Exhibit 4 (vi)
FIVE-YEAR CREDIT AGREEMENT
dated as of September 19, 2001
among
TOYS "R" US, INC.,
THE LENDERS PARTY HERETO
and
THE BANK OF NEW YORK,
as Administrative Agent
---------------------------
CITIBANK, N.A.,
and
X.X. XXXXXX XXXXX,
as Co-Syndication Agents
CREDIT SUISSE FIRST BOSTON,
FIRST UNION NATIONAL BANK,
THE DAI-ICHI KANGYO BANK, LTD. and
SOCIETE GENERALE,
as Co-Documentation Agents
BNY CAPITAL MARKETS, INC.,
as Lead Arranger and Book Manager
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS.........................................................1
Section 1.1. Defined Terms...............................................1
Section 1.2. Classification of Loans and Borrowings.....................14
Section 1.3. Terms Generally............................................14
Section 1.4. Accounting Terms; GAAP.....................................14
ARTICLE 2. The Credits........................................................15
Section 2.1. Commitments................................................15
Section 2.2. Loans and Borrowings.......................................15
Section 2.3. Requests for Revolving Borrowings..........................16
Section 2.4. Termination and Reduction of Commitments...................16
Section 2.5. Funding of Borrowings......................................17
Section 2.6. Interest Elections.........................................17
Section 2.7. Repayment of Loans; Evidence of Debt.......................19
Section 2.8. Prepayment of Loans........................................19
Section 2.9. Swingline Loans............................................20
Section 2.10. Letters of Credit.........................................22
Section 2.11. Fees......................................................26
Section 2.12. Interest..................................................27
Section 2.13. Alternate Rate of Interest................................28
Section 2.14. Increased Costs, Illegality, Etc..........................29
Section 2.15. Break Funding Payments....................................31
Section 2.16. Taxes.....................................................32
Section 2.17. Payments Generally; Pro Rata Treatment; Sharing
of Set-offs.............................................34
Section 2.18. Mitigation Obligations; Replacement of Lenders............35
Section 2.19. Increases in Commitments..................................37
ARTICLE 3. Representations and Warranties.....................................38
Section 3.1. Organization and Powers....................................38
Section 3.2. Authorization..............................................38
Section 3.3. Enforceability.............................................38
Section 3.4. Litigation.................................................38
Section 3.5. Required Consents..........................................38
Section 3.6. Compliance with Applicable Laws............................39
Section 3.7. Taxes......................................................39
Section 3.8. Governmental Regulations...................................39
Section 3.9. Federal Reserve Regulations; Use of Loan Proceeds..........39
Section 3.10. Financial Statements......................................39
Section 3.11. Material Adverse Change...................................40
Section 3.12. No Conflicting Agreements.................................40
Section 3.13. Disclosure................................................40
ARTICLE 4. Conditions Precedent...............................................40
Section 4.1. Effective Date.............................................40
Section 4.2. Each Credit Event..........................................41
ARTICLE 5. Affirmative Covenants..............................................42
Section 5.1. Financial Statements.......................................42
Section 5.2. Certificates; Other Information............................43
Section 5.3. Legal Existence............................................43
Section 5.4. Taxes......................................................43
Section 5.5. Observance of Legal Requirements...........................43
Section 5.6. Inspection of Property; Books and Records; Discussions.....44
ARTICLE 6. Negative Covenants.................................................44
Section 6.1. Merger or Consolidation, Etc...............................44
Section 6.2. Subsidiary Indebtedness....................................45
Section 6.3. Liens, Etc.................................................45
Section 6.4. Change in Nature of Business...............................46
Section 6.5. Use of Proceeds............................................47
Section 6.6. Fixed Charge Coverage Ratio................................47
Section 6.7. Capitalization.............................................47
ARTICLE 7. Events of Default..................................................47
ARTICLE 8. The Administrative Agent...........................................50
ARTICLE 9. Miscellaneous......................................................52
Section 9.1. Notices....................................................52
Section 9.2. Waivers; Amendments........................................52
Section 9.3. Expenses; Indemnity; Damage Waiver.........................53
Section 9.4. Successors and Assigns.....................................55
Section 9.5. Survival...................................................57
Section 9.6. Counterparts; Integration; Effectiveness...................57
Section 9.7. Severability...............................................58
Section 9.8. Right of Setoff............................................58
Section 9.9. Governing Law; Jurisdiction; Consent to Service
of Process...............................................58
Section 9.10. WAIVER OF JURY TRIAL......................................59
Section 9.11. Headings..................................................59
Section 9.12. Confidentiality...........................................59
Section 9.13. Interest Rate Limitation..................................60
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SCHEDULES:
Schedule 2.1 -- Commitments
Schedule 3.4 -- Disclosed Matters
Schedule 6.2 -- Existing Subsidiary Indebtedness
Schedule 6.3 -- Existing Liens
EXHIBITS:
Exhibit A -- Form of Assignment and Acceptance
Exhibit B-1 -- Form of Opinion of Borrower's Counsel
Exhibit B-2 -- Form of Opinion of Weil, Gotshal & Xxxxxx LLP
Exhibit C -- Form of Guarantee Agreement
Exhibit D -- Form of Accession Agreement
Exhibit E -- Form of Borrowing Request
Exhibit F -- Form of Interest Election Request
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FIVE-YEAR CREDIT AGREEMENT, dated as of September 19, 2001, among
TOYS "R" US, INC., the LENDERS party hereto, CITIBANK, N.A. and X.X. XXXXXX
CHASE, as Co-Syndication Agents, CREDIT SUISSE FIRST BOSTON, FIRST UNION
NATIONAL BANK, THE DAI-ICHI KANGYO BANK, LTD. and SOCIETE GENERALE, as
Co-Documentation Agents, and THE BANK OF NEW YORK, as Administrative Agent.
The parties hereto agree as follows:
ARTICLE 1. DEFINITIONS
Section 1.1. Defined Terms. As used in this Agreement, the following terms
have the meanings specified below:
"ABR" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Alternate Base Rate.
"Accession Agreement" means the accession agreement, substantially
in the form of Exhibit D, to be entered into by the Administrative Agent and a
Prospective Lender.
"Accountants" means Ernst & Young LLP (or any successor thereto), or
any other firm of certified public accountants of recognized national standing
selected by the Borrower.
"Accumulated Funding Deficiency" has the meaning assigned to such
term in Section 302 of ERISA.
"Adjusted LIBO Rate" means, with respect to any Eurodollar Borrowing
for any Interest Period, an interest rate per annum (rounded upwards, if
necessary, to the next 1/16 of 1%) equal to (a) the LIBO Rate for such Interest
Period multiplied by (b) the Statutory Reserve Rate.
"Administrative Agent" means BNY, in its capacity as administrative
agent for the Lenders hereunder, and any assigns.
"Administrative Questionnaire" means an Administrative Questionnaire
in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to a specified Person, another
Person that directly, or indirectly through one or more intermediaries, Controls
or is Controlled by or is under common Control with the Person specified.
"Agreement" means this Five-Year Credit Agreement.
"Alternate Base Rate" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on
such day plus 1/2 of 1%. Any change in the Alternate Base Rate due to a change
in the Prime Rate or the Federal Funds Effective Rate shall be effective from
and including the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Applicable Lending Office" means, as to any Lender, the office,
branch or affiliate of such Lender designated as such Lender's lending office
for Loans and Letters of Credit hereunder, as reported by such Lender to the
Administrative Agent and the Borrower.
"Applicable Percentage" means, with respect to any Lender, the
percentage of the total Commitments represented by such Lender's Commitment. If
the Commitments have terminated or expired, the Applicable Percentages with
respect to any Lender shall be determined based upon the Commitments most
recently in effect, giving effect to any assignments.
"Applicable Rate" means, for any day, with respect to any Eurodollar
Revolving Loan, or with respect to the facility fees or utilization fees payable
hereunder, as the case may be, the applicable rate per annum set forth below
under the caption "Facility Fee", "LIBOR Spread" or "Utilization Fee", as the
case may be, based upon the ratings by Xxxxx'x and S&P, respectively, applicable
on such date to the Index Debt:
============================================================================================
Category Ratings Facility Fee LIBOR Spread Utilization Fee
(S&P/Xxxxx'x)
--------------------------------------------------------------------------------------------
Category 1 A+/A1 or higher .085% .265% .100%
--------------------------------------------------------------------------------------------
Category 2 A/A2 .100% .300% .100%
--------------------------------------------------------------------------------------------
Category 3 A-/A3 .125% .375% .125%
--------------------------------------------------------------------------------------------
Category 4 BBB+/Baa1 .150% .475% .125%
--------------------------------------------------------------------------------------------
Category 5 BBB/Baa2 .175% .575% .150%
--------------------------------------------------------------------------------------------
Category 6 BBB-/Baa3 or lower .250% .875% .150%
============================================================================================
For purposes of the foregoing, (a) if Xxxxx'x and S&P shall not have
in effect a rating for the Index Debt (other than by reason of the circumstances
referred to in the last sentence of this definition), then each such rating
agency shall be deemed to have established a rating in Category 6; (b) if the
ratings established or deemed to have been established by Xxxxx'x and S&P for
the Index Debt shall fall within different Categories, the Applicable Rate shall
be based on the higher of the two ratings, unless the lower of the two ratings
is in Category 6, in which case the Applicable Rate shall be based on such lower
rating, and, in each case under this clause (b), unless one of the two ratings
is two or more Categories lower than the other, in which case the Applicable
Rate shall be determined by reference to the Category one level below the
category corresponding to the higher rating; and (c) if the ratings established
or deemed to have been established by Xxxxx'x and S&P for the Index Debt shall
be changed (other than as a result of a change in the rating system of Xxxxx'x
or S&P), such change shall be effective as of the date on which it is first
announced by the applicable rating agency. Each change in the Applicable Rate
shall apply during the period commencing on the effective date of such change
and ending on the date immediately preceding the effective date of the next such
change. If the rating system of Xxxxx'x or S&P shall change, or if either such
rating agency shall cease to be in
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the business of rating corporate debt obligations, the Borrower and the Lenders
shall negotiate in good faith to amend this definition to reflect such changed
rating system or the unavailability of ratings from such rating agency and,
pending the effectiveness of any such amendment, the Applicable Rate shall be
determined by reference to the rating most recently in effect prior to such
change or cessation.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 9.4), and accepted by the Administrative Agent,
substantially in the form of Exhibit A or any other form approved by the
Administrative Agent.
"Availability Period" means the period from and including the
Effective Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.
"BNY" means The Bank of New York and its successors.
"Board" means the Board of Governors of the Federal Reserve System
of the United States of America.
"Borrower" means Toys "R" Us, Inc., a Delaware corporation.
"Borrowing" means (a) Revolving Loans of the same Type made,
converted or continued on the same date and, in the case of Eurodollar Loans, as
to which a single Interest Period is in effect or (b) a Swingline Loan.
"Borrowing Request" means a request by the Borrower for a Revolving
Borrowing in substantially the form of Exhibit E or any other form approved by
the Administrative Agent.
"Business Day" means any day that is not a Saturday, Sunday or other
day on which commercial banks in New York City are authorized or required by law
to remain closed; provided that, when used in connection with a Eurodollar Loan,
the term "Business Day" shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.
"Capital Lease Obligations" of any Person means the obligations of
such Person to pay rent or other amounts under any lease of (or other
arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Class" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans
or Swingline Loans, as applicable.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
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"Commitment" means, with respect to each Lender, the commitment of
such Lender to make Revolving Loans and to acquire participations in Letters of
Credit and Swingline Loans hereunder in an aggregate outstanding amount not
exceeding the amount of such Lender's Revolving Commitment as set forth on
Schedule 2.1, or in the Assignment and Acceptance or Accession Agreement
pursuant to which such Lender shall have assumed its Commitment, as applicable,
as such commitment may be (a) reduced from time to time pursuant to Section 2.4,
(b) increased from time to time pursuant to Section 2.19 or (c) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.4. The initial aggregate amount of the Lenders'
Commitments is $633,333,333.33.
"Consolidated" refers to the Borrower and the Subsidiaries the
accounts of which are consolidated with those of the Borrower for financial
reporting purposes.
"Consolidated Cash Interest Expense" means, for any period, interest
expense (net of interest income) of the Borrower and the Consolidated
Subsidiaries for such period, including, without duplication, Consolidated
interest capitalized in such period, minus non-cash interest expense of the
Borrower and the Consolidated Subsidiaries for such period, in each case
determined in accordance with GAAP.
"Consolidated EBITDAR" means, for any period, net income (or net
loss) of the Borrower and the Consolidated Subsidiaries for such period plus (a)
the sum of (i) interest expense (net of interest income), (ii) income tax
expense, (iii) depreciation expense, (iv) amortization expense, (v) Consolidated
Rent Expense, (vi) extraordinary losses in excess of $5,000,000 and (vii) LIFO
charges of the Borrower and the Consolidated Subsidiaries, in each case for such
period, minus (b) the sum of (i) extraordinary gains in excess of $5,000,000 and
(ii) LIFO credits of the Borrower and the Consolidated Subsidiaries, in each
case for such period, all determined in accordance with GAAP.
"Consolidated Rent Expense" means, for any period, rental expense
(net of rental income) of the Borrower and the Consolidated Subsidiaries
determined in accordance with GAAP for such period.
"Consolidated Tangible Net Worth" means, at any date of
determination, the sum of all amounts which would be included under
shareholders' equity on a Consolidated balance sheet of the Borrower and the
Subsidiaries determined in accordance with GAAP as at such date less all assets
of the Borrower and the Subsidiaries, determined on a Consolidated basis at such
date, that would be classified as intangible assets in accordance with GAAP.
"Control" means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
"Controlling" and "Controlled" have meanings correlative thereto.
"Credit Parties" means the Administrative Agent, the Issuing Bank
and the Lenders.
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"Default" means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.
"dollars" or "$" refers to lawful money of the United States of
America.
"Effective Date" means the date on which the conditions specified in
Section 4.1 are satisfied (or waived in accordance with Section 9.2).
"Employee Benefit Plan" means an employee benefit plan within the
meaning of Section 3(3) of ERISA maintained, sponsored or contributed to by the
Borrower, any of the Subsidiaries or any ERISA Affiliate.
"Environmental Laws" means all applicable federal, state, local or
foreign statutes, laws, ordinances, rules, regulations, codes, orders,
judgments, decrees or judicial or agency interpretations, policies or guidances
relating to pollution or protection of the environment, health, safety or
natural resources.
"Environmental Liability" means any liability, contingent or
otherwise (including any liability for damages, costs of environmental
remediation, fines, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) violation of any
Environmental Law, (b) the generation, use, handling, transportation, storage,
treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous
Materials, (d) the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the rules and regulations issued thereunder,
as from time to time in effect.
"ERISA Affiliate" when used with respect to an Employee Benefit
Plan, ERISA, the PBGC or a provision of the Code pertaining to employee benefit
plans, means any Person that is a member of any group of organizations within
the meaning of Section 414(b), (c), (m) or (o) of the Code of which the Borrower
or any of the Subsidiaries is a member.
"Eurodollar" when used in reference to any Loan or Borrowing, refers
to whether such Loan, or the Loans comprising such Borrowing, are bearing
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Event of Default" has the meaning assigned to such term in Article
7.
"Existing Credit Documents" means (i) the Amended and Restated
Credit Agreement, dated as of December 19, 1997, among the Borrower, Toys "R"
Us-Delaware, Inc., the subsidiary borrowers party thereto, the lenders party
thereto and BNY, as administrative agent thereunder, (ii) the 364-Day Credit
Agreement, dated as of December 8, 2000, among the Borrower, the lenders party
thereto and The Chase Manhattan Bank, as administrative agent
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thereunder, and (iii) each agreement, instrument and other document executed or
delivered in connection with either of the foregoing.
"Federal Funds Effective Rate" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Financial Officer" means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.
"Financial Statements" has the meaning assigned to such term in
Section 5.1.
"Fixed Charge Coverage Ratio" means, on each date of determination,
the ratio of Consolidated EBITDAR to the sum of Consolidated Cash Interest
Expense and Consolidated Rent Expense, in each case for the period of four
consecutive fiscal quarters of the Borrower ended on or immediately prior to
such date.
"Foreign Lender" means any Lender that is organized under the laws
of a jurisdiction other than that in which the Borrower is located. For purposes
of this definition, the United States of America, each State thereof and the
District of Columbia shall be deemed to constitute a single jurisdiction.
"GAAP" means generally accepted accounting principles in effect from
time to time in the United States of America.
"Governmental Authority" means the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantee" of or by any Person (the "guarantor") means any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of the guarantor, direct or indirect,
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such
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Indebtedness or other obligation or (d) as an account party in respect of any
letter of credit or letter of guaranty issued to support such Indebtedness or
obligation; provided, that the term Guarantee shall not include endorsements for
collection or deposit in the ordinary course of business; and provided, further,
that the amount of any such Guarantee shall be deemed to be the lower of (i) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee is made and (ii) the maximum amount for which
such Person may be liable pursuant to the terms of the agreement embodying such
Guarantee, unless such primary obligation and the maximum amount for which such
Person may be liable are not stated or determinable, in which case the amount of
such Guarantee shall be such Person's maximum reasonably anticipated liability
in respect thereof as determined by such Person in good faith.
"Guarantee Agreement" means the guarantee agreement, substantially
in the form of Exhibit C, to be entered into by the Administrative Agent and the
Guarantors.
"Guarantor" means (a) Toys "R" Us-Delaware, Inc. and (b) any other
direct or indirect subsidiary of the Borrower that shall be a party to the
Guarantee Agreement from time to time.
