<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For the quarterly period ended OCTOBER 2, 1999
Commission file number: 1-5256
----------------------------
V. F. CORPORATION
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 23-1180120
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
628 GREEN VALLEY ROAD, SUITE 500
GREENSBORO, NORTH CAROLINA 27408
(Address of principal executive offices)
(336) 547-6000
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months and (2) has been subject to such filing requirements for
the past 90 days. YES X NO____
On October 30, 1999, there were 118,117,536 shares of Common Stock outstanding.
<PAGE> 2
VF CORPORATION
INDEX
PAGE NO.
PART I - FINANCIAL INFORMATION
Item 1 - Financial Statements
Consolidated Statements of Income -
Three months and nine months ended October 2, 1999 and
October 3, 1998............................................. 3
Consolidated Balance Sheets - October 2, 1999,
January 2, 1999 and October 3, 1998......................... 4
Consolidated Statements of Cash Flows -
Nine months ended October 2, 1999 and
October 3, 1998............................................. 5
Notes to Consolidated Financial Statements.................. 6
Item 2 - Management's Discussion and Analysis of Financial
Condition and Results of Operations......................... 9
PART II - OTHER INFORMATION
Item 6 - Exhibits and Reports on Form 8-K............................... 13
<PAGE> 3
VF CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
------------------------------ ------------------------------
OCTOBER 2 OCTOBER 3 OCTOBER 2 OCTOBER 3
1999 1998 1999 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
NET SALES $ 1,464,856 $ 1,458,780 $ 4,187,930 $ 4,135,304
COSTS AND OPERATING EXPENSES
Cost of products sold 961,943 944,672 2,755,612 2,712,015
Marketing, administrative
and general expenses 313,532 304,464 938,269 912,903
Other operating expense 3,038 3,180 9,044 4,940
----------- ----------- ----------- -----------
1,278,513 1,252,316 3,702,925 3,629,858
----------- ----------- ----------- -----------
OPERATING INCOME 186,343 206,464 485,005 505,446
OTHER INCOME (EXPENSE)
Interest income 1,299 1,772 4,526 5,031
Interest expense (18,787) (15,975) (53,831) (46,570)
Miscellaneous, net 368 687 1,272 1,194
----------- ----------- ----------- -----------
(17,120) (13,516) (48,033) (40,345)
----------- ----------- ----------- -----------
INCOME BEFORE INCOME TAXES 169,223 192,948 436,972 465,101
INCOME TAXES 65,327 73,333 167,928 180,599
----------- ----------- ----------- -----------
NET INCOME $ 103,896 $ 119,615 $ 269,044 $ 284,502
=========== =========== =========== ===========
EARNINGS PER COMMON SHARE
Basic $ 0.87 $ 0.98 $ 2.22 $ 2.31
Diluted 0.85 0.96 2.19 2.26
CASH DIVIDENDS PER COMMON SHARE $ 0.21 $ 0.20 $ 0.63 $ 0.60
</TABLE>
<PAGE> 4
VF CORPORATION
CONSOLIDATED BALANCE SHEETS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
OCTOBER 2 JANUARY 2 OCTOBER 3
1999 1999 1998
----------- ----------- -----------
ASSETS
CURRENT ASSETS
<S> <C> <C> <C>
Cash and equivalents $ 81,783 $ 63,208 $ 65,185
Accounts receivable, less allowances:
October 2 - $54,498; Jan 2 - $52,011;
October 3 - $50,268 829,239 705,734 828,979
Inventories:
Finished products 616,425 552,729 538,391
Work in process 198,479 185,929 199,869
Materials and supplies 190,359 215,349 178,377
----------- ----------- -----------
1,005,263 954,007 916,637
Other current assets 155,701 125,203 151,509
----------- ----------- -----------
Total current assets 2,071,986 1,848,152 1,962,310
PROPERTY, PLANT AND EQUIPMENT 1,789,059 1,711,131 1,676,487
Less accumulated depreciation 987,431 935,040 917,476
----------- ----------- -----------
801,628 776,091 759,011
INTANGIBLE ASSETS 998,020 951,562 942,906
OTHER ASSETS 310,702 260,861 232,305
----------- ----------- -----------
$ 4,182,336 $ 3,836,666 $ 3,896,532
=========== =========== ===========
LIABILITIES AND SHAREHOLDERS' EQUITY
CURRENT LIABILITIES
Short-term borrowings $ 462,083 $ 244,910 $ 233,715
Current portion of long-term debt 583 969 844
Accounts payable 333,998 341,126 353,735
Accrued liabilities 486,889 446,001 572,255
----------- ----------- -----------
Total current liabilities 1,283,553 1,033,006 1,160,549
LONG-TERM DEBT 523,057 521,657 518,574
OTHER LIABILITIES 186,069 181,750 166,528
REDEEMABLE PREFERRED STOCK 52,270 54,344 54,891
DEFERRED CONTRIBUTIONS TO EMPLOYEE
STOCK OWNERSHIP PLAN (15,780) (20,399) (21,859)
----------- ----------- -----------
36,490 33,945 33,032
COMMON SHAREHOLDERS' EQUITY
Common Stock 117,918 119,466 120,149
Additional paid-in capital 830,665 801,511 792,551
Accumulated other comprehensive income (59,784) (25,639) (30,006)
Retained earnings 1,264,368 1,170,970 1,135,155
----------- ----------- -----------
Total common shareholders' equity 2,153,167 2,066,308 2,017,849
----------- ----------- -----------
$ 4,182,336 $ 3,836,666 $ 3,896,532
=========== =========== ===========
</TABLE>
<PAGE> 5
VF CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
(UNAUDITED)
(IN THOUSANDS)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
--------------------------
OCTOBER 2 OCTOBER 3
1999 1998
--------- ---------
OPERATIONS
<S> <C> <C>
Net income $ 269,044 $ 284,502
Adjustments to reconcile net income to
cash provided by operations:
Depreciation 100,540 97,480
Amortization of intangible assets 24,890 24,277
Other, net (22,763) 380
Changes in current assets and liabilities:
Accounts receivable (108,129) (172,099)
Inventories 18,579 (32,312)
Accounts payable (22,954) 6,615
Other, net (2,426) 59,021
--------- ---------
Cash provided by operations 256,781 267,864
INVESTMENTS
Capital expenditures (126,425) (146,306)
Business acquisitions (156,197) (250,785)
Other, net (11,115) 19,223
--------- ---------
Cash invested (293,737) (377,868)
FINANCING
Increase in short-term borrowings 203,409 191,165
Proceeds from long-term debt 1,032 1,000
Payment of long-term debt (1,979) (620)
Purchase of Common Stock (97,478) (105,045)
Cash dividends paid (77,745) (75,578)
Proceeds from issuance of stock 24,963 38,950
Other, net 3,329 1,223
--------- ---------
Cash provided by financing 55,531 51,095
--------- ---------
NET CHANGE IN CASH AND EQUIVALENTS 18,575 (58,909)
CASH AND EQUIVALENTS - BEGINNING OF YEAR 63,208 124,094
--------- ---------
CASH AND EQUIVALENTS - END OF PERIOD $ 81,783 $ 65,185
========= =========
</TABLE>
<PAGE> 6
VF CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(UNAUDITED)
NOTE A - BASIS OF PRESENTATION
The accompanying unaudited consolidated financial statements have been prepared
in accordance with the instructions to Form 10-Q and do not include all of the
information and notes required by generally accepted accounting principles for
complete financial statements. In the opinion of management, all adjustments
(consisting of normal recurring accruals) considered necessary for a fair
presentation have been included. Operating results for the nine months ended
October 2, 1999 are not necessarily indicative of results that may be expected
for the year ending January 1, 2000. For further information, refer to the
consolidated financial statements and notes included in the Company's Annual
Report on Form 10-K for the year ended January 2, 1999.
NOTE B - ACQUISITIONS
During the third quarter of 1999, the Company acquired certain operating assets
of its former licensees for the Wrangler and Lee brands in Argentina. The
Company also acquired a group of companies that own exclusive rights to
manufacture and market the UFO brand, the leading jeans brand in Argentina.
During the first quarter of 1999, the Company acquired a majority interest in
the business of its former licensee for the Wrangler and JanSport brands in
Chile, Peru and Bolivia. The Company also acquired the operating assets of
Fibrotek Industries, Inc. and the common stock of Todd Uniform, Inc. and of
Horace Small Holdings Corporation. These acquisitions, costing $160.0 million in
total, have been accounted for as purchases, and accordingly, operating results
have been included in the financial statements from the dates of acquisition.
The net assets of these companies are included based on preliminary allocations
of the purchase prices, with approximately $69 million representing intangible
assets to be amortized over periods ranging from 20 to 40 years. Final asset and
liability valuations are not expected to have a material effect on the financial
statements.
The following pro forma results of operations assume that these businesses had
been acquired at the beginning of 1998 (in thousands, except per share amounts):
<TABLE>
<CAPTION>
Third Quarter Nine Months
------------------------------ --------------------------------
1999 1998 1999 1998
----------- ------------ ------------- -------------
<S> <C> <C> <C> <C>
Net sales $1,470,311 $ 1,519,820 $ 4,251,342 $ 4,315,672
Net income 101,694 118,411 265,899 280,233
Earnings per common share:
Basic $0.85 $0.97 $2.19 $2.28
Diluted 0.83 0.95 2.16 2.23
</TABLE>
<PAGE> 7
NOTE C - BUSINESS SEGMENT INFORMATION
<TABLE>
<CAPTION>
Third Quarter Nine Months
------------------------------ ---------------------------------
1999 1998 1999 1998
------------ ------------ ------------- --------------
(In thousands)
<S> <C> <C> <C> <C>
Net sales:
Apparel $ 1,107,285 $ 1,124,164 $ 3,252,169 $ 3,262,515
All Other 357,571 334,616 935,761 872,789
------------ ------------ ------------- --------------
Consolidated net sales $ 1,464,856 $ 1,458,780 $ 4,187,930 $ 4,135,304
============ ============ ============= ==============
Segment profit:
Apparel $ 166,902 $ 197,089 $ 472,628 $ 514,615
All Other 43,866 41,513 108,773 90,834
------------ ------------ ------------- --------------
Total segment profit 210,768 238,602 581,401 605,449
Interest, net (17,488) (14,203) (49,305) (41,539)
Amortization of intangible assets (8,209) (8,162) (24,890) (24,277)
Corporate and other expenses (15,848) (23,289) (70,234) (74,532)
------------ ------------ ------------- --------------
Consolidated income before income taxes $ 169,223 $ 192,948 $ 436,972 $ 465,101
============ ============ ============= ==============
</TABLE>
NOTE D - EARNINGS PER SHARE
Earnings per share are computed as follows (in thousands, except per share
amounts):
<TABLE>
<CAPTION>
Third Quarter Nine Months
------------------------------ --------------------------------
1999 1998 1999 1998
------------ ------------ ------------- -------------
Basic earnings per share:
<S> <C> <C> <C> <C>
Net income $ 103,896 $ 119,615 $ 269,044 $ 284,502
Less Preferred Stock dividends and
redemption premium 1,536 1,366 5,218 4,505
------------ ------------ ------------- -------------
Net income available for Common Stock $ 102,360 $ 118,249 $ 263,826 $ 279,997
============ ============ ============= =============
Weighted average Common
Stock outstanding 118,229 120,843 119,013 121,083
============ ============ ============= =============
Basic earnings per share $0.87 $0.98 $2.22 $2.31
============ ============ ============= =============
Diluted earnings per share:
Net income $ 103,896 $ 119,615 $ 269,044 $ 284,502
Increased ESOP expense if Preferred Stock
were converted to Common Stock 265 290 795 869
------------ ------------ ------------- -------------
Net income available for Common Stock
and dilutive securities $ 103,631 $ 119,325 $ 268,249 $ 283,633
============ ============ ============= =============
Weighted average Common Stock outstanding 118,229 120,843 119,013 121,083
Additional Common Stock resulting from
dilutive securities:
Preferred Stock 2,709 2,845 2,742 2,867
Stock options and other 769 1,137 970 1,476
------------ ------------ ------------- -------------
Weighted average Common Stock and
dilutive securities outstanding 121,707 124,825 122,725 125,426
============ ============ ============= =============
Diluted earnings per share $0.85 $0.96 $2.19 $2.26
============ ============ ============= =============
</TABLE>
<PAGE> 8
Outstanding options to purchase 3.7 million shares of Common Stock have been
excluded from the computation of diluted earnings per share for the three and
nine months of 1999 because the option exercise prices were greater than the
average market price of the Common Stock.
NOTE E - COMPREHENSIVE INCOME
Comprehensive income consists of net income from operations, plus certain
changes in assets and liabilities that are not included in net income but are
instead reported within a separate component of shareholders' equity under
generally accepted accounting principles. The Company's comprehensive income was
as follows (in thousands):
<TABLE>
<CAPTION>
Third Quarter Nine Months
------------------------------- -------------------------------
1999 1998 1999 1998
------------- ------------ ------------- ------------
<S> <C> <C> <C> <C>
Net income as reported $ 103,896 $ 119,615 $ 269,044 $ 284,502
Other comprehensive income:
Foreign currency translation adjustments,
net of income taxes 1,255 9,516 (34,145) 6,104
------------- ------------ ------------- ------------
Comprehensive income $ 105,151 $ 129,131 $ 234,899 $ 290,606
============= ============ ============= ============
</TABLE>
The significant change in foreign currency translation adjustments in the nine
months of 1999 is due to the strengthening of the U.S. dollar in relation to the
currencies of most European countries where the Company has operations.
NOTE F - CAPITAL
At October 2, 1999, January 2, 1999 and October 3, 1998, there were 118,207,536,
119,699,000 and 120,377,085 shares outstanding, respectively. Common shares
outstanding are net of shares held in treasury of 19,426,952 at October 2, 1999,
17,134,370 at January 2, 1999 and 16,188,094 at October 3, 1998. In addition,
289,969, 232,899 and 228,825 shares of VF Common Stock held in trust for
deferred compensation plans are treated as treasury stock for financial
accounting purposes at each of the respective dates above.
There are 25,000,000 authorized shares of Preferred Stock, $1 par value. Of
these shares, 2,000,000 were designated as Series A, of which none have been
issued, and 2,105,263 shares were designated and issued as 6.75% Series B
Preferred Stock, of which 1,692,956 shares were outstanding at October 2, 1999,
1,760,119 at January 2, 1999 and 1,777,857 at October 3, 1998.
NOTE G - REVOLVING CREDIT AGREEMENT
On July 15, 1999, the Company entered into a new $750.0 million unsecured
revolving credit agreement, which replaces the prior agreement that was
scheduled to expire in October 1999. The new credit agreement expires on July
15, 2004.
<PAGE> 9
VF CORPORATION
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL
CONDITION AND RESULTS OF OPERATIONS
RESULTS OF OPERATIONS
Consolidated sales increased slightly for the third quarter and 1% for the nine
months ended October 2, 1999, compared with the comparable periods of 1998.
Sales in the Company's "growth" category businesses - - jeanswear, domestic
intimate apparel, workwear and daypacks, where investments are focused to
achieve sales increases - - advanced by $44 million or 4% for the 1999 quarter
and $153 million or 5% for the nine month period, including acquisitions for
both periods.
Domestic jeanswear sales increased 1% for the quarter and declined 1% for the
nine month period. Strong performance in the Company's mass channel jeanswear
business was offset by weakness in mid-tier department store business, which is
primarily in the Lee brand. International jeans sales declined by 7% for the
quarter due to slowing demand for denim in Europe. International jeans sales
increased 6% for the nine month period due primarily to acquisitions that
anniversaried in the third quarter of 1999.
Domestic intimate apparel sales were flat for the quarter and advanced 3% for
the nine month period, with continuing growth in the Vassarette brand. Workwear
sales advanced in 1999, due to businesses acquired.
Sales in the Company's "maintenance" category businesses - - knitwear,
international intimates, playwear and swimwear, where efforts are focused on
increased profitability - - declined by $38 million or 12% for the third quarter
and $100 million or 12% for the nine month period due to declines in knitwear
sales and the elimination of unprofitable playwear product lines.
Gross margins were 34.3% of sales in the quarter and 34.2% in the nine months,
compared with 35.2% and 34.4% in the 1998 periods. Gross margins improved in
most businesses due to the continuing shift to lower cost sourcing, lower raw
material costs and improved operating efficiencies. However, this improvement
was offset by lower gross margins in the domestic Lee business and in European
jeanswear due principally to lower than anticipated volumes and the resulting
impact in expense absorption in product cost and operating expenses, and the
need to reduce inventory levels closer to demand. In addition, the nine month
results of 1999 include the cost of closing the Jantzen women's sportswear
business.
Marketing, administrative and general expenses were 21.4% of sales during the
quarter and 22.4% in the nine months, compared with 20.9% and 22.1% in the 1998
periods. The increases in marketing, administrative and general expenses for the
1999 periods relate to an increased investment in technology related to the
Company's common systems implementation initiative and expense levels at
recently acquired companies being higher than VF historical levels. These
increases were partially offset by lower advertising spending.
Other operating expense includes amortization of intangible asset and net
royalty income. For the nine months in 1999, amortization of intangible assets
increased due to the recent acquisitions, and royalty income declined from the
conversion of certain formerly licensed businesses to owned operations.
Net interest expense increased in 1999 due to higher short-term borrowings. The
increase in short-term borrowings since the end of 1998 relates to higher
seasonal working capital requirements and to the 1999 business acquisitions.
<PAGE> 10
FINANCIAL CONDITION AND LIQUIDITY
The financial condition of the Company is reflected in the following:
<TABLE>
<CAPTION>
October 2 January 2 October 3
1999 1999 1998
---- ---- ----
(Dollars in millions)
<S> <C> <C> <C>
Working capital $788.4 $815.1 $801.8
Current ratio 1.6 to 1 1.8 to 1 1.7 to 1
Debt to total capital 31.4% 27.1% 27.2%
</TABLE>
Accounts receivable balances are higher than at the end of 1998 due to seasonal
sales patterns.
Inventories at recently acquired companies are higher than historic VF levels.
Excluding these inventories at acquired companies, levels at the end of the
third quarter of 1999 are lower than the comparable period of 1998, but higher
than year-end 1998 due to seasonal sales patterns.
Intangible assets increased during 1999 due to businesses acquired during the
first nine months of the year.
During the first nine months of 1999, the Company repurchased 2,290,000 shares
of its Common Stock in open market transactions for a total cost of $97.5
million. On July 20, 1999, the Board of Directors authorized the Company to
purchase up to an additional 10.0 million shares. At October 2, 1999, there were
9.7 million shares remaining under the existing authorization.
The Company is exposed to a variety of market risks in the ordinary course of
business, including the effects of changes in interest rates and foreign
currency exchange rates. The Company regularly assesses these potential risks
and has policies and procedures to manage these risks. The Company's exposure to
these market risks is not material.
YEAR 2000 READINESS STATEMENT
The Year 2000 issue relates to computer systems that will not properly recognize
date-sensitive information when the year changes to 2000. A Year 2000 issue that
is not properly addressed could result in a system failure or miscalculations.
While the Company's products are not directly affected by the Year 2000 problem,
its computer systems and equipment, as well as the systems and equipment of its
vendors, service providers and customers, may be affected.
Senior management of the Company established a task force to address Year 2000
issues and has regularly reviewed its progress with the Board of Directors. The
task force activities have related to four broad business categories: (1)
infrastructure; (2) applications software; (3) processors embedded in machinery
and equipment used in the Company's manufacturing, distribution and
administrative operations; and (4) significant third party vendors, service
providers and customers. Actions common to evaluation of Year 2000 issues in
each of these business categories include:
* Inventorying all date-sensitive systems and equipment
* Assessing compliance and assigning priorities to items
identified as not being compliant
* Repairing or replacing items identified as not being compliant
* Testing converted systems and equipment
The following describes the current status in each of these areas.
<PAGE> 11
Page 4
INFRASTRUCTURE: This category relates to mainframe, personal computer and
network hardware, as well as operating system software. Hardware and related
operating systems are compliant, and the testing phase is complete as of October
30, 1999.
APPLICATIONS SOFTWARE: This refers to computer software programs, whether
internally developed or purchased from outside parties. All such software
systems are compliant at October 30, 1999. All critical applications have been
tested, and no significant issues were detected in the testing.
PROCESSORS: The Company has completed the inventory and assessment of all
processors embedded in the Company's critical manufacturing, distribution and
administrative equipment. All noncompliant hardware or software has been
remediated, upgraded or replaced. Critical equipment containing embedded
processors has been tested as changes have been implemented.
THIRD PARTIES: The Company has initiated formal communications with all of its
significant vendors, service providers and financial institutions to determine
the extent to which the Company is vulnerable to those third parties' failure to
remediate their own Year 2000 issues. All of the Company's significant vendors,
service providers and financial institutions have responded to the Company. Of
those that have responded, 97% of the Company's significant vendors and service
providers and 99% of the financial institutions have indicated that they are
either compliant or expected to be compliant by October 30, 1999. The remainder
has indicated that they will be compliant by the end of 1999. The communication
and evaluation process is ongoing.
In addition, contingency plans to mitigate the possible disruption of business
operations were developed as the testing phase and third party assessments were
being completed. Based on our contingency planning efforts, we have identified
suppliers that appear to be at risk of noncompliance. Responsive actions include
accelerating purchases of supplies, accelerating production of inventory and
arranging for alternative suppliers to reduce this risk. The Company's
contingency plans also include additional staffing levels to provide
around-the-clock support and to test critical systems immediately after the Year
2000 rollover on January 1. Contingency plans are substantially complete at
October 30, 1999 but will continue to be evaluated and modified as additional
information becomes available.
The Company believes that all internal systems are currently compliant.
However, it is possible that all Year 2000 problems may not have been
identified or corrected or that third parties with which the Company has
significant relationships will not resolve all of their Year 2000 issues. The
Company expects that the most reasonably likely Year 2000 worst case scenario
is that its manufacturing infrastructure would not be able to provide an
uninterrupted flow of product due to suppliers' systems failures or disruptions
in utility or government services. The Company conducts business with numerous
vendors and has numerous manufacturing facilities around the world. However,
the Company believes that significant interruptions of normal operations are
unlikely and, in any event, would likely be short-term in nature. Nevertheless,
if there were serious systems failures by the Company or its third party
relationships, they could have a material adverse effect on the Company's
financial position or results of operations.
The estimated total cost of resolving the Year 2000 issues, including internal
personnel and outside vendors and consultants, is approximately $27 million over
the period 1997 through 1999, of which $26 million has been spent through
October 2, 1999. These costs are being expensed as incurred.
<PAGE> 12
CAUTIONARY STATEMENT ON FORWARD-LOOKING STATEMENTS
Certain statements included herein are "forward-looking statements" within the
meaning of the federal securities laws. This includes any statements concerning
plans and objectives of management relating to the Company's operations or
economic performance, and assumptions related thereto. In addition, the Company
and its representatives may from time to time make other oral or written
statements that are also forward-looking statements.
These forward-looking statements are made based on management's expectations and
beliefs concerning future events impacting the Company and therefore involve a
number of risks and uncertainties. Management cautions that forward-looking
statements are not guarantees and that actual results could differ materially
from those expressed or implied in the forward-looking statements.
Important factors that could cause the actual results of operations or financial
condition of the Company to differ include, but are not necessarily limited to,
the overall level of consumer spending for apparel; changes in trends in the
segments of the market in which the Company competes; the financial strength of
the retail industry; actions of competitors that may impact the Company's
business; the Company's ability, and the ability of its suppliers and customers,
to adequately address the Year 2000 computer issue; and the impact of unforeseen
economic changes in the markets where the Company competes, such as changes in
interest rates, currency exchange rates, inflation rates, recession, and other
external economic and political factors over which the Company has no control.
<PAGE> 13
PART II - OTHER INFORMATION
Item 6 - Exhibits and Reports on Form 8-K
(a) Exhibit 10(A) - 1996 Stock Compensation Plan
(Incorporated by reference to Exhibit 4.1 of
Post-Effective Amendment No. 1 to Form S-8
Registration No. 333-84193)
Exhibit 10(B) - Revolving Credit Agreement, dated
July 15, 1999
Exhibit 27 - Financial data schedule as of October 2,
1999
(b) Reports on Form 8-K - There were no reports on Form
8-K filed for the three months ended October 2, 1999.
