and obligations of a Bank under the Loan Documents, and (ii) the
assignor Bank shall, to the extent that rights and obligations hereunder have
been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Loan Documents.
(c) Within five Business Days after its receipt of notice by the
Agent that it has received an executed Assignment and Acceptance and payment
of the processing fee, the Companies shall execute and deliver to the Agent,
new Notes evidencing such Assignee's assigned Loans and commitment to make
Loans and, if the assignor Bank has retained a portion of its Loans and its
commitment to make Loans, replacement Notes in the principal amount of the
Loans retained by the assignor Bank (such Notes to be in exchange for, but
not in payment of, the Notes held by such Bank). Immediately upon each
Assignee's making its payment under the Assignment and Acceptance, this
Agreement, shall be deemed to be amended to the extent, but only to the
extent, necessary to reflect the addition of the Assignee and the resulting
adjustment of the commitment to make Loans arising therefrom. The commitment
to make Loans allocated to each Assignee shall reduce such commitment to make
Loans of the assigning Bank pro tanto.
(d) Any Bank may at any time sell to one or more commercial banks
(a "Participant") participating interests in any Loans, the commitment of
that Bank to make Loans and the other interests of that Bank (the
"Originating Bank") hereunder and under the other Loan Documents; provided,
however, that (i) the Originating Bank's obligations under this Agreement
shall remain unchanged, (ii) the Originating Bank shall remain solely
responsible for the performance of such obligations, (iii) the Companies and
the Agent shall continue to deal solely and directly with the Originating
Bank in connection with the Originating Bank's rights and obligations under
this Agreement and the other Loan Documents, and (iv) no Bank shall transfer
or grant any participating interest under which the Participant shall have
rights to approve any amendment to, or any consent or waiver with respect to,
this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent as described in
Section 10.01. In the case of any such participation, the Participant shall
not have any rights under this Agreement, or any of the other Loan Documents,
and all amounts payable by the Companies hereunder shall be determined as if
such Bank had not sold such participation; except that, if amounts
outstanding under this Agreement are due and unpaid, or shall have been
declared or shall have become due and payable upon the occurrence of an Event
of Default, each Participant shall be deemed to have the right of set-off in
respect of its participating interest in amounts owing under this Agreement
to the same extent as if the amount of its participating interest were owing
directly to it as a Bank under this Agreement.
No such sale or transfer of participating interests by any Bank
shall, without the consent of the Agent and the Companies, require either or
both Companies (i) to file a registration statement with the SEC or apply to
qualify the Loans or the Notes under the blue sky law of any states or
(ii) to qualify to do business in any state in which the Companies are not so
qualified.
(e) Each Bank agrees to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all non-public
information identified as confidential by and provided to it by either or
both of the Companies or any Subsidiary of either Company, or by the Agent on
such Company's or Subsidiary's behalf, in connection with this Agreement or
any other Loan Document, and neither it nor any of its Affiliates shall use
any such information for any purpose or in any manner other than pursuant to
the terms contemplated by this Agreement; except to the extent such
information (i) was or becomes generally available to the public other than
as a result of a disclosure by the Bank, or (ii) was or becomes available on
a non-confidential basis from a source other than either Company, provided
that such source is not bound by a confidentiality agreement with such
Company known to the Bank; provided further, however, that any Bank may
disclose such information (A) at the request or pursuant to any requirement
of any Governmental Authority to which the Bank is subject or in connection
with an examination of such Bank by any such Governmental Authority;
(B) pursuant to subpoena or other court process; (C) when required to do so
in accordance with the provisions of any applicable Requirement of Law; (D)
to such Bank's independent auditors and other professional advisors and (E)
to any Bank Affiliate which is controlled by the transferring Bank, which
shall cause such Bank Affiliate to keep confidential the non-public
information identified by and provided to the transferring Bank as
confidential on the same terms and conditions applicable to such transferring
Bank. Notwithstanding the foregoing, each Company authorizes each Bank to
disclose to any Participant or Assignee (each, a "Transferee") and to any
prospective Transferee, such financial and other information in such Bank's
possession concerning such Company or its Subsidiaries which has been
delivered to Agent or the Banks pursuant to this Agreement or which has been
delivered to the Agent or the Banks by such Company in connection with the
Banks' credit evaluation of such Company prior to entering into this
Agreement; provided that, unless otherwise agreed by such Company, such
Transferee agrees in writing to such Bank to keep such information
confidential to the same extent required of the Banks hereunder.