"Hazardous Materials" means all materials, substances or wastes
regulated, characterized or otherwise classified under any Environmental Law as
hazardous, toxic, pollutants, contaminants or words of similar meaning,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes.
"Indebtedness" of any Person means, at a particular time, all items
which constitute, without duplication, (a) indebtedness for borrowed money or
the deferred purchase price of Property (other than trade payables and accrued
liabilities incurred in the ordinary course of business), (b) indebtedness
evidenced by notes, bonds, debentures or similar instruments, (c) obligations
with respect to any conditional sale or title retention agreement, (d)
indebtedness arising under acceptance facilities and the amount available to be
drawn under all letters of credit issued for the account of such Person, (e) all
drafts drawn under letters of credit issued for the account of such Person to
the extent such Person shall not have reimbursed the issuer in respect of the
issuer's payment of such drafts, (f) all liabilities secured by any Lien on any
Property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof (other than carriers',
warehousemen's, mechanics', repairmen's, landlords' or other like statutory
Liens arising in the ordinary course of business), (g) obligations under capital
leases and (h) Guarantees in respect of the foregoing; provided that any
Indebtedness owing by the Borrower to any of the Subsidiaries or by any
Subsidiary to the Borrower or by any Subsidiary to any other Subsidiary or any
Guarantees in respect thereof shall not constitute Indebtedness for purposes of
this Agreement.
"Indemnified Tax" has the meaning assigned to such term in Section
2.16(a).
"Indemnitee" has the meaning assigned to such term in Section
9.3(b).
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"Index Debt" means senior, unsecured, long-term indebtedness for
borrowed money of the Borrower that is not guaranteed by any Person (other than
a Guarantor) or subject to any other credit enhancement.
"Interest Election Request" means a request by the Borrower to
convert or continue a Revolving Borrowing, substantially in the form of Exhibit
F.
"Interest Payment Date" means (a) with respect to any ABR Loan, the
last day of each March, June, September and December, (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the Borrowing
of which such Loan is a part and, in the case of a Eurodollar Borrowing with an
Interest Period of more than three months' duration, each day prior to the last
day of such Interest Period that occurs at intervals of three months' duration
after the first day of such Interest Period, (c) as to all Revolving Loans, the
Maturity Date and (d) with respect to any Swingline Loan, the day that such
Swingline Loan is required to be repaid.
"Interest Period" means, with respect to any Eurodollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the calendar month that is one, two, three, six
or, if available to all of the Lenders, nine or twelve months thereafter, as the
Borrower may elect; provided that (a) if any Interest Period would end on a day
other than a Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless such next succeeding Business Day would fall in
the next calendar month, in which case such Interest Period shall end on the
next preceding Business Day, and (b) any Interest Period that commences on the
last Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the last calendar month of such Interest
Period) shall end on the last Business Day of the last calendar month of such
Interest Period. For purposes hereof, the date of a Borrowing initially shall be
the date on which such Borrowing is made and thereafter shall be the effective
date of the most recent conversion or continuation of such Borrowing.
"Issuing Bank" means (a) BNY or (b) any other Lender designated by
the Borrower and acceptable to the Administrative Agent, in either case, in its
capacity as issuer of Letters of Credit.
"LC Disbursement" means a payment made by the Issuing Bank pursuant
to a Letter of Credit.
"LC Exposure" means, at any time, the sum, without duplication, of
(a) the aggregate undrawn amount of all outstanding Letters of Credit at such
time plus (b) the aggregate amount of all LC Disbursements that have not yet
been reimbursed by or on behalf of the Borrower at such time. The LC Exposure of
any Lender at any time shall be its Applicable Percentage of the total LC
Exposure at such time.
"Lenders" means the Persons listed on Schedule 2.1 and any other
Person that shall have become a party hereto from time to time pursuant to an
Assignment and Acceptance or Accession Agreement, other than any such Person
that shall have ceased to be a party hereto pursuant to any provision of this
Agreement, including by way of an Assignment and
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Acceptance. Unless the context otherwise requires, the term "Lenders" includes
the Swingline Lender.
"Letter of Credit" means any letter of credit (and any successive
renewals thereof) issued pursuant to this Agreement.
"LIBO Rate" means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Telerate Service (or on
any successor or substitute page of such Service, or any successor to or
substitute for such Service, providing rate quotations comparable to those
currently provided on such page of such Service, as determined by the
Administrative Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, as the rate for dollar deposits with a
maturity comparable to such Interest Period. In the event that such rate is not
available at such time for any reason, then the "LIBO Rate" with respect to such
Eurodollar Borrowing for such Interest Period shall be the rate at which dollar
deposits of $5,000,000 and for a maturity comparable to such Interest Period are
offered by the principal London office of the Administrative Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Lien" means, with respect to any Property, any mortgage, deed of
trust, lien, pledge, hypothecation, encumbrance having the effect of a security
interest, sale-leaseback arrangement or other charge or security interest in, on
or of such asset.
"Loan Documents" means this Agreement, the Guarantee Agreement and
the documentation in respect of each Letter of Credit.
"Loans" means the loans made by the Lenders to the Borrower pursuant
to this Agreement.
"Material Adverse Change" means a material adverse change in (i) the
financial condition, business or Property of the Borrower and the Subsidiaries,
taken as a whole, or (ii) the ability of the Borrower and the Guarantors to
perform their respective obligations under the Loan Documents.
"Material Adverse Effect" means a material adverse effect on (a) the
financial condition, business or Property of the Borrower and the Subsidiaries,
taken as a whole, or (b) the ability of the Borrower and the Guarantors to
perform their respective obligations under the Loan Documents.
"Material Subsidiary Group" means any Subsidiary or group of
Subsidiaries as to which, individually or in the aggregate, any of the following
tests are met: (a) the Borrower's and the other Subsidiaries' investments in and
advances to such Subsidiary or group of Subsidiaries exceed 10% of the total
assets of the Borrower and the Subsidiaries on a Consolidated basis as of the
last day of the most recently completed fiscal year of the Borrower; (b) such
Subsidiary's or
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group of Subsidiaries' proportionate share of the total assets (after
intercompany eliminations) of the Borrower and the Subsidiaries on a
Consolidated basis exceeds 10% of the total assets of the Borrower and the
Subsidiaries on a Consolidated basis as of the last day of the most recently
completed fiscal year of the Borrower; or (c) the equity in the income from
continuing operations before income taxes, extraordinary items and the
cumulative effect of a change in accounting principles of such Subsidiary or
group of Subsidiaries exceeds 10% of such income of the Borrower and the
Subsidiaries on a Consolidated basis (after giving effect to the exclusion of
minority interests) for the most recently completed fiscal year of the Borrower.
In the event any new Subsidiary shall be acquired or formed, the status of any
one or more Subsidiaries as a Material Subsidiary Group shall be determined on a
pro forma basis, giving effect to such acquisition or formation, as applicable,
as if it had occurred at the beginning of the most recently completed fiscal
year of the Borrower.
"Maturity Date" means September 19, 2006.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
"Participant" has the meaning assigned to such term in Section
9.4(e).
"PBGC" means the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA, or any Governmental Authority
succeeding to the functions thereof.
"Pension Plan" means at any date of determination, any Employee
Benefit Plan (including a Multiemployer Plan), the funding requirements of which
(under Section 302 of ERISA or Section 412 of the Code) are, or at any time
within the six years immediately preceding such date, were in whole or in part,
the responsibility of the Borrower, any of the Subsidiaries or any ERISA
Affiliate.
"Permitted Encumbrances" means:
(a) Liens imposed by law for Taxes that are not overdue by more than
90 days or are being contested in compliance with Section 5.4;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's and other like Liens imposed by law, arising in the ordinary course
of business and securing obligations that are not overdue by more than 90 days
or are being contested in good faith by appropriate proceedings;
(c) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other social
security laws or regulations or to secure public or statutory obligations;
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(d) Liens securing the performance of, or payment in respect of,
bids, trade contracts, leases, statutory obligations, surety and appeal bonds,
performance bonds and other obligations of a like nature, in each case in the
ordinary course of business;
(e) judgment Liens in respect of judgments that do not constitute an
Event of Default under clause (i) of Article 7;
(f) any interest or title of a lessor or sublessor (other than a
lessor or sublessor under a lease or sublease that constitutes a Capital Lease
Obligation or that is entered into as part of a sale-leaseback arrangement) and
any restriction or encumbrance to which the interest or title of such lessor or
sublessor may be subject that is incurred in the ordinary course of business;
(g) Liens in favor of customs and revenue authorities arising as a
matter of law or pursuant to a bond to secure payment of customs duties in
connection with the importation of goods;
(h) customary rights of setoff upon deposits of cash in favor of
banks or other depository institutions in which such cash is maintained in the
ordinary course of business;
(i) Liens on goods (or related documents of title) securing
reimbursement obligations under trade letters of credit issued for the account
of the Borrower or the Subsidiaries in the ordinary course of business in
connection with the purchase of such goods; and
(j) easements, operating agreements, covenants, conditions, rights
of way, survey exceptions, licenses, zoning restrictions and other encumbrances
on title to, or restrictions on the use of, real property that do not materially
and adversely affect the value of such property or the use of such property for
its present purposes;
provided that, except as provided in clauses (d), (h) and (i) above, the term
"Permitted Encumbrances" shall not include any Lien securing Indebtedness.
"Person" means an individual, partnership, corporation (including a
business trust), joint stock company, trust, unincorporated association, joint
venture, limited liability company or other entity, or a government or any
political subdivision or agency thereof.
"Prime Rate" means the rate of interest per annum publicly announced
from time to time by BNY as its prime commercial lending rate at its principal
office in New York City; each change in the Prime Rate being effective from and
including the date such change is publicly announced as being effective. The
Prime Rate is not intended to be the lowest rate of interest charged by BNY in
connection with extensions of credit to borrowers.
"Prohibited Transaction" means a transaction that is prohibited
under Section 4975 of the Code or Section 406 of ERISA and not exempt under
Section 4975 of the Code or Section 408 of ERISA.
"Property" means all types of real, personal, tangible, intangible
or mixed property.
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"Prospective Lender" has the meaning set forth in Section 2.19.
"Register" has the meaning set forth in Section 9.4(c).
"Related Parties" means, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Required Lenders" means, at any time, Lenders having Revolving
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Exposures and unused Commitments at such time.
"Revolving Exposure" means, with respect to any Lender at any time
(without duplication), the sum of the aggregate outstanding principal amount of
such Lender's Revolving Loans, LC Exposure and its Swingline Exposure at such
time.
"Revolving Loan" means a Loan referred to in Section 2.1 and made
pursuant to Section 2.3.
"S&P" means Standard & Poor's Ratings Service, a division of the
XxXxxx-Xxxx Companies, Inc.
"SEC" means United States Securities and Exchange Commission.
"Statutory Reserve Rate" means a fraction (expressed as a decimal),
the numerator of which is the number one and the denominator of which is the
number one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as "eurocurrency liabilities" in
Regulation D of the Board) during any Interest Period. Such reserve percentages
shall include those imposed pursuant to such Regulation D. Eurodollar Loans
shall be deemed to constitute eurocurrency funding and to be subject to such
reserve requirements without benefit of or credit for proration, exemptions or
offsets that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"subsidiary" means, with respect to any Person (the "parent") at any
date, any corporation, limited liability company, partnership, association or
other entity of which more than 50% of the Voting Stock is or, in the case of a
partnership, more than 50% of the general partnership interests are, as of such
date, owned, Controlled or held by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary" means any subsidiary of the Borrower.
"Successor Person" shall have the meaning assigned to such term in
Section 6.1.
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"Swingline Commitment" means, with respect to the Swingline Lender,
the commitment of the Swingline Lender to make Swingline Loans hereunder. The
initial amount of the Swingline Lender's Swingline Commitment is $50,000,000.
"Swingline Exposure" means, at any time, the aggregate principal
amount of all Swingline Loans outstanding at such time. The Swingline Exposure
of any Lender at any time shall be its Applicable Percentage of the aggregate
Swingline Exposure at such time.
"Swingline Lender" means BNY in its capacity as lender of Swingline
Loans hereunder.
"Swingline Loan" means a Loan made pursuant to Section 2.9.
"Swingline Rate" means, with respect to each Swingline Loan, the
rate per annum agreed to in writing by the Borrower and the Swingline Lender as
the interest rate that such Swingline Loan shall bear.
"Tax on the Income" as to any Person, means a Tax imposed by the
jurisdiction in which such Person's principal office (and, in the case of a
Lender, its Applicable Lending Office for Revolving Loans) is located, or in
which such Person is deemed to be doing business, or by any political
subdivision or taxing authority thereof based on or measured by all or part of
the net income, profits or gains of that Person or any affiliate thereof
(whether worldwide, or only insofar as such income, profits or gains are
considered to arise in or to relate to a particular jurisdiction, or otherwise).
"Taxes" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"364-Day Credit Agreement" means the 364-Day Credit Agreement, dated
as of September 19, 2001, among the Borrower, the lenders party thereto and BNY,
as administrative agent thereunder.
"Termination Event" means, with respect to any Pension Plan, (a) any
event set forth in Section 4043(b) (other than any such event as to which the 30
day notice requirement is waived by the PBGC under applicable regulations),
4062(c) or 4063(a) of ERISA or the regulations thereunder, (b) an event
requiring the Borrower, any of the Subsidiaries or any ERISA Affiliate to
provide security to a Pension Plan under Section 401(a)(29) of the Code, (c) any
failure to make any payment required by Section 412(m) of the Code, (d) the
termination of a Pension Plan, or 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(c) of ERISA, (e) the institution of proceedings to terminate
a Pension Plan under Section 4042 of ERISA, or (f) the appointment of a trustee
to administer any Pension Plan under Section 4042 of ERISA.
"Transactions" means (a) the execution, delivery and performance by
each of the Borrower and the Guarantors of each Loan Document to which it is a
party, (b) the borrowing of the Loans and the issuance of the Letters of Credit
and (c) the use of the proceeds of the Loans and the Letters of Credit.
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"Type" when used in reference to any Loan or Borrowing, refers to
whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to (a) in the case of a Revolving
Borrowing, the Adjusted LIBO Rate or the Alternate Base Rate, or (b) in the case
of a Swingline Loan, the Swingline Rate.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are ordinarily,
in the absence of contingencies, entitled to vote for the election of directors
(or persons performing similar functions) of such Person, even if the right so
to vote has been suspended by the happening of such a contingency.
Section 1.2. Classification of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g., a "Revolving
Loan") or by Type (e.g., a "Eurodollar Loan") or by Class and Type (e.g., a
"Eurodollar Revolving Loan"). Borrowings also may be classified and referred to
by Class (e.g., a "Revolving Borrowing") or by Type (e.g., a "Eurodollar
Borrowing") or by Class and Type (e.g., a "Eurodollar Revolving Borrowing").
Section 1.3. Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include", "includes" and "including" shall
be deemed to be followed by the phrase "without limitation". The word "will"
shall be construed to have the same meaning and effect as the word "shall".
Unless the context requires otherwise (a) any definition of or reference to any
agreement, instrument or other document herein, including any Loan Document,
shall be construed as referring to such agreement, instrument or other document
as from time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words "asset" and "property" shall be construed to
have the same meaning and effect and to refer to any and all Property.
Section 1.4. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance herewith.
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ARTICLE 2. The Credits
Section 2.1. Commitments. Subject to the terms and conditions set forth
herein, each Lender agrees to make Revolving Loans to the Borrower from time to
time during the Availability Period in dollars in an aggregate principal amount
that will not result in (a) such Lender's Revolving Exposure exceeding such
Lender's Commitment or (b) the sum of the total Revolving Exposures exceeding
the total Commitments. Within the foregoing limits and subject to the terms and
conditions set forth herein, the Borrower may borrow, prepay and reborrow
Revolving Loans.
Section 2.2. Loans and Borrowings. (a) Each Revolving Loan shall be made
as part of a Borrowing consisting of Revolving Loans made by the Lenders ratably
in accordance with their respective Commitments. The failure of any Lender to
make any Loan required to be made by it shall not relieve any other Lender of
its obligations hereunder; provided that the Commitments of the Lenders are
several and no Lender shall be responsible for any other Lender's failure to
make Loans as required.
(b) Subject to Section 2.13, each Revolving Borrowing shall be
comprised entirely of ABR Loans or Eurodollar Loans as the Borrower may request
in accordance herewith. Each Lender at its option may make any Eurodollar Loan
by causing any domestic or foreign branch or Affiliate of such Lender to make
such Loan; provided that any exercise of such option shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
this Agreement or subject the Borrower to any additional or increased
obligations under this Agreement.
(c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $1,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than $1,000,000;
provided that an ABR Borrowing may be in an aggregate amount that is equal to
the entire unused balance of the total Commitments or in an aggregate amount
that is required to finance the reimbursement of an LC Disbursement as
contemplated by Section 2.10(e). Borrowings of more than one Type and Class may
be outstanding at the same time; provided that there shall not at any time be
more than a total of ten Eurodollar Revolving Borrowings outstanding.
(d) Notwithstanding any other provision of this Agreement, the
Borrower shall not be entitled to request, or to elect to convert or continue,
any Borrowing if the Interest Period requested with respect thereto would end
after the Maturity Date.
Section 2.3. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request by
telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00 a.m.,
New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m., New
York City time, on the date of the proposed Borrowing. Except as provided in
Section 2.14, each such telephonic Borrowing Request shall be irrevocable and
shall be
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confirmed promptly by hand delivery or telecopy to the Administrative Agent of a
written Borrowing Request signed by the Borrower. Each such telephonic and
written Borrowing Request shall specify the following information in compliance
with Section 2.2 and this Section:
(i) the aggregate amount of the requested Borrowing;
(ii) the date of such Borrowing, which shall be a Business
Day;
(iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
(iv) in the case of a Eurodollar Borrowing, the initial
Interest Period to be applicable thereto, which shall be a period
contemplated by the definition of the term "Interest Period"; and
(v) the location and number of the Borrower's account to which
funds are to be disbursed, which shall comply with the requirements
of Section 2.5.