<PAGE> 14
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
V.F. CORPORATION
(Registrant)
By: /s/ Robert K. Shearer
Robert K. Shearer
Vice President - Finance
(Chief Financial Officer)
Date: November 15, 1999
By: /s/ Peter E. Keene
Peter E. Keene
Vice President - Controller
(Chief Accounting Officer)
<PAGE> 1
================================================================================
CREDIT AGREEMENT
by and among
V.F. CORPORATION,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent and as a Lender,
FIRST UNION NATIONAL BANK,
as Syndication Agent and as a Lender,
CITIBANK, N.A.,
as Documentation Agent and as a Lender,
THE FIRST NATIONAL BANK OF CHICAGO,
PNC BANK, NATIONAL ASSOCIATION,
and
WACHOVIA BANK, N.A.,
as Managing Agents and as Lenders,
and
THE LENDERS PARTY HERETO FROM TIME TO TIME
July 15, 1999
================================================================================
<PAGE> 2
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
Definitions and Terms
1.1. Definitions. . . . . . . . . . . . . . . . . . . . . . . .2
1.2. Rules of Interpretation. . . . . . . . . . . . . . . . . 21
ARTICLE II
The Credit Facilities
2.1. Revolving Loans. . . . . . . . . . . . . . . . . . . . . 23
2.2. Competitive Bid Loans. . . . . . . . . . . . . . . . . . 26
2.3. Utilization of Alternative Currencies. . . . . . . . . . 29
2.4. Use of Proceeds. . . . . . . . . . . . . . . . . . . . . 31
2.5. Notes. . . . . . . . . . . . . . . . . . . . . . . . . . 31
2.6. Swing Line . . . . . . . . . . . . . . . . . . . . . . . 31
2.7. Increase in Total Revolving Credit Commitment. . . . . . 33
ARTICLE III
Funding, Fees, and Payment Conventions
3.1. Interest Rate Options. . . . . . . . . . . . . . . . . . 34
3.2. Conversions and Elections of Subsequent Interest
Periods. . . . . . . . . . . . . . . . . . . . . . . . . 34
3.3. Payment of Interest. . . . . . . . . . . . . . . . . . . 35
3.4. Prepayments of Fixed Rate Loans. . . . . . . . . . . . . 35
3.5. Manner of Payment. . . . . . . . . . . . . . . . . . . . 36
3.6. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . 36
3.7. Payments to Agent for Lenders. . . . . . . . . . . . . . 37
3.8. Computation of Rates and Fees. . . . . . . . . . . . . . 37
3.9. Deficiency Advances; Failure to Purchase
Participations . . . . . . . . . . . . . . . . . . . . . 37
ARTICLE IV
Change in Circumstances
4.1. Increased Cost and Reduced Return. . . . . . . . . . . . 39
4.2. Limitation on Types of Loans . . . . . . . . . . . . . . 40
4.3. Illegality . . . . . . . . . . . . . . . . . . . . . . . 41
4.4. Treatment of Affected Loans. . . . . . . . . . . . . . . 41
4.5. Compensation . . . . . . . . . . . . . . . . . . . . . . 42
4.6. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 42
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
4.7. Change of Lending Office.. . . . . . . . . . . . . . . . 44
4.8. Substitution of Lenders. . . . . . . . . . . . . . . . . 44
ARTICLE V
Conditions to Making Loans
5.1. Conditions of Initial Advance. . . . . . . . . . . . . . 46
5.2. Conditions of Revolving Loans, Swing Line Loans and
Competitive Bid Loans. . . . . . . . . . . . . . . . . . 47
ARTICLE VI
Representations and Warranties
6.1. Corporate Existence and Power. . . . . . . . . . . . . . 49
6.2. Corporate and Governmental Authorization; No
Contravention. . . . . . . . . . . . . . . . . . . . . . 49
6.3. Material Subsidiaries. . . . . . . . . . . . . . . . . 49
6.4. Binding Effect . . . . . . . . . . . . . . . . . . . . . 49
6.5. Financial Information. . . . . . . . . . . . . . . . . . 49
6.6. Litigation . . . . . . . . . . . . . . . . . . . . . . . 50
6.7. Compliance with ERISA. . . . . . . . . . . . . . . . . . 50
6.8. Environmental Matters. . . . . . . . . . . . . . . . . . 50
6.9. Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . 50
6.10. Margin Stock. . . . . . . . . . . . . . . . . . . . . . 51
6.11. Investment Company. . . . . . . . . . . . . . . . . . . 51
6.12. Full Disclosure . . . . . . . . . . . . . . . . . . . . 51
6.13. No Consents, Etc. . . . . . . . . . . . . . . . . . . . 51
6.14. Year 2000 Compliance. . . . . . . . . . . . . . . . . . 51
ARTICLE VII
Affirmative Covenants
7.1. Financial Reports, Etc.. . . . . . . . . . . . . . . . . 52
7.2. Payment of Taxes . . . . . . . . . . . . . . . . . . . . 53
7.3. Maintenance of Properties; Insurance. . . . . . . . . . 53
7.4. Year 2000 Compliance . . . . . . . . . . . . . . . . . . 54
7.5. Compliance with Laws . . . . . . . . . . . . . . . . . . 54
ARTICLE VIII
Negative Covenants
8.1. Consolidated Indebtedness to Consolidated Net Worth. . . 55
8.2. Liens. . . . . . . . . . . . . . . . . . . . . . . . . . 55
8.3. Indebtedness of Subsidiaries . . . . . . . . . . . . . . 56
8.4. Consolidations, Mergers and Sales of Assets. . . . . . . 56
8.5. Change in Control. . . . . . . . . . . . . . . . . . . . 56
</TABLE>
<PAGE> 4
<TABLE>
<S> <C>
ARTICLE IX
Events of Default and Acceleration
9.1. Events of Default. . . . . . . . . . . . . . . . . . . . 57
9.2. Agent to Act . . . . . . . . . . . . . . . . . . . . . . 59
9.3. Cumulative Rights. . . . . . . . . . . . . . . . . . . . 59
9.4. No Waiver. . . . . . . . . . . . . . . . . . . . . . . . 59
9.5. Allocation of Proceeds . . . . . . . . . . . . . . . . . 60
ARTICLE X
The Agent
10.1. Appointment, Powers, and Immunities . . . . . . . . . . 61
10.2. Reliance by Agent . . . . . . . . . . . . . . . . . . . 61
10.3. Defaults. . . . . . . . . . . . . . . . . . . . . . . . 62
10.4. Rights as Lender. . . . . . . . . . . . . . . . . . . . 62
10.5. Indemnification . . . . . . . . . . . . . . . . . . . . 62
10.6. Non-Reliance on Agent and Other Lenders . . . . . . . . 63
10.7. Resignation of Agent. . . . . . . . . . . . . . . . . . 63
10.8. Syndication Agent, Documentation Agent and Managing
Agents. . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE XI
Miscellaneous
11.1. Assignments and Participations. . . . . . . . . . . . . 64
11.2. Notices . . . . . . . . . . . . . . . . . . . . . . . . 66
11.3. Right of Set-off; Adjustments . . . . . . . . . . . . . 67
11.4. Survival. . . . . . . . . . . . . . . . . . . . . . . . 67
11.5. Expenses. . . . . . . . . . . . . . . . . . . . . . . . 67
11.6. Amendments and Waivers. . . . . . . . . . . . . . . . . 68
11.7. Counterparts. . . . . . . . . . . . . . . . . . . . . . 68
11.8. Termination . . . . . . . . . . . . . . . . . . . . . . 68
11.9. Indemnification; Limitation of Liability. . . . . . . . 69
11.10. Severability . . . . . . . . . . . . . . . . . . . . . 70
11.11. Entire Agreement . . . . . . . . . . . . . . . . . . . 70
11.12. Agreement Controls . . . . . . . . . . . . . . . . . . 70
11.13. Usury Savings Clause . . . . . . . . . . . . . . . . . 70
11.14. Payments.. . . . . . . . . . . . . . . . . . . . . . . 70
11.15. Governing Law; Waiver of Jury Trial. . . . . . . . . . 71
EXHIBIT A Applicable Commitment Percentages. . . . . . . . . .A-1
EXHIBIT B Form of Assignment and Acceptance. . . . . . . . . .B-1
EXHIBIT C Notice of Appointment (or Revocation) of
Authorized Representative. . . . . . . . . . . . . .C-1
EXHIBIT D-1 Form of Borrowing Notice. . . . . . . . . . . .D-1
EXHIBIT D-2 Form of Borrowing Notice--Swing Line Loans. .D-2-1
</TABLE>
<PAGE> 5
<TABLE>
<S> <C>
EXHIBIT E Form of Interest Rate Selection Notice . . . . . . .E-1
EXHIBIT F-1 Form of Revolving Note. . . . . . . . . . . .F-1-1
EXHIBIT F-2 Form of Swing Line Note . . . . . . . . . . .F-2-1
EXHIBIT F-3 Form of Competitive Bid Note. . . . . . . . .F-3-1
EXHIBIT G Form of Opinion of Borrower's Counsel. . . . . . . .G-1
EXHIBIT H Compliance Certificate . . . . . . . . . . . . . . .H-1
EXHIBIT I Form of Competitive Bid Quote Request. . . . . . . .I-1
EXHIBIT J Form of Competitive Bid Quote. . . . . . . . . . . .J-2
EXHIBIT K Form of Amendment Agreement. . . . . . . . . . . . .K-1
</TABLE>
<PAGE> 6
CREDIT AGREEMENT
THIS CREDIT AGREEMENT, dated as of July 15, 1999 (the "Agreement"), is made
by and among:
V.F. CORPORATION, a Pennsylvania corporation having its principal place of
business in Greensboro, North Carolina (the "Borrower"),
BANK OF AMERICA, N.A., a national banking association organized and
existing under the laws of the United States, in its capacity as a Lender ("Bank
of America"), and each other financial institution executing and delivering a
signature page hereto and each other financial institution which may hereafter
become a Lender pursuant to SECTION 2.7 or execute and deliver an instrument of
assignment with respect to this Agreement pursuant to SECTION 11.1 (hereinafter
such financial institutions may be referred to individually as a "Lender" or
collectively as the "Lenders"),
BANK OF AMERICA, N.A., a national banking association organized and
existing under the laws of the United States, in its capacity as Administrative
Agent for the Lenders (in such capacity, and together with any successor agent
appointed in accordance with the terms of SECTION 10.7, the "Agent"),
CITIBANK, N.A., a national banking association organized and existing under
the laws of the United States, in its capacity as Documentation Agent, and
FIRST UNION NATIONAL BANK, a national banking association organized and
existing under the laws of the United States, in its capacity as Syndication
Agent;
W I T N E S S E T H:
--------------------
WHEREAS, the Borrower has requested that the Lenders make available to the
Borrower a revolving credit facility of up to $750,000,000 (which may be
increased to $1,000,000,000), the proceeds of which are to be used for general
corporate purposes including, without limitation, acquisitions and repurchases
of outstanding shares of its common stock and which shall include a
multi-currency credit facility of up to $100,000,000 in readily available
currencies and a swing line facility of up to $50,000,000; and
WHEREAS, the Lenders are willing to make such revolving credit facilities
available to the Borrower upon the terms and conditions set forth herein;
<PAGE> 7
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby agree as
follows:
ARTICLE I
DEFINITIONS AND TERMS
1.1. DEFINITIONS. For the purposes of this Agreement, in addition to the
definitions set forth above, the following terms shall have the respective
meanings set forth below:
"Absolute Rate" shall have the meaning assigned to such term in
SECTION 2.2(c)(ii)(C).
"Absolute Rate Loan" means a Competitive Bid Loan the interest rate on
which is determined on the basis of the Absolute Rate for such Competitive
Bid Loan.
"Advance" means a borrowing under the Revolving Credit Facility
consisting of a Base Rate Loan, a Eurodollar Rate Loan, a CD Rate Loan or
an Offshore Rate Loan.
"Advance Date Exchange Rate" means, with respect to a specified
Advance or Loan in an Alternative Currency, the Spot Rate of Exchange
determined for the date such Advance is originally made, PROVIDED that, if
such Advance or Loan is Continued for a subsequent Interest Period pursuant
to SECTION 2.3(c), the Advance Date Exchange Rate with respect to such Loan
shall be the Spot Rate of Exchange two Business Days preceding the
effective date of the latest Continuation of such Advance or Loan, and the
Dollar Equivalent Amount of such Advance or Loan shall be adjusted as set
forth in SECTION 2.3.
"Alternative Currency" means (a) in the case of Revolving Loans,
Japanese yen, British pounds sterling, Swiss francs, the Euro and any other
freely available currency notified to the Agent upon not less than five (5)
Business Days' prior written notice that, in the opinion of all Lenders, in
their sole discretion, is at such time freely traded in the offshore
interbank foreign exchange markets and is freely transferable and
convertible into Dollars in the United States currency market, and (b) in
the case of Competitive Bid Loans, Japanese yen, British pounds sterling,
Swiss francs, the Euro, Canadian dollars, Mexican peso and any other freely
available currency notified to the Agent upon not less than five (5)
Business Days' prior written notice that, in the opinion of the applicable
Competitive Bid Lender, in its sole discretion,
<PAGE> 8
is at such time freely traded in the offshore interbank foreign exchange
markets and is freely transferable and convertible into Dollars in the
United States currency market.
"Alternative Currency Equivalent Amount" means with respect to a
specified Alternative Currency and a specified Dollar amount, the amount of
such Alternative Currency into which such Dollar amount would be converted,
based on the applicable Advance Date Exchange Rate.
"Applicable Commitment Percentage" means, for each Lender at any time,
a fraction, with respect to the Revolving Credit Facility the numerator of
which shall be such Lender's Revolving Credit Commitment and the
denominator of which shall be the Total Revolving Credit Commitment, which
Applicable Commitment Percentage for each Lender as of the Closing Date is
as set forth in EXHIBIT A; PROVIDED that the Applicable Commitment
Percentage of each Lender shall be increased or decreased to reflect the
addition of Lenders pursuant to SECTION 2.7 and any assignments to or by
such Lender effected in accordance with SECTION 11.1.
"Applicable Facility Fee" means that percent per annum set forth
below, which shall be based upon the highest Rating of outstanding senior
unsecured Indebtedness of the Borrower existing at the date of
determination as specified in the table below:
<TABLE>
<CAPTION>
RATING APPLICABLE FACILITY
TIER S&P OR MOODY'S FEE
---- ------------------------- -------------------
<S> <C> <C>
I >= A+ or >= A1 0.075%
II >= A or >= A2 0.080%
III >= A- or >= A3 0.090%
IV >= BBB+ or >= Baa1 0.110%
V >= BBB or >= Baa2 0.150%
VI < BBB or < Baa2 0.200%
</TABLE>
The Applicable Facility Fee shall be established from time to time based
upon the Ratings in effect from time to time. Any change in the Applicable
Facility Fee due to a change in any Rating shall be effective on the date
of such change in such Rating.
"Applicable Lending Office" means, for each Lender and for each Type
of Loan, the "Lending Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan on the signature pages hereof or
such other office
<PAGE> 9
of such Lender (or an affiliate of such Lender) as such Lender may from
time to time specify to the Agent and the Borrower by written notice in
accordance with the terms hereof as the office by which its Loans of such
Type are to be made and maintained.
"Applicable Margin" means that percent per annum set forth below,
which shall be based upon the highest Rating of outstanding senior
unsecured Indebtedness of the Borrower existing at the date of
determination as specified in the table below:
<TABLE>
<CAPTION>
APPLICABLE APPLICABLE
RATING APPLICABLE UTILIZATION UTILIZATION
TIER S&P OR MOODY'S MARGIN FEE I FEE II
---- ------------------- ---------- ----------- -----------
<S> <C> <C> <C> <C>
I >= A+ or >= A1 0.175% 0.050% 0.050%
II >= A or >= A2 0.200% 0.060% 0.060%
III >= A- or >= A3 0.260% 0.075% 0.075%
IV >= BBB+ or >= Baa1 0.340% 0.075% 0.075%
V >= BBB or >= Baa2 0.400% 0.100% 0.100%
VI < BBB or < Baa2 0.500% 0.150% 0.150%
</TABLE>
PROVIDED, HOWEVER, that for each day during which the Outstandings exceed
thirty-three percent (33%) of the Total Revolving Credit Commitment, the
Applicable Utilization Fee I shall automatically be added to the Applicable
Margin set forth above; PROVIDED, FURTHER, that for each day during which
the Outstandings exceed sixty-six percent (66%) of the Total Revolving
Credit Commitment, the Applicable Utilization Fee II (in addition to the
Applicable Utilization Fee I) shall automatically be added to the
Applicable Margin. The Applicable Margin shall be established from time to
time based upon the Ratings in effect from time to time. Any change in the
Applicable Margin due to a change in any Rating shall be effective on the
date of such change in such Rating.
"Applicable Utilization Fee I" means that percent per annum set forth
in the table in the definition of "Applicable Margin", which shall be
calculated as set forth in the first proviso of the definition of
"Applicable Margin". The Applicable Utilization Fee I shall be established
from time to time based on the Ratings in effect from time to time. Any
change in the Applicable Utilization Fee I due to a change in any Rating
shall be effective on the date of such change in such Rating.
"Applicable Utilization Fee II" means that percent per annum set forth
in the table in the definition of
<PAGE> 10
"Applicable Margin", which shall be calculated as set forth in the second
proviso to the definition of "Applicable Margin". The Applicable
Utilization Fee II shall be established from time to time based on the
Ratings in effect from time to time. Any change in the Applicable
Utilization Fee II due to a change in any Rating shall be effective on the
date of such change in such Rating.
"Assessment Rate" means, for any day, the annual assessment rate
(rounded upwards, if necessary, to the nearest 1/100 of 1%) which is
payable by the Agent (in its individual capacity) to the Federal Deposit
Insurance Corporation (or any successor) for deposit insurance for Dollar
time deposits with the Agent (in its individual capacity) at its Principal
Office as determined by the Agent. The CD Rate shall be adjusted
automatically on and as of the effective date of any change in the
Assessment Rate.
"Assignment and Acceptance" shall mean an Assignment and Acceptance in
the form of EXHIBIT B (with blanks appropriately filled in) delivered to
the Agent in connection with an assignment of a Lender's interest under
this Agreement pursuant to SECTION 11.1.
"Authorized Representative" means any of the Chairman of the Board,
Vice President-Treasurer, or any other Vice President of the Borrower, or
any other Person expressly designated by the written authorization of the
Chairman of the Board and any one of the Vice President-Treasurer, or any
other Vice President of the Borrower as an Authorized Representative of the
Borrower, as set forth from time to time in a certificate in the form of
EXHIBIT C.
"Bank of America" means Bank of America, N.A. and its
successors.
"BAS" means Banc of America Securities LLC and its
successors.
"Base Rate" means, for any day, the rate per annum equal to the higher
of (i) the Federal Funds Rate for such day plus one-half of one percent
(0.5%) and (ii) the Prime Rate for such day. Any change in the Base Rate
due to a change in the Prime Rate or the Federal Funds Rate shall be
effective on the effective date of such change in the Prime Rate or Federal
Funds Rate.
"Base Rate Loan" means a Loan for which the rate of interest is
determined by reference to the Base Rate.
<PAGE> 11
"Base Rate Refunding Loan" means a Base Rate Loan made to pay the Swing
Line Lender in respect of Swing Line Outstandings.
"Base Rate Revolving Loan" means a Revolving Loan for which the rate
of interest is determined by reference to the Base Rate.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or a
Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the ERISA Group.
"Board" means the Board of Governors of the Federal Reserve System (or
any successor body).
"Borrower's Account" means a demand deposit account number 1290918490
or any successor account with the Agent, which may be maintained at one or
more offices of the Agent or an agent of the Agent.
"Borrowing Notice" means the notice delivered by an Authorized
Representative in connection with an Advance under the Revolving Credit
Facility or a Swing Line Loan, in the forms of EXHIBITS D-1 AND D-2,
respectively.
"Business Day" means, (i) except as expressly provided in clauses (ii)
and (iii), any day which is not a Saturday, Sunday or a day on which banks
in the States of New York and North Carolina are authorized or obligated by
law, executive order or governmental decree to be closed, (ii) with respect
to the selection, funding, interest rate, payment, and Interest Period of
any Eurodollar Rate Loan, any day which is a Business Day, as described in
clause (i) above, and on which the relevant international financial markets
are open for the transaction of business contemplated by this Agreement and
foreign exchange transactions in London, England, New York, New York and
Charlotte, North Carolina, (iii) with respect to the selection, funding,
interest rate, payment and Interest Period of any Offshore Rate Loan
denominated in Euros, any day which is a Business Day as described in
clause (ii) above, and on which TARGET (Trans-European Automated Real-time
Gross settlement Express Transfer system) or any successor thereto is
scheduled to be open for business, and (iv) with respect to the selection
funding, interest rate, payment and Interest Period for any Offshore Rate
Loan not denominated in Euros, any day which is a Business Day as described
in clause (ii) above, and on
<PAGE> 12
which the relevant Funding Bank is open for the transaction of business
contemplated by this Agreement and on which dealings in the relevant
Alternative Currency are carried on in the applicable offshore foreign
exchange interbank market in which disbursement of or payment in such
Alternative Currency will be made or received hereunder.
"Capital Leases" means all leases which have been capitalized in
accordance with GAAP as in effect from time to time including Statement No.
13 of the Financial Accounting Standards Board and any related amendments,
interpretations and successors thereof.
"CD Rate" means the interest rate per annum calculated according to
the following formula:
Fixed CD Rate
CD = ---------------------- + Assessment + Applicable
Rate 1- Reserve Requirement Rate Margin
"CD Rate Loan" means a Loan that bears interest at the CD Rate.
"Change of Control" means, at any time:
(i) any person or group of persons (within the meaning of Section
13 or 14 of the Exchange Act, other than the Trust, shall have
acquired beneficial ownership (within the meaning of in Rule 13d-3 of
the Exchange Act ), of 35% or more of the outstanding shares of Voting
Securities of the Borrower;
(ii) as of any date a majority of the Board of Directors of the
Borrower consists of individuals who were not either (A) directors of
the Borrower as of the corresponding date of the previous year, (B)
selected or nominated to become directors by the Board of Directors of
the Borrower of which a majority consisted of individuals described in
clause (A), or (C) selected or nominated to become directors by the
Board of Directors of the Borrower of which a majority consisted of
individuals described in clauses (A) and (B).
"Closing Date" means the date as of which this Agreement is executed
by the Borrower, the Lenders and the Agent and on which the conditions set
forth in SECTION 5.1 have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended, and any
regulations promulgated thereunder.
<PAGE> 13
"Competitive Bid Borrowing" shall have the meaning assigned to such
term in SECTION 2.2(b) and shall consist of one or more Competitive Bid
Loans.
"Competitive Bid Lender" means any Lender who has made a Competitive
Bid Loan for which there are Competitive Bid Outstandings.
"Competitive Bid Loans" means the Loans provided for by SECTION 2.2,
each of which shall be Absolute Rate Loans.
"Competitive Bid Notes" means the promissory notes provided for by
SECTION 2.5(c) substantially in the form of EXHIBIT F-3 and all promissory
notes delivered in substitution or exchange therefor, in each case as the
same shall be modified and supplemented and in effect from time to time.
"Competitive Bid Outstandings" means, as of any date of determination,
the aggregate principal amount of all Competitive Bid Loans then
outstanding.
"Competitive Bid Quote" means an offer in accordance with SECTION
2.2(c) by a Lender to make a Competitive Bid Loan at an Absolute Rate,
which shall be in substantially the form of EXHIBIT J attached hereto and
incorporated herein by reference.
"Competitive Bid Quote Request" shall have the meaning assigned to such
term in SECTION 2.2(b) and shall be substantially in the form of EXHIBIT I
attached hereto and incorporated herein by reference.
"Consistent Basis" in reference to the application of GAAP means the
accounting principles observed in the period referred to are comparable in
all material respects to those applied in the preparation of the audited
financial statements of the Borrower referred to in SECTION 6.5(a) (except
for those changes concurred in by the Borrower's independent public
accountants).
"Consolidated Indebtedness" means all Indebtedness for Money Borrowed
of the Borrower and its Subsidiaries, all determined on a consolidated
basis.
"Consolidated Net Worth" means, as of any date on which the amount
thereof is to be determined, the consolidated stockholders' equity of the
Borrower and its Subsidiaries, all as determined on a consolidated basis in
accordance with
<PAGE> 14
GAAP applied on a Consistent Basis.
"Continue", "Continuation", and "Continued" shall refer to the
continuation pursuant to SECTION 2.3(c) or 3.2 hereof of a Fixed Rate
Revolving Loan of one Type as a Fixed Rate Revolving Loan of the same Type
from one Interest Period to the next Interest Period.
"Convert", "Conversion", and "Converted" shall refer to a conversion
pursuant to SECTION 3.2 of one Type of Revolving Loan denominated in
Dollars into another Type of Revolving Loan denominated in Dollars.
"Default" means any event or condition which, with the giving or
receipt of notice or lapse of time or both unless cured or waived, would
constitute an Event of Default hereunder.
"Default Rate" means (i) with respect to each Fixed Rate Loan, until
the end of the Interest Period applicable thereto, a rate of one percent
(1%) above the Fixed Rate applicable to such Loan, and thereafter at a rate
of interest per annum which shall be one percent (1%) above the Base Rate,
(ii) with respect to Base Rate Loans, fees, and other amounts payable in
respect of Obligations, a rate of interest per annum which shall be one
percent (1%) above the Base Rate and (iii) in any case, the maximum rate
permitted by applicable law, if lower.
"Dollar Equivalent Amount" means, (a) the amount denominated in
Dollars, and (b) with respect to a specified Alternative Currency amount,
the amount of Dollars into which the Alternative Currency amount would be
converted, based on the applicable Advance Date Exchange Rate.
"Dollars" and the symbol "$" means dollars constituting legal tender
for the payment of public and private debts in the United States of
America.
"Eligible Assignee" means (i) a Lender, (ii) an affiliate of a Lender,
and (iii) any other Person approved by the Agent and the Borrower, such
approvals not to be unreasonably withheld (provided that the incurrence by
the Borrower of additional costs pursuant to SECTION 4.6 as a result of
such assignment shall constitute a reasonable basis for withholding such
consent) or delayed by the Borrower and such approval to be deemed given by
the Borrower (in the absence of notice to the contrary, effective upon
receipt) within ten (10) Business Days after notice of such proposed
assignment has been provided by the
<PAGE> 15
assigning Lender to the Borrower; PROVIDED, HOWEVER, that neither the
Borrower nor an affiliate of the Borrower shall qualify as an Eligible
Assignee.
"EMU Legislation" means (a) a Treaty on European Union (the Treaty of
Rome of March 25, 1957, as amended by the Single European Act 1986 and the
Maastricht Treaty (which was signed at Maastricht on February 1, 1992 and
came into force on November 1, 1993)), and (b) legislative measures of the
European Council (including without limitation European Council
regulations) for the introduction of, changeover to or operation of the
Euro, in each case as amended or supplemented from time to time.
"Environmental Laws" means any federal, state or local statute, law,
ordinance, code, rule, regulation, order, decree, permit or license
regulating, relating to, or imposing liability or standards of conduct
concerning, any environmental matters or conditions, environmental
protection or conservation, including without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended;
the Superfund Amendments and Reauthorization Act of 1986, as amended; the
Resource Conservation and Recovery Act, as amended; the Toxic Substances
Control Act, as amended; the Clean Air Act, as amended; the Clean Water
Act, as amended; together with all regulations promulgated thereunder, and
any other "Superfund" or "Superlien" law.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor statute and all rules and
regulations promulgated thereunder.
"ERISA Group" means the Borrower, any Subsidiary and all members of a
controlled group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or
any Subsidiary, are treated as a single employer under Section 414 of the
Code.
"Euro" and "[Euro Symbol]" each means the single official non-legacy
currency denominated as the Euro and constituting legal tender for the
payment of public and private debts in the Participating Member States.
"Eurodollar Rate Loan" means a Loan for which the rate of interest is
determined by reference to the Eurodollar Rate.
<PAGE> 16
"Eurodollar Rate" means the interest rate per annum calculated
according to the following formula:
Interbank Offered Rate
Eurodollar = ---------------------- + Applicable
Rate 1- Reserve Requirement Margin
"Event of Default" means any of the occurrences set
forth as such in SECTION 9.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the regulations promulgated thereunder.
"Facility Termination Date" means such date as all of the following
shall have occurred: (a) the Borrower shall have permanently terminated the
Revolving Credit Facility and the Swing Line by payment in full of all
Outstandings, together with all accrued and unpaid interest thereon, (b)
all Revolving Credit Commitments shall have terminated or expired and (c)
the Borrower shall have fully, finally and irrevocably paid and satisfied
in full all Obligations (other than Obligations consisting of continuing
indemnities and other contingent Obligations of the Borrower that may be
owing to the Lenders pursuant to the Loan Documents and expressly survive
termination of this Agreement);
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day; PROVIDED that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as so published on the
next succeeding Business Day, and (b) if no such rate is so published on
such next succeeding Business Day, the Federal Funds Rate for such day
shall be the average rate charged to the Agent (in its individual capacity)
on such day on such transactions as determined by the Agent.
"Fixed CD Rate" means for any CD Rate Loan for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined by the Agent on the first day of such Interest
Period to be the average of the bid rates quoted to Bank of America at
approximately 10:00 A.M. New York time (or as
<PAGE> 17
soon thereafter as practicable) by two (2) or more certificate of deposit
dealers of recognized national standing selected by Bank of America for the
purchase at face value of certificates of deposit of Bank of America having
a term comparable to such Interest Period and in an amount comparable to
the principal amount of the CD Rate Loan to be made for such Interest
Period.