(f) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement (and the Note held
by it) in favor of any Federal Reserve Bank in accordance with Regulation A
of the Federal Reserve Board or U.S. Treasury Regulation 31 CFR Section
203.14, and such Federal Reserve Bank may enforce such pledge or security
interest in any manner permitted under applicable law.
10.09 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists, (after the giving of any
required notice and the expiration of any grace period required to make the
relevant event an Event of Default) each Bank is authorized at any time and
from time to time, without prior notice to the Companies, any such notice
being waived by the Companies 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 by, and other indebtedness at any time
owed by, such Bank to or for the credit or the account of either Company
against any and all Obligations owing to such Bank, now or hereafter
existing, irrespective of whether or not the Agent or such Bank shall have
made a request for payment under this Agreement or any Loan Document and
although such Obligations may be contingent or unmatured. Each Bank agrees
promptly to notify the Companies and the Agent after any such set-off and
application made by such Bank; provided, however, that the failure to give
such notice shall not affect the validity of such set-off and application.
The rights of each Bank under this Section 10.09 are in addition to the other
rights and remedies (including other rights of set-off) which the Bank may
have.
10.10 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Agent and the Companies in writing of any changes in the address
to which notices to the Bank should be directed, of addresses of its Offshore
Lending Office, of payment instructions in respect of all payments to be made
to it hereunder and of such other administrative information as the Agent
shall reasonably request.
10.11 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement in any number of separate counterparts, each of
which, when so executed, shall be deemed an original, and all of said
counterparts taken together shall be deemed to constitute but one and the
same instrument. A set of the copies of this Agreement signed by all the
parties shall be lodged with the Companies and the Agent.
10.12 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required hereunder
shall not in any way affect or impair the legality or enforceability of the
remaining provisions of this Agreement or any instrument or agreement
required hereunder.
10.13 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Companies, the Banks
and the Agent, and their permitted successors and assigns, and no other
Person shall be a direct or indirect legal beneficiary of, or have any direct
or indirect cause of action or claim in connection with, this Agreement or
any of the other Loan Documents. Neither the Agent nor any Bank shall have
any obligation to any Person not a party to this Agreement or other Loan
Documents.
10.14 Change in Accounting Principles. If any change in GAAP occurs or
takes effect after the Effective Date which would result in a change in any
quantity reported to the Banks hereunder which provides the basis for any
covenant, performance obligation or standard of measurement used in this
Agreement, the parties hereto agree to enter into negotiations in order to
amend such covenant, performance obligation or standard of performance so as
to reflect such change with the result that the criteria for evaluating
compliance with such covenant, performance obligation or standard of
performance shall be the same after the change as if the change had not been
made. Until the parties hereto agree to such amendment, all covenants,
performance obligations and standards of performance shall be calculated
without giving effect to the change in GAAP. The Banks and the Companies
acknowledge that the financial statements referred to in Section 5.03 were
prepared, and the covenants set forth in Sections 7.04 and 7.05 were agreed
to, by the Companies and the Banks.
10.15 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF CALIFORNIA; PROVIDED
THAT THE AGENT, THE BANKS, AND THE COMPANIES SHALL RETAIN ALL RIGHTS ARISING
UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
MAY BE BROUGHT IN THE COURTS OF THE STATE OF CALIFORNIA OR OF THE UNITED
STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA, AND BY EXECUTION AND DELIVERY
OF THIS AGREEMENT, EACH OF THE COMPANIES, THE AGENT AND THE BANKS CONSENTS,
FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION
OF THOSE COURTS. EACH OF THE COMPANIES, THE AGENT AND THE BANKS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF
THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANIES, THE AGENT AND
THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY CALIFORNIA LAW.