If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected an Interest Period of one month's
duration. Promptly following receipt of a Borrowing Request in accordance with
this Section, the Administrative Agent shall advise each Lender of the details
thereof and of the amount of such Lender's Loan to be made as part of the
requested Borrowing.
Section 2.4. Termination and Reduction of Commitments.(a) The Borrower may
at any time terminate, or from time to time reduce, the Commitments; provided
that (i) each reduction of the Commitments shall be in an amount that is an
integral multiple of $1,000,000 and not less than $1,000,000 and (ii) the
Borrower shall not terminate or reduce the Commitments if, after giving effect
to any concurrent prepayment of the Revolving Loans in accordance with Section
2.8, the sum of the aggregate Revolving Exposures would exceed the aggregate
Commitments.
(b) The Borrower shall notify the Administrative Agent of any
election to terminate or reduce the Commitments under paragraph (a) of this
Section at least three Business Days prior to the effective date of such
termination or reduction, specifying the effective date of such election.
Promptly following receipt of any such notice, the Administrative Agent shall
advise the Lenders of the contents thereof. Each notice delivered by the
Borrower pursuant to this Section shall be irrevocable; provided that a notice
of termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the applicable Lenders in accordance with their respective Commitments.
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Section 2.5. Funding of Borrowings. (a) Each Lender shall make each Loan
to be made by it hereunder on the proposed date thereof by wire transfer of
immediately available funds by 12:00 noon, New York City time, to the account of
the Administrative Agent most recently designated by it for such purpose by
notice to the Lenders, provided that Swingline Loans shall be made as provided
in Section 2.9(a). The Administrative Agent will make such Loans available to
the Borrower by promptly crediting the amounts so received, in like funds, to an
account of the Borrower designated by the Borrower in the applicable Borrowing
Request, provided that ABR Revolving Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.10(e) shall be remitted by the
Administrative Agent to the Issuing Bank, provided, further, that ABR Revolving
Loans made to finance the repayment of a Swingline Loan as provided in Section
2.9(c) shall be remitted by the Administrative Agent to the Swingline Lender.
(b) Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender's share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section,
paragraph (c) of Section 2.9 or paragraph (e) of Section 2.10 and may, in
reliance upon such assumption, make available to the Borrower a corresponding
amount. In such event, if a Lender has not in fact made its share of the
applicable Borrowing available to the Administrative Agent, then the applicable
Lender and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each
day from and including the date such amount is made available to the Borrower to
but excluding the date of payment to the Administrative Agent, at (i) in the
case of such Lender, the greater of the Federal Funds Effective Rate and a rate
determined by the Administrative Agent in accordance with banking industry rules
on interbank compensation or (ii) in the case of the Borrower, the interest rate
applicable to such Loans at the time. If such Lender pays such amount to the
Administrative Agent prior to the payment thereof by the Borrower, then such
amount shall constitute such Lender's Loan included in such Borrowing.
Section 2.6. Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and, in
the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the Lenders holding the
Loans comprising such Borrowing, and the Loans comprising each such portion
shall be considered a separate Borrowing. Swingline Borrowings may not be
converted or continued.
(b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that a
Borrowing Request would be required under Section 2.3 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Except as provided in Section 2.14,
each such telephonic Interest Election Request shall be irrevocable and
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shall be confirmed promptly by hand delivery or telecopy to the Administrative
Agent of a written Interest Election Request signed by the Borrower.
(c) Each telephonic and written Interest Election Request shall
specify the following information in compliance with Section 2.2 and this
Section:
(i) the Borrowing to which such Interest Election Request
applies and, if different options are being elected with respect to
different portions thereof, the portions thereof to be allocated to
each resulting Borrowing (in which case the information to be
specified pursuant to clauses (iii) and (iv) below shall be
specified for each resulting Borrowing);
(ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
(iii) whether the resulting Borrowing is to be an ABR
Borrowing or a Eurodollar Borrowing; and
(iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of
the term "Interest Period".
If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month's duration.
(d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing.
(e) If the Borrower fails to deliver a timely Interest Election
Request with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof, if
an Event of Default has occurred and is continuing and the Administrative Agent,
at the request of the Required Lenders, so notifies the Borrower, then, so long
as an Event of Default is continuing, (i) no outstanding Revolving Borrowing may
be converted to or continued as a Eurodollar Borrowing and (ii) unless repaid,
each Eurodollar Revolving Borrowing shall be converted to an ABR Borrowing at
the end of the Interest Period applicable thereto.
Section 2.7. Repayment of Loans; Evidence of Debt. (a) The Borrower hereby
unconditionally promises to pay (i) to the Administrative Agent for the account
of each Lender the then unpaid principal amount of each Revolving Loan on the
Maturity Date and (ii) to the Swingline Lender the then unpaid principal amount
of each Swingline Loan on the earlier of (A) the maturity date selected by the
Borrower for such Swingline Loan and (B) the Maturity Date.
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(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.
(c) The Administrative Agent shall maintain accounts in which it
shall record (i) the amount of each Loan made hereunder, the Class and Type
thereof and any Interest Period applicable thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Lender hereunder and (iii) the amount of any sum received by
the Administrative Agent hereunder for the account of the Lenders and each
Lender's share thereof.
(d) The entries made in the accounts maintained pursuant to
paragraph (b) or (c) of this Section shall, absent manifest error, be prima
facie evidence of the existence and amounts of the obligations recorded therein;
provided that the failure of any Lender or the Administrative Agent to maintain
such accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Loans in accordance with the terms of this
Agreement.
(e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and deliver
to such Lender a promissory note payable to the order of such Lender (or, if
requested by such Lender, to such Lender and its registered assigns) and in a
form approved by the Administrative Agent and reasonably acceptable to the
Borrower. Thereafter, the Loans evidenced by such promissory note and interest
thereon shall at all times (including after assignment pursuant to Section 9.4)
be represented by one or more promissory notes in such form payable to the order
of the payee named therein (or, if such promissory note is a registered note, to
such payee and its registered assigns).
Section 2.8. Prepayment of Loans. (a) The Borrower shall have the right at
any time and from time to time to prepay any Borrowing (other than any Swingline
Borrowing, the prepayment of which is governed pursuant to Section 2.9(b)) in
whole or in part, subject to prior notice in accordance with paragraph (b) of
this Section.
(b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any prepayment of a Revolving Borrowing hereunder not
later than 11:00 a.m., New York City time, two Business Days before the date of
prepayment. Each such notice shall be irrevocable and shall specify the
prepayment date and the principal amount of each Borrowing or portion thereof to
be prepaid; provided that, if a notice of prepayment is given in connection with
a conditional notice of termination of the Commitments as contemplated by
Section 2.4, then such notice of prepayment may be revoked if such notice of
termination is revoked in accordance with Section 2.4. Promptly following
receipt of any such notice relating to a Revolving Borrowing, the Administrative
Agent shall advise the Lenders of the contents thereof. Each partial prepayment
of any Revolving Borrowing shall be in an amount that would be permitted in the
case of an advance of a Revolving Borrowing of the same Type as provided in
Section 2.2. Each prepayment of a Revolving Borrowing shall be applied ratably
to the Loans
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included in the prepaid Borrowing. Prepayments shall be accompanied by accrued
interest and breakage fees to the extent required by Section 2.12 and Section
2.15, respectively.
Section 2.9. Swingline Loans (a) Subject to the terms and conditions set
forth herein, the Swingline Lender agrees to make Swingline Loans to the
Borrower in dollars from time to time on any Business Day during the period from
the Effective Date to the tenth Business Day preceding the Maturity Date in an
aggregate principal amount at any time outstanding that will not result in the
Swingline Exposure exceeding the Swingline Commitment or the sum of the total
Revolving Exposures exceeding the total Commitments, provided that the Swingline
Lender shall not be obligated to make a Swingline Loan to refinance an
outstanding Swingline Loan. Notwithstanding the foregoing, (i) the Swingline
Lender shall not be required to make a Swingline Loan if (x) any Lender shall be
in default of its obligations under this Agreement or (y) any Lender shall have
notified the Swingline Lender and the Borrower in writing at least one Business
Day prior to the date of Borrowing with respect to such Swingline Loan that the
conditions set forth in Section 4.2 have not been satisfied and such conditions
remain unsatisfied as of the requested time of the making of such Swingline Loan
and (ii) the Swingline Lender shall not make a Swingline Loan if the
Administrative Agent or the Required Lenders shall have notified the Swingline
Lender and the Borrower in writing at least one Business Day prior to the date
of Borrowing with respect to such Swingline Loan that the conditions set forth
in Section 4.2 have not been satisfied and such conditions remain unsatisfied as
of the requested time of the making of such Swingline Loan. Each Swingline Loan
shall be due and payable on the maturity thereof, provided that in no event
shall such maturity be later than the tenth Business Day preceding the Maturity
Date.
(b) To request a Swingline Loan, the Borrower shall notify the
Administrative Agent and the Swingline Lender by telephone (confirmed by
facsimile) no later than 1:30 p.m., New York City time, on the day of the
relevant Swingline Loan. Each such notice shall be irrevocable and shall specify
(i) the aggregate principal amount to be borrowed, (ii) the requested date
(which shall be a Business Day) and (iii) the maturity date of the requested
Swingline Loan which shall be not later than 30 Business Days after the making
of such Swingline Loan. The Swingline Lender will make the requested amount
available promptly on that same day, to the Administrative Agent (for the
account of the Borrower as set forth in Section 2.5(a)) who, thereupon, will
promptly make such amount available to the Borrower in like funds as provided
therein or, in the case of a Swingline Loan made to finance the reimbursement of
an LC Disbursement as provided in Section 10(e), by remittance to the Issuing
Bank. Each Swingline Loan shall be in an aggregate amount that is an integral
multiple of $500,000 and not less than $500,000. The Borrower shall have the
right at any time and from time to time to prepay any Swingline Borrowing in
whole or in part, provided that the Borrower shall notify the Administrative
Agent and the Swingline Lender by telephone (confirmed by facsimile) no later
than 11:00 a.m., New York City time, on the day of the proposed prepayment. Each
such notice shall be irrevocable and shall specify (A) the principal amount to
be prepaid, which shall be in an amount that is an integral multiple of $100,000
and not less than $500,000, or the remaining outstanding principal amount of the
Swingline Loan being prepaid, and (B) the date of prepayment (which shall be a
Business Day). Prepayments shall be accompanied by accrued interest and breakage
fees to the extent required by Section 2.12 and Section 2.15, respectively.
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(c) The Swingline Lender may by written notice given to the
Administrative Agent not later than 10:00 a.m., New York City time, on any
Business Day notify the Administrative Agent that the Swingline Lender is
requesting that the Lenders make an ABR Revolving Borrowing in an amount equal
to the outstanding principal balance and accrued interest on the Swingline
Loans, in which case (i) the Administrative Agent shall notify each Lender of
the details thereof and of the amount of such Lender's Loan to be made as part
of such ABR Revolving Borrowing and (ii) each Lender shall, whether or not any
Default shall have occurred and be continuing, any representation or warranty
shall be accurate, any condition to the making of any loan hereunder shall have
been fulfilled, or any other matter whatsoever, make the Loan to be made by it
under this paragraph by wire transfer of immediately available funds to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders, (A) on such date, in the event that such
Lender shall have received notice of such ABR Revolving Borrowing prior to 12:00
noon, New York City time, or (B) if such notice has not been received by such
Lender prior to such time on such date, then not later than 1:00 p.m., New York
City time, on (1) the Business Day that such Lender receives such notice, if
such notice is received prior to 12:00 noon, New York City time, on the day of
receipt or (2) the Business Day immediately following the day that such Lender
receives such notice, if such notice is not received prior to such time on the
day of receipt. Such Loans shall, for all purposes hereof, be deemed to be an
ABR Revolving Borrowing, and the Lenders obligations to make such Loans shall be
absolute and unconditional. The Administrative Agent will make such Loans
available to the Swingline Lender by promptly crediting or otherwise
transferring the amounts so received, in like funds, to the Swingline Lender for
the purpose of repaying in full the Swingline Loans and all accrued interest
thereon.
(d) If the Borrower fails to make any payment with respect to a
Swingline Loan, or if any such sum paid by the Borrower is required to be
refunded to the Borrower for any reason, the Administrative Agent shall notify
each Lender of the applicable Swingline Loan, the payment then due from the
Borrower in respect thereof and such Lender's Applicable Percentage thereof.
Each Lender shall purchase a participation in such Swingline Loan by paying to
the Administrative Agent its Applicable Percentage of the payment then due from
the Borrower, in the same manner as provided in Section 2.5 with respect to
Loans made by such Lender (and Section 2.5 shall apply, mutatis mutandis, to the
payment obligations of the Lenders), by wire transfer of immediately available
funds to the account of the Administrative Agent most recently designated by it
for such purpose by notice to the Lenders, (i) on such date, in the event that
such Lender shall have received notice thereof prior to 12:00 noon, New York
City time, or (ii) if such notice has not been received by such Lender prior to
such time on such date, then not later than 1:00 p.m., New York City time, on
(A) the Business Day that such Lender receives such notice, if such notice is
received prior to 12:00 noon, New York City time, on the day of receipt or (B)
the Business Day immediately following the day that such Lender receives such
notice, if such notice is not received prior to such time on the day of receipt.
The Administrative Agent shall promptly pay to the Swingline Lender the amounts
so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment in respect of such Swingline Loan from the
Borrower, the Administrative Agent shall distribute such payment to the
Swingline Lender or, to the extent that Lenders have made payments pursuant to
this paragraph to reimburse the Swingline Lender, then to such Lenders and the
Swingline Lender as their interests
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may appear. Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Swingline Loans is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever.
Section 2.10. Letters of Credit
(a) General. Subject to the terms and conditions set forth herein,
the Borrower may request the issuance of Letters of Credit denominated in
dollars for its own account, in a form reasonably acceptable to the
Administrative Agent and the Issuing Bank, at any time and from time to time
during the Availability Period. In the event of any inconsistency between the
terms and conditions of this Agreement and the terms and conditions of any form
of letter of credit application or other agreement submitted by the Borrower to,
or entered into by the Borrower with, the Issuing Bank relating to any Letter of
Credit, the terms and conditions of this Agreement shall control.
(b) Notice of Issuance; Amendment; Renewal; Extension; Certain
Conditions. To request the issuance of a Letter of Credit (or the amendment,
renewal or extension of an outstanding Letter of Credit), the Borrower shall
hand deliver or facsimile (or transmit by electronic communication, if
arrangements for doing so have been approved by the Issuing Bank) to the Issuing
Bank and the Administrative Agent (not later than three Business Days before the
requested date of issuance, amendment, renewal or extension) a notice requesting
the issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension (which shall be a Business Day), the date on which such
Letter of Credit is to expire (which shall comply with paragraph (c) of this
Section), the amount of such Letter of Credit, the name and address of the
beneficiary thereof and such other information as shall be necessary to prepare,
amend, renew or extend such Letter of Credit. If requested by the Issuing Bank,
the Borrower also shall submit a letter of credit application on the Issuing
Bank's standard form in connection with any request for a Letter of Credit. A
Letter of Credit shall be issued, amended, renewed or extended only if (and,
upon issuance, amendment, renewal or extension of each Letter of Credit, the
Borrower shall be deemed to represent and warrant that), after giving effect to
such issuance, amendment, renewal or extension, (i) the LC Exposure shall not
exceed $150,000,000 and (ii) the total Revolving Exposures shall not exceed the
total Commitments. Notwithstanding the foregoing, no Letter of Credit shall be
issued, amended, renewed or extended if the Administrative Agent or the Required
Lenders shall have notified the Issuing Bank and the Borrower in writing at
least one Business Day prior to the date of issuance, amendment, renewal or
extension, as applicable, of such Letter of Credit that the conditions set forth
in Section 4.2 have not been satisfied and such conditions remain unsatisfied as
of the requested time of issuance, amendment, renewal or extension, as
applicable, of such Letter of Credit.
(c) Expiration Date. Each Letter of Credit shall expire at or prior
to the close of business on the earlier of (i) the date that is one year after
the date of the issuance of such
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Letter of Credit (or, in the case of any renewal or extension thereof, one year
after such renewal or extension) and (ii) the date that is ten Business Days
prior to the Maturity Date, provided that any Letter of Credit may provide for
the renewal thereof for additional one-year periods (which shall in no event
extend beyond the date that is ten Business Days prior to the Maturity Date).
(d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the Issuing Bank or the Lenders, the Issuing Bank
hereby grants to each Lender, and each such Lender hereby acquires from the
Issuing Bank, a participation in such Letter of Credit equal to such Lender's
Applicable Percentage of the aggregate amount available to be drawn under such
Letter of Credit. In consideration and in furtherance of the foregoing, each
such Lender hereby absolutely and unconditionally agrees to pay to the
Administrative Agent, for the account of the Issuing Bank, such Lender's
Applicable Percentage of each LC Disbursement made by the Issuing Bank and not
reimbursed by the Borrower on the date due as provided in paragraph (e) of this
Section, or of any reimbursement payment required to be refunded to the Borrower
for any reason. Each such Lender acknowledges and agrees that its obligation to
acquire participations pursuant to this paragraph in respect of Letters of
Credit is absolute and unconditional and shall not be affected by any
circumstance whatsoever, including any amendment, renewal or extension of any
Letter of Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made without
any offset, abatement, withholding or reduction whatsoever; provided, however,
that no Lender shall be obligated to make any payment to the Administrative
Agent for any wrongful LC Disbursement made by the Issuing Bank as a result of
acts or omissions constituting willful misconduct or gross negligence on the
part of the Issuing Bank.