"Fixed Rate" means any of the Eurodollar Rate, the CD Rate, the
Absolute Rate, the Offshore Rate, or all of the foregoing, as the case may
be.
"Fixed Rate Loan" means a Eurodollar Rate Loan, a CD Rate Loan, an
Absolute Rate Loan, or an Offshore Rate Loan, or all of the foregoing, as
the case may be.
"Fixed Rate Revolving Loan" means a Revolving Loan for which the rate
of interest is determined by the Eurodollar Rate, CD Rate or the Offshore
Rate.
"Funding Bank" means (a) in the case of Revolving Loans, any banking
institution approved by the Agent located within a country whose currency
has been approved by the Lenders as an Alternative Currency and (b) in the
case of Competitive Bid Loans, any banking institution approved by the
applicable Competitive Bid Lender located within a country whose currency
has been approved by such Competitive Bid Lender as an Alternative Currency
for a particular Competitive Bid Loan; PROVIDED that in the case of the
Euro, the Funding Bank may be located in any Participating Member State.
"GAAP" or "Generally Accepted Accounting Principles" means generally
accepted accounting principles, being those principles of accounting set
forth in pronouncements of the Financial Accounting Standards Board, the
American Institute of Certified Public Accountants, or which have other
substantial authoritative support and are applicable in the circumstances
as of the date of a report.
"Governmental Authority" shall mean any Federal, state, municipal,
national or other governmental department, commission, board, bureau,
court, agency or instrumentality or political subdivision thereof or any
entity or officer exercising executive, legislative, judicial, regulatory
or administrative functions of or pertaining to any government or any
court, in each case whether associated with a state of the United States,
the United States, or a foreign entity or government.
<PAGE> 18
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any
Indebtedness of any other Person and, without limiting the generality of
the foregoing, any obligation, direct or indirect, contingent or otherwise,
of such Person (a) to purchase or pay (or advance or supply funds for the
purchase or payment of) such Indebtedness (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase assets,
goods, securities or services, to take-or-pay, or to maintain financial
statement conditions or otherwise) and the purpose of such contracts is to
provide credit support in the nature of a guaranty or (b) entered into for
the purpose of assuring in any other manner the holder of such Indebtedness
of the payment thereof or to protect such holder against loss in respect
thereof (in whole or in part), provided that the term "Guarantee" shall not
include endorsements for collection or deposit in the ordinary course of
business. The term "Guarantee" used as a verb has a corresponding meaning.
"Hazardous Material" means and includes any pollutant, contaminant, or
hazardous, toxic or dangerous waste, substance or material (including
without limitation petroleum products, asbestos-containing materials and
lead), the generation, handling, storage, transportation, disposal,
treatment, release, discharge or emission of which is subject to any
Environmental Law.
"IBOR" means, with respect to any Offshore Rate Loan for the Interest
Period applicable thereto, the rate per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Dow Jones Telerate Page
3750, 3740 or 3770 (or any successor page) as the London interbank offered
rate for deposits in the applicable Alternative Currency at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for any
reason such rate is not available, the term "IBOR" shall mean, with respect
to any Offshore Rate Loan for the Interest Period applicable thereto, the
rate per annum (rounded upwards, if necessary, to nearest 1/100 of 1%)
appearing on Reuters Screen LIBO Page as the London interbank offered rate
for deposits in the applicable Alternative Currency at approximately 11:00
A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period, PROVIDED,
HOWEVER; if more than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all such rates.
<PAGE> 19
"Indebtedness" means as to any Person, without duplication, (a) all
Indebtedness for Money Borrowed of such Person, (b) all indebtedness
secured by any Lien on any property or asset owned or held by such Person
regardless or whether the indebtedness secured thereby shall have been
assumed by such Person or is non-recourse to the credit of such Person, and
(c) all Indebtedness of third parties Guaranteed by such Person.
"Indebtedness for Money Borrowed" means with respect to any Person,
without duplication, all indebtedness in respect of money borrowed,
including without limitation, all obligations under Capital Leases, the
deferred purchase price of any property or services that are in the nature
of money borrowed, evidenced by a promissory note, bond, debenture or
similar written obligation for the payment of money (including
reimbursement agreements and conditional sales or similar title retention
agreements), other than trade payables and accrued expenses incurred in the
ordinary course of business.
"Interbank Offered Rate" means, with respect to any Eurodollar Rate
Loan for the Interest Period applicable thereto, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) appearing on
Dow Jones Telerate Page 3750, 3740 or 3770 (or any successor page) as the
London interbank offered rate for deposits in Dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period. If for any
reason such rate is not available, the term "Interbank Offered Rate" shall
mean, with respect to any Eurodollar Rate Loan for the Interest Period
applicable thereto, the rate per annum (rounded upwards, if necessary, to
the nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the
London interbank offered rate for deposits in Dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest Period, PROVIDED,
HOWEVER; if more than one rate is specified on Reuters Screen LIBO Page,
the applicable rate shall be the arithmetic mean of all such rates (rounded
upwards, if necessary, to the nearest 1/100 of 1%).
"Interest Period" means (a) with respect to any Competitive Bid Loan,
the period commencing on the date such Competitive Bid Loan is made and
ending on the date specified in the Competitive Bid Quote Request and
related Competitive Bid Quote for such Competitive Bid Loan; (b)
<PAGE> 20
with respect to any CD Rate Loan, the period commencing on the date such CD
Rate Loan is made and ending, at the Borrower's option, on the date 30, 60,
90 or 180 days thereafter as notified to the Agent by the Authorized
Representative in accordance with the terms hereof; (c) with respect to any
Eurodollar Rate Loan, a period commencing on the date such Eurodollar Rate
Loan is made or Converted or Continued and ending, at the Borrower's
option, on the date one, two, three or six months (and, subject to SECTION
2.1(c)(iii), nine or twelve months) thereafter as notified to the Agent by
the Authorized Representative in accordance with the terms hereof; and (d)
with respect to any Offshore Rate Loan, the period commencing on the date
such Offshore Rate Loan is made or Continued and ending, at the Borrower's
option, on the date one, two, three or six months (and, subject to SECTION
2.1(c)(iii), nine or twelve months) thereafter; PROVIDED that,
(i) if any Interest Period would end on a day which is not a
Business Day, such Interest Period shall be extended to the next
Business Day (unless, in the case of a Eurodollar Rate Loan or
Offshore Rate Loan, such extension would cause the applicable Interest
Period to end in the succeeding calendar month, in which case such
Interest Period shall end on the next preceding Business Day); and
(ii) any Interest Period for a Eurodollar Rate Loan or Offshore
Rate Loan which begins on the last Business Day of a calendar month
(or on a day for which there is no numerically corresponding day in
the calendar month at the end of such Interest Period) shall end on
the last Business Day of a calendar month;
(iii) no Interest Period shall extend beyond the Stated
Termination Date; and
(iv) Interest Periods in different lettered clauses of this
definition shall be deemed to be different Interest Periods even if
they are coterminous.
"Interest Rate Selection Notice" means, with respect to the Revolving
Loans, the written notice delivered by an Authorized Representative in
connection with the election of a subsequent Interest Period for any Fixed
Rate Revolving Loan or the Conversion of any Eurodollar Rate Loan or CD
Rate Loan into a Base Rate Loan or the Conversion of any Base Rate Loan
into a Eurodollar Rate Loan or CD Rate Loan, in the form of EXHIBIT E.
<PAGE> 21
"Lien" means any interest in property securing any obligation owed to,
or a claim by, a Person other than the owner of the property, whether such
interest is based on the common law, statute or contract, and including but
not limited to the lien or security interest arising from a mortgage,
encumbrance, pledge, security agreement, conditional sale or trust receipt
or a lease, consignment or bailment for security purposes. For the purposes
of this Agreement, the Borrower and any Subsidiary shall be deemed to be
the owner of any property which it has acquired or holds subject to a
conditional sale agreement, financing lease, or other arrangement pursuant
to which title to the property has been retained by or vested in some other
Person for security purposes.
"Loans" means, collectively, the Swing Line Loans, the Competitive Bid
Loans and the Revolving Loans.
"Loan Documents" means this Agreement, the Notes, and all other
instruments and documents heretofore or hereafter executed or delivered to
or in favor of any Lender or the Agent in connection with the Loans made
and transactions contemplated under this Agreement, as the same may be
amended, supplemented or replaced from the time to time.
"Mandatory Cost" means, with respect to Offshore Rate Loans
denominated in British pounds sterling, a rate per annum determined by the
Agent calculated in accordance with the following formula:
BY + S(Y-Z) + (F x 0.01)
Mandatory Cost per annum = ------------------------
100 - (B+S)
where on the day of application of the formula:
B = The percentage of the Agent's Eligible Liabilities (in excess
of any stated minimum) by reference to which the Bank of England
and/or the Financial Services Authority requires the Agent to
hold on a non-interest bearing deposit account in accordance with
its cash ratio requirements;
Y = The percentage rate per annum at which sterling deposits are
offered by the Agent to leading banks in the London interbank
market at or about 11:00 A.M. (London, England time) on that day
for the relevant period;
F = The rate of charge payable by the Agent to the
<PAGE> 22
Financial Services Authority under paragraph 2.02 or 2.03 (as
appropriate) of the Fees Regulations (but where for this purpose
the figure at paragraph 2.02b or 2.03b shall be deemed to be
zero) and expressed in British Pounds Sterling per [pounds
symbol]1,000,000 of the Fee Base of the Agent;
S = The percentage of the Agent's Eligible Liabilities which the
Bank of England (or other relevant United Kingdom governmental
authority or agency) requires the Agent to place as a Special
Deposit; and
Z = The interest rate per annum payable by the Bank of England to
the Agent on Special Deposits.
(a) For the purposes of this definition:
(i) "Eligible Liabilities" and "Special Deposits" shall have the
meanings given to them at the time of application of the above formula
under or pursuant to the Bank of England Act 1998 or by the Bank of
England (as appropriate);
(ii) "Fee Base" has the meaning given to it in the Fees
Regulations;
(iii) "Fees Regulations" means any regulations governing the
payment of fees for banking supervision;
(b) In the application of the above formula, B, Y, S, and Z are
included in the formula as figures and not as percentages, e.g. if B = 0.5%
and Y = 15%, BY is calculated as 0.5 x 15 and not as 0.5% x 15%. A negative
result obtained from subtracting Z from Y is to be treated as zero.
(c) (i) The above formula is applied on the first day of each relevant
period comprised in the relevant Interest Period.
(ii) Each rate calculated in accordance with the above formula
is, if necessary, rounded upward to four decimal places.
(d) The Agent may, from time to time, after consultation with the
Borrower and the Lenders, determine and notify to the Borrower and the
Lenders any amendments or variations which are required to be made to the
formula set out above in order to comply with any requirements from time
<PAGE> 23
to time imposed by any applicable regulatory authority in relation to
Advances denominated in British pounds sterling (including, without
limitation, any requirements relating to British pounds sterling primary
liquidity) and any such determination shall, in the absence of manifest
error, be conclusive and binding on the Borrower, the Lenders and the
Agent.
"Material Adverse Effect" means a material adverse effect on (i) the
business, properties, operations, prospects or condition, financial or
otherwise, of the Borrower and its Subsidiaries, taken as a whole, (ii) the
ability of the Borrower to pay or perform its respective obligations,
liabilities and indebtedness under the Loan Documents as such payment or
performance becomes due in accordance with the terms thereof, or (iii) the
rights, powers and remedies of the Agent or any Lender under any Loan
Document or the validity, legality or enforceability thereof.
"Material Subsidiary" means at any time a Subsidiary which as of such
time meets the definition of a "significant subsidiary" contained as of the
date hereof in Regulation S-X of the Securities and Exchange Commission.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means at any time an employee benefit plan within
the meaning of Section 4001(a)(3) of ERISA to which any member of the ERISA
Group is then making, or is accruing an obligation to make, contributions
or has within the preceding five plan years made contributions, including
for these purposes any Person which ceased to be a member of the ERISA
Group during such five year period.
"New Lender" has the meaning assigned to such term in SECTION 2.7(a).
"Notes" means, collectively, the Swing Line Note, the Competitive Bid
Notes and the Revolving Notes.
"Obligations" means the obligations, liabilities and Indebtedness of
the Borrower with respect to (i) the principal and interest on the Loans as
evidenced by the Notes, and (ii) the payment and performance of all other
obligations, liabilities and Indebtedness of the Borrower to the Lenders,
the Agent or BAS hereunder, under any one or more of the other Loan
Documents or with respect to the Loans.
<PAGE> 24
"Offshore Rate" means, for any Interest Period, with respect to any
Offshore Rate Loans, the rate of interest per annum (rounded upwards to the
nearest 1/100th of 1%) determined by the Agent as follows:
IBOR
Offshore = ---------------------- + Applicable + Mandatory
Rate 1- Reserve Requirement Margin Costs
The Offshore Rate shall be adjusted automatically as to all Offshore Rate
Loans then outstanding as of the effective date of any change in the
Reserve Requirement.
"Offshore Rate Loan" means a Revolving Loan in an Alternative Currency
that bears interest based on an Offshore Rate.
"Organizational Documents" means with respect to any corporation,
limited liability company, partnership, limited partnership, limited
liability partnership or other legally authorized incorporated or
unincorporated entity, the articles of incorporation, certificate of
incorporation, articles of organization, certificate of limited partnership
or other applicable organizational or charter documents relating to the
creation of such entity.
"Outstandings" means, collectively, at any date, the Competitive Bid
Outstandings, the Swing Line Outstandings and the Revolving Credit
Outstandings on such date.
"Participating Member State" means each country which from time to
time becomes a Participating Member State as described in EMU Legislation.
"Participation" means, with respect to each Swing Line Loan, the
extension of credit represented by the participation of each Lender (other
than the Swing Line Lender) hereunder in the liability of the Swing Line
Lender in respect of such Swing Line Loan made by the Swing Line Lender in
accordance with the terms hereof.
"PBGC" means the Pension Benefit Guaranty Corporation
and any successor thereto.
"Person" means an individual, partnership, corporation, limited
liability company, limited liability partnership, trust, unincorporated
organization, association, joint venture or a government or agency or
political subdivision thereof.
"Plan" means at any time an employee pension benefit
<PAGE> 25
plan (other than a Multiemployer Plan) which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the
Code and either (i) is maintained, or contributed to, by any member of the
ERISA Group for employees of any member of the ERISA Group or (ii) has at
any time within the preceding five years been maintained, or contributed
to, by any Person which was at such time a member of the ERISA Group for
employees of any Person which was at such time a member of the ERISA Group.
"Prime Rate" means the per annum rate of interest established from
time to time by Bank of America as its prime rate, which rate may not be
the lowest rate of interest charged by Bank of America to its customers.
"Principal Office" means the principal office of Bank of America,
presently located at 101 North Tryon Street, 15th Floor, NC1 001-15-04,
Charlotte, North Carolina 28255, Attention: Agency Services, or such other
office and address as the Agent may from time to time designate.
"Quotation Date" shall have the meaning assigned to such term in
SECTION 2.2(c).
"Rating" means the rating of senior unsecured Indebtedness of the
Borrower in effect at any time which rating is made by either of Moody's or
S&P.
"Regulation D" means Regulation D of the Board as the same may be
amended or supplemented from time to time.
"Required Lenders" means, as of any date, Lenders on such date having
Credit Exposures (as defined below) aggregating more than 50% of the
aggregate Credit Exposures of all the Lenders on such date. For purposes of
the preceding sentence, the amount of the "CREDIT EXPOSURE" of each Lender
shall be equal at all times (a) other than following the occurrence and
during the continuance of an Event of Default, to its Revolving Credit
Commitment, and (b) following the occurrence and during the continuance of
an Event of Default, to the sum of (i) the aggregate principal amount of
such Lender's Applicable Commitment Percentage of Revolving Credit
Outstandings plus (ii) the amount of such Lender's Applicable Commitment
Percentage of Swing Line Outstandings plus (iii) the amount of such
Lender's Competitive Bid Outstandings; PROVIDED that, for the purpose of
this definition only, (A) if any Lender shall have wrongfully failed to
fund its Applicable Commitment Percentage of any Advance, then the
Revolving Credit Commitment of such Lender shall be deemed reduced by the
<PAGE> 26
amount it so failed to fund for so long as such failure shall continue and
such Lender's Credit Exposure attributable to such failure shall be deemed
held by any Lender making more than its Applicable Commitment Percentage of
such Advance to the extent it covers such failure, and (B) if any Lender
shall have wrongfully failed to pay to the Swing Line Lender on demand its
Applicable Commitment Percentage of any Swing Line Loan (whether by funding
its Participation therein or otherwise), such Lender's Credit Exposure
attributable to all Swing Line Outstandings shall be deemed to be held by
the Swing Line Lender until such Lender shall pay such deficiency amount to
the Swing Line Lender together with interest thereon as provided in SECTION
3.9;
"Reserve Requirement" means, at any time, the maximum rate at which
reserves (including, without limitation, any marginal, special,
supplemental, or emergency reserves) are required to be maintained under
regulations issued from time to time by the Board of Governors of the
Federal Reserve System (or any successor) by member banks of the Federal
Reserve System against (a) in the case of Eurodollar Rate Loans and
Offshore Rate Loans, "Eurocurrency liabilities" (as such term is used in
Regulation D) or (b) in the case of CD Rate Loans, non-personal Dollar time
deposits in an amount of $100,000 or more. Without limiting the effect of
the foregoing, the Reserve Requirement shall reflect any other reserves
required to be maintained by such member banks with respect to (i) any
category of liabilities which includes deposits by reference to which the
Eurodollar Rate, the Offshore Rate or the CD Rate (as the case may be) is
to be determined, or (ii) any category of extensions of credit or other
assets which include Eurodollar Rate Loans, Offshore Rate Loans or CD Rate
Loans. The Eurodollar Rate, the Offshore Rate and the CD Rate shall be
adjusted automatically on and as of the effective date of any change in the
Reserve Requirement.
"Revolving Credit Commitment" means, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower up to an
aggregate principal amount at any one time outstanding equal to such
Lender's Applicable Commitment Percentage of the Total Revolving Credit
Commitment.
"Revolving Credit Facility" means the facility described in SECTION
2.1 hereof providing for Loans to the Borrower by the Lenders in the
aggregate principal amount of the Total Revolving Credit Commitment.
<PAGE> 27
"Revolving Credit Outstandings" means, as of any date of
determination, the aggregate principal amount of all Revolving Loans then
outstanding.
"Revolving Credit Termination Date" means (i) the Stated Termination
Date or (ii) such earlier date of termination of Lenders' obligations
pursuant to SECTION 9.1 upon the occurrence of an Event of Default, or
(iii) such date as the Borrower may voluntarily and permanently terminate
the Revolving Credit Facility by payment in full of all Outstandings,
together with all accrued and unpaid interest thereon.
"Revolving Loan" means any borrowing pursuant to an Advance under the
Revolving Credit Facility in accordance with SECTION 2.1 and may be a Base
Rate Loan, a Eurodollar Rate Loan, a CD Rate Loan, or an Offshore Rate
Loan.
"Revolving Notes" means, collectively, the promissory notes of the
Borrower evidencing Revolving Loans executed and delivered to the Lenders
as provided in SECTION 2.5(a) substantially in the form of EXHIBIT F-1,
with appropriate insertions as to amounts, dates and names of Lenders.
"Significant Assets" means any assets (including, without limitation,
capital stock issued by a Subsidiary or other Person) sold, leased or
otherwise transferred by the Borrower or any Subsidiary other than (a)
inventory and used, surplus or worn-out equipment sold in the ordinary
course of business, (b) accounts receivable having an aggregate unpaid
balance at no time exceeding $350,000,000 sold pursuant to arrangements
whereby recourse to the Borrower or a Subsidiary for uncollectibility
thereof is limited to an amount not exceeding 10% of the face amount of any
sale and (c) other assets having an aggregate book value during the term of
this Agreement not exceeding $625,000,000 PROVIDED that at no time shall
the aggregate unpaid balance at the time of accounts receivable sold
pursuant to clause (b) plus the aggregate net book value of assets sold
pursuant to clause (c) exceed $625,000,000.
"Significant Subsidiary" means at any time any Subsidiary, except
Subsidiaries which at such time have been designated by the Borrower (by
notice to the Agent, which may be amended from time to time) as nonmaterial
and which, if aggregated and considered as a single Subsidiary, would not
meet the definition of "significant subsidiary" in Regulation S-X of the
Securities and Exchange Commission.
"S&P" means Standard & Poor's Ratings Group, a division
<PAGE> 28
of McGraw-Hill.
"Spot Rate of Exchange" means (i) in determining the Dollar Equivalent
Amount of a specified Alternative Currency amount as of any date, the spot
exchange rate determined by the Agent in accordance with its usual
procedures for the purchase by the Agent of Dollars with such Alternative
Currency at approximately 10:00 A.M. on the Business Day that is two (2)
Business Days prior to such date, and (ii) in determining the Alternative
Currency Equivalent Amount of a specified Dollar amount on any date, the
spot exchange rate determined by the Agent in accordance with its usual
procedures for the purchase by the Agent of such Alternative Currency with
Dollars at approximately 10:00 A.M. on the Business Day that is two
Business Days prior to such date.
"Stated Termination Date" means July 14, 2004.
"Subsidiary" means any corporation or other entity in which more than
50% of its outstanding Voting Securities or more than 50% of all equity
interests is owned directly or indirectly by the Borrower and/or by one or
more of the Borrower's Subsidiaries; PROVIDED that for the purpose of
determining compliance with SECTIONS 6.2, 6.6, 6.8, 6.9, 7.2, 7.3, 7.5,
8.2, 8.3, 9.1(e), 9.1(g), 9.1(h) AND 9.1(i), Blue Bell Italiana s.r.l.
shall not be considered to be a Subsidiary.
"Subsequent Participant" means each country that adopts the Euro as
its lawful currency after January 1, 1999.
"Swing Line" means the revolving line of credit established by the
Swing Line Lender in favor of the Borrower pursuant to SECTION 2.6.
"Swing Line Lender" means initially Bank of America as the lender of
Swing Line Loans under SECTION 2.6 and thereafter any Lender which is
successor to Bank of America as the Lender of Swing Line Loans under
SECTION 2.6.
"Swing Line Loans" means loans made by the Swing Line Lender to the
Borrower pursuant to SECTION 2.6 and shall be Base Rate Loans.
"Swing Line Note" means the promissory note of the Borrower evidencing
the Swing Line executed and delivered to the Swing Line Lender as provided
in SECTION 2.5(b) substantially in the form of EXHIBIT F-2.
"Swing Line Outstandings" means, as of any date of
<PAGE> 29
determination, the aggregate principal amount of all Swing Line Loans then
outstanding.
"Total Alternative Currency Sublimit" means, with respect to the
principal amount of Loans outstanding in Alternative Currencies, the Dollar
Equivalent Amount of
$100,000,000.
"Total Revolving Credit Commitment" means a principal amount equal to
(a) $750,000,000 or (b) at such time as EXHIBIT A hereto is amended by the
entering into of one or more amendment agreements pursuant to SECTION 2.7
hereof, an amount equal to up to $1,000,000,000, as such amounts are
reduced from time to time in accordance with SECTION 2.1(e).
"Trust" means the respective trusts established under those certain
deeds of trust dated August 21, 1951 made by John E. Barbey and under the
will of John E. Barbey, deceased.
"Type" shall mean any type of Loan (i.e., a Base Rate Loan, a CD Rate
Loan, a Eurodollar Rate Loan, an Offshore Rate Loan or an Absolute Rate
Loan).
"Voting Securities" means shares of capital stock issued by a
corporation, or equivalent interests in any other Person, the holders of
which are ordinarily, in the absence of contingencies, entitled to vote for
the election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the happening of
such a contingency.
"Wholly-Owned Subsidiary" means any Subsidiary all of the shares of
capital stock or other ownership interests of which (except directors'
qualifying shares and, in the case of any Subsidiary organized in a
jurisdiction outside of the United States, shares not exceeding 5% of total
shares) are at the time directly or indirectly owned by the Borrower.
"Year 2000 Compliant" means all computer applications (including those
affected by information received from its suppliers and vendors) that are
material to the Borrower's or any of its Subsidiaries' business and
operations will on a timely basis be able to perform properly
date-sensitive functions involving all dates on and after January 1, 2000;
"Year 2000 Problem" means the risk that computer applications used by
the Borrower or any of its Subsidiaries (including those affected by
information received from its suppliers and vendors) may be unable to
recognize and
<PAGE> 30
perform properly date-sensitive functions involving certain dates on and
after January 1, 2000.
1.2. RULES OF INTERPRETATION.
(a) All accounting terms not specifically defined herein shall have
the meanings assigned to such terms and shall be interpreted in accordance
with GAAP applied on a Consistent Basis; PROVIDED that, if the Borrower
notifies the Agent that the Borrower wishes to amend any covenant in
ARTICLE VIII to eliminate the effect of any change in GAAP on the operation
of such covenant (or if the Agent notifies the Borrower that the Required
Lenders wish to amend ARTICLE VIII for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in
effect immediately before the relevant change in GAAP became effective,
until either such notice is withdrawn or such covenant is amended in a
manner satisfactory to the Borrower and the Required Lenders.
(b) Each term defined in Articles 1, 8 or 9 of the New York Uniform
Commercial Code shall have the meaning given therein unless otherwise
defined herein, except to the extent that the Uniform Commercial Code of
another jurisdiction is controlling, in which case such terms shall have
the meaning given in the Uniform Commercial Code of the applicable
jurisdiction.
(c) The headings, subheadings and table of contents used herein or in
any other Loan Document are solely for convenience of reference and shall
not constitute a part of any such document or affect the meaning,
construction or effect of any provision thereof.
(d) Except as otherwise expressly provided, references in any Loan
Document to articles, sections, paragraphs, clauses, annexes, appendices,
exhibits and schedules are references to articles, sections, paragraphs,
clauses, annexes, appendices, exhibits and schedules in or to such Loan
Document.
(e) All definitions set forth herein or in any other Loan Document
shall apply to the singular as well as the plural form of such defined
term, and all references to the masculine gender shall include reference to
the feminine or neuter gender, and VICE VERSA, as the context may require.
(f) When used herein or in any other Loan Document, words such as
"hereunder", "hereto", "hereof" and "herein" and other words of like import
shall, unless the context
<PAGE> 31
clearly indicates to the contrary, refer to the whole of the applicable
document and not to any particular article, section, subsection, paragraph
or clause thereof.
(g) References to "including" means including without limiting the
generality of any description preceding such term, and for purposes hereof
the rule of EJUSDEM GENERIS shall not be applicable to limit a general
statement, followed by or referable to an enumeration of specific matters,
to matters similar to those specifically mentioned.