10.16 Interpretation. This Agreement is the result of negotiations
between and has been reviewed by counsel to the Agent, the Companies and
other parties, and is the product of all parties hereto. Accordingly, this
Agreement and the other Loan Documents shall not be construed against the
Companies, the Banks, or the Agent merely because of their involvement in the
preparation of such documents and agreements.
10.17 Representation of Banks. Each Bank hereby represents that it
will make its Loans for its own account in the ordinary course of its
commercial banking business and not with a view to or for sale in connection
with any distribution of the Notes; provided, however, that the disposition
of the Notes or other evidence of indebtedness held by that Bank shall at all
times be within its exclusive control.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in San Francisco, California, their proper and
duly authorized officers as of the day and year first above written.
LEVI XXXXXXX ASSOCIATES INC.
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
Address for Notices:
-------------------
Xxxx Xxxxxxx & Xx.
Xxxx'x Xxxxx
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx
Vice President and Treasurer
LEVI XXXXXXX & CO.
By: /s/Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President and Treasurer
Address for Notices:
-------------------
Xxxx Xxxxxxx & Xx.
Xxxx'x Xxxxx
0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx
Vice President and Treasurer
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By: /s/Xxx Xxxxxxx
Name: Xxx Xxxxxxx
Title: Vice President
Address for notices:
-------------------
0000 Xxxxxx Xxxxxx - 00xx xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Agency Management Services #5596 (Xxx Xxxxxxx)
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Address for payments to Agent's account:
---------------------------------------
Bank of America National Trust
and Savings Association
(ABA) 121-000-358-S.F.
Attn: Agency Management Services (#5596)
0000 Xxxxxxx Xxxx.
Xxxxxxx, XX 00000
For credit to account No. 12334-15291
Ref: Levi Xxxxxxx & Co.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as a Bank
By: /s/Xxxxx XxxXxxxxx
Name: Xxxxx XxxXxxxxx
Title: Vice President
Address for notices:
-------------------
Bank of America National Trust
and Savings Association
Credit Products #3838
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx-Xxxxxxx
With a copy to:
Bank of America National Trust
and Savings Association
Account Administration #5693
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
Domestic and Offshore Lending Office:
------------------------------------
Bank of America National Trust
and Savings Association
Account Administration #5693
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxx
BANKERS TRUST COMPANY
By:
----------------------
Name:
Title:
Address for notices:
-------------------
Bankers Trust Company
1 Bankers Trust Plaza - 23rd floor
New York, New York 10006
Attn: Xx. Xxxx Xx Xxxxx
With a copy to:
Bankers Trust Company
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxxxx
Domestic and Offshore Lending Office:
------------------------------------
Bankers Trust Company
1 Bankers Trust Plaza - 23rd floor
New York, New York 10006
Attn: Xx. Xxxx Xx Xxxxx
CITICORP USA, INC.
By:
----------------------
Name:
Title:
Address for notices:
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Citicorp USA, Inc..
Xxx Xxxxxxx Xxxxxx - Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxxxx Xxxxxxx
Domestic and Offshore Lending Office:
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Citicorp USA, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
FIRST INTERSTATE BANK OF CALIFORNIA
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
Address for notices:
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First Interstate Bank of California
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxxx
Vice President
Domestic and Offshore Lending Office:
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First Interstate Bank of California
0000 Xxxxxxxx Xxxxxxxxx, X00-0
Xxx Xxxxxxx, XX 00000
THE BANK OF NOVA SCOTIA
By:
----------------------
Name:
Title:
Address for notices:
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The Bank of Nova Scotia
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Mr. Xxxx Xxxxxx
with copy to:
The Bank of Nova Scotia
000 Xxxxxxxxx Xx., X.X.
Xxxxx 0000
Xxxxxxx XX 00000
Attn: Xxxx Xxxxxxxx
Domestic and Offshore Lending Office:
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The Bank of Nova Scotia
000 Xxxxxxxxx Xx., X.X.
Xxxxx 0000
Xxxxxxx XX 00000
Attn: Xxxx Xxxxxxxx
THE FIRST NATIONAL BANK OF BOSTON
By:
----------------------
Name:
Title:
Address for notices:
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The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxx
Domestic and Offshore Lending Office:
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The First National Bank of Boston
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
THE FIRST NATIONAL BANK OF CHICAGO
By:
----------------------
Name:
Title:
Address for notices:
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The First National Bank of Chicago
000 Xxxxx Xxxxxxxx Xx. - 0xx xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Mr. Xxxxx Xxxxx
Domestic and Offshore Lending Office:
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The First National Bank of Chicago
One First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
UNION BANK
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
Address for notices:
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Union Bank
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxx-Xxxx
Domestic and Offshore Lending Office:
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Union Bank
000 Xxxxxxxxxx Xx., 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
CREDIT LYONNAIS CAYMAN ISLAND BRANCH
By:
----------------------
Name:
Title:
CREDIT LYONNAIS LOS ANGELES BRANCH
By:
----------------------
Name:
Title:
Address for notices:
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Credit Lyonnais
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx Xxxx
Vice President
Offshore Lending Office:
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Credit Lyonnais Cayman Island Branch
c/o Credit Lyonnais Los Angeles Branch
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Domestic Lending Office:
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Credit Lyonnais Los Angeles Branch
c/o Credit Lyonnais Los Angeles Branch
000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
SWISS BANK CORPORATION, SAN FRANCISCO AND
CAYMAN BRANCHES
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
Address for notices:
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Swiss Bank Corporation
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxx X. Parrot
Domestic and Offshore Lending Office:
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Swiss Bank Corporation, San Xxxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
THE SAKURA BANK, LIMITED
San Francisco Agency
By:
----------------------
Name:
Title:
Address for notices:
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The Sakura Bank, Limited
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxxx Xxxxxxxx
Domestic and Offshore Lending Office:
------------------------------------
The Sakura Bank, Limited
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
THE SUMITOMO BANK, LIMITED, SAN XXXXXXXXX XXXXXX
By:
----------------------
Name:
Title:
Address for notices:
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The Sumitomo Bank, Limited, San Xxxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xx. Xxxx Xxxxxxx
Domestic and Offshore Lending Office:
------------------------------------
The Sumitomo Bank, Limited, San Xxxxxxxxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
COMMERZBANK AG, LOS ANGELES BRANCH
By:
----------------------
Name:
Title:
By:
----------------------
Name:
Title:
Address for notices:
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Commerzbank AG
Los Angeles Branch
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxxx
Domestic Lending Office:
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Commerzbank AG
Los Angeles Branch
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Offshore Lending Office:
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Commerzbank AG, Los Angeles Branch
000 X. Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
NATIONAL WESTMINSTER BANK PLC, NASSAU BRANCH
By:
----------------------
Name:
Title:
NATIONAL WESTMINSTER BANK PLC, NEW YORK BRANCH
By:
----------------------
Name:
Title:
Address for notices:
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National Westminster Bank PLC,
000 Xxxxx Xxxxx Xxx. - 39th floor
Xxx Xxxxxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxxxxx
Domestic Lending Office:
-----------------------
National Westminster Bank PLC
Los Angeles Branch
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Offshore Lending Office:
-----------------------
National Westminster Bank, PLC
Nassau Branch
c/o New York Branch
000 Xxxxx Xxxxxx, 00xx xxxxx
Xxx Xxxx, XX 00000-0000
Schedule 2.01
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Name of Bank Commitment
Bank of America National Trust and Savings Association 22,000,000
Bankers Trust Company 18,000,000
Citicorp USA, Inc. 18,000,000
First Interstate Bank of California 18,000,000
The Bank of Nova Scotia 18,000,000
The First National Bank of Boston 18,000,000
The First National Bank of Chicago 18,000,000
Union Bank 18,000,000
Credit Lyonnais 9,000,000
Swiss Bank Corporation 9,000,000
The Sakura Bank, Limited San Francisco Agency 9,000,000
The Sumitomo Bank, Limited, San Xxxxxxxxx Xxxxxx 9,000,000
Commerzbank AG, Grand Cayman Branch 8,000,000
National Westminster Bank, PLC 8,000,000
Total $200,000,000
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/TABLE