(e) Reimbursement. If the Issuing Bank shall make any LC
Disbursement in respect of a Letter of Credit, then the Issuing Bank shall
either (i) notify the Borrower to reimburse the Issuing Bank therefor, in which
case the Borrower shall reimburse such LC Disbursement by paying to the
Administrative Agent an amount equal to such LC Disbursement and any accrued
interest thereon on (A) the Business Day that the Borrower receives such notice,
if such notice is received prior to 12:00 noon, New York City time, on the day
of receipt or (B) the Business Day immediately following the day that the
Borrower receives such notice, if such notice is not received prior to such time
on the day of receipt, provided that, if the LC Disbursement is equal to or
greater than $1,000,000, the Borrower may, subject to the conditions of
borrowing set forth herein, request in accordance with Section 2.3 or Section
2.9 that such payment be financed with an ABR Borrowing in an equivalent amount
and, to the extent so financed, the Borrower's obligation to make such payment
shall be discharged and replaced by the resulting ABR Borrowing, or (ii) notify
the Administrative Agent that the Issuing Bank is requesting that the applicable
Lenders make an ABR Revolving Borrowing in an amount equal to such LC
Disbursement and any accrued interest thereon, in which case (A) the
Administrative Agent shall notify each applicable Lender of the details thereof
and of the amount of such Lender's Loan to be made as part of such ABR Revolving
Borrowing and (B) each Lender shall, whether or not any Default shall have
occurred and be continuing, any representation or warranty shall be accurate,
any condition to the making of any loan hereunder shall have been fulfilled, or
any other matter whatsoever, make the Loan to be made by it under this paragraph
by wire transfer of immediately available funds to the account of the
Administrative Agent most recently
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designated by it for such purpose by notice to the Lenders on (1) the Business
Day that such Lender receives such notice, if such notice is received prior to
12:00 noon, New York City time, on the day of receipt or (2) the Business Day
immediately following the day that such Lender receives such notice, if such
notice is not received prior to such time on the day of receipt. Such Loans
shall, for all purposes hereof, be deemed to be an ABR Revolving Borrowing, and
the Lenders obligations to make such Loans shall be absolute and unconditional.
The Administrative Agent will make such Loans available to the Issuing Bank by
promptly crediting or otherwise transferring the amounts so received, in like
funds, to the Issuing Bank for the purpose of repaying in full the LC
Disbursement and all accrued interest thereon.
(f) Obligations Absolute. The Borrower's and each Lender's
obligations to reimburse LC Disbursements as provided in paragraph (e) of this
Section shall be absolute, unconditional and irrevocable, and shall be performed
strictly in accordance with the terms of this Agreement under any and all
circumstances whatsoever and irrespective of (i) any lack of validity or
enforceability of any Letter of Credit or this Agreement, or any term or
provision therein or herein, (ii) any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect, (iii) payment
by the Issuing Bank under a Letter of Credit against presentation of a draft or
other document that does not comply with the terms of such Letter of Credit or
(iv) any other event or circumstance whatsoever, whether or not similar to any
of the foregoing, that might, but for the provisions of this Section, constitute
a legal or equitable discharge of, or provide a right of setoff against, the
Borrower's obligations hereunder. Neither any Credit Party nor any of their
respective Related Parties shall have any liability or responsibility by reason
of or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of the
Issuing Bank; provided that the foregoing shall not be construed to excuse the
Issuing Bank from liability to the Borrower to the extent of any direct damages
(as opposed to consequential damages, claims in respect of which are hereby
waived by the Borrower to the extent permitted by applicable law) suffered by
the Borrower that are caused by the Issuing Bank's failure to exercise care when
determining whether drafts and other documents presented under a Letter of
Credit comply with the terms thereof. The parties hereto expressly agree that,
in the absence of gross negligence or willful misconduct on the part of the
Issuing Bank (as finally determined by a court of competent jurisdiction), the
Issuing Bank shall be deemed to have exercised care in each such determination.
In furtherance of the foregoing and without limiting the generality thereof, the
parties agree that, with respect to documents presented which appear on their
face to be in substantial compliance with the terms of a Letter of Credit, the
Issuing Bank may, in its sole discretion, either accept and make payment upon
such documents without responsibility for further investigation, regardless of
any notice or information to the contrary, or refuse to accept and make payment
upon such documents if such documents are not in strict compliance with the
terms of such Letter of Credit.
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(g) Disbursement Procedures. The Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. The Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
facsimile) of such demand for payment and whether the Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Credit Parties with respect to any such LC Disbursement.
(h) Interim Interest. If the Issuing Bank shall make any LC
Disbursement, then, unless the Borrower shall reimburse such LC Disbursement in
full on the date such LC Disbursement is made, the unpaid amount thereof shall
bear interest, for each day from and including the date such LC Disbursement is
made to but excluding the date that the Borrower reimburses such LC
Disbursement, at the rate per annum then applicable to ABR Revolving Loans;
provided that, if the Borrower fails to reimburse such LC Disbursement when due
pursuant to paragraph (e) of this Section, then Section 2.12(d) shall apply.
Interest accrued pursuant to this paragraph shall be for the account of the
Issuing Bank, except that interest accrued on and after the date of payment by
any Lender pursuant to paragraph (e) of this Section to reimburse the Issuing
Bank shall be for the account of such Lender to the extent of such payment.
(i) Cash Collateral. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing at least 51% of the
total LC Exposure) demanding the deposit of cash collateral pursuant to this
paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the Credit
Parties, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or other notice of any kind,
upon the occurrence of any Event of Default with respect to the Borrower
described in clause (g) or (h) of Article 7. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Such deposit shall not bear interest, nor shall
the Administrative Agent be under any obligation whatsoever to invest the same,
provided, however, that, at the request of the Borrower, such deposit shall be
invested by the Administrative Agent in direct short-term obligations of, or
short-term obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America, in each case
maturing no later than the expiry date of the Letter of Credit giving rise to
the relevant LC Exposure. Interest or profits, if any, on such investments shall
accumulate in such account. Moneys in such account shall be applied by the
Administrative Agent to reimburse the Issuing Bank for LC Disbursements for
which it has not been reimbursed and, to the extent not so applied, shall be
held for the satisfaction of the reimbursement obligations of the Borrower for
the LC Exposure at such time or, if the maturity of the Loans has been
accelerated (but subject to the consent of Lenders with LC Exposure representing
at least 51% of the total LC Exposure), be applied to satisfy other obligations
of the Borrower under this Agreement. If the
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Borrower is required to provide an amount of cash collateral hereunder as a
result of the occurrence of an Event of Default, such amount (to the extent not
applied as aforesaid) shall be returned to the Borrower within three Business
Days after all Events of Default have been cured or waived.
Section 2.11. Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender (other than the Swingline Lender) a
facility fee, which shall accrue at the Applicable Rate with respect to facility
fees on the daily amount of the Commitment of such Lender (whether used or
unused) during the period from and including the date hereof to but excluding
the date on which such Commitment terminates; provided that, if such Lender
continues to have any Revolving Exposure after its Commitment terminates, then
such facility fee shall continue to accrue on the daily amount of such Lender's
Revolving Exposure from and including the date on which its Commitment
terminates to but excluding the date on which such Lender ceases to have any
Revolving Exposure. Accrued facility fees shall be payable in arrears on the
last day of March, June, September and December of each year, on each date on
which the Commitments are permanently reduced, on the date on which the
Commitments terminate and on any other date after the Commitments terminate on
which all outstanding Loans shall be repaid or prepaid. All facility fees shall
be computed on the basis of a year of 360 days and shall be payable for the
actual number of days elapsed (including the first day but excluding the last
day).
(b) The Borrower agrees to pay to the Administrative Agent for the
account of each Lender (other than the Swingline Lender) a utilization fee,
which shall accrue at the Applicable Rate with respect to utilization fees on
the amount of such Lender's Revolving Exposure for each day during the period
from and including the Effective Date to but excluding the Maturity Date on
which the sum of the total Revolving Exposure on such day plus the total
Revolving Exposure (as defined in the 364-Day Credit Agreement) on such day
exceeds 50% of the sum of the total Commitments on such day plus the total
Commitments (as defined in the 364-Day Credit Agreement) on such day. Accrued
utilization fees shall be payable in arrears on the last day of March, June,
September and December of each year, and on the Maturity Date. All utilization
fees shall be computed on the basis of a year of 360 days and shall be payable
for the actual number of days elapsed (including the first day but excluding the
last day).
(c) The Borrower agrees to pay (i) to the Administrative Agent for
the account of each Lender a participation fee with respect to its
participations in Letters of Credit, which shall accrue at rate per annum equal
to the Applicable Rate with respect to Eurodollar Revolving Loans on the average
daily amount of such Lender's LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the period from and
including the Effective Date to but excluding the later of the date on which
such Lender's Commitment terminates and the date on which such Lender ceases to
have any LC Exposure and (ii) to the Issuing Bank for its own account a fronting
fee, which shall accrue at the rate or rates per annum separately agreed upon
between the Borrower and the Issuing Bank on the average daily amount of the LC
Exposure (excluding any portion thereof attributable to unreimbursed LC
Disbursements) during the period from and including the Effective Date to but
excluding the later of the date of termination of the Commitments and the date
on which there ceases to be any LC Exposure, as well as the Issuing Bank's
standard fees with respect to the issuance, amendment, renewal or extension of
any Letter of Credit or processing of drawings thereunder.
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Accrued participation fees and fronting fees shall be payable in arrears on the
last day of March, June, September and December of each year, commencing on the
first such date to occur after the date hereof; provided that all such fees
shall be payable on the date on which the Commitments terminate and any such
fees accruing after the date on which the Commitments terminate shall be payable
on demand. Any other fees payable to the Issuing Bank pursuant to this paragraph
shall be payable within ten days after demand. All participation fees and
fronting fees shall be computed on the basis of a year of 360 days and shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day). Notwithstanding anything to the contrary herein, if an
Event of Default has occurred and is continuing and the Administrative Agent, at
the request of the Required Lenders, in the case of participation fees, or the
Issuing Bank, in the case of fronting fees, so notifies the Borrower, then, so
long as such Event of Default is continuing, all participation fees and fronting
fees shall be calculated at a rate per annum equal to 2% plus the rate otherwise
applicable thereto and shall be payable on demand.
(d) The Borrower agrees to pay to each Credit Party, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.
(e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds. Fees paid shall not be refundable under any
circumstances.
Section 2.12. Interest. (a) The Loans comprising each ABR Borrowing shall
bear interest at the Alternate Base Rate.
(b) The Loans comprising each Eurodollar Borrowing shall bear
interest at the Adjusted LIBO Rate for the Interest Period in effect for such
Borrowing plus the Applicable Rate with respect to Eurodollar Revolving Loans.
(c) Each Swingline Loan shall bear interest at the Swingline Rate,
unless a participation is required to be made pursuant to Section 2.9(c), in
which case such Loan shall bear interest at the Alternate Base Rate.
(d) Notwithstanding the foregoing, if any principal of or interest
on any Loan, any reimbursement obligation in respect of any LC Disbursement or
any fee or other amount payable by the Borrower hereunder is not paid when due,
whether at stated maturity, upon acceleration or otherwise, such overdue amount
shall bear interest, after as well as before judgment, at a rate per annum equal
to (i) in the case of overdue principal of any Loan, 2% per annum plus the rate
otherwise applicable to such Loan as provided in the preceding paragraphs of
this Section or (ii) in the case of any other amount, 2% per annum plus the rate
applicable to ABR Loans as provided in paragraph (a) of this Section.
(e) Accrued interest on each Loan shall be payable in arrears on
each Interest Payment Date for such Loan and, in the case of Revolving Loans,
upon termination of the Commitments; provided that (i) interest accrued pursuant
to paragraph (d) of this Section shall be payable on demand, (ii) in the event
of any repayment or prepayment of any Loan (other than a prepayment of an ABR
Revolving Loan prior to the end of the Availability Period), accrued
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interest on the principal amount repaid or prepaid shall be payable on the date
of such repayment or prepayment and (iii) in the event of any conversion of any
Eurodollar Revolving Loan prior to the end of the current Interest Period
therefor, accrued interest on such Loan shall be payable on the effective date
of such conversion.
(f) All interest hereunder shall be computed on the basis of a year
of 360 days, except that interest computed by reference to the Alternate Base
Rate at times when the Alternate Base Rate is based on the Prime Rate shall be
computed on the basis of a year of 365 days (or 366 days in a leap year), and in
each case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative Agent,
and such determination shall be conclusive absent manifest error.
Section 2.13. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing the Administrative Agent is
advised by the Required Lenders that the Adjusted LIBO Rate or the LIBO Rate, as
applicable, for such Interest Period will not adequately and fairly reflect the
cost to such Lenders (or Lender) of making or maintaining their Loans (or its
Loan) included in such Borrowing for such Interest Period, then the
Administrative Agent shall give notice thereof to the Borrower and the Lenders
by telephone or telecopy as promptly as practicable thereafter and, until the
Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (a) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective and (b) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that, if
the circumstances giving rise to such notice affect only one Type of Borrowings,
then the other Type of Borrowings shall be permitted.
Section 2.14. Increased Costs, Illegality, Etc. (a) In the event that any
Credit Party with respect to clauses (ii) and (iii) below or the Administrative
Agent with respect to clause (i) below shall have determined (which
determination shall, absent manifest error, be final and conclusive and binding
upon all parties hereto):
(i) on the second Business Day immediately preceding the making of
any requested Eurodollar Loan that, by reason of any changes arising after
the date hereof affecting the applicable interbank market, adequate and
fair means do not exist for ascertaining the applicable interest rate on
the basis provided for in the definition of the LIBO Rate; or
(ii) at any time that such Credit Party has incurred increased costs
or reductions in the amounts received or receivable hereunder with respect
to any Eurodollar Loan or any Letter of Credit or participation therein,
in each case by an amount such Credit Party deems to be material, because
of any change since the date hereof in any law, rule, regulation, order or
guideline applicable to such Credit Party or the compliance by such Credit
Party with any request (whether or not having the force of law) from any
central bank or other Governmental Authority made subsequent to the date
hereof or in the interpretation or administration thereof and including
the introduction after the date
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hereof of any new law, rule, regulation, order, guideline or request, such
as, for example, but not limited to: (A) a change in the basis of taxation
of payment to any Credit Party of the principal of or interest on such
Eurodollar Loan or any other amounts payable hereunder (except for changes
in the rate of tax on, or determined by reference to, the Tax on the
Income of such Credit Party), or (B) a change in official reserve
(including, without limitation, any marginal, emergency, supplemental,
special or other reserve) requirements (except to the extent included in
the computation of the Adjusted LIBO Rate), or any special deposit,
assessment or similar requirement against assets of, deposits with or for
the account of, or credit extended by, any Credit Party (or its Applicable
Lending Office); or
(iii) at any time that the making or continuance of any Eurodollar
Loan has been made (A) unlawful by any law, rule, regulation or order or
(B) impossible by compliance by any Credit Party in good faith with any
governmental directive or request (whether or not having the force of
law);
then, and in any such event, such Credit Party, in the case of clause (ii) or
(iii) above, or the Administrative Agent, in the case of clause (i) above, shall
promptly give notice (by telephone confirmed in writing) to the Borrower, and,
except in the case of clause (i) above, to the Administrative Agent of such
determination (which notice the Administrative Agent shall promptly transmit to
each of the Credit Parties). Thereafter, (1) in the case of clause (i) above, in
the event that Eurodollar Loans are so affected, Eurodollar Loans shall no
longer be available until such time as the Administrative Agent notifies the
Borrower and the Credit Parties that the circumstances giving rise to such
notice by the Administrative Agent no longer exist, and any notices given by the
Borrower with respect to Eurodollar Loans which have not yet been incurred
(including by way of conversion) shall be deemed rescinded by the Borrower, (2)
in the case of clause (ii) above, the Borrower shall pay to such Credit Party,
within 15 days of written demand therefor, such additional amounts (in the form
of an increased rate of, or a different method of calculating, interest or
otherwise as such Credit Party in its reasonable discretion shall determine) as
shall be required to compensate such Credit Party for such increased costs or
reductions in amounts received or receivable hereunder (a written notice as to
the additional amounts owed to such Credit Party, showing the basis for the
calculation thereof, submitted to the Borrower by such Credit Party in good
faith shall, absent manifest error, be final and conclusive and binding on all
the parties hereto) and (3) in the case of clause (iii) above, the Borrower
shall take one of the actions specified in paragraph (b) below. Each of the
Administrative Agent and the other Credit Parties agree that if it gives notice
to the Borrower of any of the events described in clause (i) or (iii) above, it
shall promptly notify the Borrower and, in the case of any such other Credit
Party, the Administrative Agent, if such event ceases to exist. If any such
event described in clause (i) or (iii) above with respect to Eurodollar Loans
ceases to exist as to a Credit Party, the obligations of such Credit Party to
make Eurodollar Loans and to convert Loans to or continue Loans as Eurodollar
Loans on the terms and conditions contained herein shall be reinstated.