(h) Except as otherwise expressly provided, all dates and times of day
specified herein shall refer to such dates and times at Charlotte, North
Carolina.
(i) Whenever interest rates or fees are established in whole or in
part by reference to a numerical percentage expressed as "___%", such
arithmetic expression shall be interpreted in accordance with the
convention that 1% = 100 basis points.
(j) Each of the parties to the Loan Documents and their counsel have
reviewed and revised, or requested (or had the opportunity to request)
revisions to, the Loan Documents, and any rule of construction that
ambiguities are to be resolved against the drafting party shall be
inapplicable in the construing and interpretation of the Loan Documents and
all exhibits, schedules and appendices thereto.
(k) Any reference to an officer of the Borrower or any other Person by
reference to the title of such officer shall be deemed to refer to each
other officer of such Person, however titled, exercising the same or
substantially similar functions.
(l) All references to any agreement or document as amended, modified
or supplemented, or words of similar effect, shall mean such document or
agreement, as the case may be, as amended, modified or supplemented from
time to time only as and to the extent permitted therein and in the Loan
Documents.
(m) For all purposes of this Agreement (but not for purposes of the
preparation of any financial statements delivered pursuant hereto), the
equivalent in any Alternative Currency of an amount in Dollars, and the
equivalent in Dollars of an amount in any Alternative Currency, shall be
determined as set forth in the definitions of Dollar Equivalent Amount and
Alternative
<PAGE> 32
Currency Equivalent Amount, as applicable.
ARTICLE II
THE CREDIT FACILITIES
2.1. REVOLVING LOANS.
(a) COMMITMENT. Subject to the terms and conditions of this Agreement,
each Lender severally agrees to make Advances in Dollars or an Alternative
Currency (as specified in the respective Borrowing Notice) to the Borrower under
the Revolving Credit Facility from time to time from the Closing Date until the
Revolving Credit Termination Date on a pro rata basis as to the total borrowing
requested by the Borrower on any day determined by such Lender's Applicable
Commitment Percentage up to but not exceeding a Dollar Equivalent Amount equal
to the Revolving Credit Commitment of such Lender, PROVIDED, HOWEVER, that the
Lenders will not be required and shall have no obligation to make any such
Advance (i) so long as a Default or an Event of Default has occurred and is
continuing or (ii) if the Agent has accelerated the maturity of any of the Notes
as a result of an Event of Default; PROVIDED FURTHER, HOWEVER, that immediately
after giving effect to each such Advance, (x) the Dollar Equivalent Amount of
the principal amount of Outstandings shall not exceed the then applicable Total
Revolving Credit Commitment and (y) the Dollar Equivalent Amount of the
Outstandings in Alternative Currencies shall not exceed the Total Alternative
Currency Sublimit. Within such limits and subject to the other terms and
conditions of this Agreement, the Borrower may borrow, repay and reborrow under
the Revolving Credit Facility on a Business Day from the Closing Date until, but
(as to borrowings and reborrowings) not including, the Revolving Credit
Termination Date.
(b) AMOUNTS. Except as otherwise permitted by the Lenders from time to
time, (i) the aggregate unpaid principal Dollar Equivalent Amount of
Outstandings shall not exceed at any time the Total Revolving Credit Commitment,
and (ii) the aggregate unpaid principal Dollar Equivalent Amount of Loans in
Alternative Currencies shall not exceed by more than 5% of the Total Alternative
Currency Sublimit, and, in the event there shall be outstanding any amount in
excess of 105% of the Total Alternative Currency Sublimit, the Borrower shall
immediately make such payments and prepayments as shall be necessary to comply
with this restriction. Each Advance under the Revolving Credit Facility, other
than Base Rate Refunding Loans, shall be in an amount of at least $15,000,000
(or the Dollar Equivalent Amount thereof in any Alternative Currency), and, if
greater than $15,000,000, an integral multiple of $1,000,000 (or the Dollar
<PAGE> 33
Equivalent Amount thereof in any Alternative Currency).
(c) ADVANCES. (i) An Authorized Representative shall give the Agent:
(1) at least three (3) Business Days' irrevocable telephonic notice of
each Eurodollar Rate Loan and Offshore Rate Loan (whether representing an
additional borrowing or the Continuation of a borrowing hereunder or the
Conversion of a borrowing hereunder from a Base Rate Revolving Loan or a CD
Rate Loan to a Eurodollar Rate Loan) prior to 12:00 noon,
(2) at least two (2) Business Days' irrevocable telephonic notice of
each CD Rate Loan (whether representing an additional borrowing or the
Continuation of a borrowing hereunder or the Conversion hereunder from a
Base Rate Revolving Loan or a Eurodollar Rate Loan to a CD Rate Loan) prior
to 12:00 noon, and
(3) irrevocable telephonic notice of each Base Rate Revolving Loan
(whether representing an additional borrowing hereunder or the Conversion
of a borrowing hereunder from a Fixed Rate Revolving Loan to a Base Rate
Revolving Loan) prior to 12:00 noon on the day of such proposed Revolving
Loan.
Each such notice shall be effective upon receipt by the Agent, shall specify the
amount of the borrowing, the Type of Revolving Loan (Base Rate, CD Rate, or
Eurodollar Rate if such Revolving Loan is requested in Dollars, or Offshore Rate
if such Revolving Loan is requested in an Alternative Currency), the date of
borrowing, if a Fixed Rate Revolving Loan, the Interest Period to be used in the
computation of interest, and if an Offshore Rate Loan, the applicable
Alternative Currency. The Authorized Representative shall provide the Agent
written confirmation of each such telephonic notice in the form of a Borrowing
Notice or Interest Rate Selection Notice (as applicable) with appropriate
insertions but failure to provide such confirmation shall not affect the
validity of such telephonic notice. Notice of receipt of such Borrowing Notice
or Interest Rate Selection Notice, as the case may be, together with the amount
of each Lender's portion of an Advance requested thereunder, shall be provided
by the Agent to each Lender by telefacsimile transmission with reasonable
promptness, but (provided the Agent shall have received such notice by 12:00
noon) not later than 1:00 P.M. on the same day as the Agent's receipt of such
notice. At approximately 11:00 A.M. two (2) Business Days preceding the date
specified for an Advance of an Alternative Currency, the Agent shall determine
the Advance Date Exchange Rate and the applicable
<PAGE> 34
interest rate. Not later than 11:45 A.M. two (2) Business Days preceding the
date specified for each Advance of an Alternative Currency, the Agent shall
provide the Borrower and each Lender notice by telefacsimile transmission of the
Advance Date Exchange Rate applicable to such Advance, and the applicable
Alternative Currency Equivalent Amount of the Loan or Loans required to be made
by each Lender on such date, and the Dollar Equivalent Amount of such Loan or
Loans and the applicable Offshore Rate.
(ii) (A) In the case of Advances in Dollars, not later than 2:00 P.M. on
the date specified for each borrowing under this SECTION 2.1, each Lender shall,
pursuant to the terms and subject to the conditions of this Agreement, make the
amount of the Advance or Advances to be made by it on such day available by wire
transfer to the Agent in the amount of its pro rata share, determined according
to such Lender's Applicable Commitment Percentage of the Revolving Loan or
Revolving Loans to be made on such day. Such wire transfer shall be directed to
the Agent at the Principal Office and shall be in the form of Dollars
constituting immediately available funds. The amount so received by the Agent
shall, subject to the terms and conditions of this Agreement, be made available
to the Borrower by delivery of the proceeds thereof to the Borrower's Account or
otherwise as shall be directed in the applicable Borrowing Notice by the
Authorized Representative and reasonably acceptable to the Agent.
(B) In the case of Advances in an Alternative Currency, not later than
10:00 A.M. on the date specified for each Advance, each Lender shall, pursuant
to the terms and subject to the conditions of this Agreement, make the amount of
the Revolving Loan or Revolving Loans to be made by it on such day available to
the Borrower at the Funding Bank, to the account of the Agent with the Funding
Bank. The amount so received by the Funding Bank shall, subject to the terms and
conditions of the Loan Documents and upon instruction from the Agent to the
Funding Bank on the same day or immediately preceding day but no later than
10:00 A.M., be made available to the Borrower by delivery of the Alternative
Currency Equivalent Amount to the Borrower's account with the Funding Bank.
(iii) If requested by the Borrower through the Agent, before 12:00 noon at
least four Business Days before the beginning of any Interest Period applicable
to a Eurodollar Rate Loan or Offshore Rate Loan, as the case may be, each Lender
will advise the Agent before 10:00 A..M. three Business Days preceding the
beginning of such Interest Period as to whether, if the Borrower selects an
Interest Period of nine or twelve months, such Lender expects that deposits in
Dollars or the applicable Alternative Currency, as the case may be, with a term
corresponding to such Interest Period will be available to it two
<PAGE> 35
Business Days preceding such Interest Period in the amount and for the duration
required to fund the Eurodollar Rate Loan or Offshore Rate Loan, as the case may
be, to which such Interest Period would apply. If, but only if, each Lender
confirms that it expects such deposits to be available to it on terms acceptable
to such Lender, in its own discretion, then the Borrower shall be entitled to
select a duration of nine or twelve months for such Interest Period.
(d) REPAYMENT OF REVOLVING LOANS. The principal amount of each
Revolving Loan shall be due and payable to the Agent for the benefit of each
Lender in full on the Revolving Credit Termination Date, or earlier as
specifically provided herein. The principal amount of any Revolving Loan may be
prepaid in whole or in part on any Business Day, upon (A) at least three (3)
Business Days' irrevocable telephonic notice in the case of each Fixed Rate
Revolving Loan from an Authorized Representative (effective upon receipt) to the
Agent prior to 10:30 A.M. and (B) irrevocable telephonic notice in the case of
each Base Rate Revolving Loan from an Authorized Representative (effective upon
receipt) to the Agent prior to 10:30 A.M. on the day of such proposed repayment.
The Authorized Representative shall provide the Agent written confirmation of
each such telephonic notice but failure to provide such confirmation shall not
effect the validity of such telephonic notice. All prepayments of Revolving
Loans made by the Borrower shall be in the Dollar Equivalent Amount of
$15,000,000 or such greater Dollar Equivalent Amount which is an integral
multiple of $1,000,000 (provided that repayments in an Alternative Currency
shall be approximately equal to such amounts), or the amount equal to all
Revolving Credit Outstandings, or such other amount as necessary to comply with
SECTION 2.1(b).
(e) REDUCTIONS. The Borrower shall, by notice from an Authorized
Representative, have the right from time to time but not more frequently than
once each calendar month, upon not less than three (3) Business Days' written
notice to the Agent, effective upon receipt, to reduce the Total Revolving
Credit Commitment. The Agent shall give each Lender, within one (1) Business Day
of receipt of such notice, telefacsimile notice, or telephonic notice (confirmed
in writing), of such reduction. Each such reduction shall be in the aggregate
amount of $15,000,000 or such greater amount which is in an integral multiple of
$1,000,000, or the entire remaining Total Revolving Credit Commitment, and shall
permanently reduce the Total Revolving Credit Commitment. Each reduction of the
Total Revolving Credit Commitment shall be accompanied by payment of the Loans
to the extent that the principal amount of Outstandings exceeds the Total
Revolving Credit Commitment after giving effect to such reduction, together with
accrued and unpaid interest on
<PAGE> 36
the amounts prepaid and any amount required under SECTION 4.5.
2.2. COMPETITIVE BID LOANS. (a) In addition to borrowings of Revolving
Loans, at any time prior to the Revolving Credit Termination Date and provided
that no Default or Event of Default has occurred and is continuing, the Borrower
may, as set forth in this SECTION 2.2, request the Lenders to make offers to
make Competitive Bid Loans to the Borrower in Dollars or in an Alternative
Currency. The Lenders may, but shall have no obligation to, make such offers and
the Borrower may, but shall have no obligation to, accept any such offers.
Competitive Bid Loans shall be Absolute Rate Loans. Immediately after giving
effect to each Competitive Bid Loan (i) the aggregate Dollar Equivalent Amount
of Outstandings shall not exceed the then applicable Total Revolving Credit
Commitment and (ii) the aggregate Dollar Equivalent Amount of Outstandings in
Alternative Currencies shall not exceed the Total Alternative Currency Sublimit.
(b) When the Borrower wishes to request offers to make Competitive Bid
Loans, it shall give the Agent (which shall promptly notify the Lenders) notice
(a "Competitive Bid Quote Request") to be received no later than (i) in the case
of Competitive Bid Loans requested in an Alternative Currency, 10:30 A.M. on the
date that is at least three (3) Business Days prior to the date of such proposed
borrowing and (ii) in the case of Competitive Bid Loans requested in Dollars,
1:00 P.M. on the Business Day immediately preceding the date of borrowing
proposed therein (or such other time and date as the Borrower and the Agent,
with the consent of the Required Lenders, may agree). The Borrower may request
offers from the Lenders to make Competitive Bid Loans for more than one Interest
Period in a single notice; PROVIDED that the request for each separate Interest
Period shall be deemed to be a separate Competitive Bid Quote Request for a
separate borrowing (a "Competitive Bid Borrowing") of one or more Competitive
Bid Loans from the Lenders. Each such Competitive Bid Quote Request shall be
substantially in the form of EXHIBIT I hereto and shall specify as to each
Competitive Bid Borrowing:
(i) the proposed date of such Competitive Bid Borrowing, which shall
be a Business Day;
(ii) the aggregate amount of such Competitive Bid Borrowing, which
shall be at least $15,000,000 (or the Dollar Equivalent Amount thereof in
any Alternative Currency) or a larger integral multiple of $1,000,000 (or
the Dollar Equivalent Amount thereof in any Alternative Currency) but shall
not cause the limits specified in SECTION 2.2(a) to be violated;
<PAGE> 37
(iii) the duration of the Interest Period applicable thereto;
(iv) the requested Alternative Currency if the
Competitive Bid Borrowing is in an Alternative Currency; and
(v) if the Borrower would like Competitive Bid Quotes submitted for a
proposed Competitive Bid Borrowing in Dollars prior to the date of such
Competitive Bid Borrowing, the time and date on which such Competitive Bid
Quotes are to be submitted;
Except as otherwise provided in this SECTION 2.2(b), no Competitive Bid Quote
Request shall be given within five (5) Business Days (or such other number of
days as the Borrower and the Agent, with the consent of the Required Lenders,
may agree) of any other Competitive Bid Quote Request.
(c) (i) Each Lender may submit one or more Competitive Bid Quotes, each
containing an offer to make a Competitive Bid Loan in response to any
Competitive Bid Quote Request; PROVIDED, that, if the Borrower's request under
SECTION 2.2(b) specifies more than one Interest Period, such Lender may make a
single submission containing one or more Competitive Bid Quotes for each such
Interest Period. Each Competitive Bid Quote must be submitted to the Agent not
later than (x) in the case of a proposed Competitive Bid Borrowing in an
Alternative Currency, 9:30 A.M. on the date that is at least two (2) Business
Days prior to the date of such proposed Competitive Bid Borrowing, (y) in the
case of a proposed Competitive Bid Borrowing in Dollars, 10:00 A.M. on the date
of such proposed Competitive Bid Borrowing or such earlier date as the Borrower
may set forth in the Competitive Bid Quote Request or (z) such other time and
date as the Borrower and the Agent, with the consent of the Required Lenders,
may agree and the Agent shall promptly notify all Lenders of such other agreed
upon time and date (the date on which such Competitive Bid Quotes are to be
submitted is called the "Quotation Date"); PROVIDED, that any Competitive Bid
Quote may be submitted by the Agent (or its Applicable Lending Office) only if
the Agent (or such Applicable Lending Office) notifies the Borrower of the terms
of the offer contained therein not later than 9:15 A.M. (or 15 minutes prior to
such other agreed upon time) on the Quotation Date in the case of Competitive
Bid Loans requested in Dollars and 9:45 A.M. (or 15 minutes prior to such other
agreed upon time) on the Quotation Date in the case of Competitive Bid Loans
requested in an Alternative Currency . Subject to the express provisions of this
Agreement, any Competitive Bid Quote so made shall be irrevocable except with
the consent of the Agent given at the instruction of the Borrower.
<PAGE> 38
(ii) Each Competitive Bid Quote shall be substantially in the form of
EXHIBIT J and shall specify:
(A) the proposed date of borrowing and the
Interest Period therefor;
(B) the principal amount of the Competitive Bid Loan for which
such offer is being made, which principal amount shall be at least
$15,000,000 (or the Dollar Equivalent Amount thereof in any
Alternative Currency) or a larger multiple of $1,000,000 (or the
Dollar Equivalent Amount thereof in any Alternative Currency);
PROVIDED, that the aggregate principal amount of all Competitive Bid
Loans for which a Lender submits Competitive Bid Quotes may not exceed
the principal amount of the Competitive Bid Borrowing for a particular
Interest Period for which offers were requested;
(C) the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/10,000th of 1%) offered for each such
Competitive Bid Loan (the "Absolute Rate"); and
(D) the identity of the quoting Lender.
Unless otherwise agreed by the Agent and the Borrower, no Competitive Bid Quote
shall contain qualifying, conditional or similar language or propose terms other
than or in addition to those set forth in the applicable Competitive Bid Quote
Request and, in particular, no Competitive Bid Quote may be conditioned upon
acceptance by the Borrower of all (or some specified minimum) of the principal
amount of the Competitive Bid Loan for which such Competitive Bid Quote is being
made.
(d) The Agent shall, as promptly as practicable after the Competitive Bid
Quote is submitted but in any event not later than 9:30 A.M. (or thirty minutes
after such other agreed upon time) on the Quotation Date in the case of
Competitive Bid Loans requested in Dollars and 10:00 A.M. (or thirty minutes
after such other agreed upon time) on the Quotation Date in the case of
Competitive Bid Loans requested in an Alternative Currency, notify the Borrower
of the terms (i) of any Competitive Bid Quote submitted by a Lender that is in
accordance with SECTION 2.2(c) and (ii) of any Competitive Bid Quote that
amends, modifies or is otherwise inconsistent with a previous Competitive Bid
Quote submitted by such Lender with respect to the same Competitive Bid Quote
Request. Any such subsequent Competitive Bid Quote shall be disregarded by the
Agent unless such subsequent Competitive
<PAGE> 39
Bid Quote is submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Agent's notice to the Borrower shall specify (A) the
aggregate principal amount of the Competitive Bid Loans for which Competitive
Bid Quotes have been received and (B) the respective principal amounts and
Absolute Rates so offered by each Lender (identifying the Lender that made each
Competitive Bid Quote).
(e) Not later than 10:00 A.M. (or thirty minutes after the Agent has
provided the notice required by SECTION 2.2(d)) on the Quotation Date for
Competitive Bid Loans requested in Dollars and 11:00 A.M. (or thirty minutes
after the Agent has provided the notice required by SECTION 2.2(d)) on the
Quotation Date for Competitive Bid Loans requested in an Alternative Currency,
the Borrower shall notify the Agent of its acceptance or nonacceptance of the
Competitive Bid Quotes so notified to it pursuant to SECTION 2.2(d) (and the
failure of the Borrower to give such notice by such time shall constitute
nonacceptance) and the Agent shall promptly notify each affected Lender. In the
case of acceptance, such notice shall specify the aggregate principal amount of
Competitive Bid Quotes for each Interest Period that are accepted. The Borrower
may accept any Competitive Bid Quote in whole or in part; PROVIDED that:
(i) the aggregate principal amount of each Competitive Bid Borrowing
may not exceed the applicable amount set forth in the related Competitive
Bid Quote Request;
(ii) the aggregate principal amount of each Competitive Bid Borrowing
shall be at least $15,000,000 (or the Dollar Equivalent Amount thereof in
any Alternative Currency) or a larger multiple of $1,000,000 (or the Dollar
Equivalent Amount thereof in any Alternative Currency) but shall not cause
the limits specified in SECTION 2.2(a) to be violated;
(iii) acceptance of Competitive Bid Quotes may be made only in
ascending order of Absolute Rates, beginning with the lowest rate so
offered; and
(iv) the Borrower may not accept any offer where the Agent has
correctly advised the Borrower that such offer fails to comply with SECTION
2.2(c)(ii) or otherwise fails to comply with the requirements of this
Agreement (including, without limitation, SECTION 2.2(a)).
If Competitive Bid Quotes are made by two or more Lenders with the same Absolute
Rates, for an aggregate principal amount that is greater than the amount in
respect of which Competitive Bid Quotes are accepted for the related Interest
Period (after taking
<PAGE> 40
into account the acceptance of all Competitive Bid Quotes with lower Absolute
Rates, if any, offered by any Lender for such related Interest Period), then the
principal amount of the Competitive Bid Loans in respect of which such
Competitive Bid Quotes are accepted shall be allocated by the Borrower among
such Lenders as nearly as possible (in amounts of at least $1,000,000 or the
Dollar Equivalent Amount thereof in any Alternative Currency) in proportion to
the aggregate principal amount of such Competitive Bid Quotes. Determinations by
the Borrower of the amounts of Competitive Bid Loans and the lowest bid after
adjustment as provided in SECTION 2.2(e)(iii) shall be conclusive in the absence
of manifest error.
(f) (i) In the case of Competitive Bid Loans in Dollars, not later than
1:00 P.M. on the date specified for any Competitive Bid Loan, any Lender whose
offer to make such Competitive Bid Loan has been accepted shall make the amount
of such Loan available to the Agent at the Principal Office in Dollars and in
immediately available funds, for account of the Borrower. The amount so received
by the Agent shall, subject to the terms and conditions of this Agreement, be
made available to the Borrower on such date by depositing the same, in Dollars
and in immediately available funds, in an account of the Borrower maintained at
the Principal Office or otherwise as shall be directed by an Authorized
Representative and reasonably acceptable to the Agent.
(ii) In the case of Competitive Bid Loans in an Alternative Currency,
not later than 10:00 A.M. on the date specified for any Competitive Bid Loan,
any Lender whose offer to make such Competitive Bid Loan has been accepted shall
make the amount of such Loan available to the Borrower at the Funding Bank, to
the account of the applicable Competitive Bid Lender with the Funding Bank. The
amount so received by the Funding Bank shall, subject to the terms and
conditions of the Loan Documents and upon instruction from the Agent to the
Funding Bank on the same day or immediately preceding day but no later than
10:00 A.M., be made available to the Borrower by delivery of the Alternative
Currency Equivalent Amount to the Borrower's account with the Funding Bank.
2.3. UTILIZATION OF ALTERNATIVE CURRENCIES. (a) Revolving Loans in
Alternative Currencies shall be limited to Offshore Rate Loans. Competitive Bid
Loans in Alternative Currencies shall be limited to Absolute Rate Loans.
(b) Each request for an Advance or Loan in an Alternative Currency under a
Borrowing Notice or Competitive Bid Quote Request, as the case may be, shall
constitute the Borrower's request for a Loan of the Dollar Equivalent Amount of
the amount
<PAGE> 41
of the Alternative Currency specified in such Borrowing Notice or Competitive
Bid Quote Request, as the case may be, and for such Loan to be made available by
the Lenders to the Borrower in the Alternative Currency Equivalent Amount of
such Dollar Equivalent Amount (determined based on the Advance Date Exchange
Rate applicable to such Advance or Loan). The principal amount outstanding on
any Loan shall be recorded in the Agent's records in Dollars (in the case of an
Advance or Loan in an Alternative Currency as if the Loan had initially been
made in Dollars), based on the Dollar Equivalent Amount of the initial Advance
or Loan in an Alternative Currency, as reduced from time to time by the Dollar
Equivalent Amount (based on the Advance Date Exchange Rate applicable to such
Advance or Loan) of any principal payments with respect to such Advance or Loan.
For the purposes of determining the maximum amount of Outstandings hereunder, it
is intended by the parties that all Loans shall be the functional equivalent of
Loans made and repaid (based on the applicable Advance Date Exchange Rate for
each Advance) in Dollars. It is recognized that one or more Lenders may elect to
record Loans or Advances in Alternative Currencies. The Agent shall maintain
records sufficient to identify at any time (A) the Advance Date Exchange Rate
with respect to each Advance and Loan and (B) the portion of the Outstandings
attributable to each Advance.
(c) The Borrower may elect to Continue an Offshore Rate Loan pursuant to
the terms of SECTION 3.2(b) and subject to the conditions set forth in this
SECTION 2.3(c). In the event an Offshore Rate Loan is Continued, such election
to Continue the Offshore Rate Loan shall be treated as an Advance and the Agent
shall notify the Borrower and the Lenders of the Advance Date Exchange Rate, the
Interest Period and the rate for such Continued Offshore Rate Loan. The Lenders
shall each be deemed to have made an Advance to the Borrower of its Applicable
Commitment Percentage of each Revolving Loan in an Alternative Currency and the
Agent shall apply the Advance Date Exchange Rate for such new Interest Period to
such Continued Alternative Currency Equivalent Amount to determine the new
Dollar Equivalent Amount of such Revolving Loan and shall adjust its books and
the Revolving Credit Outstandings. In the event that such adjustment with
respect to a Continued Revolving Loan would cause (x) the total Dollar
Equivalent Amount of Outstandings to exceed the Total Revolving Credit
Commitment or (y) the total Dollar Equivalent Amount of Outstandings in
Alternative Currencies to exceed the Total Alternative Currency Sublimit, the
Borrower shall, immediately on the effective date of such Continuation, repay (a
"Rate Adjustment Payment") the portion of such Continued Revolving Loan
(applying the new Advance Date Exchange Rate) necessary to ensure that (xx) the
Dollar Equivalent Amount of all Outstandings does not exceed the Total Revolving
Credit Commitment and (yy) the Dollar Equivalent Amount of all
<PAGE> 42
Outstandings in Alternative Currencies does not exceed the Total Alternative
Currency Sublimit, PROVIDED, HOWEVER, that the Borrower shall not be required to
pay any additional compensation pursuant to SECTION 4.5 with respect to a
prepayment of a Revolving Loan required by this sentence if such prepayment is
made immediately on the effective date of the Continuation giving rise to such
prepayment and no notice of such prepayment shall be required. If the Agent does
not receive an Interest Rate Selection Notice giving notice of election of the
duration of an Interest Period or Continuation of an Offshore Rate Loan by the
time prescribed in SECTIONS 2.1(c)(i) or 3.2(b), as applicable, the Borrower
shall be deemed to have elected to repay such Offshore Rate Loan and if such
Offshore Rate Loan is not repaid on the last day of the applicable Interest
Period, together with accrued interest thereon, such Offshore Rate Loan shall be
converted into a Base Rate Loan in the Dollar Equivalent Amount of such Offshore
Rate Loan. The Borrower shall not be entitled to elect to Continue any Offshore
Rate Loan if a Default or Event of Default shall have occurred and be
continuing.
(d) Without prejudice and in addition to any method of conversion or
rounding prescribed by any EMU Legislation and without prejudice to (i) the
liabilities for Indebtedness of the Borrower to the Lenders under or pursuant to
this Agreement or (ii) each Lender's Revolving Credit Commitment, any reference
in this Agreement to a minimum amount (or an integral multiple thereof) in a
national currency of a Subsequent Participant to be paid to or by the Agent
shall immediately, upon it becoming a Subsequent Participant, be replaced by a
reference to such reasonably comparable and convenient amount (or an integral
multiple thereof) in the Euro unit as the Agent may specify.
(e) The Agent may from time to time further modify the terms of, and
practices contemplated by, this Agreement with respect to the Euro to the extent
the Agent determines, in its reasonable discretion, that such modifications are
necessary or convenient to reflect new laws, regulations, customs or practices
developed in connection with the Euro. The Agent may effect such modifications,
and this Agreement shall be deemed so amended, without the consent of the
Borrower or Lenders to the extent such modifications are not materially
disadvantageous to the Borrower and the Lenders, upon notice thereto.
2.4. USE OF PROCEEDS. The proceeds of the Loans made pursuant to the
Revolving Credit Facility hereunder shall be used by the Borrower for general
working capital needs and other lawful corporate purposes including without
limitation the making of acquisitions and, subject to SECTION 6.10, repurchases
of outstanding shares of its common stock.
<PAGE> 43
2.5. NOTES.
(a) REVOLVING NOTES. Revolving Loans made by each Lender shall be evidenced
by the Revolving Note payable to the order of such Lender in the respective
amount of its Applicable Commitment Percentage of the Total Revolving Credit
Commitment, which Revolving Note shall be dated the Closing Date or a later date
pursuant to an Assignment and Acceptance and shall be duly completed, executed
and delivered by the Borrower.
(b) SWING LINE NOTE. The Swing Line Outstandings shall be evidenced by a
separate Swing Line Note payable to the order of the Swing Line Lender in the
amount of the Swing Line, which Note shall be dated the Closing Date and shall
be duly completed, executed and delivered by the Borrower.
(c) COMPETITIVE BID NOTES. The Competitive Bid Loans made by each Lender
shall be evidenced by the Competitive Bid Note payable to the order of such
Lender, which Competitive Bid Note shall be dated the Closing Date or a later
date pursuant to an Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
2.6. SWING LINE. (a) Notwithstanding any other provision of this Agreement
to the contrary, in order to administer the Revolving Credit Facility in an
efficient manner and to minimize the transfer of funds between the Agent and the
Lenders, the Swing Line Lender shall make available Swing Line Loans in Dollars
to the Borrower prior to the Revolving Credit Termination Date. The Swing Line
Lender shall not be obligated to make any Swing Line Loan pursuant hereto (and
shall not unless otherwise approved by the Required Lenders) (i) if to the
actual knowledge of the Swing Line Lender the Borrower is not in compliance with
all the conditions to the making of Revolving Loans set forth in this Agreement,
(ii) if after giving effect to such Swing Line Loan, the Swing Line Outstandings
exceed $50,000,000, or (iii) if after giving effect to such Swing Line Loan, the
Outstandings exceed the then applicable Total Revolving Credit Commitment. Each
Swing Line Loan shall mature, and the principal amount thereof, together with
any accrued interest thereon, shall be payable (if not previously prepaid) in
full to the Swing Line Lender on the fifth Business Day after such Swing Line
Loan is made. The Company may, subject to the conditions set forth in the
preceding two sentences, borrow, repay and reborrow under this SECTION 2.6.
Unless notified to the contrary by the Swing Line Lender, borrowings under the
Swing Line shall be made in the minimum amount of $1,000,000 or, if greater, in
amounts which are integral multiples of $1,000,000, upon written request by
telefacsimile transmission, effective upon receipt, by an Authorized
Representative of the Borrower made to the Swing Line
<PAGE> 44
Lender not later than 2:00 P.M. on the Business Day of the requested borrowing.
Each such Borrowing Notice shall specify the amount of the borrowing and the
date of borrowing, and shall be in the form of EXHIBIT D-2, with appropriate
insertions. Unless notified to the contrary by the Swing Line Lender, each
repayment of a Swing Line Loan shall be in an amount which is an integral
multiple of $1,000,000 or the aggregate amount of all Swing Line Outstandings.
(b) The interest payable on Swing Line Loans is solely for the account of
the Swing Line Lender. Swing Line Loans shall bear interest solely at the Base
Rate. Swing Line Loans shall accrue interest at the Default Rate, and all
accrued and unpaid interest on Swing Line Loans shall be payable, on the dates
and in the manner provided in SECTIONS 3.3 with respect to interest on Base Rate
Loans.
(c) Upon the making of a Swing Line Loan in accordance with paragraph (a)
above, each Lender shall be deemed to have purchased from the Swing Line Lender
a Participation therein in an amount equal to that Lender's Applicable
Commitment Percentage of such Swing Line Loan. Upon demand made by the Swing
Line Lender, each Lender shall, according to its Applicable Commitment
Percentage of such Swing Line Loan, promptly provide to the Swing Line Lender
its purchase price therefor in an amount equal to its Participation therein. Any
Advance made by a Lender pursuant to demand of the Swing Line Lender of the
purchase price of its Participation shall when made be deemed to be (i) provided
that the conditions to making Revolving Loans shall be satisfied, a Base Rate
Refunding Loan under SECTION 2.1, and (ii) in all other cases, the funding by
each Lender of the purchase price of its Participation in such Swing Line Loan.
The obligation of each Lender to so provide its purchase price to the Swing Line
Lender shall be absolute and unconditional and shall not be affected by the
occurrence of an Event of Default or any other occurrence or event.
(d) The Borrower, at its option and subject to the terms hereof, may
request an Advance pursuant to SECTION 2.1 in an amount sufficient to repay
Swing Line Outstandings on any date and the Agent shall provide from the
proceeds of such Advance to the Swing Line Lender the amount necessary to repay
such Swing Line Outstandings (which the Swing Line Lender shall then apply to
such repayment) and credit any balance of the Advance in immediately available
funds in the manner directed by the Borrower pursuant to SECTION 2.1(c)(ii)(A).
The proceeds of such Advances shall be paid to the Swing Line Lender for
application to the Swing Line Outstandings and the Lenders shall then be deemed
to have made Loans in the amount of such Advances. The Swing Line shall continue
in effect until the Revolving Credit
<PAGE> 45
Termination Date, at which time all Swing Line Outstandings and accrued interest
thereon shall be due and payable in full.
2.7. INCREASE IN TOTAL REVOLVING CREDIT COMMITMENT. (a) The Borrower, the
Agent and any Lender or any other Person qualifying as an Eligible Assignee but
for the absence of an assignment, or any combination of such Lenders and such
Persons (collectively, "New Lenders"), may (in their sole discretion) enter into
one or more amendment agreements substantially in the form of EXHIBIT K attached
hereto and incorporated herein by reference without further approval of the
Lenders (or any other New Lender) pursuant to which each New Lender agrees to
incur or increase, as the case may be, its Revolving Credit Commitment so as to
make available to the Borrower, subject to all conditions herein set forth,
Revolving Loans in the maximum aggregate Dollar Equivalent Amount (for all New
Lenders) of up to $250,000,000 thereby increasing the Total Revolving Credit
Commitment to up to the Dollar Equivalent Amount of $1,000,000,000; PROVIDED
that
(i) each such increase shall be in an amount at least equal to $30,000,000
or an integral multiple of $5,000,000 in excess thereof; and
(ii) the Borrower shall execute and deliver to the Agent (A) Notes for each
New Lender, (B) Competitive Bid Notes for each Lender, (C) board resolutions of
the Borrower certified by its secretary or assistant secretary approving and
adopting such Notes and authorizing the execution and delivery thereof, and (D)
the legal opinion of either the General Counsel of the Borrower or special
counsel to the Borrower as to the due authorization, execution and delivery of
the Notes, the enforceability thereof and no conflict thereof with the
Organizational Documents, by-laws and material agreements of the Borrower, all
in form and substance substantially similar to such opinions delivered on the
Closing Date in satisfaction of SECTION 5.1(a)(ii).
(b) Upon the execution, delivery and acceptance of the documents required by
this SECTION 2.7, each New Lender shall have all of the rights and obligations
of a Lender under this Agreement. The Agent shall provide the Lenders with
notice of the revised Total Revolving Credit Commitment and the revised
Applicable Commitment Percentages of the Lenders, including the New Lenders.
ARTICLE III
FUNDING, FEES, AND PAYMENT CONVENTIONS
3.1. INTEREST RATE OPTIONS. (a) All Swing Line Loans shall be Base Rate
Loans. All Competitive Bid Loans shall be Absolute
<PAGE> 46
Rate Loans. All Revolving Loans in Alternative Currencies shall be Offshore Rate
Loans. Revolving Loans in Dollars may be Base Rate Loans, CD Rate Loans, or
Eurodollar Rate Loans, as the Borrower may elect in the related Borrowing Notice
or Interest Rate Selection Notice, as the case may be.
(b) Fixed Rate Loans and Base Rate Loans may be outstanding at the same
time and, so long as no Default or Event of Default shall have occurred and be
continuing, the Borrower shall have the option to elect (i) in the case of
Revolving Loans made in Dollars, the Type of Revolving Loan (subject to SECTION
3.1(a)) and (ii) in the case of all Fixed Rate Revolving Loans, the duration of
the initial and any subsequent Interest Periods and (iii) to Convert Revolving
Loans (other than Offshore Rate Loans which shall be subject to SECTION 2.3(c))
in accordance with SECTIONS 2.1(c)(i) AND 3.2, as applicable; PROVIDED, HOWEVER,
(x) there shall not be outstanding at any one time Fixed Rate Loans having more
than twenty (20) different Interest Periods and (y) no Fixed Rate Loan shall
have an Interest Period that extends beyond the Stated Termination Date. If the
Agent does not receive a Borrowing Notice or an Interest Rate Selection Notice
giving notice of election of the duration of an Interest Period or of Conversion
of any such Revolving Loan to or Continuation of any such Revolving Loan as a
Fixed Rate Revolving Loan by the time prescribed by SECTIONS 2.1(c)(i) AND 3.2,
as applicable, (I) in the case of Revolving Loans that are denominated in
Dollars, the Borrower shall be deemed to have elected to obtain or Convert such
Revolving Loan to (or Continue such Revolving Loan as) a Base Rate Revolving
Loan until the Borrower notifies the Agent in accordance with SECTION 3.2 and
(II) in the case of Revolving Loans made in Alternative Currencies, SECTION
2.3(c) shall apply. The Borrower shall not be entitled to elect to Continue any
Revolving Loan as or Convert any Revolving Loan into a Fixed Rate Revolving Loan
if a Default or Event of Default shall have occurred and be continuing.
3.2. CONVERSIONS AND ELECTIONS OF SUBSEQUENT INTEREST PERIODS. Subject to
the limitations set forth in the definition of "Interest Period," in SECTIONS
2.1(c)(iii) AND 3.1 and in ARTICLE IV, the Borrower may:
(a) upon delivery of telephonic notice to the Agent (which shall be
irrevocable) on or before 12:00 noon on any Business Day, Convert any Fixed Rate
Revolving Loan to a Base Rate Revolving Loan on the last day of the Interest
Period for such Fixed Rate Revolving Loan; and
(b) provided that no Default or Event of Default shall have occurred and be
continuing, upon delivery of telephonic notice to the Agent (which shall be
irrevocable) on or before 12:00 noon
<PAGE> 47
three (3) Business Days' prior to the date of such Conversion or Continuation in
the case of Eurodollar Rate Loans and Offshore Rate Loans and two (2) Business
Days' prior to the date of such Conversion or Continuation in the case of CD
Rate Loans:
(i) elect a subsequent Interest Period for any Fixed Rate Revolving
Loan to begin on the last day of the then current Interest Period for such
Fixed Rate Revolving Loan (subject to SECTION 2.3 with respect to any
Offshore Rate Loan); or
(ii) Convert any Base Rate Revolving Loan to a Fixed Rate Revolving
Loan on any Business Day.
Subject to SECTION 2.3(c), failure by the Borrower to elect a Conversion or a
Continuation or to provide notice of payment shall result in the automatic
Continuation or Conversion, as the case may be, of the applicable Loan to a Base
Rate Loan. Each such notice shall be effective upon receipt by the Agent, shall
specify the amount of the affected Fixed Rate Revolving Loan, the Type of
Revolving Loan, and, if a Continuation as or Conversion into a Fixed Rate
Revolving Loan, the Interest Period to be used in the computation of interest.
The Authorized Representative shall provide the Agent written confirmation of
each such telephonic notice in the form of a Borrowing Notice or Interest Rate
Selection Notice (as applicable) with appropriate insertions but failure to
provide such confirmation shall not affect the validity of such telephonic
notice. Notice of receipt of such Borrowing Notice or Interest Rate Selection
Notice, as the case may be, shall be provided by the Agent to each Lender by
telefacsimile transmission with reasonable promptness, but (provided the Agent
shall have received such notice by 12:00 noon) not later than 3:00 P.M. on the
same day as the Agent's receipt of such notice. All such Continuations or
Conversions of Revolving Loans shall be effected pro rata based on the
Applicable Commitment Percentages of the Lenders.
3.3. PAYMENT OF INTEREST. The Borrower shall pay to the Agent interest on
the outstanding and unpaid principal amount of each Loan, (i) for the account of
each Lender in the case of Revolving Loans commencing on the first date of such
Revolving Loan until such Revolving Loan shall be repaid, at the applicable Base
Rate or Fixed Rate as designated by the Borrower in the related Borrowing Notice
or Interest Rate Selection Notice or as otherwise provided hereunder, (ii) for
the account of the Swing Line Lender in the case of Swing Line Loans and (iii)
for the account of each Competitive Bid Lender, for the period commencing on the
date of such Competitive Bid Loan until such Competitive Bid Loan is paid in
full at the Absolute Rate. Interest on each Loan shall be paid on the earlier of
(a) in the case of any Base
<PAGE> 48
Rate Revolving Loan, quarterly in arrears of the last Business Day of each
March, June, September and December, commencing on September 30, 1999, until the
Revolving Credit Termination Date, at which date the entire principal amount of
and all accrued interest on the Loans shall be paid in full, (b) in the case of
any Swing Line Loan, as provided in SECTION 2.6(a) and (b), (c) in the case of
any Fixed Rate Loan, on last day of the applicable Interest Period for such
Fixed Rate Loan and if such Interest Period extends for more than three (3)
months, at intervals of three (3) months after the first day of such Interest
Period, and (d) upon payment in full of the related Loan; PROVIDED, HOWEVER,
that if any Event of Default shall occur and be continuing, all amounts
outstanding hereunder shall bear interest thereafter until paid in full at the
Default Rate.
3.4. PREPAYMENTS OF FIXED RATE LOANS. Subject to SECTION 2.3(c), whenever
any payment of principal shall be made in respect of any Loan hereunder, whether
at maturity, on acceleration, by optional or mandatory prepayment or as
otherwise required or permitted hereunder, with the effect that any Fixed Rate
Loan shall be prepaid in whole or in part prior to the last day of the Interest
Period applicable to such Fixed Rate Loan, such payment of principal shall be
accompanied by the additional payment, if any, required by SECTION 4.5.
3.5. MANNER OF PAYMENT. (a) The principal amount of all Outstandings shall
be due and payable to the Agent for the benefit of each Lender, the Competitive
Bid Lender or the Swing Line Lender, as the case may be, in full on the
Revolving Credit Termination Date or earlier as specifically provided herein.
Such principal amount shall be recorded in Dollars as set forth in SECTION 2.3.
The repayment of such principal amount shall be made in Dollars if the Loan was
made in Dollars. If the Loan was made in an Alternative Currency, the portion of
the Revolving Credit Outstandings attributable to each Advance (or the
Continuation thereof) and the portion of Competitive Bid Outstandings
attributable to each Competitive Bid Borrowing (each as determined from the
Agent's records) shall be repaid in the same Alternative Currency as such
Advance or Competitive Bid Borrowing. Each payment of principal (including any
prepayment) and payment of interest and fees, and any other amount required to
be paid by or on behalf of the Borrower to the Lenders, the Competitive Bid
Lenders, the Agent, or the Swing Line Lender with respect to any Loan, shall be
made to the Agent (i) in Dollars at the Principal Office in the case of Loans
made in Dollars and (ii) in the same Alternative Currency at the Funding Bank in
the case of Loans made in Alternative Currencies, in immediately available funds
without setoff, recoupment, deduction or counterclaim on or before 2:00 P.M. on
the date such payment is due; PROVIDED that in the case of Competitive Bid Loans
made in
<PAGE> 49
Alternative Currencies, such payment shall be made to the applicable Competitive
Bid Lender at the Funding Bank. The Borrower shall give the Agent not less than
one (1) Business Day prior written notice of any payment of principal, such
notice to be given prior to 2:00 P.M. and to specify the date the payment will
be made and the Loan to which payment relates. In the case of Loans made in
Dollars, the Agent may, but shall not be obligated to, debit the amount of such
payment from any one or more ordinary deposit accounts of the Borrower with the
Agent.
(b) Any payment made by or on behalf of the Borrower shall be made both (i)
in Dollars in the case of Loans made in Dollars and in the required Alternative
Currency in the case of Loans made in Alternative Currencies and in immediately
available funds and (ii) prior to 2:00 P.M. on the date such payment is to be
made. Any such payment shall not be deemed to be received until the time such
funds become available. Interest shall continue to accrue at the Default Rate on
any principal or fees as to which no payment is made from the date such amount
was due and payable until the date such funds become available.
(c) In the event that any payment hereunder or under any of the Notes
becomes due and payable on a day other than a Business Day, then such due date
shall be extended to the next succeeding Business Day unless provided otherwise
under the definition of "Interest Period"; PROVIDED, however, that interest
shall continue to accrue during the period of any such extension; and PROVIDED
further, however, that in no event shall any such due date be extended beyond
the Revolving Credit Termination Date.
3.6. FEES. (a) FACILITY FEE. For the period beginning on and including the
Closing Date and ending on (but excluding) the Revolving Credit Termination
Date, the Borrower agrees to pay to the Agent, for the pro rata benefit of the
Lenders based on their Applicable Commitment Percentages, a facility fee equal
to the Applicable Facility Fee multiplied by the Total Revolving Credit
Commitment without giving effect to any Outstandings. Such fees shall be due in
arrears on the last Business Day of each March, June, September and December
commencing September 30, 1999 to and on the Revolving Credit Termination Date.
Notwithstanding the foregoing, so long as any Lender fails to make available any
portion of its Revolving Credit Commitment when requested, such Lender shall not
be entitled to receive payment of its pro rata share of such fee until such
Lender shall make available such portion.
(b) ADMINISTRATIVE FEES. The Borrower agrees to pay to the Agent, for the
Agent's individual account, an annual administrative fee, such fee to be payable
in such amounts and at such dates as from time to time agreed to by the Borrower
and
<PAGE> 50
Agent in writing.
(c) COMPETITIVE BID FEES. The Borrower agrees to pay to the Agent, for the
Agent's individual account, an administrative fee of $1,500 for each Competitive
Bid Quote Request made by the Borrower, such fee to be payable at the time of
each Competitive Bid Quote Request.
3.7. PAYMENTS TO AGENT FOR LENDERS. Except as otherwise specified herein,
(a) each payment on account of the principal of and interest on Revolving Loans,
the fees described in SECTION 3.6, and Swing Line Loans as to which the Lenders
have funded their respective Participations which remain outstanding, shall be
made to the Agent for the account of the Lenders pro rata based on their
Applicable Commitment Percentages, (b) each payment on account of the principal
of and interest on Swing Line Loans shall be made to the Agent for the account
of the Swing Line Lender, (c) each payment on account of the principal of and
interest on a Competitive Bid Loan shall be made to the Agent for the account of
the respective Competitive Bid Lender making such Competitive Bid Loan and (d)
the Agent will promptly distribute to the Lenders, the Swing Line Lender or
Competitive Bid Lenders, as the case may be, in immediately available funds
payments received in fully collected, immediately available funds from the
Borrower.
3.8. COMPUTATION OF RATES AND FEES. Except as may be otherwise expressly
provided, (a) interest on Base Rate Loans shall be computed on the basis of a
year of 365/366 days and calculated for actual days elapsed and (b) all other
interest rates (including each Fixed Rate and the Default Rate) and fees shall
be computed on the basis of a year of 360 days and calculated for actual days
elapsed.
3.9. DEFICIENCY ADVANCES; FAILURE TO PURCHASE PARTICIPATIONS. No Lender
shall be responsible for any default of any other Lender in respect to such
other Lender's obligation to make any Loan or Advance hereunder or to fund its
purchase of any Participation hereunder nor shall the Revolving Credit
Commitment of any Lender hereunder be increased as a result of such default of
any other Lender. Without limiting the generality of the foregoing, in the event
any Lender shall fail to advance funds to the Borrower as herein provided, the
Agent may in its discretion, but shall not be obligated to, advance under the
applicable Note in its favor as a Lender all or any portion of such amount or
amounts (each, a "deficiency advance") and shall thereafter be entitled to
payments of principal of and interest on such deficiency advance in the same
manner and at the same interest rate or rates to which such other Lender would
have been entitled had it made such Advance under its Note; PROVIDED
<PAGE> 51
that, (i) such defaulting Lender shall not be entitled to receive payments of
principal, interest or fees with respect to such deficiency advance until such
deficiency advance shall be paid by such Lender and (ii) upon payment to the
Agent from such other Lender of the entire outstanding amount of each such
deficiency advance, together with accrued and unpaid interest thereon, from the
most recent date or dates interest was paid to the Agent by a Borrower on each
Loan comprising the deficiency advance at the interest rate per annum for
overnight borrowing by the Agent from the Federal Reserve Bank, then such
payment shall be credited against the applicable Note of the Agent in full
payment of such deficiency advance and such Borrower shall be deemed to have
borrowed the amount of such deficiency advance from such other Lender as of the
most recent date or dates, as the case may be, upon which any payments of
interest were made by such Borrower thereon. In the event any Lender shall fail
to fund its purchase of a Participation after notice from the Swing Line Lender,
such Lender shall pay to the Swing Line Lender such amount on demand, together
with interest on the amount so due from the date of such notice at the interest
rate per annum for overnight borrowing by the Agent from the Federal Reserve
Bank to the date such purchase price is received by the Swing Line Lender.
ARTICLE IV
CHANGE IN CIRCUMSTANCES
4.1. INCREASED COST AND REDUCED RETURN.
(a) If, after the date hereof, the adoption of any applicable law, rule, or
regulation, or any change in any applicable law, rule, or regulation, or any
change in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation or
administration thereof, or compliance by any Lender (or its Applicable Lending
Office) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable Lending Office) to
any tax, duty, or other charge with respect to any Fixed Rate Loans, its
Note, or its obligation to make Fixed Rate Loans, or change the basis of
taxation of any amounts payable to such Lender (or its Applicable Lending
Office) under this Agreement or its Note in respect of any Fixed Rate Loans
(other than taxes imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal office or such
Applicable Lending Office);
<PAGE> 52
(ii) shall impose, modify, or deem applicable any reserve, special
deposit, assessment, or similar requirement (other than the Reserve
Requirement utilized in the determination of the Eurodollar Rate, the
Offshore Rate and the CD Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or commitments
of, such Lender (or its Applicable Lending Office), including the Revolving
Credit Commitment of such Lender hereunder; or
(iii) shall impose on such Lender (or its Applicable Lending Office)
or on the London interbank market any other condition affecting this
Agreement or its Note or any of such extensions of credit or liabilities or
commitments;
and the result of any of the foregoing is to increase the cost to such Lender
(or its Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Fixed Rate Loans or to reduce any sum received or receivable by
such Lender (or its Applicable Lending Office) under this Agreement or its Note
with respect to any Fixed Rate Loans, then the Borrower shall pay to such Lender
within 15 days of demand for such amount or amounts as will compensate such
Lender for such increased cost or reduction. If any Lender requests compensation
by the Borrower under this SECTION 4.1(a), the Borrower may, by notice to such
Lender (with a copy to the Agent), suspend the obligation of such Lender to make
or Continue Loans of the Type with respect to which such compensation is
requested, or to Convert Loans of any other Type into Loans of such Type, until
the event or condition giving rise to such request ceases to be in effect (in
which case the provisions of SECTION 4.4 shall be applicable); PROVIDED that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b) If, after the date hereof, any Lender shall have determined that the
adoption of any applicable law, rule, or regulation regarding capital adequacy
or any change therein or in the interpretation or administration thereof by any
Governmental Authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or any request or directive regarding
capital adequacy (whether or not having the force of law) of any such
Governmental Authority, central bank, or comparable agency, has or would have
the effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder to a level below that which such Lender or such
corporation could have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect to capital
adequacy), then from time to time within 15 days after demand to such Lender
<PAGE> 53
(with a copy to the Agent) the Borrower shall pay to such Lender such additional
amount or amounts as will compensate such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and the Agent of any
event of which it has knowledge, occurring after the date hereof, which will
entitle such Lender to compensation pursuant to this SECTION 4.1 and will
designate a different Applicable Lending Office if such designation will avoid
the need for, or reduce the amount of, such compensation and will not, in the
judgment of such Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this SECTION 4.1 shall furnish to the Borrower and the Agent
a statement setting forth the additional amount or amounts to be paid to it
hereunder and the calculation thereof in reasonable detail which shall be
conclusive in the absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution methods.
(d) Failure or delay on the part of any Lender to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital shall not constitute a waiver of such Lender's right to
demand such compensation; PROVIDED that the Borrower shall not be under any
obligation to compensate any Lender under clauses (a) or (b) above with respect
to increased costs or reduction in return on capital with respect to any period
prior to the date that is three months prior to such request if such Lender knew
or could reasonably have been expected to be aware of the circumstances giving
rise to such increased costs or reductions in return on capital and of the fact
that such circumstances would in fact result in a claim for increased
compensation by reason of such increased costs or reductions in capital;
PROVIDED FURTHER that the foregoing limitation shall not apply to any increased
costs or reductions in return on capital arising out of the retroactive
application of any law, rule, guideline or directive as aforesaid within such
three month period.
4.2. LIMITATION ON TYPES OF LOANS. If on or prior to the first day of
any Interest Period for any Fixed Rate Revolving Loan:
(a) the Agent determines (which determination shall be conclusive)
that by reason of circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate or CD
Rate for such Interest Period; or
(b) the Required Lenders determine (which determination shall be
conclusive) and notify the Agent that the Fixed Rate will not adequately
and fairly reflect the
<PAGE> 54
cost to the Lenders of funding Fixed Rate Revolving Loans for such Interest
Period;
then the Agent shall give the Borrower prompt notice thereof specifying the
relevant Type of Loans and the relevant amounts or periods, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Loans of such Type, Continue Loans of such Type, or to Convert Loans
of any other Type into Loans of such Type and the Borrower shall, on the last
day(s) of the then current Interest Period(s) for the outstanding Loans of the
affected Type, either prepay such Loans or Convert such Loans into another Type
of Loan in accordance with the terms of this Agreement.