(b) At any time that any Eurodollar Loan is affected by the
circumstances described in Section 2.14(a)(ii) or (iii), the Borrower may (and
in the case of a Eurodollar Loan affected by the circumstances described in
Section 2.14(a)(iii) shall) either (i) if the affected Eurodollar Loan is then
being made initially or pursuant to a conversion, cancel the respective
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borrowing or conversion by giving the Administrative Agent telephonic notice
(confirmed in writing) on the same date that the Borrower was notified by the
affected Credit Party or the Administrative Agent pursuant to Section
2.14(a)(ii) or (iii) or (ii) if the affected Eurodollar Loan is then
outstanding, upon at least three Business Days' written notice to the
Administrative Agent and the affected Credit Party, require the affected Credit
Party to convert such Eurodollar Loan into an ABR Loan as of the end of the
Interest Period then applicable to such Eurodollar Loan or within the time
required by law, if earlier.
(c) If any Credit Party determines that after the date hereof the
introduction of or any change in any applicable law, rule, regulation, order,
guideline, directive or compliance by such Credit Party or any corporation
controlling such Credit Party with any request (whether or not having the force
of law) from any Governmental Authority or central bank concerning capital
adequacy, or any change in interpretation or administration thereof by any
Governmental Authority or central bank, in each case made subsequent to the date
hereof, will have the effect of reducing the rate of return on the capital
required to be maintained by such Credit Party or any corporation controlling
such Credit Party based on the existence of such Credit Party's Commitment
hereunder or its obligations hereunder to a level below that which such Credit
Party or such corporation could have achieved but for such application or
compliance (taking into account such Credit Party's or such corporation's
policies with respect to capital adequacy) by an amount deemed by such Credit
Party to be material, the Borrower shall pay to such Credit Party, within 15
days of its written demand therefor, such additional amounts as shall be
required to compensate such Credit Party or such other corporation for the
increased cost to such Credit Party or such other corporation or the reduction
in the rate of return to such Credit Party or such other corporation as a result
of such reduction. In determining such additional amounts, each Credit Party
will act reasonably and in good faith and will use averaging and attribution
methods which are reasonable; provided that such Credit Party's reasonable good
faith determination of compensation owing under this paragraph shall, absent
manifest error, be final and conclusive and binding on all the parties hereto.
Each Credit Party, upon determining that any additional amounts will be payable
pursuant to this paragraph, will give prompt written notice thereof to the
Borrower, which notice shall show the basis for calculation of such additional
amounts.
(d) Each Credit Party shall notify the Borrower of any event
occurring after the Effective Date entitling such Credit Party to compensation
under this Section 2.14 as promptly as practicable, but in any event within 30
days after the officer having primary responsibility for this Agreement obtains
actual knowledge thereof; provided that no such notice shall be required if such
Credit Party has determined not to seek compensation under this Section 2.14 as
a result of such event. Each Credit Party will furnish to the Borrower a
certificate setting forth the basis and amount of each request by such Credit
Party for compensation under this Section 2.14. Determinations and allocations
by any Credit Party for purposes of this Section 2.14 on its costs or rate of
return of maintaining Loans or Letters of Credit or participations therein or
its obligation to make Loans or issue Letters of Credit or participate therein,
or on amounts receivable by it in respect of Loans or Letters of Credit, and of
the amounts required to compensate such Credit Party under this Section 2.14
shall be prima facie evidence of such determinations and allocations.
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(e) Notwithstanding the foregoing, no Credit Party shall be entitled
to any compensation described in this Section 2.14 unless, at the time it
requests such compensation, it is the policy or general practice of such Credit
Party to request compensation for comparable costs in similar circumstances
under comparable provisions of other credit agreements for comparable customers
unless specific facts or circumstances applicable to the Borrower or the
transactions contemplated by this Agreement would alter such policy or general
practice, provided that nothing in this paragraph shall preclude a Credit Party
from waiving the collection of similar costs from one or more of its other
customers.
(f) If any Credit Party fails to give the notice described in
paragraph (d) above within 30 days after it obtains such actual knowledge of the
event required to be described in such notice, such Credit Party shall, with
respect to any compensation that would otherwise be owing to such Credit Party
under this Section 2.14, only be entitled to payment for increased costs
incurred from and after the date that such Credit Party does give such notice.
Section 2.15. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto or any Swingline Loan other than on the maturity
thereof (other than a Swingline Loan, the Swingline Rate with respect to which
is based on the Alternate Base Rate) (including as a result of an Event of
Default), (b) the conversion of any Eurodollar Loan other than on the last day
of the Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Revolving Loan or Swingline Loan on the date specified in
any notice delivered pursuant hereto (regardless of whether such notice may be
revoked under Section 2.8(b) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.18, then, in any such event, the Borrower shall compensate each Lender
for the loss, cost and expense attributable to such event. In the case of a
Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed to
include an amount determined by such Lender to be the excess, if any, of (i) the
amount of interest which would have accrued on the principal amount of such Loan
had such event not occurred, at the Adjusted LIBO Rate or LIBO Rate, as the case
may be, that would have been applicable to such Loan, for the period from the
date of such event to the last day of the then current Interest Period therefor
(or, in the case of a failure to borrow, convert or continue, for the period
that would have been the Interest Period for such Loan), over (ii) the amount of
interest which would accrue on such principal amount for such period at the
interest rate which such Lender would bid were it to bid, at the commencement of
such period, for dollar deposits of a comparable amount and period from other
banks in the London interbank market. A certificate of any Lender setting forth
any amount or amounts that such Lender is entitled to receive pursuant to this
Section shall be delivered to the Borrower and shall be conclusive absent
manifest error. The Borrower shall pay such Lender the amount shown as due on
any such certificate within 15 days after receipt thereof.
Section 2.16. Taxes. (a) Provided that all documentation, if any, then
required to be delivered by any Credit Party pursuant to paragraph (c) below has
been delivered, all sums payable to each Credit Party by the Borrower or any
Guarantor under any Loan Document shall be paid free and clear of and (except to
the extent required by law) without any deduction or withholding on account of
any Taxes (other than a Tax on the Income of any Credit Party (for
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which payment need not be free and clear but no deduction or withholding shall
be made unless then required by applicable law)) imposed, levied, collected,
withheld or assessed by or within the United States or any political subdivision
of the United States or any other jurisdiction within or without the United
States from which a payment is made by or on behalf of the Borrower or any
Guarantor or in which the Borrower or an Affiliate thereof has an office or is
deemed to be doing business (each an "Indemnified Tax").
(b) If the Borrower or any Guarantor or any other Person acting as
agent or intermediary for the Borrower or any Guarantor is required by any law,
rule, regulation, order, directive, treaty or guideline to make any deduction or
withholding on account of any Indemnified Tax from any sum paid or payable by
the Borrower or any Guarantor to any Credit Party under any Loan Document:
(i) the Borrower, the Guarantors and such Credit Party,
as applicable, will cooperate with each other to notify each other
of any such requirement or any change in any such requirement as
soon as it becomes aware of such requirement and the applicability
of such requirement to any Loan Document;
(ii) the Borrower, such Guarantor or such other Person,
as applicable, shall pay any such Indemnified Tax before the date on
which penalties attach thereto, such payment to be made (if the
liability to pay is imposed on the Borrower, such Guarantor or such
other Person, as applicable) for its own account or (if the
liability is imposed on such Credit Party) on behalf of and in the
name of such Credit Party;
(iii) the sum payable by the Borrower, such Guarantor or
such other Person, as applicable, to the Credit Party in respect of
which the relevant deduction, withholding or payment is required
shall be increased to the extent necessary to ensure that, after the
making of that deduction, withholding or payment, such Credit Party
receives on the due date therefor a net sum equal to what it would
have received had no such deduction, withholding or payment been
required; and
(iv) within the later of (A) 30 days after paying any
sum from which it is required by law to make any deduction or
withholding, and (B) 30 days after the due date of payment of any
Tax which it is required by this clause (b) to pay, the Borrower or
such Guarantor, as applicable, shall deliver to the Administrative
Agent and the applicable other Credit Party evidence reasonably
satisfactory to the Administrative Agent and such other Credit Party
of the remittance of such Tax to the relevant Governmental
Authority;
provided that no such additional amount shall be required to be paid to any
Credit Party under this Section 2.16 with respect to an Indemnified Tax to the
extent that (1) such additional amount would have been required to have been
paid under any law, rule, regulation, order, directive, treaty or guideline in
effect on the date hereof (in the case of each Credit Party listed on the
signature pages hereof) or on the effective date of the Assignment and
Acceptance pursuant to which it became a Lender (in the case of each other
Credit Party) or (2) the obligation to deduct,
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withhold or pay such additional amount would not have arisen but for a failure
by the Administrative Agent or such Credit Party to comply with subsection (c)
below.
(c) Each Foreign Lender shall deliver to the Administrative Agent
and to the Borrower, (i) on or prior to the Effective Date (in the case of each
Lender listed on the signature pages hereto) or on the effective date of the
Assignment and Acceptance pursuant to which it becomes a Lender (in the case of
each other Lender), (ii) on or before the date, if any, such Lender designates a
new Applicable Lending Office and (iii) at such other times as may be necessary
in the determination of the Borrower or the Administrative Agent (each in the
reasonable exercise of its discretion), such certificates, documents or other
evidence, properly completed and duly executed by such Lender (including,
without limitation, Internal Revenue Service Form W-8 BEN or Form W-8 ECI or any
other certificate or statement of exemption (or any successor thereto) required
by applicable Treasury Regulations) to establish that such Lender is wholly
exempt from any deduction or withholding of United States federal income tax
under Section 1441, 1442 or 3406 of the Code or otherwise (or under any
comparable provisions of any successor statute) with respect to any payments to
such Lender of principal, interest, fees or other amounts payable under any Loan
Document. Neither the Borrower nor any Guarantor shall be required to pay any
additional amount to any such Lender under this Section 2.16 with respect to an
Indemnified Tax imposed, levied, collected, withheld or assessed by or within
the United States or any political subdivision thereof if such Lender shall have
failed to satisfy the requirements of the immediately preceding sentence;
provided that if such Lender shall have satisfied such requirements (A) on or
prior to the Effective Date (in the case of each Lender listed on the signature
pages hereto) or on the effective date of the Assignment and Acceptance pursuant
to which it became a Lender (in the case of each other Lender) or (B) on the
date such Lender designates a new Applicable Lending Office, nothing in this
subsection shall relieve the Borrower and each Guarantor of their respective
obligations to pay any additional amounts pursuant to this Section 2.16 in the
event that, as a result of any change in applicable law (including, without
limitation, any change in the interpretation thereof), such Lender is no longer
properly entitled to deliver certificates, documents or other evidence at a
subsequent date establishing the fact that such Lender is not subject to
withholding as described in the immediately preceding sentence.
Section 2.17. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) Each of the Borrower and the Guarantors shall make each payment required to
be made by it hereunder or under any other Loan Document (whether of principal,
LC Disbursements, interest, fees, or of amounts payable under Section 2.14,
2.15, 2.16 or 9.3, or otherwise) prior to 12:00 noon, New York City time, on the
date when due, in immediately available funds, without set-off or counterclaim.
Any amounts received after such time on any date may, in the discretion of the
Administrative Agent, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at One Wall Street, New
York, New York or such other office specified by the Administrative Agent from
time to time, except payments to be made to the Issuing Bank or the Swingline
Lender as expressly provided herein and except that payments pursuant to
Sections 2.14, 2.15, 2.16 and 9.3 shall be made directly to the Persons entitled
thereto. The Administrative Agent shall distribute any such payments received by
it for the account of any other Person to the appropriate recipient promptly
following receipt thereof. If any payment
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hereunder shall be due on a day that is not a Business Day, the date for payment
shall be extended to the next succeeding Business Day, and, in the case of any
payment accruing interest, interest thereon shall be payable for the period of
such extension. All payments hereunder shall be made in dollars.
(b) If at any time insufficient funds are received by and available
to the Administrative Agent to pay fully all amounts of principal, unreimbursed
LC Disbursements, interest and fees then due hereunder, such funds shall be
applied (i) first, towards payment of interest and fees then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
interest and fees then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans resulting in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements or Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements or Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements or Swingline Loans; provided that (i) if any
such participations are purchased and all or any portion of the payment giving
rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Swingline Loans to any assignee, other
than to the Borrower or any Subsidiary or other Affiliate thereof (as to which
the provisions of this paragraph shall apply). Each of the Borrower and the
Guarantors consents to the foregoing and agrees, to the extent it may
effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against it
rights of set-off and counterclaim with respect to such participation as fully
as if such Lender were a direct creditor thereof in the amount of such
participation.
(d) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the applicable Credit Parties hereunder that the
Borrower or such Guarantor, as applicable, will not make such payment, the
Administrative Agent may assume that the Borrower or such Guarantor, as
applicable, has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to such Credit Parties the amount
due. In such event, if the Borrower or such Guarantor, as applicable, has not in
fact made such payment,
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then each such Credit Party severally agrees to repay to the Administrative
Agent forthwith on demand the amount so distributed to such Credit Party with
interest thereon, for each day from and including the date such amount is
distributed to it to but excluding the date of payment to the Administrative
Agent, at the greater of the Federal Funds Effective Rate and a rate determined
by the Administrative Agent in accordance with banking industry rules on
interbank compensation.
(e) If any Credit Party shall fail to make any payment required to
be made by it pursuant to Section 2.5(b), 2.9(c), 2.10(e) or 2.17(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Credit Party to satisfy such Credit Party's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
Section 2.18. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender requests compensation under Section 2.14, or if the Borrower is required
to pay any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 2.16, then such Lender shall use
reasonable efforts to designate a different Applicable Lending Office for
funding or booking its Loans or Letters of Credit (or any participation therein)
hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 2.14 or 2.16, as the case may be, in the future and (ii) would not
subject such Lender to any material unreimbursed cost or expense and would not
otherwise be materially disadvantageous to such Lender. The Borrower hereby
agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) If at any time (i) any Lender requests compensation under
Section 2.14, or if the Borrower is required to pay any additional amount to any
Lender or any Governmental Authority for the account of any Lender pursuant to
Section 2.16, (ii) any Lender defaults in its obligation to fund Loans
hereunder, (iii) any Lender becomes insolvent and its assets become subject to a
receiver, liquidator, trustee, custodian or other Person having similar powers
or (iv) any Lender becomes a "Non-Consenting Lender" (as defined below), then
the Borrower may, at its sole expense and effort, upon notice to such Lender and
the Administrative Agent, require such Lender to (and such Lender shall) assign
and delegate, without recourse (in accordance with and subject to the
restrictions contained in Section 9.4), all its interests, rights and
obligations under this Agreement to an assignee (selected by the Borrower) that
shall assume such obligations (which assignee may be another Lender, if a Lender
accepts such assignment); provided that (i) the Borrower shall have received the
prior written consent of the Administrative Agent, the Swingline Lender and the
Issuing Bank, which consents shall not unreasonably be withheld, and (ii) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees and all other
amounts payable to it under the Loan Documents, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts). A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply. In the event that (x) the Borrower or
the Agent has requested the Lenders to consent to a departure or waiver of any
provisions of the Loan Documents or to agree
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to any amendment thereto, (y) the consent, waiver or amendment in question
requires the agreement of all Lenders in accordance with the terms of Section
9.2 and (z) the Required Lenders have agreed to such consent, waiver or
amendment, then any Lender who does not agree to such consent, waiver or
amendment within three Business Days after the condition set forth in clause (z)
above has been satisfied and a request therefor has been made to such Lender
shall be deemed a "Non-Consenting Lender".
(c) In lieu of replacing a Lender pursuant to paragraph (b) above,
provided that no Event of Default shall exist, the Borrower may direct in a
writing delivered to the Administrative Agent and such Lender that such Lender
be terminated as a Lender and that the aggregate amount of the Commitments be
reduced by the amount of the Commitment of such Lender; provided that (x) the
Borrower shall not reduce the Commitments pursuant to this paragraph if, after
giving effect to the payments to be made pursuant to the next sentence in
connection with such reduction, the sum of the aggregate Revolving Exposures
would exceed the aggregate Commitments and (y) no more than five Lenders in the
aggregate may be terminated pursuant to this paragraph. In such case, the
Borrower shall pay to such Lender an amount equal to the sum of (i) an amount
equal to the principal of, and all accrued interest on, all outstanding Loans of
such Lender, (ii) an amount equal to all accrued, but theretofore unpaid, fees
owing to such Lender, and (iii) all other obligations of the Borrower and the
Guarantors owing to such Lender concurrently with such termination. Upon such
notice and payment, (A) such Lender shall cease to constitute a Lender
hereunder, except with respect to indemnification provisions under this
Agreement, which shall survive as to such Lender, and (B) the aggregate amount
of Commitments shall be reduced by the amount of such Lender's Commitment and
the Applicable Percentages of the remaining Lenders shall be adjusted
accordingly.
Section 2.19. Increases in Commitments. The Borrower may, by written
notice to the Administrative Agent, executed by the Borrower and one or more
financial institutions, which may include one or more existing Lenders (each
such financial institution being called a "Prospective Lender"), cause
Commitments to be extended by the Prospective Lenders (or cause the Commitments
of the Prospective Lenders to be increased, as the case may be), in an amount
for each Prospective Lender set forth in such notice, provided, however, that
(a) each such extension or increase shall be effected ratably with a
corresponding extension or increase in the Commitments (as defined in the
364-Day Credit Agreement), (b) immediately after giving effect to each such
extension or increase, the sum of the aggregate amount of all such extensions
and increases plus the aggregate amount of all corresponding extensions and
increases under the 364-Day Credit Agreement shall in no event exceed
$50,000,000, (c) each such extension or increase shall be in an aggregate amount
that is an integral multiple of $5,000,000 and not less than $10,000,000, (d)
the Commitments shall in no event be extended or increased under this Section on
more than four (4) occasions, (e) each Prospective Lender, if not already a
Lender hereunder, shall be subject to the approval of the Administrative Agent
(which approval shall not be unreasonably withheld) and (f) each Prospective
Lender, if not already a Lender hereunder, shall become a party to this
Agreement by completing and delivering to the Administrative Agent a duly
executed Accession Agreement. New Commitments and increases in Commitments
pursuant to this Section shall become effective (i) in the case of a Prospective
Lender not already party hereto, on the effective date of the applicable
Accession Agreement and (ii) in the case of a Prospective Lender already party
hereto, on the date specified in the notice delivered pursuant to
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this Section. Upon the effectiveness of any Accession Agreement to which any
Prospective Lender not already a party hereto becomes a Lender, (A) such
Prospective Lender shall thereafter be deemed to be a party to this Agreement
and shall be entitled to all rights, benefits and privileges accorded a Lender
hereunder and subject to all obligations of a Lender hereunder and (B) Schedule
2.1 shall be deemed to have been amended to reflect the Commitment of the
additional Lender as provided in such Accession Agreement. Upon the
effectiveness of any extension or increase under this Section in the Commitment
of a Lender already a party hereunder, Schedule 2.1 shall be deemed to have been
amended to reflect the extended or increased Commitment of such Lender.