4.3. ILLEGALITY. Notwithstanding any other provision of this Agreement, in
the event that it becomes unlawful for any Lender or its Applicable Lending
Office to make, maintain, or fund Eurodollar Rate Loans or Offshore Rate Loans
hereunder, then such Lender shall promptly notify the Borrower thereof and such
Lender's obligation to make or Continue Eurodollar Rate Loans and Offshore Rate
Loans and to Convert other Types of Loans into Eurodollar Rate Loans shall be
suspended until the circumstances giving rise to suspension no longer exist in
which case such Lender shall again make, maintain, and fund Eurodollar Rate
Loans or Offshore Rate Loans, as applicable (in which case the provisions of
SECTION 4.4 shall be applicable).
4.4. TREATMENT OF AFFECTED LOANS. If the obligation of any Lender to make a
Fixed Rate Loan or to Continue, or to Convert Loans of any other Type into,
Loans of a particular Type shall be suspended pursuant to SECTION 4.1 OR 4.3
hereof (Loans of such Type being herein called "Affected Loans" and such Type
being herein called the "Affected Type"), such Lender's Affected Loans shall be
automatically Converted into Base Rate Loans in the Dollar Equivalent Amount of
such Affected Loans on the last day(s) of the then current Interest Period(s)
for Affected Loans (or, in the case of a Conversion required by SECTION 4.3
hereof, on such earlier date as such Lender may specify to the Borrower with a
copy to the Agent) and, unless and until such Lender gives notice as provided
below that the circumstances specified in SECTION 4.1 OR 4.3 hereof that gave
rise to such Conversion no longer exist:
(a) to the extent that such Lender's Affected Loans have been so
Converted, all payments and prepayments of principal that would otherwise
be applied to such Lender's Affected Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or
<PAGE> 55
Continued by such Lender as Loans of the Affected Type shall be made or
Continued instead as Base Rate Loans, and all Loans of such Lender that
would otherwise be Converted into Loans of the Affected Type shall be
Converted instead into (or shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in SECTION 4.1 OR 4.3 hereof that gave rise to the
Conversion of such Lender's Affected Loans pursuant to this SECTION 4.4 no
longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Loans of the Affected Type made by other
Lenders are outstanding, such Lender's Base Rate Loans shall be automatically
(i) in the case of Affected Loans originally made in Dollars, Converted and (ii)
in the case of Affected Loans originally made in an Alternative Currency,
converted into the Alternative Currency Equivalent Amount, on the first day(s)
of the next succeeding Interest Period(s) for such outstanding Loans of the
Affected Type, to the extent necessary so that, after giving effect thereto, all
Loans held by the Lenders holding Loans of the Affected Type and by such Lender
are held pro rata (as to principal amounts, Types, currency denomination and
Interest Periods) in accordance with their respective Revolving Credit
Commitments.
4.5. COMPENSATION. Upon the request of any Lender, the Borrower shall pay
to such Lender such amount or amounts as shall be sufficient (in the reasonable
opinion of such Lender) to compensate it for any loss, cost, or expense
(including loss of anticipated profits) incurred by it as a result of:
(a) any payment, prepayment, or Conversion of a Fixed Rate Loan for
any reason (except as set forth in SECTION 2.3(c)) including, without
limitation, the acceleration of the Loans pursuant to SECTION 9.1, on a
date other than the last day of the Interest Period for such Loan; or
(b) any failure by the Borrower for any reason (including, without
limitation, the failure of any condition precedent specified in ARTICLE V
to be satisfied) to borrow, Convert, Continue, or prepay a Fixed Rate Loan
on the date for such borrowing, Conversion, Continuation, or prepayment
specified in the relevant notice of borrowing, prepayment, Continuation, or
Conversion under this Agreement.
4.6. TAXES. (a) Any and all payments by the Borrower to or for the account
of any Lender or the Agent hereunder or under any other Loan Document shall be
made free and clear of and without deduction for any and all present or future
taxes,
<PAGE> 56
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, EXCLUDING, in the case of each Lender and the
Agent, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Lender (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any political
subdivision thereof (all such non-excluded taxes, duties, levies, imposts,
deductions, charges, withholdings, and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable under this Agreement or any other Loan Document
to any Lender or the Agent, (i) the sum payable shall be increased as necessary
so that after making all required deductions (including deductions applicable to
additional sums payable under this SECTION 4.6) such Lender or the Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant taxation authority
or other authority in accordance with applicable law, and (iv) the Borrower
shall furnish to the Agent, at its address referred to in SECTION 11.2, the
original or a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all present or future
stamp or documentary taxes and any other excise or property taxes or charges or
similar levies which arise from any payment made under this Agreement or any
other Loan Document or from the execution or delivery of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this SECTION 4.6) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto. Indemnification shall be made within 15 days of the date
of demand therefor.
(d) Each Lender organized under the laws of a jurisdiction outside the
United States, on or prior to the date of its execution and delivery of this
Agreement in the case of each Lender listed on the signature pages hereof and on
or prior to the date on which it becomes a Lender in the case of each other
Lender, and from time to time thereafter (but only so long as such Lender
remains lawfully able to do so) on or before the date any predecessor forms
described in this clause (d) expire or become obsolete or after the occurrence
of any event requiring a change in the most recent forms delivered to the Agent,
shall
<PAGE> 57
provide the Borrower and the Agent with (i) Internal Revenue Service Form 1001
or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Lender is entitled to benefits under an
income tax treaty to which the United States is a party which reduces the rate
of withholding tax on payments of interest or certifying that the income
receivable pursuant to this Agreement is effectively connected with the conduct
of a trade or business in the United States, (ii) Internal Revenue Service Form
W-8 or W-9, as appropriate, or any successor form prescribed by the Internal
Revenue Service, and (iii) any other form or certificate required by any taxing
authority (including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Lender is entitled to an
exemption from or a reduced rate of tax on payments pursuant to this Agreement
or any of the other Loan Documents.
(e) For any period with respect to which a Lender has failed to provide the
Borrower and the Agent with the appropriate form pursuant to SECTION 4.6(d)
(unless such failure is due to a change in treaty, law, or regulation occurring
subsequent to the date on which a form originally was required to be provided),
such Lender shall not be entitled to indemnification under SECTION 4.6(a) OR
4.6(b) with respect to Taxes imposed by the United States; PROVIDED, HOWEVER,
that should a Lender, which is otherwise exempt from or subject to a reduced
rate of withholding tax, become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to recover such Taxes.
(f) Within thirty (30) days after the date of any payment of Taxes, the
Borrower shall furnish to the Agent the original or a certified copy of a
receipt evidencing such payment.
(g) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this SECTION 4.6 shall survive the termination of the Revolving Credit
Commitments and the payment in full of the Notes.
(h) REFUNDS OR CREDITS. If any Lender receives a refund or credit from a
taxation authority (such credit to include any increase in any foreign tax
credit) in respect of any Taxes or Other Taxes for which it has been indemnified
by the Borrower or with respect to which the Borrower has paid additional
amounts hereunder, it shall within 30 days from the date of such receipt pay
over the amount of such refund, credit or other reduction to the Borrower (but
only to the extent of indemnity payments made, or additional amounts paid, by
the Borrower with respect to the
<PAGE> 58
Taxes or Other Taxes giving rise to such refund or credit), net of all
reasonable out-of-pocket third party expenses of such Lender related to claiming
such refund or credit and without interest (other than interest paid by the
relevant taxation authority with respect to such refund or credit); provided,
however, that the Borrower agrees to repay, upon the request of such Lender, the
amount paid over to the Borrower (plus penalties, interest or other charges) to
such Lender in the event such Lender is required to repay such refund or credit
to such taxation authority.
(i) CONDUIT FINANCING ARRANGEMENTS. Notwithstanding anything to the
contrary in this SECTION 4.6, if the Internal Revenue Service determines that a
Lender is participating in a conduit financing arrangement as defined in Section
7701(1) of the Code and the regulations thereunder (a "Conduit Financing
Arrangement"), then (i) any Taxes that the Borrower is required to withhold from
payments to the Lender participating in the Conduit Financing Arrangement shall
be excluded from the additional amounts to be paid under SECTIONS 4.6(a), (b) or
(c) and (ii) such Lender shall indemnify the Borrower in full for any and all
Taxes for which the Borrower is held liable under Section 1461 of the Code by
virtue of such Conduit Financing Arrangement.
4.7. CHANGE OF LENDING OFFICE. Each Lender agrees that, upon the occurrence
of any event giving rise to the operation of SECTION 4.1, 4.2(b) or 4.6 with
respect to such Lender, it will, if requested by the Borrower, use reasonable
efforts (subject to overall policy considerations of such Lender) to designate
another lending office for any Loans affected by such event with the object of
avoiding the consequences of such event; PROVIDED, that such designation is made
on terms that, in the sole judgment of such Lender, cause such Lender and its
lending office(s) to suffer no economic, legal or regulatory disadvantage, and
PROVIDED, FURTHER, that nothing in this SECTION 4.7 shall affect or postpone any
of the obligations of the Borrower or the rights of any Lender pursuant to
SECTION 4.1, 4.2(b) or 4.6.
4.8. SUBSTITUTION OF LENDERS. Upon the receipt by the Borrower from any
Lender (an "Affected Lender") of a claim under SECTION 4.1, 4.2(b) or 4.6, the
Borrower may: (a) request one or more of the other Lenders to acquire and assume
all or part of such Affected Lender's Loans and Revolving Credit Commitment; or
(b) replace such Affected Lender by designating another Lender or a financial
institution that is willing to acquire such Loans and assume such Revolving
Credit Commitment; PROVIDED that (i) such replacement does not conflict with any
requirement of law, (ii) no Default or Event of Default shall have occurred and
be continuing at the time of such replacement, (iii) the Borrower shall repay
(or the replacement bank or financial institution
<PAGE> 59
shall purchase, at par) all Loans, accrued interest and other amounts owing to
such replaced Lender prior to the date of replacement, (iv) the Borrower shall
be liable to such replaced Lender under SECTION 4.5 if any Fixed Rate Loan owing
to such replaced Lender shall be prepaid (or purchased) other than on the last
day of the Interest Period relating thereto, (v) the replacement bank or
institution, if not already a Lender, shall otherwise qualify as an Eligible
Assignee, (vi) the replaced Lender shall be obligated to make such replacement
in accordance with the provisions of SECTION 11.1 (provided that the Borrower or
replacement Lender shall be obligated to pay the registration and processing
fee) and (vii) the Borrower shall pay all additional amounts (if any) required
pursuant to SECTION 4.1, 4.2(b) or 4.6, as the case may be, to the extent such
additional amounts were incurred on or prior to the consummation of such
replacement.
ARTICLE V
CONDITIONS TO MAKING LOANS
5.1. CONDITIONS OF INITIAL ADVANCE. The obligation of the Lenders to make
the initial Advance under the Revolving Credit Facility or an initial
Competitive Bid Loan, and of the Swing Line Lender to make any Swing Line Loan,
is subject to the conditions precedent that:
(a) the Agent shall have received on the Closing Date, in form and
substance satisfactory to the Agent and Lenders, the following:
(i) executed originals of each of this Agreement, the Notes and
the other Loan Documents, together with all schedules and exhibits
thereto;
(ii) the favorable written opinion or opinions with respect to
the Loan Documents and the transactions contemplated thereby of
special counsel to the Borrower dated the Closing Date, addressed to
the Agent and the Lenders and satisfactory to Smith Helms Mulliss &
Moore, L.L.P., special counsel to the Agent, substantially in the form
of EXHIBIT G;
(iii) resolutions of the boards of directors or other appropriate
governing body (or of the appropriate committee thereof) of the
Borrower certified by its secretary or assistant secretary as of the
Closing Date, approving and adopting the Loan Documents to be executed
by the Borrower, and authorizing the execution and delivery thereof;
<PAGE> 60
(iv) specimen signatures of officers or other appropriate
representatives executing the Loan Documents on behalf of the
Borrower, certified by the secretary or assistant secretary of the
Borrower;
(v) the Organizational Documents of the Borrower certified as of
a recent date by the Secretary of State of its state of organization;
(vi) the by-laws of the Borrower certified as of the Closing Date
as true and correct by its secretary or assistant secretary;
(vii) a certificate issued as of a recent date by the Secretary
of State of the jurisdiction of formation of the Borrower as to the
due existence and good standing of such the Borrower;
(viii) notice of appointment of the initial Authorized
Representative(s);
(ix) certificate of an Authorized Representative dated the
Closing Date demonstrating compliance with the covenants contained in
SECTIONS 8.1, 8.2(i), AND 8.3(e) as of the end of the fiscal quarter
for which financial statements are publicly available most recently
ended prior to the Closing Date, substantially in the form of EXHIBIT
H;
(x) an initial Borrowing Notice, if any, and, if elected by the
Borrower, Interest Rate Selection Notice;
(xi) evidence that all fees payable by the Borrower on the
Closing Date to the Agent, BAS and the Lenders have been paid in full;
(xii) a certificate of an Authorized Representative as to the
occurrence or truthfulness, as applicable, of the matters set forth in
SECTION 5.1(b)(i) and (ii) hereof as of the Closing Date;
(xiii) such other documents, instruments, certificates and
opinions as the Agent or any Lender may reasonably request on or prior
to the Closing Date in connection with the consummation of the
transactions contemplated hereby; and
(b) Each of the following shall have occurred or be
<PAGE> 61
true:
(i) no litigation, action, suit, investigation or other arbitral,
administrative or judicial proceeding shall be pending or threatened
which could reasonably be likely to result in a Material Adverse
Effect; and
(ii) the Borrower shall have received all approvals, consents and
waivers, and shall have made or given all necessary filings and
notices as shall be required to consummate the transactions
contemplated hereby without the occurrence of any default under,
conflict with or violation of (A) any applicable law, rule,
regulation, order or decree of any Governmental Authority or arbitral
authority or (B) any agreement, document or instrument to which the
Borrower is a party or by which it or its properties is bound, except
for such approvals, consents, waivers, filings and notices the
receipt, making or giving of which will not have a Material Adverse
Effect.
(c) In the reasonable judgment of the Agent and the Lenders:
(i) there shall not have occurred or become known to the Agent or
the Lenders any event, condition, situation or status since January 2,
1999, in the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole or in the facts and
information regarding the Borrower and its Subsidiaries delivered to
the Agent prior to the Closing Date that has had or could reasonably
be expected to result in a Material Adverse Effect;
5.2. CONDITIONS OF REVOLVING LOANS, SWING LINE LOANS AND COMPETITIVE BID
LOANS. The obligations of the Lenders to make any Revolving Loans or Competitive
Bid Loans, and the Swing Line Lender to make Swing Line Loans, hereunder on or
subsequent to the Closing Date are subject to the satisfaction of the following
conditions:
(a) the Agent or, in the case of Swing Line Loans, the Swing Line
Lender shall have received a Borrowing Notice if required by ARTICLE II;
(b) the representations and warranties of the Borrower set forth in
ARTICLE VI (other than Section 6.5(c)) and in each of the other Loan
Documents shall be true and correct in all material respects on and as of
the date of such
<PAGE> 62
Advance, Swing Line Loan or Competitive Bid Loan, with the same effect as
though such representations and warranties had been made on and as of such
date, except to the extent that such representations and warranties
expressly relate to an earlier date and except that the financial
statements referred to in SECTION 6.5(a) shall be deemed to be those
financial statements most recently delivered to the Agent and the Lenders
pursuant to SECTION 7.1 from the date financial statements are delivered to
the Agent and the Lenders in accordance with such Section;
(c) at the time of (and after giving effect to) each Advance, Swing
Line Loan or Competitive Bid Loan, no Default or Event of Default specified
in ARTICLE IX shall have occurred and be continuing; and
(d) immediately after giving effect to:
(i) a Loan, the aggregate principal balance of all outstanding
Loans (other than Competitive Bid Loans) for each Lender shall not
exceed such Lender's Revolving Credit Commitment;
(ii) a Swing Line Loan, the Swing Line Outstandings shall not
exceed $50,000,000;
(iii) a Loan, the Outstandings shall not exceed the then
applicable Total Revolving Credit Commitment; and
(iv) a Loan in an Alternative Currency, the Outstandings in
Alternative Currencies shall not exceed the Total Alternative Currency
Sublimit.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants with respect to itself and to its
Subsidiaries (which representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans), that:
6.1. CORPORATE EXISTENCE AND POWER. The Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of
Pennsylvania, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
<PAGE> 63
6.2. CORPORATE AND GOVERNMENTAL AUTHORIZATION; NO CONTRAVENTION. The
execution, delivery and performance by the Borrower of this Agreement and the
Notes are within the Borrower's corporate powers, have been duly authorized by
all necessary corporate action, require no action by or in respect of, or filing
with, any governmental body, agency or official and do not contravene, or
constitute a default under, any provision of applicable law or regulation or of
the certificate of incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the
Borrower or any of its Subsidiaries or result in the creation or imposition of
any Lien on any asset of the Borrower or any of its Subsidiaries.
6.3. MATERIAL SUBSIDIARIES. Each of the Borrower's Material Subsidiaries is
a corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
6.4. BINDING EFFECT. This Agreement constitutes a valid and binding
agreement of the Borrower and each Note, when executed and delivered in
accordance with this Agreement, will constitute a valid and binding obligation
of the Borrower, in each case enforceable in accordance with its terms.
6.5. FINANCIAL INFORMATION. (a) The consolidated balance sheet of the
Borrower and its Subsidiaries as of January 2, 1999 and the related consolidated
statements of income, retained earnings and cash flow for the fiscal year then
ended, reported on by PriceWaterhouseCoopers LLP and set forth in the Borrower's
1998 Form 10-K, a copy of which has been delivered to each of the Lenders,
fairly present, in conformity with GAAP, the consolidated financial position of
the Borrower and its Subsidiaries as of such date and their consolidated results
of operations and cash flows for such fiscal year.
(b) The unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of April 3, 1999 and the related unaudited consolidated
statements of income, retained earnings and cash flow for the three months then
ended, set forth in the Borrower's quarterly report for the fiscal quarter ended
April 3, 1999 as filed with the Securities and Exchange Commission on Form 10-Q,
a copy of which has been delivered to each of the Lenders, fairly present, in
conformity with GAAP applied on a Consistent Basis, the consolidated financial
position of the Borrower and its Subsidiaries as of such date and their
consolidated results of operations and cash flows for such three-month period
(subject to normal year-end adjustments).
<PAGE> 64
(c) Since April 3, 1999 there has been no material adverse change in the
business, financial position, results of operations or prospects of the Borrower
and its Subsidiaries, considered as a whole; PROVIDED that this representation
shall not be a condition to make any Loan hereunder.
6.6. LITIGATION. There is no action, suit or proceeding pending against, or
to the knowledge of the Borrower threatened against or affecting, the Borrower
or any of its Subsidiaries before any court or arbitrator or any governmental
body, agency or official which could reasonably be expected to have a Material
Adverse Effect, or which in any manner draws into question the validity of this
Agreement or the Notes.
6.7. COMPLIANCE WITH ERISA. Each member of the ERISA Group has fulfilled
its obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan.
No member of the ERISA Group has (i) sought a waiver of the minimum funding
standard under Section 412 of the Code in respect of any Plan or Multiemployer
Plan, (ii) failed to make any contribution or payment to any Plan or
Multiemployer Plan or in respect of any Benefit Arrangement, or made any
amendment to any Plan or Benefit Arrangement, which has resulted or could result
in the imposition of a Lien or the posting of a bond or other security under
ERISA or the Code or (iii) incurred any liability under Title IV of ERISA other
than a liability to the PBGC for premiums under Section 4007 of ERISA.
6.8. ENVIRONMENTAL MATTERS. In the ordinary course of its business, the
Borrower conducts periodic reviews, which it considers prudent and reasonable in
light of the nature of the business, of the effect of Environmental Laws on the
business, operations and properties of the Borrower and its Subsidiaries, in the
course of which it identifies and evaluates associated liabilities and costs
(including, without limitation, any capital or operating expenditures required
for clean-up or closure of properties presently or previously owned, any capital
or operating expenditures required to achieve or maintain compliance with
environmental protection standards imposed by law or as a condition of any
license, permit or contract, any related constraints on operating activities,
including any periodic or permanent shutdown of any facility or reduction in the
level of or change in the nature of operations conducted thereat and any actual
or potential liabilities to third parties, including employees, and any related
costs and expenses). On the basis of this review, the Borrower has reasonably
concluded that Environmental Laws are unlikely to have a Material Adverse
Effect.
<PAGE> 65
6.9. TAXES. The Borrower and its Significant Subsidiaries have filed all
United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Borrower or any
Significant Subsidiary, except for such amounts as may be contested in good
faith by appropriate proceedings, so long as collection thereof is effectively
stayed. The charges, accruals and reserves on the books of the Borrower and its
Subsidiaries in respect of taxes or other governmental charges are, in the
reasonable opinion of the Borrower, adequate.
6.10. MARGIN STOCK. The proceeds of the borrowings made hereunder will be
used by the Borrower only for the purposes expressly authorized herein. None of
such proceeds will be used, directly or indirectly, for the purpose of
purchasing or carrying any margin stock or for the purpose of reducing or
retiring any Indebtedness which was originally incurred to purchase or carry
margin stock or for any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" within the meaning of said Regulation U
or Regulation X (12 C.F.R. Part 221) of the Board; PROVIDED, HOWEVER that the
Borrower may purchase its own stock. Neither the Borrower nor any agent acting
in its behalf has taken or will take any action which might cause this Agreement
or any of the documents or instruments delivered pursuant hereto to violate any
regulation of the Board or to violate the Securities Exchange Act of 1934, as
amended, or the Securities Act of 1933, as amended, or any state securities
laws, in each case as in effect on the date hereof.
6.11. INVESTMENT COMPANY. The Borrower is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended.
6.12. FULL DISCLOSURE. All information heretofore furnished by the Borrower
to the Agent or any Lender for purposes of or in connection with this Agreement
or any transaction contemplated hereby is, and all such information hereafter
furnished by the Borrower to the Agent or any Lender will be, true and accurate
in every material respect or based on reasonable estimates on the date as of
which such information is stated or certified. The Borrower has disclosed to the
Lenders in writing any and all facts which materially and adversely affect or
may affect (to the extent the Borrower can now reasonably foresee), the
business, operations, prospects or condition, financial or otherwise, of the
Borrower and its Subsidiaries, considered as a whole, or the ability of the
Borrower to perform its obligations under this Agreement.
<PAGE> 66
6.13. NO CONSENTS, ETC. Neither the respective businesses or properties of
the Borrower or any Subsidiary, nor any relationship among the Borrower or any
Subsidiary and any other Person, nor any circumstance in connection with the
execution, delivery and performance of the Loan Documents and the transactions
contemplated thereby, is such as to require a consent, approval or authorization
of, or filing, registration or qualification with, any Governmental Authority or
any other Person on the part of the Borrower as a condition to the execution,
delivery and performance of, or consummation of the transactions contemplated by
the Loan Documents, which, if not obtained or effected, would be reasonably
likely to have a Material Adverse Effect, or if so, such consent, approval,
authorization, filing, registration or qualification has been duly obtained or
effected, as the case may be.
6.14. YEAR 2000 COMPLIANCE. The Borrower and its Subsidiaries have (i)
initiated a review and assessment of all areas within its and each of its
Subsidiaries' business and operations (including those affected by information
received from suppliers and vendors) that could reasonably be expected to be
adversely affected by the Year 2000 Problem and (ii) developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis. The Borrower
reasonably believes that all computer applications (including those affected by
information received from its suppliers and vendors) that are material to its or
any of its Subsidiaries' business and operations will not later than September
30, 1999 be Year 2000 Compliant, except to the extent that a failure to do so
could not reasonably be expected to have Material Adverse Effect.
ARTICLE VII
AFFIRMATIVE COVENANTS
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will, and where applicable will cause
each Subsidiary to:
7.1. FINANCIAL REPORTS, ETC. The Borrower will deliver to each of the
Lenders:
(a) as soon as available and in any event within 90 days after the end of
each fiscal year of the Borrower, a consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such fiscal year and the related
consolidated statements of income, retained earnings and cash flows for such
fiscal year, setting forth in each case in comparative form the figures for the
previous fiscal year, all prepared in accordance with GAAP applied on a
Consistent Basis and containing opinions of
<PAGE> 67
PriceWaterhouseCoopers LLP, or other such independent certified public
accountants of nationally recognized standing, which are unqualified as to the
scope of the audit performed and as to the "going concern" status of the
Borrower;
(b) as soon as available and in any event within 45 days after the end of
each of the first three quarters of each fiscal year of the Borrower, a
consolidated balance sheet of the Borrower and its Subsidiaries as of the end of
such quarter and the related consolidated statements of income, retained
earnings and cash flows for such quarter and for the portion of the Borrower's
fiscal year ended at the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding quarter and the corresponding
portion of the Borrower's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, generally accepted
accounting principles and consistency by an Authorized Representative of the
Borrower;
(c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, a certificate of an Authorized
Representative of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in compliance with
the requirements of SECTIONS 8.1, 8.2(i) AND 8.3(e), on the date of such
financial statements and (ii) stating whether there exists on the date of such
certificate any Default or Event of Default and, if any Default or Event of
Default then exists, setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial statements
referred to in clause (a) above, a statement of the firm of independent public
accountants which reported on such statements (i) whether anything has come to
their attention to cause then to believe that there existed on the date of such
statements any Default or Event of Default and (ii) confirming the calculations
set forth in the officer's certificate delivered simultaneously therewith
pursuant to clause (c) above;
(e) forthwith upon the occurrence of any Default or Event of Default, a
certificate of an Authorized Representative of the Borrower setting forth the
details thereof and the action which the Borrower is taking or proposes to take
with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the Borrower
generally, copies of all financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of all
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registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q and
8-K (or their equivalents) which the Borrower shall have filed with the
Securities and Exchange Commission;
(h) if and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA or notice that any Multiemployer Plan is in reorganization, is
insolvent or has been terminated, a copy of such notice; (iii) receives notice
from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer, any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of the
Code, a copy of such application; (v) gives notice of intent to terminate any
Plan under Section 4041(c) of ERISA, a copy of such notice and other information
filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to
Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any payment
or contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security, a certificate of an Authorized Representative of the Borrower
setting forth details as to such occurrence and action, if any, which the
Borrower or applicable member of the ERISA Group is required or proposes to
take; and
(i) from time to time such additional information regarding the financial
position or business of the Borrower and its Subsidiaries as the Agent or any
Lender may reasonably request.