Notwithstanding the foregoing, no extension or increase in the total Commitments
(or in the Commitment of any Lender) shall become effective under this Section
unless the Administrative Agent shall have received a certificate dated the date
of such increase and duly executed by a Financial Officer stating that the
conditions set forth in paragraphs (a), (b) and (c) of Section 4.2 have been
satisfied as of the date of such extension or increase (with all references in
such paragraphs to a Borrowing being deemed to be references to such extension
or increase). If Revolving Loans would be outstanding immediately after giving
effect to any extension or increase of a Commitment under this Section, then
simultaneously with such extension or increase, (1) each applicable Prospective
Lender and each other Lender shall be deemed to have entered into a master
assignment and acceptance agreement, in form and substance substantially similar
to Exhibit A, pursuant to which each such other Lender shall have assigned to
each such Prospective Lender a portion of its Revolving Loans necessary to
reflect proportionately the Commitments as adjusted in accordance with this
Section and (2) in connection with such assignment, each such Prospective Lender
shall pay to the Administrative Agent, for the account of the other Lenders,
such amount as shall be necessary to appropriately reflect the assignment to it
of Revolving Loans, and in connection with such master assignment each such
other Lender may treat the assignment of Eurodollar Borrowings as a prepayment
of such Eurodollar Borrowings for purposes of Section 2.15.
ARTICLE 3. Representations and Warranties
In order to induce the Credit Parties to enter into this Agreement,
the Issuing Bank to issue the Letters of Credit and the Lenders to make the
Loans and participate in the Letters of Credit, the Borrower makes the following
representations and warranties to the Credit Parties:
Section 3.1. Organization and Powers. Each of the Borrower, the Guarantors
and the other Subsidiaries is duly organized or formed and validly existing in
good standing under the laws of the jurisdiction of its incorporation or
formation and has all requisite power and authority to own its Property and to
carry on its business as now conducted, except in the case of non-Guarantor
Subsidiaries where the failure to be so organized or formed, or to have such
power and authority, or to own such Property, or to carry on such business could
not reasonably be expected to have a Material Adverse Effect.
Section 3.2. Authorization. Each of the Borrower and the Guarantors has
full legal power and authority to enter into, execute, deliver and perform the
terms of each Loan Document to which it is a party, to incur the obligations
provided for herein or therein and, in the case of the Borrower, to make the
borrowings contemplated hereby, all of which have been duly authorized
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by all proper and necessary corporate or other applicable action, and each of
the Borrower and the Guarantors is in full compliance with its certificate of
incorporation, by-laws or other organizational documents.
Section 3.3. Enforceability. Each Loan Document constitutes a valid and
legally binding obligation of each of the Borrower and the Guarantors to the
extent it is a party thereto, enforceable in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting the enforcement of creditors'
rights generally.
Section 3.4. Litigation. Except as set forth in the Financial Statements
or Schedule 3.4, there are no actions, suits or proceedings at law or in equity
or by or before any Governmental Authority (whether purportedly on behalf of the
Borrower or any of the Subsidiaries) pending or, to the knowledge of the
Borrower, threatened against the Borrower or any of the Subsidiaries or any of
their respective Properties or rights, which could reasonably be expected to
have a Material Adverse Effect and result in a violation of Section 6.7.
Section 3.5. Required Consents. Except for information and similar filings
required to be made in the ordinary course of business which are not a condition
to the Borrower's or any Guarantor's performance under any Loan Document to
which it is a party, no consent, authorization or approval of, filing with,
notice to, or exemption by, any Governmental Authority is required to authorize,
or is required in connection with the execution, delivery and performance by the
Borrower or any Guarantor of, any Loan Document to which it is a party, or is
required as a condition to the validity or enforceability of any Loan Document
to which it is a party, except for consents, authorizations, approvals, filings,
notices or exemptions which were not required to be obtained on or before the
Effective Date and either have been obtained or the failure to obtain could not
reasonably be expected to have a Material Adverse Effect.
Section 3.6. Compliance with Applicable Laws. Neither the Borrower nor any
of the Subsidiaries is in default with respect to any judgment, order, writ,
injunction, decree or decision of any Governmental Authority which default could
reasonably be expected to have a Material Adverse Effect. Each of the Borrower
and the Subsidiaries is complying in all material respects with all statutes,
regulations, rules and orders applicable to it of all Governmental Authorities,
a violation of which could reasonably be expected to have a Material Adverse
Effect.
Section 3.7. Taxes. Each of the Borrower and the Subsidiaries has filed or
caused to be filed all tax returns required to be filed and has paid, or has
made adequate provision for the payment of, all taxes shown to be due and
payable on said returns or in any assessments made against it, except (a) any
Taxes that are being contested in good faith by appropriate proceedings and for
which the Borrower or such Subsidiary, as applicable, has set aside on its books
adequate reserves as shall be required by the Accountants in accordance with
GAAP or (b) to the extent that the failure to do so could not reasonably be
expected to result in a Material Adverse Effect.
Section 3.8. Governmental Regulations. Neither the Borrower nor any
Guarantor is subject to regulation under the Public Utility Holding Company Act
of 1935, as amended, the Federal Power Act or the Investment Company Act of
1940, as amended, and neither the
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Borrower nor any Guarantor is subject to any statute or regulation which
prohibits the incurrence of indebtedness under any Loan Document to which it is
a party, including statutes or regulations relative to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone, telegraph
or other public utility services.
Section 3.9. Federal Reserve Regulations; Use of Loan Proceeds. No part of
the proceeds of the Loans or any Letter of Credit will be used, directly or
indirectly, for a purpose which violates the provisions of Regulations T, U or X
of the Board, as amended. The execution, delivery and performance of each Loan
Document by each of the Borrower and the Guarantors, to the extent it is a party
thereto, will not violate any material law, rule or regulation of any
Governmental Authority.
Section 3.10. Financial Statements. The Borrower has heretofore furnished
to the Credit Parties its Consolidated balance sheet and statements of income,
stockholders equity and cash flows (i) as of and for the fiscal year ended
February 3, 2001, reported on by Ernst & Young LLP, independent public
accountants, and (ii) as of and for the fiscal quarter and the portion of the
fiscal year ended May 5, 2001, certified by its chief financial officer. Such
financial statements present fairly, in all material respects, the financial
position and results of operations and cash flows of the Borrower and the
Consolidated Subsidiaries as of such dates and for such periods in accordance
with GAAP, subject to year-end audit adjustments and the absence of footnotes in
the case of the statements referred to in clause (ii) above.
Section 3.11. Material Adverse Change. Since May 5, 2001, there has been
no Material Adverse Change.
Section 3.12. No Conflicting Agreements. The execution, delivery and
performance by each of the Borrower and the Guarantors of each Loan Document to
which it is a party will not constitute a default under, or result in a breach
of the terms of, any mortgage, indenture, contract or agreement to which it is a
party or by which it or any of its Property is bound which could reasonably be
expected to have a Material Adverse Effect or to be materially adverse to the
rights or interests of the Credit Parties.
Section 3.13. Disclosure. The Borrower has disclosed to the Credit Parties
all agreements, instruments and corporate or other restrictions to which it or
any of the Subsidiaries is subject, and all other matters known to it, that,
individually or in the aggregate, could reasonably be expected to have a
Material Adverse Effect. The reports, financial statements, certificates or
other written or formally presented information (other than projected and pro
forma financial information and opinions) furnished by or on behalf of the
Borrower to any Credit Party in connection with the negotiation of the Loan
Documents or delivered thereunder (as modified or supplemented by other
information so furnished), considered as a whole, does not contain any material
misstatement of fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The projected and pro forma financial information and
opinions furnished by or on behalf of the Borrower to any Credit Party in
connection with the negotiation of the Loan Documents or delivered thereunder
were prepared in good faith based upon assumptions believed to be reasonable at
the time.
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ARTICLE 4. Conditions Precedent
Section 4.1. Effective Date. The obligations of the Lenders to make Loans
and of the Issuing Bank to issue Letters of Credit hereunder shall not become
effective until the date on which each of the following conditions shall have
been satisfied (or waived in accordance with Section 9.2):
(a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed on
behalf of such party or (ii) written evidence satisfactory to the Administrative
Agent (which may include telecopy transmission of a signed signature page of
this Agreement) that such party has signed a counterpart of this Agreement.
(b) The Administrative Agent (or its counsel) shall have received
the Guarantee Agreement signed on behalf of each Guarantor.
(c) The Administrative Agent shall have received a favorable written
opinion (addressed to the Credit Parties and dated the Effective Date) of
Xxxxxxx X. Xxxxxx, Vice President - Counsel of the Borrower, substantially in
the form of Exhibit B-1, and Weil, Gotshal & Xxxxxx LLP, counsel for the
Borrower and the Guarantors, substantially in the form of Exhibit B-2.
(d) The Administrative Agent shall have received a certificate,
dated the Effective Date, of the Secretary or an Assistant Secretary of each of
the Borrower and the Guarantors, (i) attaching a true and complete copy of the
resolutions (or excerpts thereof) of its Board of Directors and of all documents
evidencing other necessary corporate action (in form and substance reasonably
satisfactory to the Administrative Agent) taken by it to authorize each Loan
Document to which it is a party, (ii) attaching a true and complete copy of its
certificate of incorporation, by-laws or other organizational documents and
(iii) attesting as to the incumbency of each of its officers executing each Loan
Document to which it is a party, including therein a signature specimen of each
such officer.
(e) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by a Financial Officer, confirming
compliance with the conditions set forth in paragraphs (a), (b) and (c) of
Section 4.2.
(f) The Existing Credit Documents shall have been terminated and all
amounts due thereunder shall have been paid, and the Administrative Agent shall
have received evidence, in form and substance reasonably satisfactory to it,
thereof.
(g) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to the
extent invoiced, reimbursement or payment of all reasonable out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder.
The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
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Section 4.2. Each Credit Event. The obligation of each Lender to make a
Loan on the occasion of any Borrowing, and of the Issuing Bank to issue, amend,
renew or extend a Letter of Credit, shall be subject to the satisfaction of the
following conditions:
(a) The representations and warranties of the Borrower set forth in
this Agreement (other than those contained in Sections 3.4 and 3.11) shall be
true and correct in all material respects on and as of the date of such
Borrowing or the date of such issuance, amendment, renewal or extension, as
applicable.
(b) At the time of and immediately after giving effect to such
Borrowing or such issuance, amendment, renewal or extension, as applicable, no
Default shall have occurred and be continuing.
(c) At the time of and immediately after giving effect to such
Borrowing or such issuance, amendment, renewal or extension, as applicable, no
default shall have occurred with respect to any obligations of the Borrower or
any of the Subsidiaries representing a Material Subsidiary Group, whether as
principal, guarantor, surety or otherwise, for the payment of Indebtedness as
defined in clause (a), (b), (c), (e) or (g) of the definition of such term, in
an aggregate Consolidated principal amount exceeding $25,000,000 that would,
immediately or with the lapse of time, permit the holder or holders of such
obligations or any representative acting on its or their behalf to declare such
obligations to be due and payable prior to the expressed maturity thereof.
Each Borrowing and each issuance, amendment, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a), (b)
and (c) of this Section.
ARTICLE 5. Affirmative Covenants
The Borrower agrees that, so long as this Agreement is in effect,
any Loan remains outstanding and unpaid, any Letter of Credit shall not have
expired, any LC Disbursements remain unreimbursed or any other amount is owing
under any Loan Document to any Credit Party, the Borrower will:
Section 5.1. Financial Statements. Maintain a standard system of
accounting in accordance with GAAP, and furnish or cause to be furnished to the
Administrative Agent and each Lender:
(a) Form 10-K. As soon as available, but in any event within 105
days after the end of each fiscal year of the Borrower, a copy of the annual
audited Consolidated financial statements of the Borrower and the Subsidiaries
prepared in conformity with GAAP and as filed with the SEC in the Borrower's
Annual Report on Form 10-K for such fiscal year. Such financial statements shall
be certified by the Accountants, which certification shall (i) state that the
examination by the Accountants in connection with such financial statements has
been made in accordance with generally accepted auditing standards and (ii)
include the opinion of the Accountants that such financial statements have been
prepared in accordance with GAAP.
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(b) Form 10-Q. As soon as available, but in any event within 50 days
after the end of each fiscal quarter (except the last fiscal quarter) of each
fiscal year of the Borrower, copies of unaudited Consolidated financial
statements of the Borrower and the Subsidiaries as filed with the SEC in the
Borrower's Quarterly Report on Form 10-Q for such fiscal quarter.
(c) Ratings. As soon as available, but in any event within two
Business Days after any downgrade or withdrawal by either S&P or Xxxxx'x of any
debt rating assigned to the Index Debt, written notice to the Administrative
Agent thereof, and of the effective date thereof, in each case certified by a
Financial Officer.
(d) Compliance Certificate. The financial statements to be delivered
pursuant to paragraphs (a) and (b) above (the "Financial Statements") shall be
accompanied by a certificate of a Financial Officer, (i) certifying that no
Default has occurred and was continuing as of the end of the fiscal period
covered by such statements, or, if such a Default has occurred and was
continuing at the end of such fiscal period, the action the Borrower proposes to
take with respect thereto and (ii) setting forth reasonably detailed
calculations demonstrating compliance with Sections 6.6 and 6.7.
(e) Other Information. Such other information regarding the Borrower
or any Subsidiary as any Credit Party may, through the Administrative Agent,
reasonably and in good faith request in writing.
Section 5.2. Certificates; Other Information. Furnish to the
Administrative Agent and each Lender:
(a) prompt written notice if there shall occur and be continuing a
Default; and
(b) promptly upon their becoming available, copies of all (i) 10-K,
10-Q, 8-K or other material, regular, periodic or special reports, schedules and
other documents which the Borrower or any of the Subsidiaries may now or
hereafter be required to file with or deliver to any securities exchange or the
SEC and (ii) material news releases and annual reports relating to the Borrower
or any of the Subsidiaries.
Section 5.3. Legal Existence. Except as permitted in Section 6.1, the
Borrower shall maintain its (i) legal existence and good standing in the
jurisdiction of its incorporation and (ii) good standing in each other
jurisdiction in which the failure so to do could reasonably be expected to have
a Material Adverse Effect, and except as a result of any transaction involving a
Subsidiary that is not prohibited by this Agreement, the Borrower shall cause
each of the Subsidiaries (other than Subsidiaries that do not constitute a
Material Subsidiary Group) to maintain its (a) legal existence and good standing
in the jurisdiction of its incorporation or formation and (b) good standing in
each other jurisdiction in which the failure so to do could reasonably be
expected to have a Material Adverse Effect.
Section 5.4. Taxes. Pay and discharge when due, and cause each of the
Subsidiaries so to do, all Taxes, assessments and governmental charges, license
fees and levies which, if unpaid, could reasonably be expected to have a
Material Adverse Effect, except such Taxes, assessments,
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charges, license fees and levies that shall be contested in good faith and by
appropriate proceedings diligently conducted by the Borrower or such Subsidiary
and provided that the Borrower shall give the Administrative Agent prompt notice
of such contest and that such reserve or other appropriate provision as shall be
required by the Accountants in accordance with GAAP shall have been made
therefor.
Section 5.5. Observance of Legal Requirements. Observe and comply in all
respects, and cause each of the Subsidiaries so to do, with all laws,
ordinances, orders, judgments, rules, regulations and requirements of all
Governmental Authorities, which now or at any time hereafter may be applicable
to it, a violation of which could reasonably be expected to have a Material
Adverse Effect, except such thereof as shall be contested in good faith and by
appropriate proceedings diligently conducted by it, provided that the Borrower
shall give the Administrative Agent prompt notice of such contest and that such
reserve or other appropriate provision as shall be required by the Accountants
in accordance with GAAP shall have been made therefor.
Section 5.6. Inspection of Property; Books and Records; Discussions. Keep
proper books of record and account in which full, true and correct entries in
conformity with GAAP and all requirements of law shall be made of all dealings
and transactions in relation to its business and activities and, after the
occurrence and during the continuance of an Event of Default, permit
representatives of any Credit Party, upon at least two Business Days' prior
written notice, to visit its corporate headquarters, and to discuss the
business, operations, prospects, licenses, Property and financial condition of
the Borrower and the Subsidiaries with the respective officers thereof.
ARTICLE 6. Negative Covenants
Until the Commitments have expired or terminated and the principal
of and interest on each Loan and all fees payable under the Loan Documents have
been paid in full and all Letters of Credit have expired and all LC
Disbursements have been reimbursed, the Borrower covenants and agrees with the
Credit Parties that it will not:
Section 6.1. Merger or Consolidation, Etc. (a) Consolidate with, be
acquired by, or merge into or with any Person, or convey or otherwise transfer
all or substantially all of its Property, except that the Borrower may
consolidate with or merge with another Person, or convey or transfer all or
substantially all of its Property to another Person, provided that (i) the
Borrower shall have given the Administrative Agent prior notice thereof, (ii)
the Person formed by such consolidation or into which the Borrower is merged, or
the Person which acquires by conveyance or transfer all or substantially all of
such Property, or any Person owning beneficially 100 percent of the Voting Stock
of such Person (in each case, the "Successor Person") shall expressly assume by
an instrument executed and delivered to the Administrative Agent, in form
reasonably satisfactory to the Administrative Agent, the obligations of the
Borrower under the Loan Documents (at which time the Borrower shall be deemed to
be released from the Loan Documents), (iii) no Default or Event of Default shall
exist before or after giving effect thereto and (iv) the Administrative Agent
shall have received such documents, opinions and certificates as the
Administrative Agent shall have reasonably requested in connection therewith.
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(b) Upon any consolidation or merger, or any conveyance or transfer
of all or substantially all of the Property of the Borrower in accordance with
Section 6.1(a), the Successor Person shall succeed to, and be substituted for,
and may exercise every right and power of, and shall be subject to all
obligations and liabilities of, the Borrower under the Loan Documents with the
same effect as if such Successor Person had been named as the Borrower herein.
In the event of any such conveyance or transfer, the Borrower, as the
predecessor Person, may be dissolved, wound up or liquidated at any time
thereafter.
Section 6.2. Subsidiary Indebtedness. (a) Permit any Subsidiary that is
not a Guarantor to create, incur, assume or permit to exist any Indebtedness
described in clause (a), (b), (c), (e) or (g) of the definition of such term,
other than:
(i) any such Indebtedness existing on the date hereof and set forth
in Schedule 6.2 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount thereof
(unless such increase is otherwise permitted by this Section);
(ii) any such Indebtedness to the Borrower or any other Subsidiary;
and
(iii) other such Indebtedness; provided that the sum of (i) the
aggregate outstanding principal amount of such Indebtedness, (ii) the
aggregate outstanding principal amount of any increase of any Indebtedness
permitted by paragraph (a)(i) of this Section and (ii) the aggregate
outstanding principal amount of the obligations secured by Liens permitted
under Section 6.3(h) does not at any time exceed 10% of Consolidated
Tangible Net Worth.
(b) Permit any Subsidiary to enter into, assume or be a party to any
Guarantee of Indebtedness of the Borrower, unless such Subsidiary shall be a
Guarantor.
Section 6.3. Liens, Etc. Create, assume, incur or suffer to exist, or
permit any Subsidiary to create, assume, incur or suffer to exist, any Lien on
any Property now owned or hereafter acquired by it, or assign, or permit any
Subsidiary to assign, any income or right with respect thereto, other than:
(a) Permitted Encumbrances;
(b) any Lien on any Property of the Borrower or any Subsidiary
existing on the date hereof and set forth in Schedule 6.3, and any other Lien on
any Property of the Borrower or any Subsidiary existing on the date hereof that
was incurred in the ordinary course of business and does not secure (i)
Indebtedness to Persons other than the Borrower or any Subsidiary of the type
described in clauses (a), (b) or (g) of the definition of such term or (ii)
Guarantees in respect of any such Indebtedness; provided that (i) no such Lien
shall apply to any other Property of the Borrower or any Subsidiary (other than
after acquired title in or on such property and proceeds and products of the
existing collateral in accordance with the instrument creating such Lien) and
(ii) any such Lien shall secure only those obligations which it secures on the
date hereof and any increase in such obligations not otherwise prohibited
hereunder;
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(c) any Lien existing on any Property prior to the acquisition
thereof by the Borrower or any Subsidiary, and any Lien existing on any Property
of any Person (other than a Subsidiary) that is merged into or consolidated with
the Borrower or a Subsidiary, or that otherwise becomes a Subsidiary, prior to
the time such Person is so merged or consolidated or becomes a Subsidiary;
provided that (i) such Lien is not created in contemplation of such acquisition,
merger or consolidation or such Person becoming a Subsidiary, as the case may
be, (ii) such Lien shall not apply to any other Property of the Borrower or any
Subsidiary (other than after acquired title in or on such property and proceeds
and products of the existing collateral in accordance with the instrument
creating such Lien) and (iii) such Lien shall secure only those obligations
which it secures on the date of such acquisition, merger or consolidation or the
date such Person becomes a Subsidiary, as the case may be, and any increase in
such obligations not otherwise prohibited hereunder;
(d) Liens on fixed or capital assets acquired, constructed or
improved by the Borrower or any Subsidiary securing the purchase price of such
fixed or capital assets or Indebtedness (including Capital Lease Obligations) of
the Borrower or any Subsidiary incurred and used to finance the acquisition,
construction or improvement of such fixed or capital assets; provided that (i)
such Liens and the Indebtedness secured thereby are incurred prior to or within
one year after such acquisition or the completion of such construction or
improvement and (ii) such Liens shall not apply to any other Property of the
Borrower or any Subsidiary (other than after acquired title in or on such
property and proceeds and products of the existing collateral in accordance with
the instrument creating such Lien);
(e) Liens arising in connection with Capital Lease Obligations of
non-Guarantor Subsidiaries not prohibited under Section 6.2; provided that no
such Lien shall extend to or cover any Property other than the Property subject
to such Capital Lease Obligations;
(f) Liens on Property of any Subsidiary securing obligations owing
to the Borrower or any other Subsidiary;
(g) Liens securing any extension, renewal or refunding (or
successive extensions, renewals or refundings) in whole or in part of any
obligations secured by Liens referred to in the foregoing paragraphs (a) through
(f); provided that the principal amount of the obligations secured by any such
Lien shall not exceed the principal amount outstanding immediately prior to such
extension, renewal or refunding and any increase in such prinicpal amount not
otherwise prohibited hereunder, and that any such Lien shall be limited to the
Property which, immediately prior to such extension, renewal or refunding,
secured such obligations; and
(h) Liens not expressly permitted by clauses (a) through (g) above;
provided that the sum, without duplication, of (i) the aggregate outstanding
principal amount of the Indebtedness permitted by clause (a)(iii) of Section
6.2, (ii) the aggregate outstanding principal amount of any increase of any
obligations permitted by paragraph (b), (c) and (g) of this Section and (iii)
the aggregate principal amount of outstanding obligations secured by Liens
(which amount, in the case of any sale of accounts receivable, shall be deemed
to equal the lesser of the aggregate uncollected balance of the accounts so sold
and the maximum claim of the purchaser
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with respect thereto) permitted by this clause (h) does not at any time exceed
10% of Consolidated Tangible Net Worth.
Section 6.4. Change in Nature of Business. Make, or permit any of the
Subsidiaries (other than Subsidiaries that do not constitute a Material
Subsidiary Group) to make, any material change in the nature of its business as
carried out at the date hereof, other than reasonable extensions thereof.
Section 6.5. Use of Proceeds. (a) Use the proceeds of the Loans and the
Letters of Credit other than for working capital and other general corporate
purposes, not inconsistent with the terms hereof or (b) use any part of the
proceeds of the Loans or any Letter of Credit, directly or indirectly, for a
purpose which violates the provisions of Regulations T, U or X of the Board, as
amended.
Section 6.6. Fixed Charge Coverage Ratio. Permit, as of the end of any
fiscal quarter of the Borrower, the Fixed Charge Coverage Ratio to be less than
1.80 to 1.00.
Section 6.7. Capitalization. Permit, at any time, the aggregate amount of
all Indebtedness for borrowed money and Indebtedness under capital leases of the
Borrower and the Consolidated Subsidiaries determined in accordance with GAAP at
such time to be greater than 58% of the sum of (i) the aggregate of all amounts
which would be included under shareholders' equity on a Consolidated balance
sheet of the Borrower and the Subsidiaries determined in accordance with GAAP at
such time plus (ii) the aggregate amount of all Indebtedness for borrowed money
and Indebtedness under capital leases of the Borrower and the Consolidated
Subsidiaries determined in accordance with GAAP at such time.
ARTICLE 7. Events of Default
If any of the following events ("Events of Default") shall occur:
(a) Any installment of principal on any Loan or any reimbursement
obligation in respect of any LC Disbursement shall not be paid on the date when
due and payable; or
(b) Any (i) installment of interest on any Loan or on any
reimbursement obligation in respect of any LC Disbursement or any fees shall not
be paid within five Business Days of the date when due and payable or (ii)
expenses or other amounts payable under any Loan Document or otherwise to any
Credit Party shall not be paid within 30 days of the date when due and payable;
or
(c) The failure of the Borrower to observe or perform any covenant
or agreement contained in Section 5.2(a), Section 5.3(a) or in Article 6; or
(d) The failure of the Borrower to observe or perform any other
term, covenant, or agreement contained in any Loan Document and such failure
shall have continued unremedied for a period of 30 days after the Administrative
Agent shall have notified the Borrower in writing thereof; or
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(e) Any representation or warranty made in any Loan Document or in
any certificate, report, opinion (other than an opinion of counsel) or other
document delivered pursuant thereto shall prove to have been incorrect in any
material respect when made or deemed made; or
(f) Any obligation of the Borrower or any of the Subsidiaries
representing a Material Subsidiary Group (other than its obligations in respect
of the Loans and the Letters of Credit), whether as principal, guarantor, surety
or other obligor, for the payment of any Indebtedness in an aggregate
Consolidated principal amount exceeding $25,000,000 (i) shall be declared to be
due and payable, or shall be required to be prepaid other than pursuant to a
regularly scheduled prepayment or required prepayment (unless such required
prepayment results from a default or event of default thereunder), prior to the
expressed maturity thereof, or (ii) shall not be paid when due or within any
grace period for the payment thereof; or
(g) The Borrower or any of the Subsidiaries representing a Material
Subsidiary Group shall (i) make an assignment for the benefit of creditors, (ii)
file a voluntary petition in bankruptcy, (iii) file any petition or answer
seeking for itself any reorganization, arrangement, composition, readjustment of
debt, liquidation or dissolution or similar relief under any present or future
statute, law or regulation of any jurisdiction, (iv) petition or apply to any
tribunal for any receiver, custodian or any trustee for any substantial part of
its Property, (v) be the subject of any bankruptcy, reorganization, insolvency
or similar proceeding filed against it which remains undismissed for a period of
60 days, (vi) file any answer admitting the material allegations of any such
petition filed against it in any such proceeding, (vii) seek, approve, consent
to, or acquiesce in any such proceeding, or in the appointment of any trustee,
receiver, sequestrator, custodian or liquidator for it, or any substantial part
of its Property, or any order is entered appointing any such trustee, receiver,
custodian or liquidator and such order remains in effect for 60 days, or (viii)
take any formal action for the purpose of effecting any of the foregoing; or
(h) An order for relief is entered under the bankruptcy or
insolvency laws of any jurisdiction (i) adjudging the Borrower or any of the
Subsidiaries representing a Material Subsidiary Group bankrupt or insolvent,
(ii) approving as properly filed a petition seeking reorganization, liquidation,
arrangement, adjustment or composition of or in respect of the Borrower or any
of the Subsidiaries representing a Material Subsidiary Group under the
bankruptcy or insolvency laws of any jurisdiction, (iii) appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator (or other similar
official) of the Borrower or any of the Subsidiaries representing a Material
Subsidiary Group or of any substantial part of the Property thereof or (iv)
ordering the winding up or liquidation of the affairs of the Borrower or any of
the Subsidiaries representing a Material Subsidiary Group, and any such decree
or order continues unstayed and in effect for a period of 60 days; or
(i) Judgments or decrees against one or more of the Borrower or any
of the Subsidiaries representing a Material Subsidiary Group in an aggregate
Consolidated amount exceeding $25,000,000 shall be rendered by a court of
competent jurisdiction and remain unpaid, unstayed on appeal, undischarged,
unbonded or undismissed for a period of 30 days; provided that any such
judgments or orders shall not give rise to an Event of Default under this
paragraph
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(i) if and to the extent that (i) the aggregate Consolidated amount of such
judgments or orders, to the extent exceeding $25,000,000, is fully covered by
one or more valid and binding policies of insurance and (ii) each applicable
insurer has been notified, and has not disputed its applicable share of such
coverage; or
(j) any Termination Event shall occur with respect to which the
Borrower or any of the Subsidiaries shall have been assessed any liability in an
aggregate Consolidated amount exceeding $25,000,000 which amount shall remain
unpaid for a period of 30 days, (ii) any Accumulated Funding Deficiency in an
aggregate Consolidated amount exceeding $25,000,000 shall exist with respect to
any Pension Plan and such Accumulated Funding Deficiency shall not have been
eliminated within a period of 30 days after it shall have been determined, (iii)
any Person shall engage in any Prohibited Transaction involving any Employee
Benefit Plan and, as a result thereof, the Borrower or any of the Subsidiaries
shall have been assessed an excise tax penalty in an aggregate Consolidated
amount exceeding $25,000,000 which amount shall remain unpaid for a period of 30
days; unless and to the extent only that such Termination Event, Accumulated
Funding Deficiency or Prohibited Transaction is being contested by appropriate
proceedings in good faith by the Borrower or such Subsidiary or Subsidiaries; or
(k) (i) Any Person or two or more Persons acting in concert shall
have acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Act of 1934), directly or indirectly, of Voting Stock of
the Borrower representing 20% or more of the combined voting power of all Voting
Stock of the Borrower; or (ii) during any period of up to 24 consecutive months,
commencing after the date of this Agreement, individuals who at the beginning of
such 24-month period were directors of the Borrower shall cease to constitute a
majority of the board of directors of the Borrower and the replacements thereof
shall not have been approved by a vote of at least a majority of the members of
the board of directors then still in office who either were members of the board
of directors at the beginning of such period or whose election as members of the
board of directors was previously so approved; or
(l) the Guarantee Agreement shall be determined by a final and
non-appealable decision of a court having jurisdiction over the matter, or shall
be claimed in writing by a Guarantor, not to be in full force and effect;
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either or
both of the following actions, at the same or different times: (i) terminate the
Commitments, and thereupon the Commitments shall terminate immediately, and (ii)
declare the Loans then outstanding to be due and payable in whole (or in part,
in which case any principal not so declared to be due and payable may thereafter
be declared to be due and payable), and thereupon the principal of the Loans so
declared to be due and payable, together with accrued interest thereon and all
fees and other obligations of the Borrower accrued hereunder, shall become due
and payable immediately, without presentment, demand, protest or other notice of
any kind, all of which are hereby waived by the Borrower; and in case of any
event with respect to the Borrower described in clause (g) or (h) of this
Article, the Commitments
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shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon and all fees and other obligations of the
Borrower accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.
ARTICLE 8. The Administrative Agent
Each of the Credit Parties hereby appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on its
behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof, together with such actions and powers as are reasonably
incidental thereto.
The bank serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent, and such
bank and its Affiliates may accept deposits from, lend money to and generally
engage in any kind of business with the Borrower or any Subsidiary or other
Affiliate thereof as if it were not the Administrative Agent hereunder.
The Administrative Agent shall not have any duties or obligations
except those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary or
other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Credit Parties as shall be necessary under the circumstances
as provided in Section 9.2) and (c) except as expressly set forth herein, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of the Subsidiaries that is communicated to or obtained by the bank serving
as Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Credit Parties as shall be necessary under the
circumstances as provided in Section 9.2) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Credit Party, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with any Loan Document, (ii) the contents of any certificate, report
or other document delivered hereunder or in connection therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth therein, (iv) the validity, enforceability, effectiveness
or genuineness of any Loan Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in Article 4 or
elsewhere in any Loan Document, other than to confirm receipt of items expressly
required to be delivered to the Administrative Agent.
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The Administrative Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person, and shall not incur any
liability for relying thereon. The Administrative Agent may consult with legal
counsel (who may be counsel for the Borrower), independent accountants and other
experts selected by it, and shall not be liable for any action taken or not
taken by it in accordance with the advice of any such counsel, accountants or
experts.
The Administrative Agent may perform any and all its duties and
exercise its rights and powers by or through any one or more sub-agents
appointed by the Administrative Agent. The Administrative Agent and any such
sub-agent may perform any and all its duties and exercise its rights and powers
through their respective Related Parties. The exculpatory provisions of the
preceding paragraphs shall apply to any such sub-agent and to the Related
Parties of the Administrative Agent and any such sub-agent, and shall apply to
their respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as Administrative Agent.
Subject to the appointment and acceptance of a successor
Administrative Agent as provided in this paragraph, the Administrative Agent may
resign at any time by notifying the Credit Parties and the Borrower. Upon any
such resignation, the Required Lenders shall have the right, with the consent of
the Borrower so long as no Event of Default shall have occurred and be
continuing (such consent not to be unreasonably withheld), to appoint a
successor. If no successor shall have been so appointed by the Required Lenders
and shall have accepted such appointment within 30 days after the retiring
Administrative Agent gives notice of its resignation, then the retiring
Administrative Agent may, on behalf of the Credit Parties, appoint a successor
Administrative Agent which shall be a bank with an office in New York, New York,
or an Affiliate of any such bank. Upon the acceptance of its appointment as
Administrative Agent hereunder by a successor, such successor shall succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring Administrative Agent, and the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder.
The Administrative Agent may be removed at any time by a notice
executed by the Required Lenders and delivered to the other Credit Parties and
the Borrower. Upon any such removal, the Required Lenders shall have the right,
with the consent of the Borrower so long as no Event of Default shall have
occurred and be continuing (such consent not to be unreasonably withheld), to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the removal of the Administrative Agent, then the Borrower may appoint a
successor Administrative Agent which shall be a bank with an office in New York,
New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the removed Administrative Agent. The removed Administrative Agent
shall be discharged from its duties and obligations hereunder effective at the
time of its removal.