7.2. PAYMENT OF TAXES. The Borrower will pay, and will cause each
Significant Subsidiary to pay, all their respective tax liabilities, except
where the same may be contested in good faith by appropriate proceedings, and
will maintain, and will cause each Significant Subsidiary to maintain, in
accordance with generally accepted accounting principles, appropriate reserves
for the accrual of the same;
7.3. MAINTENANCE OF PROPERTIES; INSURANCE. The Borrower will keep, and will
cause each Subsidiary to keep, all material
<PAGE> 69
property useful and necessary in its business in good working order and
condition, ordinary wear and tear excepted; will maintain, and will cause each
Subsidiary to maintain (either in the name of the Borrower or in such
Subsidiary's own name) with financially sound and reputable insurance companies,
insurance on all their property in at least such amounts and against at least
such risks as are usually insured against in the same general area by companies
of established repute engaged in the same or a similar business; PROVIDED that
the Borrower shall have the right to self-insure or use a captive insurer in
order to meet such insurance requirements so long as the Borrower or such
captive insurer provides the Lenders with reasonable proof of financial
responsibility. The Borrower will furnish to the Lenders, upon written request
from the Agent, full information as to the insurance carried.
7.4. YEAR 2000 COMPLIANCE. The Borrower will promptly notify the Agent and
the Lenders in the event the Borrower discovers or determines that any computer
application (including those affected by information received from its suppliers
and vendors) that is material to its or any of its Subsidiaries' business and
operations will not be Year 2000 Compliant on a timely basis, except to the
extent that such failure could not reasonably be expected to have a Material
Adverse Effect.
7.5. COMPLIANCE WITH LAWS. The Borrower will comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of governmental authorities
(including, without limitation, Environmental Laws and ERISA and the rules and
regulations thereunder) except where (i) the necessity of compliance therewith
is contested in good faith by appropriate proceedings or (ii) appropriate steps
are being taken to correct any failure to comply therewith and such failure does
not have a Material Adverse Effect.
ARTICLE VIII
NEGATIVE COVENANTS
Until the Facility Termination Date, unless the Required Lenders shall
otherwise consent in writing, the Borrower will not, nor will it permit any
Subsidiary to:
8.1. CONSOLIDATED INDEBTEDNESS TO CONSOLIDATED NET WORTH. Permit the ratio
of Consolidated Indebtedness to Consolidated Net Worth to be greater than 2.00
to 1.00 at any time.
8.2. LIENS. Incur, create or permit to exist any Lien, charge or other
encumbrance of any nature whatsoever with respect
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to any property or assets now owned or hereafter acquired by the Borrower or any
Subsidiary, other than
(a) Liens existing on the date of this Agreement securing Indebtedness
outstanding on the date of this Agreement in an aggregate principal amount
not exceeding $25,000,000;
(b) any Lien existing on any asset of any corporation at the time such
corporation becomes a Subsidiary and not created in contemplation of such
event;
(c) any Lien on any asset of any corporation existing at the time such
corporation is merged or consolidated with or into the Borrower or a
Subsidiary and not created in contemplation of such event;
(d) any Lien existing on any asset prior to the acquisition thereof by
the Borrower or a Subsidiary and not created in contemplation of such
acquisition;
(e) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, PROVIDED that such Lien attaches to such asset concurrently with or
within 90 days after the acquisition thereof;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by clauses (a)
through (e) above PROVIDED that such Indebtedness is not increased and is
not secured by any additional assets;
(g) Liens arising in the ordinary course of business which (i) do not
secure Indebtedness, (ii) do not secure any obligation in an amount
exceeding $50,000,000 and (iii) do not in the aggregate materially detract
from the value of its assets or materially impair the use thereof in the
operations of its business;
(h) Liens on assets of a Subsidiary securing Indebtedness owed to the
Borrower or a Wholly-Owned Subsidiary; and
(i) Liens not otherwise permitted by the foregoing clauses securing
Indebtedness in an aggregate principal amount at any time not to exceed 5%
of Consolidated Net Worth.
8.3. INDEBTEDNESS OF SUBSIDIARIES. Incur, create, assume or permit to exist
any Indebtedness of any Subsidiary of the
<PAGE> 71
Borrower, howsoever evidenced, except:
(a) Indebtedness of any corporation outstanding at the time such
corporation becomes a Subsidiary and not created in contemplation of such
event;
(b) Indebtedness of any corporation outstanding at the time such
corporation is merged or consolidated with or into a Subsidiary and not
created in contemplation of such event;
(c) Indebtedness secured by a Lien permitted by SECTION 8.2 hereof;
(d) Indebtedness owing to the Borrower or a
Wholly-Owned Subsidiary;
(e) Indebtedness not otherwise permitted by the foregoing clauses of
this Section in an aggregate outstanding principal amount for all
Subsidiaries at no time exceeding $300,000,000.
The foregoing is subject to the further limitations that (i) for purposes of
this Section, any preferred stock of a Subsidiary held by a Person other than
the Borrower or a Wholly-Owned Subsidiary shall be included, at the higher of
its voluntary or involuntary liquidation value, in the Indebtedness of such
Subsidiary and (ii) Indebtedness permitted by this Section does not include a
refunding, renewal or extension of such Indebtedness so that any such new
Indebtedness must fall independently within one of the above exceptions.
8.4. CONSOLIDATIONS, MERGERS AND SALES OF ASSETS. The Borrower will not (i)
consolidate or merge with or into any other Person; PROVIDED that the Borrower
may merge with another Person if (A) the Borrower is the corporation surviving
such merger and is not a subsidiary of another person and (B) immediately after
giving effect to such merger, no Default or Event of Default shall have occurred
and be continuing; or (ii) sell, lease or otherwise transfer, directly or
indirectly, Significant Assets to any other Person, except for sales, leases and
other transfers to a Wholly-Owned Subsidiary.
8.5. CHANGE IN CONTROL. Cause, suffer or permit to exist or
occur any Change of Control.
ARTICLE IX
EVENTS OF DEFAULT AND ACCELERATION
<PAGE> 72
9.1. EVENTS OF DEFAULT. If any one or more of the following events (herein
called "Events of Default") shall occur for any reason whatsoever (and whether
such occurrence shall be voluntary or involuntary or come about or be effected
by operation of law or pursuant to or in compliance with any judgment, decree or
order of any court or any order, rule or regulation of any Governmental
Authority), that is to say:
(a) if default shall be made in the due and punctual payment of the
principal of any Loan, when and as the same shall be due and payable
whether pursuant to any provision of ARTICLE II or ARTICLE III, at
maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual payment of any
amount of interest on any Loan or other Obligation or of any fees or other
amounts payable to any of the Lenders or the Agent within five days of the
date on which the same shall be due and payable; or
(c) if default shall be made in the performance or observance of any
covenant set forth in ARTICLE VIII; or
(d) if a default shall be made in the performance or observance of, or
shall occur under, any covenant, agreement or provision contained in this
Agreement or the Notes (other than as described in clauses (a), (b) or (c)
above) and such default shall continue for 30 or more days after the
earlier of receipt of notice of such default by the Authorized
Representative from the Agent or an officer or Authorized Representative of
the Borrower becomes aware of such default, or if without the written
consent of the Lenders, this Agreement or any Note shall be disaffirmed or
shall terminate, be terminable or be terminated or become void or
unenforceable for any reason whatsoever (other than as expressly provided
for hereunder or thereunder or with the express written consent of the
Agent); or
(e) if there shall occur (i) a default, which is not waived or cured
within any applicable grace periods, in the payment of any principal,
interest, premium or other amount with respect to any Indebtedness (other
than the Loans and other Obligations) of the Borrower or any Subsidiary in
an amount not less than $50,000,000 in the aggregate outstanding, or (ii)
any event of default as specified in any agreement or instrument under or
pursuant to which any such Indebtedness in excess of $50,000,000 may have
been issued, created, assumed, guaranteed or secured by the Borrower or any
Subsidiary, and such default or event of default shall continue for more
than the period of grace, if any, therein specified, and such default or
event of default
<PAGE> 73
shall permit the holder of any such Indebtedness (or any agent or trustee
acting on behalf of one or more holders) to accelerate the maturity
thereof; or
(f) if any representation, warranty or other statement of fact
contained in any Loan Document or in any writing, certificate, report or
statement at any time furnished to the Agent or any Lender by or on behalf
of the Borrower or any Subsidiary pursuant to or in connection with any
Loan Document, or otherwise, shall be false or misleading in any material
respect when given; or
(g) if the Borrower or any Significant Subsidiary shall be unable to
pay its debts generally as they become due; file a petition to take
advantage of any insolvency statute; make an assignment for the benefit of
its creditors; commence a proceeding for the appointment of a receiver,
trustee, liquidator or conservator of itself or of the whole or any
substantial part of its property; file a petition or answer seeking
liquidation, reorganization or arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute; or
(h) if a court of competent jurisdiction shall enter an order,
judgment or decree appointing a custodian, receiver, trustee, liquidator or
conservator of the Borrower or any Significant Subsidiary or of the whole
or any substantial part of its properties and such order, judgment or
decree continues unstayed and in effect for a period of sixty (60) days, or
approve a petition filed against the Borrower or any Significant Subsidiary
seeking liquidation, reorganization or arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or statute of the
United States of America or any state, which petition is not dismissed
within sixty (60) days; or if, under the provisions of any other law for
the relief or aid of debtors, a court of competent jurisdiction shall
assume custody or control of the Borrower or any Significant Subsidiary or
of the whole or any substantial part of its properties, which control is
not relinquished within sixty (60) days; or if there is commenced against
the Borrower or any Significant Subsidiary any proceeding or petition
seeking reorganization, arrangement or similar relief under the federal
bankruptcy laws or any other applicable law or statute of the United States
of America or any state which proceeding or petition remains undismissed
for a period of sixty (60) days; or if the Borrower or any Significant
Subsidiary takes any action to indicate its consent to or approval of any
such proceeding or petition; or
<PAGE> 74
(i) if (i) any judgment or order where the amount not covered by
insurance (or the amount as to which the insurer denies liability) is in
excess of $10,000,000 is rendered against the Borrower or any Subsidiary,
or (ii) there is any attachment, injunction or execution against any of the
Borrower's or Subsidiaries' properties for any amount in excess of
$10,000,000; and such judgment, attachment, injunction or execution remains
unpaid, unstayed, undischarged, unbonded or undismissed for a period of
thirty (30) days; or
(j) any member of the ERISA Group shall fail to pay when due an amount
or amounts aggregating in excess of $10,000,000 which it shall have become
liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV or ERISA by any member of the
ERISA Group, any plan administrator or any combination of the foregoing; or
the PBGC shall institute proceedings under Title IV of ERISA to terminate,
to impose liability (other than for premiums under Section 4007 of ERISA)
in respect of, or to cause a trustee to be appointed to administer any
Material Plan; or a condition shall exist by reason of which the PBGC would
be entitled to obtain a decree adjudicating that any Material Plan must be
terminated; or there shall occur a complete or partial withdrawal from, or
a default, within the meaning of Section 4219(c)(5) of ERISA, with respect
to, one or more Multiemployer Plans which could cause one or more members
of the ERISA Group to incur a payment obligation in excess of $10,000,000;
then, and in any such event and at any time thereafter, if such Event of Default
or any other Event of Default shall have not been waived,
(A) either or both of the following actions may be taken: (i) the
Agent may, and at the direction of the Required Lenders shall, declare
any obligation of the Lenders and the Swing Line Lender to make
further Loans terminated, whereupon the obligation of each Lender and
the Swing Line Lender to make further Loans hereunder shall terminate
immediately, and (ii) the Agent shall at the direction of the Required
Lenders, at their option, declare by notice to the Borrower any or all
of the Obligations to be immediately due and payable, and the same,
including all interest accrued thereon and all other obligations of
the Borrower to the Agent and the Lenders, shall forthwith become
immediately due and payable without presentment, demand, protest,
notice or other formality of any kind,
<PAGE> 75
all of which are hereby expressly waived, anything contained herein or
in any instrument evidencing the Obligations to the contrary
notwithstanding; PROVIDED, however, that notwithstanding the above, if
there shall occur an Event of Default under clause (g) or (h) above,
then the obligation of the Lenders and the Swing Line Lender to make
Loans hereunder shall automatically terminate and any and all of the
Obligations shall be immediately due and payable without the necessity
of any action by the Agent or the Required Lenders or notice to the
Agent or the Lenders; and
(B) the Agent and each of the Lenders shall have all of the
rights and remedies available under the Loan Documents or under any
applicable law.
9.2. AGENT TO ACT. In case any one or more Events of Default shall occur
and not have been waived, the Agent may, and at the direction of the Required
Lenders shall, proceed to protect and enforce their rights or remedies either by
suit in equity or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision contained herein or in
any other Loan Document, or to enforce the payment of the Obligations or any
other legal or equitable right or remedy.
9.3. CUMULATIVE RIGHTS. No right or remedy herein conferred upon the
Lenders or the Agent is intended to be exclusive of any other rights or remedies
contained herein or in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other such right or remedy
contained herein and therein or now or hereafter existing at law or in equity or
by statute, or otherwise.
9.4. NO WAIVER. No course of dealing between the Borrower and any Lender or
the Swing Line Lender or the Agent or any failure or delay on the part of any
Lender or the Swing Line Lender or the Agent in exercising any rights or
remedies under any Loan Document or otherwise available to it shall operate as a
waiver of any rights or remedies and no single or partial exercise of any rights
or remedies shall operate as a waiver or preclude the exercise of any other
rights or remedies hereunder or of the same right or remedy on a future
occasion.
9.5. ALLOCATION OF PROCEEDS. If an Event of Default has occurred and not
been waived, and the maturity of the Notes has been accelerated pursuant to
ARTICLE IX hereof, all payments received by the Agent hereunder, in respect of
any principal of or interest on the Obligations or any other amounts payable by
the Borrower hereunder, shall be applied by the Agent in the
<PAGE> 76
following order:
(a) amounts due to the Lenders pursuant to SECTIONS
3.6(a) AND 11.5;
(b) amounts due to the Agent pursuant to SECTION
3.6(b);
(c) payments of interest on Revolving Loans to be applied for the
ratable benefit of the Lenders (with amounts payable in respect of Swing
Line Outstandings being included in such calculation and paid to the Swing
Line Lender) and payments of interest on Competitive Bid Loans to be
applied to the applicable Competitive Bid Lender;
(d) payments of principal of Revolving Loans, to be applied for the
ratable benefit of the Lenders (with amounts payable in respect of Swing
Line Outstandings being included in such calculation and paid to the Swing
Line Lender) and payments of principal of Competitive Bid Loans to be
applied to the applicable Competitive Bid Lender;
(e) amounts due to the Agent and the Lenders pursuant to SECTION 11.9;
(f) payments of all other amounts due under any of the Loan Documents,
if any, to be applied for the ratable benefit of the Lenders;
(g) any surplus remaining after application as provided for herein, to
the Borrower or otherwise as may be required by applicable law.
ARTICLE X
THE AGENT
10.1. APPOINTMENT, POWERS, AND IMMUNITIES. Each Lender hereby irrevocably
appoints and authorizes the Agent to act as its agent under this Agreement and
the other Loan Documents with such powers and discretion as are specifically
delegated to the Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
The Agent (which term as used in this sentence and in SECTION 10.5 and the first
sentence of SECTION 10.6 hereof shall include its affiliates and its own and its
affiliates' officers, directors, employees, and agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall
<PAGE> 77
not be a trustee or fiduciary for any Lender;
(b) shall not be responsible to the Lenders for any recital,
statement, representation, or warranty (whether written or oral) made in or
in connection with any Loan Document or any certificate or other document
referred to or provided for in, or received by any of them under, any Loan
Document, or for the value, validity, effectiveness, genuineness,
enforceability, or sufficiency of any Loan Document, or any other document
referred to or provided for therein or for any failure by the Borrower or
any other Person to perform any of its obligations thereunder;
(c) shall not be responsible for or have any duty to ascertain,
inquire into, or verify the performance or observance of any covenants or
agreements by the Borrower or the satisfaction of any condition or to
inspect the property (including the books and records) of the Borrower or
any of its Subsidiaries or affiliates;
(d) shall not be required to initiate or conduct any litigation or
collection proceedings under any Loan Document; and
(e) shall not be responsible for any action taken or omitted to be
taken by it under or in connection with any Loan Document, except for its
own gross negligence or willful misconduct.
The Agent may employ agents and attorneys-in-fact and shall not be responsible
for the negligence or misconduct of any such agents or attorneys-in-fact
selected by it with reasonable care.
10.2. RELIANCE BY AGENT. The Agent shall be entitled to rely upon any
certification, notice, instrument, writing, or other communication (including,
without limitation, any thereof by telephone or telefacsimile) believed by it to
be genuine and correct and to have been signed, sent or made by or on behalf of
the proper Person or Persons, and upon advice and statements of legal counsel
(including counsel for the Borrower), independent accountants, and other experts
selected by the Agent. The Agent may deem and treat the payee of any Note as the
holder thereof for all purposes hereof unless and until the Agent receives and
accepts an Assignment and Acceptance executed in accordance with SECTION 11.1
hereof. As to any matters not expressly provided for by this Agreement, the
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding on all
<PAGE> 78
of the Lenders; PROVIDED, HOWEVER, that the Agent shall not be required to take
any action that exposes the Agent to personal liability or that is contrary to
any Loan Document or applicable law or unless it shall first be indemnified to
its satisfaction by the Lenders against any and all liability and expense which
may be incurred by it by reason of taking any such action.
10.3. DEFAULTS. The Agent shall not be deemed to have knowledge or notice
of the occurrence of a Default or Event of Default unless the Agent has received
written notice from a Lender or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default". In the event that
the Agent receives such a notice of the occurrence of a Default or Event of
Default, the Agent shall give prompt written notice thereof to the Lenders. The
Agent shall (subject to SECTIONS 10.2 and 11.6 hereof) take such action with
respect to such Default or Event of Default as shall reasonably be directed by
the Required Lenders, PROVIDED THAT, unless and until the Agent shall have
received such directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect to such Default or
Event of Default as it shall deem advisable in the best interest of the Lenders.
10.4. RIGHTS AS LENDER. With respect to its Revolving Credit Commitment and
the Loans made by it, Bank of America (and any successor acting as Agent) in its
capacity as a Lender and the Swing Line Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Agent, and the term "Lender" or "Lenders"
shall, unless the context otherwise indicates, include the Agent in its
individual capacity. Bank of America (and any successor acting as Agent) and its
affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in, provide services to, and
generally engage in any kind of lending, trust, or other business with the
Borrower or any of its Subsidiaries or affiliates as if it were not acting as
Agent, and Bank of America (and any successor acting as Agent) and its
affiliates may accept fees and other consideration from the Borrower or any of
its Subsidiaries or affiliates for services in connection with this Agreement or
otherwise without having to account for the same to the Lenders.
10.5. INDEMNIFICATION. The Lenders agree to indemnify the Agent (to the
extent not reimbursed under SECTION 11.9 hereof, but without limiting the
obligations of the Borrower under such Section) ratably in accordance with their
respective Revolving Credit Commitments, for any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses (including attorneys' fees), or
<PAGE> 79
disbursements of any kind and nature whatsoever that may be imposed on, incurred
by or asserted against the Agent (including by any Lender) in any way relating
to or arising out of any Loan Document or the transactions contemplated thereby
or any action taken or omitted by the Agent under any Loan Document; PROVIDED
that no Lender shall be liable for any of the foregoing to the extent they arise
from the gross negligence or willful misconduct of the Person to be indemnified.
Without limitation of the foregoing, each Lender agrees to reimburse the Agent
promptly upon demand for its ratable share of any costs or expenses payable by
the Borrower under SECTION 11.5, to the extent that the Agent is not promptly
reimbursed for such costs and expenses by the Borrower. The agreements contained
in this SECTION 10.5 shall survive payment in full of the Loans and all other
amounts payable under this Agreement.
10.6. NON-RELIANCE ON AGENT AND OTHER LENDERS. Each Lender agrees that it
has, independently and without reliance on the Agent or any other Lender, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and its Subsidiaries and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under the Loan Documents. Except for
notices, reports, and other documents and information expressly required to be
furnished to the Lenders by the Agent hereunder, the Agent shall not have any
duty or responsibility to provide any Lender with any credit or other
information concerning the affairs, financial condition, or business of the
Borrower or any of its Subsidiaries or affiliates that may come into the
possession of the Agent or any of its affiliates.
10.7. RESIGNATION OF AGENT. The Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower. Upon any such
resignation, the Required Lenders shall have the right (with the consent of the
Borrower) to appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders and shall have accepted such appointment
within thirty (30) days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the Lenders and with the
consent of the Borrower, appoint a successor Agent which shall be a commercial
bank organized under the laws of the United States of America or any state
thereof having combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor, such successor
shall thereupon succeed to and become vested with all the rights, powers,
discretion, privileges, and duties of the retiring Agent, and the retiring
<PAGE> 80
Agent shall be discharged from its duties and obligations hereunder. After any
retiring Agent's resignation hereunder as Agent, the provisions of this ARTICLE
X shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
10.8. SYNDICATION AGENT, DOCUMENTATION AGENT AND MANAGING AGENTS. The
Syndication Agent, the Documentation Agent and the Managing Agents shall have no
duties or responsibilities under this Agreement other than their duties as
Lenders. The Syndication Agent, the Documentation Agent and the Managing Agents
shall be entitled to the benefit of indemnification under SECTIONS 10.5 and 11.9
hereof to the extent necessary.
ARTICLE XI
MISCELLANEOUS
11.1. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender may assign to one or
more Eligible Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its Loans,
its Notes, and its Revolving Credit Commitment); PROVIDED, HOWEVER, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to another Lender or an
assignment of all of a Lender's rights and obligations under this Agreement, any
such partial assignment shall be in an amount at least equal to $10,000,000 or
an integral multiple of $5,000,000 in excess thereof;
(iii) each such assignment by a Lender shall be of a constant, and not
varying, percentage of all of its rights and obligations under this Agreement
and its Notes (except that any assignment by the Swing Line Lender shall not
include its rights, benefits or duties as the provider of Swing Line Loans);
(iv) each such assignment may, but need not, include the rights of the
assignor in respect of Competitive Bid Outstandings except in the event that a
Lender assigns all of its Revolving Credit Commitment such assignment shall
include all of its Competitive Bid Loans; and
(iv) the parties to such assignment shall execute and deliver to the
Agent for its acceptance an Assignment and Acceptance in the form of EXHIBIT B
hereto, together with any Revolving Note subject to such assignment and a
processing fee of $3,500.
<PAGE> 81
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement; PROVIDED,
HOWEVER, that the assigning Lender shall continue to be entitled to the
indemnity and expense reimbursement provisions hereof (including without
limitation SECTIONS 4.1, 4.2(b), 4.6, 11.5 and 11.9) for the period prior to
such assignment. Upon the consummation of any assignment pursuant to this
Section, the assignor, the Agent and the Borrower shall make appropriate
arrangements so that, if required, new Revolving Notes and Competitive Bid Notes
are issued to the assignor and the assignee. If the assignee is not incorporated
under the laws of the United States of America or a state thereof, it shall
deliver to the Borrower and the Agent certification as to exemption from
deduction or withholding of Taxes in accordance with SECTION 4.6.
(b) The Agent shall maintain at its address referred to in SECTION 11.2 a
copy of each Assignment and Acceptance delivered to and accepted by it and a
register for the recordation of the names and addresses of the Lenders and the
Revolving Credit Commitment of, and principal amount of the Loans owing to, each
Lender from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agent and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Borrower or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance executed by the
parties thereto, together with any Note subject to such assignment and payment
of the processing fee, the Agent shall, if such Assignment and Acceptance has
been completed and is in substantially the form of EXHIBIT B hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein in
the Register and (iii) give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more Persons in all or a
portion of its rights, obligations or rights and obligations under this
Agreement (including all or a portion of its Revolving Credit Commitment or its
Loans); PROVIDED, HOWEVER, that (i) such Lender s obligations under this
Agreement shall remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) the participant shall be entitled to the
<PAGE> 82
benefit of the yield protection provisions contained in ARTICLE IV and the right
of set-off contained in SECTION 11.3, and (iv) the Borrower shall continue to
deal solely and directly with such Lender in connection with such Lender s
rights and obligations under this Agreement, and such Lender shall retain the
sole right to enforce the obligations of the Borrower relating to its Loans and
its Note and to approve any amendment, modification, or waiver of any provision
of this Agreement (other than amendments, modifications, or waivers decreasing
the amount of principal of or the rate at which interest is payable on such
Loans or Note, extending any scheduled principal payment date or date fixed for
the payment of interest on such Loans or Note, or extending its Revolving Credit
Commitment). Each Lender selling a participation shall notify the Borrower of
the identity of the participant and the amount of the participation provided
that failure of a Lender to give such notice shall not affect the validity of
such sale or the rights of the participant hereunder.
(e) Notwithstanding any other provision set forth in this Agreement, any
Lender may at any time assign and pledge all or any portion of its Loans and its
Note to any Federal Reserve Bank as collateral security pursuant to Regulation A
and any Operating Circular issued by such Federal Reserve Bank. No such
assignment shall release the assigning Lender from its obligations hereunder.
(f) Any Lender may furnish any information concerning the Borrower or any
of its Subsidiaries in the possession of such Lender from time to time to
assignees and participants (including prospective assignees and participants).
(g) Whenever in this Agreement any of the parties hereto is referred to,
such reference shall be deemed to include the successors and permitted assigns
of such party and all covenants, provisions and agreements by or on behalf of
the Borrower which are contained in the Loan Documents shall inure to the
benefit of the successors and permitted assigns of the Agent, the Lenders, or
any of them. The Borrower may not assign or otherwise transfer to any other
Person any right, power, benefit, or privilege (or any interest therein)
conferred hereunder or under any of the other Loan Documents, or delegate (by
assumption or otherwise) to any other Person any duty, obligation, or liability
arising hereunder or under any of the other Loan Documents, and any such
purported assignment, delegation or other transfer shall be void.
11.2. NOTICES. Any notice shall be conclusively deemed to have been
received by any party hereto and be effective (i) on the day on which delivered
(including hand delivery by commercial courier service) to such party (against
receipt therefor), (ii) on the date of transmission to such party, in the case
of notice
<PAGE> 83
by telefacsimile (where the proper transmission of such notice is either
acknowledged by the recipient or electronically confirmed by the transmitting
device), or (iii) on the fifth Business Day after the day on which mailed to
such party, if sent prepaid by certified or registered mail, return receipt
requested, in each case delivered, transmitted or mailed, as the case may be, to
the address or telefacsimile number, as appropriate, set forth below or such
other address or number as such party shall specify by notice hereunder:
(a) if to the Borrower:
V.F. Corporation
628 Green Valley Road, Suite 500
Greensboro, North Carolina 27408
Attn: Frank C. Pickard, III, Vice
President-Treasurer
Telephone: (336) 547-6000
Telefacsimile: (336) 547-7630
(b) if to the Agent:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telephone: (704) 386-8388
Telefacsimile: (704) 386-9923
with a copy to:
Bank of America, N.A.