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The fees payable by the Borrower to a successor Administrative Agent
shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the Administrative Agent's
resignation or removal hereunder, the provisions of this Article and Section 9.3
shall continue in effect for the benefit of such retiring or removed
Administrative Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while it was
acting as Administrative Agent.
Each Credit Party acknowledges that it has, independently and
without reliance upon the Administrative Agent or any other Credit Party and
based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Credit Party
also acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Credit Party and based on such documents and
information as it shall from time to time deem appropriate, continue to make its
own decisions in taking or not taking action under or based upon any Loan
Document, any related agreement or any document furnished hereunder or
thereunder.
ARTICLE 9. Miscellaneous
Section 9.1. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
(a) if to the Borrower, to it at 000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxx
Xxxxxx 00000-0000, Attention of Xxx X. Xxxxxxx, Senior Vice President-Treasurer
(Telecopy No. (000) 000-0000);
(b) if to the Administrative Agent, or BNY as Issuing Bank, to it at
Xxx Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of Xxxxx X.
Xxxxxxx (Telecopy No. (000) 000-0000), with a copy to The Bank of New York, at
Xxx Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention of: Xxxxxx X. Xxxxxx
(Telecopy No. (000) 000-0000); and
(c) if to any other Credit Party, to it at its address (or telecopy
number) set forth in its Administrative Questionnaire, a copy of which, if
requested by the Borrower, shall have been delivered to the Borrower.
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
Section 9.2. Waivers; Amendments. (a) No failure or delay by any Credit
Party in exercising any right or power under any Loan Document shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Credit Parties
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under the Loan Documents are cumulative and are not exclusive of any rights or
remedies that they would otherwise have. No waiver of any provision of any Loan
Document or consent to any departure by the Borrower or any Guarantor therefrom
shall in any event be effective unless the same shall be permitted by paragraph
(b) of this Section, and then such waiver or consent shall be effective only in
the specific instance and for the purpose for which given. Without limiting the
generality of the foregoing, the making of a Loan and/or the issuance,
amendment, extension or renewal of a Letter of Credit shall not be construed as
a waiver of any Default, regardless of whether any Credit Party may have had
notice or knowledge of such Default at the time.
(b) Neither any Loan Document nor any provision thereof may be
waived, amended or modified except pursuant to an agreement or agreements in
writing entered into by the Borrower or the Guarantors, as applicable, and the
Required Lenders or by the Borrower or the Guarantors, as applicable, and the
Administrative Agent with the consent of the Required Lenders; provided that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender, (ii) reduce the principal amount of any Loan or
any reimbursement obligation with respect to an LC Disbursement, or reduce the
rate of interest thereon (other than under Section 2.12(d)), or reduce any fees
payable hereunder, without the written consent of each Credit Party affected
thereby, (iii) postpone the scheduled date of payment of the principal amount of
any Loan, or any interest thereon, or any fees payable hereunder, or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date of
expiration of any Commitment, without the written consent of each Credit Party
affected thereby, (iv) change Section 2.17(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby without the written
consent of each Credit Party or (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; provided, further, that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent, the Issuing Bank or the Swingline Lender hereunder without
the prior written consent of the Administrative Agent, the Issuing Bank or the
Swingline Lender, as applicable. Notwithstanding the foregoing, any provision of
any Loan Document may be amended by an agreement in writing entered into by the
Borrower or the Guarantors, as applicable, the Required Lenders and the
Administrative Agent if (A) by the terms of such agreement the Commitment of
each Lender not consenting to the amendment provided for therein shall terminate
upon or simultaneously with the effectiveness of such amendment and (B) upon or
simultaneously with the effectiveness of such amendment, each Lender not
consenting thereto receives payment in full of the principal of and interest
accrued on each Loan made by it and all other amounts owing to it or accrued for
its account under the Loan Documents.
Section 9.3. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and its Affiliates, including the reasonable fees, charges and
disbursements of counsel for the Administrative Agent, in connection with the
syndication of the credit facilities provided for herein, the preparation and
administration of each Loan Document or any amendments, modifications or waivers
of the provisions thereof (whether or not the transactions contemplated thereby
shall be consummated), (ii) all reasonable out-of-pocket costs and expenses
incurred by the Issuing Bank
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in connection with the issuance, amendment, renewal or extension of any Letter
of Credit or any demand for payment thereunder and (iii) all reasonable
out-of-pocket expenses incurred by any Credit Party, including the fees, charges
and disbursements of any counsel for any Credit Party, in connection with the
enforcement or protection of its rights in connection with the Loan Documents,
including its rights under this Section, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) The Borrower shall indemnify each Credit Party, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and all
losses, claims, damages, liabilities and related expenses, including the
reasonable fees, charges and disbursements of any counsel for any Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection
with, or as a result of (i) the execution or delivery of any Loan Document or
any agreement or instrument contemplated thereby, the performance by the parties
thereto of their respective obligations thereunder or the consummation of the
Transactions or any other transactions contemplated thereby, (ii) any Loan or
Letter of Credit or the use of the proceeds thereof, including any refusal of
the Issuing Bank to honor a demand for payment under a Letter of Credit if the
documents presented in connection with such demand do not strictly comply with
the terms of such Letter of Credit, (iii) any Environmental Liability related in
any way to the Borrower or any of the Subsidiaries, or (iv) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses have resulted from (A)
the gross negligence or willful misconduct of such Indemnitee or any of its
Related Parties or (B) any material breach by such Indemnitee of its obligations
as set forth in this Agreement.
(c) To the extent that the Borrower fails to pay any amount required
to be paid by it to the Administrative Agent, the Issuing Bank or the Swingline
Lender under paragraph (a) or (b) of this Section, each Lender severally agrees
to pay to the Administrative Agent, the Issuing Bank or the Swingline Lender, as
applicable, such Lender's Applicable Percentage (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided that the unreimbursed expense or indemnified loss,
claim, damage, liability or related expense, as the case may be, was incurred by
or asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender, as applicable, in its capacity as such.
(d) To the extent permitted by applicable law, the Borrower shall
not assert, and hereby waives, any claim against any Indemnitee, on any theory
of liability, for any special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection with, or as a
result of this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or any Letter of Credit or the use of the proceeds
thereof.
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(e) All amounts due under this Section shall be payable promptly
after written demand therefor.
Section 9.4. Successors and Assigns. (a) The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower may
not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of each Credit Party unless such assignment or
transfer is made by the Borrower in accordance with Section 6.1 (and any other
attempted assignment or transfer by the Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of each Credit Party) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more assignees all or a portion
of its rights and obligations under this Agreement (including all or a portion
of its Commitment or obligations in respect of its LC Exposure or Swingline
Exposure and the Loans at the time owing to it); provided that (i) except in the
case of an assignment to a Lender or an Affiliate of a Lender, each of the
Borrower and the Administrative Agent (and, in the case of an assignment of all
or any portion of its Commitment or obligations in respect of its LC Exposure or
Swingline Exposure, the Issuing Bank and/or the Swingline Lender, as the case
may be) must give their prior written consent to such assignment (which consent
shall not be unreasonably withheld), (ii) except in the case of an assignment to
a Lender or an Affiliate of a Lender or an assignment of the entire remaining
amount of the assigning Lender's Commitment, the amount of the Commitment of the
assigning Lender subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $5,000,000 unless each of the
Borrower and the Administrative Agent otherwise consent, (iii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement, (iv) the parties
to each assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with, unless otherwise agreed by the
Administrative Agent, a processing and recordation fee of $3,500 and (v) the
assignee, if it shall not be a Lender, shall deliver to the Administrative Agent
an Administrative Questionnaire, a copy of which shall, if requested by the
Borrower, be delivered to the Borrower; and provided further that any consent of
the Borrower otherwise required under this paragraph shall not be required if an
Event of Default under clause (a), (b), (g) or (h) of Article 7 has occurred and
is continuing. Subject to acceptance and recording thereof pursuant to paragraph
(d) of this Section, from and after the effective date specified in each
Assignment and Acceptance the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Acceptance, have
the rights and obligations of a Lender under the Loan Documents, and the
assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Acceptance, be released from its obligations under the Loan
Documents (and, in the case of an Assignment and Acceptance covering all of the
assigning Lender's rights and obligations under this Agreement, such Lender
shall cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 2.14, 2.15, 2.16 and 9.3). Any assignment or transfer by a
Lender of rights or obligations under this Agreement that does not comply with
this
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paragraph shall be treated for purposes of this Agreement as a sale by such
Lender of a participation in such rights and obligations in accordance with
paragraph (e) of this Section.
(c) The Administrative Agent, acting for this purpose as an agent of
the Borrower, shall maintain at one of its offices in The City of New York a
copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitment of,
and principal amount of the Loans owing to, each Lender pursuant to the terms
hereof from time to time (the "Register"). The entries in the Register shall be
conclusive, and the Borrower and the Credit Parties may treat each Person whose
name is recorded in the Register pursuant to the terms hereof as a Lender
hereunder for all purposes of this Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Borrower and any
Credit Party, at any reasonable time and from time to time upon reasonable prior
notice.
(d) Upon its receipt of a duly completed Assignment and Acceptance
executed by an assigning Lender and an assignee, the assignee's completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Acceptance and record the information contained therein in the Register. No
assignment shall be effective for purposes of this Agreement unless it has been
recorded in the Register as provided in this paragraph.
(e) Any Lender may, without the consent of the Borrower or the
Administrative Agent, sell participations to one or more banks or other entities
(a "Participant") in all or a portion of such Lender's rights and obligations
under this Agreement (including all or a portion of its Commitment, LC Exposure,
Swingline Exposure and Loans owing to it); provided that (i) such Lender's
obligations under the Loan Documents shall remain unchanged, (ii) such Lender
shall remain solely responsible to the other parties hereto for the performance
of such obligations and (iii) the Borrower and the Credit Parties shall continue
to deal solely and directly with such Lender in connection with such Lender's
rights and obligations under the Loan Documents. Any agreement or instrument
pursuant to which a Lender sells such a participation shall provide that such
Lender shall retain the sole right to enforce the Loan Documents and to approve
any amendment, modification or waiver of any provision of any Loan document;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment,
modification or waiver described in the first proviso to Section 9.2(b) that
affects such Participant. Subject to paragraph (f) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections 2.14,
2.15 and 2.16 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the benefits of
Section 9.8 as though it were a Lender, provided such Participant agrees to be
subject to Section 2.17(c) as though it were a Lender.
(f) A Participant shall not be entitled to receive any greater
payment under Section 2.14 or 2.16 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant.
A Participant that would be a Foreign Lender if it
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were a Lender shall not be entitled to the benefits of Section 2.16 unless the
Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.16(c) as though it were a Lender.
(g) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under the Loan Documents to secure
obligations of such Lender, including any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations under the Loan Documents or substitute any such pledgee or assignee
for such Lender as a party hereto and any foreclosure by any such pledgee or
assignee (other than a Federal Reserve Bank) shall be subject to Section 9.4(b).
Section 9.5. Survival. All covenants, agreements, representations and
warranties made by the Borrower herein and in the certificates or other
instruments delivered in connection with or pursuant to this Agreement shall be
considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of each Loan Document and the making of any
Loans and the issuance of any Letter of Credit, regardless of any investigation
made by any such other party or on its behalf and notwithstanding that any
Credit Party may have had notice or knowledge of any Default or incorrect
representation or warranty at the time any credit is extended hereunder, and
shall continue in full force and effect as long as the principal of or any
accrued interest on any Loan or any LC Disbursement or any fee or any other
amount payable under any Loan Document is outstanding and unpaid or any Letter
of Credit is outstanding and so long as the Commitments have not expired or
terminated. The provisions of Sections 2.14, 2.15, 2.16 and 9.3 and Article 8
shall survive and remain in full force and effect regardless of the consummation
of the transactions contemplated hereby, the repayment of the Loans and the LC
Disbursements, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof.
Section 9.6. Counterparts; Integration; Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to any Credit Party
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. Except as provided in Section
4.1, this Agreement shall become effective when it shall have been executed by
the Administrative Agent and when the Administrative Agent shall have received
counterparts hereof which, when taken together, bear the signatures of each of
the other parties hereto, and thereafter shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.
Delivery of an executed counterpart of a signature page of this Agreement by
telecopy shall be effective as delivery of a manually executed counterpart of
this Agreement.
Section 9.7. Severability. In the event any one or more of the provisions
contained in this Agreement or in any other Loan Document should be held
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained
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herein and therein shall not in any way be affected or impaired thereby (it
being understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in
any other jurisdiction). The parties shall endeavor in good-faith negotiations
to replace the invalid, illegal or unenforceable provisions with valid
provisions the economic effect of which comes as close as possible to that of
the invalid, illegal or unenforceable provisions.
Section 9.8. Right of Setoff. In addition to any rights and remedies of
the Lenders provided by law, upon the occurrence of an Event of Default and the
acceleration of the obligations owing in connection with this Agreement, or at
any time upon the occurrence and during the continuance of an Event of Default,
under clause (a), (b), (g) or (h) of Article 7, each Lender shall have the
right, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent not prohibited by applicable law, to setoff
and apply against any indebtedness, whether matured or unmatured, of the
Borrower to such Lender, any amount owing from such Lender to the Borrower, at,
or at any time after, the happening of any of the above-mentioned events. To the
extent not prohibited by applicable law, the aforesaid right of setoff may be
exercised by such Lender against the Borrower or against any trustee in
bankruptcy, custodian, debtor in possession, assignee for the benefit of
creditors, receiver, or execution, judgment or attachment creditor of the
Borrower, or against anyone else claiming through or against the Borrower or
such trustee in bankruptcy, custodian, debtor in possession, assignee for the
benefit of creditors, receiver, or execution, judgment or attachment creditor,
notwithstanding the fact that such right of setoff shall not have been exercised
by such Lender prior to the making, filing or issuance, or service upon such
Lender of, or of notice of, any such petition, assignment for the benefit of
creditors, appointment or application for the appointment of a receiver, or
issuance of execution, subpoena, order or warrant. Each Lender agrees promptly
to notify the Borrower and the Administrative Agent after any such setoff and
application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such setoff and application.
Section 9.9. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the law
of the State of New York.
(b) Each of the Borrower and the Credit Parties hereby irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the other Loan Documents, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such New York State or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that any Credit Party may otherwise have to bring any action or proceeding
relating to this
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Agreement or the other Loan Documents against the Borrower or its properties, in
the courts of any jurisdiction.
(c) Each of the Borrower and the Credit Parties hereby irrevocably
and unconditionally waives, to the fullest extent it may legally and effectively
do so, any objection which it may now or hereafter have to the laying of venue
of any suit, action or proceeding arising out of or relating to this Agreement
or the other Loan Documents in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.1. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
Section 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY,
AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section 9.12. Confidentiality. Each Credit Party agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its Affiliates' directors, officers, employees
and agents, including accountants, legal counsel and other advisors (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to any Loan
Document, (e) in connection with the exercise of any remedies under any Loan
Document or any suit, action or proceeding relating to any Loan Document or the
enforcement of rights thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to any assignee of
or Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement, (g) with the consent of the Borrower
or (h) to the extent such Information (i) becomes publicly available other than
as a result of a breach of this Section or (ii) becomes available to any Credit
Party on a
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nonconfidential basis from a source other than the Borrower or any of its
Affiliates. For the purposes of this Section, "Information" means all
confidential information received from the Borrower relating to the Borrower or
its business, other than any such information that is available to any Credit
Party on a nonconfidential basis prior to disclosure by the Borrower. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Section 9.13. Interest Rate Limitation. Notwithstanding anything herein to
the contrary, if at any time the interest rate applicable to any Loan, together
with all fees, charges and other amounts which are treated as interest on such
Loan under applicable law (collectively the "charges"), shall exceed the maximum
lawful rate (the "maximum rate") which may be contracted for, charged, taken,
received or reserved by the Lender holding such Loan in accordance with
applicable law, the rate of interest payable in respect of such Loan hereunder,
together with all charges payable in respect thereof, shall be limited to the
maximum rate and, to the extent lawful, the interest and charges that would have
been payable in respect of such Loan but were not payable as a result of the
operation of this Section shall be cumulated and the interest and charges
payable to such Lender in respect of other Loans or periods shall be increased
(but not above the maximum rate therefor) until such cumulated amount, together
with interest thereon at the Federal Funds Effective Rate to the date of
repayment, shall have been received by such Lender.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
TOYS "R" US INC.
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
THE BANK OF NEW YORK, individually, as
Issuing Bank, as Swingline Lender and as
Administrative Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
CITIBANK, N.A., individually and as
Co-Syndication Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
X.X. XXXXXX XXXXX, individually and as
Co-Syndication Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
CREDIT SUISSE FIRST BOSTON, individually and
as Co-Documentation Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
FIRST UNION NATIONAL BANK, individually and
as Co-Documentation Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
THE DAI-ICHI KANGYO BANK, LTD., individually
and as Co-Documentation Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
SOCIETE GENERALE, individually and as
Co-Documentation Agent
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
XXXXX FARGO BANK, NATIONAL ASSOCIATION
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
FIRSTAR BANK, NA
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
BANK ONE, NA (MAIN OFFICE CHICAGO)
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
FLEET NATIONAL BANK
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TOYS "R" US, INC.
FIVE-YEAR CREDIT AGREEMENT
THE FIFTH THIRD BANK
By: ________________________________________
Name: ______________________________________
Title: _____________________________________