Apparel-Furnishings-Textile
100 North Tryon Street
NC1-007-17-12
Charlotte, North Carolina 28255
Attention: Leesa C. Sluder
Telephone: (704) 388-8330
Telefacsimile: (704) 386-1270
(c) if to the Lenders:
At the addresses set forth on the signature pages
hereof and on the signature page of each
Assignment and Acceptance;
11.3. RIGHT OF SET-OFF; ADJUSTMENTS. (a) Upon the occurrence and during the
continuance of any Event of Default, each Lender (and each of its affiliates) is
hereby authorized at
<PAGE> 84
any time and from time to time, to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other indebtedness at any time owing
by such Lender (or any of its affiliates) to or for the credit or the account of
the Borrower against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Note held by such Lender,
irrespective of whether such Lender shall have made any demand under this
Agreement or such Note and although such obligations may be unmatured. Each
Lender agrees promptly to notify the Borrower after any such set-off and
application made by such Lender; PROVIDED, HOWEVER, that the failure to give
such notice shall not affect the validity of such set-off and application. The
rights of each Lender under this SECTION 11.3 are in addition to other rights
and remedies (including, without limitation, other rights of set-off) that such
Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any time receive any
payment of all or part of the Loans (other than Competitive Bid Loans) owing to
it, or interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, or otherwise), in a greater proportion
than any such payment to or collateral received by any other Lender, if any, in
respect of such other Lender's Loans (other than Competitive Bid Loans) owing to
it, or interest thereon, such benefitted Lender shall purchase for cash from the
other Lenders a participating interest in such portion of each such other
Lender's Loans (other than Competitive Bid Loans) owing to it, or shall provide
such other Lenders with the benefits of any such collateral, or the proceeds
thereof, as shall be necessary to cause such benefitted Lender to share the
excess payment or benefits of such collateral or proceeds ratably with each of
the Lenders; PROVIDED, HOWEVER, that if all or any portion of such excess
payment or benefits is thereafter recovered from such benefitted Lender, such
purchase shall be rescinded, and the purchase price and benefits returned, to
the extent of such recovery, but without interest. The Borrower agrees that any
Lender so purchasing a participation from a Lender pursuant to this SECTION 11.3
may, to the fullest extent permitted by law, exercise all of its rights of
payment (including the right of set-off) with respect to such participation as
fully as if such Person were the direct creditor of the Borrower in the amount
of such participation.
11.4. SURVIVAL. All covenants, agreements, representations and warranties
made herein shall survive the making by the Lenders of the Loans and the
execution and delivery to the Lenders of this Agreement and the Notes and shall
continue in full force and effect so long as any of Obligations remain
outstanding or any Lender has any Revolving Credit Commitment
<PAGE> 85
hereunder or the Borrower has continuing obligations hereunder unless otherwise
provided herein.
11.5. EXPENSES. The Borrower agrees to pay on demand all reasonable
out-of-pocket costs and expenses of the Agent in connection with the
syndication, preparation, execution, delivery, administration, modification, and
amendment of this Agreement, the other Loan Documents, and the other documents
to be delivered hereunder, including, without limitation, the reasonable fees
and expenses of counsel for the Agent with respect thereto and with respect to
advising the Agent as to its rights and responsibilities under the Loan
Documents. If an Event of Default occurs, the Borrower further agrees to pay on
demand all reasonable out-of-pocket costs and expenses of the Agent and the
Lenders, if any (including, without limitation, reasonable attorneys' fees and
expenses), in connection with the enforcement (whether through negotiations,
legal proceedings, or otherwise) of the Loan Documents and the other documents
to be delivered hereunder.
11.6. AMENDMENTS AND WAIVERS. Except as set forth in SECTIONS 2.3(d) and
2.7, any provision of this Agreement or any other Loan Document may be amended
or waived if, but only if, such amendment or waiver is in writing and is signed
by the Borrower and either the Required Lenders or (as to Loan Documents other
than the Credit Agreement) the Agent at the direction of and on behalf of the
Required Lenders (and, if ARTICLE X or the rights or duties of the Agent are
affected thereby, by the Agent); PROVIDED that no such amendment or waiver
shall, unless signed by all the Lenders, (i) increase the Revolving Credit
Commitments of the Lenders or the Total Revolving Credit Commitment (except as
provided in SECTION 2.7), (ii) reduce the principal of or rate or amount of
interest on any Revolving Loan or any fees or other amounts payable hereunder,
(iii) postpone any date fixed for the payment of any scheduled installment of
principal of or interest on any Loan or any fees or other amounts payable
hereunder or for termination of any Revolving Credit Commitment, (iv) change the
percentage of the Revolving Credit Commitment or of the unpaid principal amount
of the Notes, or the number of Lenders, which shall be required for the Lenders
or any of them to take any action under this SECTION 11.6 or any other provision
of this Agreement, or (v) amend this SECTION 11.6 and PROVIDED, FURTHER, that no
such amendment or waiver that affects the rights, privileges or obligations of
the Swing Line Lender as provider of Swing Line Loans, shall be effective unless
signed in writing by the Swing Line Lender.
No notice to or demand on the Borrower in any case shall entitle the
Borrower to any other or further notice or demand in similar or other
circumstances, except as otherwise expressly
<PAGE> 86
provided herein. No delay or omission on any Lender's or the Agent's part in
exercising any right, remedy or option shall operate as a waiver of such or any
other right, remedy or option or of any Default or Event of Default.
11.7. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such fully-executed counterpart.
11.8. TERMINATION. The termination of this Agreement shall not affect any
rights of the Borrower, the Lenders or the Agent or any obligation of the
Borrower, the Lenders or the Agent, arising prior to the effective date of such
termination, and the provisions hereof shall continue to be fully operative
until all transactions entered into or rights created or obligations incurred
prior to such termination have been fully disposed of, concluded or liquidated
and the Obligations arising prior to or after such termination have been
irrevocably paid in full. The rights granted to the Agent for the benefit of the
Lenders under the Loan Documents shall continue in full force and effect,
notwithstanding the termination of this Agreement, until all of the Obligations
have been paid in full after the termination hereof (other than Obligations in
the nature of continuing indemnities or expense reimbursement obligations not
yet due and payable, which shall continue) or the Borrower has furnished the
Lenders and the Agent with an indemnification satisfactory to the Agent and each
Lender with respect thereto. Notwithstanding the foregoing, if after receipt of
any payment of all or any part of the Obligations, any Lender is for any reason
compelled to surrender such payment to any Person because such payment is
determined to be void or voidable as a preference, impermissible setoff, a
diversion of trust funds or for any other reason, this Agreement shall continue
in full force and the Borrower shall be liable to, and shall indemnify and hold
the Agent or such Lender harmless for, the amount of such payment surrendered
until the Agent or such Lender shall have been finally and irrevocably paid in
full. The provisions of the foregoing sentence shall be and remain effective
notwithstanding any contrary action which may have been taken by the Agent or
the Lenders in reliance upon such payment, and any such contrary action so taken
shall be without prejudice to the Agent or the Lenders' rights under this
Agreement and shall be deemed to have been conditioned upon such payment having
become final and irrevocable.
11.9. INDEMNIFICATION; LIMITATION OF LIABILITY. (a) The Borrower agrees to
indemnify and hold harmless the Agent and each Lender and each of their
affiliates and their respective
<PAGE> 87
officers, directors, employees, agents, and advisors (each, an "Indemnified
Party") from and against any and all claims, damages, losses, liabilities,
costs, and expenses (including, without limitation, reasonable attorneys' fees)
that may be incurred by or asserted or awarded against any Indemnified Party, in
each case arising out of or in connection with or by reason of (including,
without limitation, in connection with any investigation, litigation, or
proceeding or preparation of defense in connection therewith) the Loan
Documents, any of the transactions contemplated herein or the actual or proposed
use of the proceeds of the Loans, except to the extent such claim, damage, loss,
liability, cost, or expense is found in a final, non-appealable judgment by a
court of competent jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct. In the case of an investigation,
litigation or other proceeding to which the indemnity in this SECTION 11.9
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower, its directors, shareholders
or creditors or an Indemnified Party or any other Person or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower agrees that no Indemnified
Party shall have any liability (whether direct or indirect, in contract or tort
or otherwise) to it, any of its Subsidiaries, any guarantor, or any security
holders or creditors thereof arising out of, related to or in connection with
the transactions contemplated herein, except to the extent that such liability
is found in a final non-appealable judgment by a court of competent jurisdiction
to have directly resulted from such Indemnified Party's gross negligence or
willful misconduct. The Borrower agrees not to assert any claim against the
Agent, any Lender, any of their affiliates, or any of their respective
directors, officers, employees, attorneys, agents, and advisers, on any theory
of liability, for special, indirect, consequential, or punitive damages arising
out of or otherwise relating to the Loan Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the Loans.
(b) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this SECTION 11.9 shall survive the payment in full of the Loans and all other
amounts payable under this Agreement.
11.10. SEVERABILITY. If any provision of this Agreement or the other Loan
Documents shall be determined to be illegal or invalid as to one or more of the
parties hereto, then such provision shall remain in effect with respect to all
parties, if any, as to whom such provision is neither illegal nor invalid, and
in any event all other provisions hereof shall remain
<PAGE> 88
effective and binding on the parties hereto.
11.11. ENTIRE AGREEMENT. This Agreement, together with the other Loan
Documents, constitutes the entire agreement among the parties with respect to
the subject matter hereof and supersedes all previous proposals, negotiations,
representations, commitments and other communications between or among the
parties, both oral and written, with respect thereto (except that those
provisions (if any) which by the express terms of the commitment letter dated as
of May 13, 1999, executed by Bank of America and BAS and accepted by the
Borrower, survive the closing of the Revolving Credit Facility, shall survive
and continue in effect).
11.12. AGREEMENT CONTROLS. In the event that any term of any of the Loan
Documents other than this Agreement conflicts with any express term of this
Agreement, the terms and provisions of this Agreement shall control to the
extent of such conflict.
11.13. USURY SAVINGS CLAUSE. Notwithstanding any other provision herein,
the aggregate interest rate charged under any of the Notes, including all
charges or fees in connection therewith deemed in the nature of interest under
applicable law shall not exceed the Highest Lawful Rate (as such term is defined
below). If the rate of interest (determined without regard to the preceding
sentence) under this Agreement at any time exceeds the Highest Lawful Rate (as
defined below), the outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of interest due
hereunder equals the amount of interest which would have been due hereunder if
the stated rates of interest set forth in this Agreement had at all times been
in effect. In addition, if when the Loans made hereunder are repaid in full the
total interest due hereunder (taking into account the increase provided for
above) is less than the total amount of interest which would have been due
hereunder if the stated rates of interest set forth in this Agreement had at all
times been in effect, then to the extent permitted by law, the Borrower shall
pay to the Agent an amount equal to the difference between the amount of
interest paid and the amount of interest which would have been paid if the
Highest Lawful Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower to conform
strictly to any applicable usury laws. Accordingly, if any Lender contracts for,
charges, or receives any consideration which constitutes interest in excess of
the Highest Lawful Rate, then any such excess shall be cancelled automatically
and, if previously paid, shall at such Lender's option be applied to the
outstanding amount of the Loans made hereunder or be refunded to the Borrower.
As used in this paragraph, the term "Highest Lawful Rate" means the maximum
<PAGE> 89
lawful interest rate, if any, that at any time or from time to time may be
contracted for, charged, or received under the laws applicable to such Lender
which are presently in effect or, to the extent allowed by law, under such
applicable laws which may hereafter be in effect and which allow a higher
maximum nonusurious interest rate than applicable laws now allow.
11.14. PAYMENTS. All principal, interest, and other amounts to be paid by
the Borrower under this Agreement and the other Loan Documents shall be paid to
the Agent in immediately available funds, without setoff, deduction or
counterclaim. Subject to the definition of "Interest Period" herein, whenever
any payment under this Agreement or any other Loan Document shall be stated to
be due on a day that is not a Business Day, such payment may be made on the next
succeeding Business Day, and such extension of time in such case shall be
included in the computation of interest and fees, as applicable, and as the case
may be. The Agent shall not be liable to any party to this Agreement in any way
whatsoever for any delay, or the consequences of any delay, in the crediting to
any account of any amount denominated in the Euro.
11.15. GOVERNING LAW; WAIVER OF JURY TRIAL.
(a) THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
(b) THE BORROWER HEREBY EXPRESSLY AND IRREVOCABLY AGREES AND CONSENTS
THAT ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREIN MAY BE INSTITUTED IN ANY
STATE OR FEDERAL COURT SITTING IN NEW YORK CITY, STATE OF NEW YORK, UNITED
STATES OF AMERICA AND, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER EXPRESSLY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE
TO THE LAYING OF VENUE IN, OR TO THE EXERCISE OF JURISDICTION OVER IT AND
ITS PROPERTY BY, ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING, AND
THE BORROWER HEREBY IRREVOCABLY SUBMITS GENERALLY AND UNCONDITIONALLY TO
THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.
(c) THE BORROWER AGREES THAT SERVICE OF PROCESS MAY BE MADE BY
PERSONAL SERVICE OF A COPY OF THE SUMMONS AND COMPLAINT OR OTHER LEGAL
PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING, OR BY REGISTERED OR
CERTIFIED MAIL (POSTAGE PREPAID) TO THE ADDRESS OF THE BORROWER PROVIDED IN
SECTION 11.2, OR BY ANY OTHER METHOD OF SERVICE PROVIDED FOR UNDER THE
APPLICABLE LAWS IN EFFECT IN THE STATE OF NEW YORK.
<PAGE> 90
(d) NOTHING CONTAINED IN SUBSECTIONS (b) OR (c) HEREOF SHALL PRECLUDE
THE AGENT OR ANY LENDER FROM BRINGING ANY SUIT, ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENT IN THE COURTS OF ANY
JURISDICTION WHERE THE BORROWER OR ANY OF THE BORROWER'S PROPERTY OR ASSETS
MAY BE FOUND OR LOCATED. TO THE EXTENT PERMITTED BY THE APPLICABLE LAWS OF
ANY SUCH JURISDICTION, THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT AND EXPRESSLY WAIVES, IN RESPECT OF ANY SUCH
SUIT, ACTION OR PROCEEDING, OBJECTION TO THE EXERCISE OF JURISDICTION OVER
IT AND ITS PROPERTY BY ANY SUCH OTHER COURT OR COURTS WHICH NOW OR
HEREAFTER MAY BE AVAILABLE UNDER APPLICABLE LAW.
(e) IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS OR
REMEDIES UNDER OR RELATED TO ANY LOAN DOCUMENT OR ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR THAT MAY IN THE FUTURE BE
DELIVERED IN CONNECTION THEREWITH, THE BORROWER, THE AGENT AND THE LENDERS
HEREBY AGREE, TO THE EXTENT PERMITTED BY APPLICABLE LAW, THAT ANY SUCH
ACTION, SUIT OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY AND HEREBY IRREVOCABLY WAIVE, TO THE EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT SUCH PERSON MAY HAVE TO TRIAL BY JURY IN ANY SUCH ACTION,
SUIT OR PROCEEDING.
(f) THE BORROWER HEREBY EXPRESSLY WAIVES ANY OBJECTION IT MAY HAVE
THAT ANY COURT TO WHOSE JURISDICTION IT HAS SUBMITTED PURSUANT TO THE TERMS
HEREOF IS AN INCONVENIENT FORUM.
[Signatures on following pages]
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
made, executed and delivered by their duly authorized officers as of the day and
year first above written.
V.F. CORPORATION
By:_____________________________________
Name:___________________________________
Title:__________________________________
By:_____________________________________
Name:___________________________________
Title:__________________________________
<PAGE> 91
BANK OF AMERICA, N.A.,
as Agent for the Lenders
By:____________________________________
Name:__________________________________
Title:_________________________________
BANK OF AMERICA, N.A.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and
CD Rate Loans:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Jeff Strickland
Telephone: (704) 386- 8388
Telefacsimile: (704) 386-9923
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 053000196
Account No.: 1366212250600
Reference: V.F. Corporation
Attention: Administrative Services
Lending Office for Eurodollar Rate Loans
and Offshore Rate Loans:
Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Jeff Strickland
Telephone: (704) 386-8388
Telefacsimile: (704) 386-9923
Wire Transfer Instructions:
Bank of America, N.A.
ABA# 053000196
Account No.: 1366212250600
Reference: V.F. Corporation
<PAGE> 92
Attention: Administrative Services
FIRST UNION NATIONAL BANK, as
Syndication Agent and as a Lender
By:_____________________________________
Name:__________________________________
Title:__________________________________
Lending Office for Base Rate Loans and
CD Rate Loans:
201 South College Street
Charlotte, North Carolina
28288-1183
Attention: Gary Burkart
Telephone: 704-374-6613
Telefacsimile: 704-383-7999
Wire Transfer Instructions:
First Union National Bank
ABA# 053000219
Account No.: 4659060001805
Reference: V.F. Corp.
Attention: Gary Burkart
Lending Office for Eurodollar Rate Loans
and Offshore Rate Loans:
#3 Bishops Gate
London EC2N3AB
Attention: Richard Morley
Telephone: 011-44-171-216-1608
Telefacsimile: 011-44-171-929-4644
Wire Transfer Instructions:
First Union National Bank
ABA# Call Richard Morley in
London Office
Account No.:Call Richard Morley in
London Office
Reference: V.F. Corp.
Attention: Call Richard Morley in
London Office
CITIBANK, N.A., as Documentation Agent
and as a Lender
<PAGE> 93
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and
CD Rate Loans:
Citibank, N.A.
__________________________
__________________________
__________________________
Attention: Debby Friedland
Telephone: 302-894-6058
Telefacsimile: 302-8946120
Wire Transfer Instructions:
Citibank, N.A.
ABA# 021000089
Account No.: 4063-2387
Reference: V.F. Corp.
Attention: Debby Friedland
Lending Office for Eurodollar Rate Loans
and Offshore Rate Loans:
Citibank, N.A.
__________________________
__________________________
__________________________
Attention: Debby Friedland
Telephone: 302-894-6058
Telefacsimile: 302-8946120
Wire Transfer Instructions:
Citibank, N.A.
ABA# 021000089
Account No.: 4063-2387
Reference: V.F. Corp.
Attention: Debby Friedland
THE FIRST NATIONAL BANK OF CHICAGO
By:_____________________________________
Name:___________________________________
Title:__________________________________
<PAGE> 94
Lending Office for Base Rate Loans and CD Rate Loans:
The First National Bank of Chicago
One First National Plaza, Suite 0324/1-10
Chicago, Illinois 60670-0324
Attention: Nanette Wilson
Telephone: 312-732-1221
Telefacsimile: 312-732-4840
Wire Transfer Instructions:
The First National Bank of Chicago
ABA# 071000013
Account No.: 4811-5286-00000
Reference: V.F. Corporation
Attention: Nanette Wilson
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
The First National Bank of Chicago
One First National Plaza, Suite 0324/1-10
Chicago, Illinois 60670-0324
Attention: Nanette Wilson
Telephone: 312-732-1221
Telefacsimile: 312-732-4840
Wire Transfer Instructions:
The First National Bank of Chicago
ABA# 071000013
Account No.: 4811-5286-00000
Reference: V.F. Corporation
Attention: Nanette Wilson
PNC BANK, NATIONAL ASSOCIATION
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and CD Rate Loans:
PNC Bank, National Association
620 Liberty Avenue, 3rd Floor
Pittsburgh, Pennsylvania 15222
Attention: Hillary Guttman
<PAGE> 95
Telephone: 412-768-8219
Telefacsimile: 412-768-4586
Wire Transfer Instructions:
PNC Bank, National Association
ABA#043000096
Account No.: 196030010890
Reference: Commercial Loan Operations/V.F.
Corporation
Attention: Audrey Cooper
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
PNC Bank, National Association
620 Liberty Avenue, 3rd Floor
Pittsburgh, Pennsylvania 15222
Attention: Hillary Guttman
Telephone: 412-768-8219
Telefacsimile: 412-768-4586
Wire Transfer Instructions:
PNC Bank, National Association
ABA#043000096
Account No.: 196030010890
Reference: Commercial Loan Operations/V.F.
Corporation
Attention: Audrey Cooper
WACHOVIA BANK, N. A.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and CD Rate Loans:
Wachovia Bank, N.A.
100 North Main Street
PO Box 3099
Winston-Salem, North Carolina 27101-7202
Attention: Gwen Love
Telephone: 336-732-6823
Telefacsimile: 336-782-6935
Wire Transfer Instructions:
<PAGE> 96
Wachovia Bank, N.A.
ABA#053100494
Account No.: 8791-998539
Reference: V.F. Corporation
Attention: Gwen Love
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
Wachovia Bank, N.A.
100 North Main Street
PO Box 3099
Winston-Salem, North Carolina 27101-7202
Attention: Gwen Love
Telephone: 336-732-6823
Telefacsimile: 336-782-6935
Wire Transfer Instructions:
Wachovia Bank, N.A.
ABA#053100494
Account No.: 8791-998539
Reference: V.F. Corporation
Attention: Gwen Love
ABN AMRO BANK N. V.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and CD Rate Loans:
ABN AMRO Bank N.V.
New York, New York
Attention: Loan Administration
Telephone: ________________
Telefacsimile: ______________
Wire Transfer Instructions:
ABN AMRO Bank N.V.
New York, New York
ABA#026009580
F/O ABN AMRO Bank N.F.
Chicago Branch CPU
Account No.: 650-001-1789-41
Reference: CPU (MTI #00192015) (V.F. Corporation)
<PAGE> 97
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
ABN AMRO Bank N.V.
New York, New York
Attention: Loan Administration
Telephone: ________________
Telefacsimile: ______________
Wire Transfer Instructions:
ABN AMRO Bank N.V.
New York, New York
ABA#026009580
F/O ABN AMRO Bank N.F.
Chicago Branch CPU
Account No.: 650-001-1789-41
Reference: CPU (MTI #00192015) (V.F. Corporation)
THE FUJI BANK, LIMITED, NEW YORK BRANCH
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and CD Rate Loans:
The Fuji Bank, Limited, New York Branch
Two World Trade Center
New York, New York 10048-0042
Attention: Tina Catapano
Telephone: 212-898-2099
Telefacsimile: 212-488-8216
Wire Transfer Instructions:
The Fuji Bank, Limited, New York Branch
ABA# 026009700
Account No.: 515011
Reference: V.F. Corporation
Attention: Loan Administration
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
<PAGE> 98
The Fuji Bank, Limited, New York Branch
Two World Trade Center
New York, New York 10048-0042
Attention: Tina Catapano
Telephone: 212-898-2099
Telefacsimile: 212-488-8216
Wire Transfer Instructions:
The Fuji Bank, Limited, New York Branch
ABA# 026009700
Account No.: 515011
Reference: V.F. Corporation
Attention: Loan Administration
UMB BANK, N.A.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and CD Rate Loans:
UMB Bank, N.A.
1010 Grand Boulevard
PO Box 419226
Kansas City, Missouri 64141-6266
Attention: Bev Puglisi
Telephone: 816-860-3677
Telefacsimile: 816-860-3772
Wire Transfer Instructions:
UMB Bank, N.A.
ABA# 101000695
Account No.: 000106002265000
Reference: Discount Dept./V.F. Corporation
Attention: Bev Puglisi
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
UMB Bank, N.A.
1010 Grand Boulevard
PO Box 419226
Kansas City, Missouri 64141-6266
Attention: Bev Puglisi
<PAGE> 99
Telephone: 816-860-3677
Telefacsimile: 816-860-3772
Wire Transfer Instructions:
UMB Bank, N.A.
ABA# 101000695
Account No.: 000106002265000
Reference: Discount Dept./V.F. Corporation
Attention: Bev Puglisi
BANCO SANTANDER CENTRAL HISPANO S.A.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and CD Rate Loans:
Banco Santander Central Hispano S.A.
45 East 53rd Street
New York, New York 10022
Attention: Ligia Castro
Telephone: 212-350-3677
Telefacsimile: 212-350-3647
Wire Transfer Instructions:
Banco Santander Central Hispano S.A., New York
Branch
ABA# 026007692
Account No.: 1071440001
Attention: Ligia Castro, Loan Department
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
Banco Santander Central Hispano S.A.
45 East 53rd Street
New York, New York 10022
Attention: Ligia Castro
Telephone: 212-350-3677
Telefacsimile: 212-350-3647
Wire Transfer Instructions:
<PAGE> 100
Banco Santander Central Hispano S.A., New York
Branch
ABA# 026007692
Account No.: 1071440001
Attention: Ligia Castro, Loan Department
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and CD Rate Loans:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260-0060
Attention: Catherine Sheehan
Telephone: 302-634-4673
Telefacsimile: 302-634-1852
Wire Transfer Instructions:
Morgan Guaranty Trust Company of New York
ABA# 021000238
Loan Department Account No.: 999-99-090
Reference: V.F. Corp.
Attention: CF 23
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
Morgan Guaranty Trust Company of New York
Nassau Bahamas Office
c/o J.P. Morgan Services Inc.
Euro-Loan Servicing Unit
500 Stanton Christiana Road
Newark, DE 19713
Attention: Catherine Sheehan
Telephone: 302-634-4673
Telefacsimile: 302-634-1852
<PAGE> 101
Wire Transfer Instructions:
Morgan Guaranty Trust Company of New York
ABA# 021000238
Loan Department Account No.: 999-99-090
Reference: V.F. Corp.
Attention: CF 23
BARCLAYS BANK PLC
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and CD Rate Loans:
Barclays Bank Plc
222 Broadway
New York, New York 10038
Attention: Charmaine Tenn Sinq Que
Telephone: 212-412-3728
Telefacsimile: 212-412-5306
Wire Transfer Instructions:
Barclays Bank Plc
ABA# 02-600-2574
Account No.: 050-019104
Reference: V.F. Corporation
Attention: Charmaine Tenn Sinq Que
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
Barclays Bank Plc
222 Broadway
New York, New York 10038
Attention: Charmaine Tenn Sinq Que
Telephone: 212-412-3728
Telefacsimile: 212-412-5306
Wire Transfer Instructions:
Barclays Bank Plc
ABA# 02-600-2574
Account No.: 050-019104
Reference: V.F. Corporation
Attention: Charmaine Tenn Sinq Que
<PAGE> 102
THE BANK OF TOKYO-MITSUBISHI, LTD.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and CD Rate Loans:
The Bank of Tokyo-Mitsubishi, Ltd.
________________________________
________________________________
Attention: _____________________
Telephone: _____________________
Telefacsimile: _________________
Wire Transfer Instructions:
The Bank of Tokyo-Mitsubishi, Ltd.
ABA# ___________________________
Account No.: ___________________
Reference: _____________________
Attention: _____________________
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
The Bank of Tokyo-Mitsubishi, Ltd.
________________________________
________________________________
Attention: _____________________
Telephone: _____________________
Telefacsimile: _________________
Wire Transfer Instructions:
The Bank of Tokyo-Mitsubishi, Ltd.
ABA# ___________________________
Account No.: ___________________
Reference: _____________________
Attention: _____________________
<PAGE> 103
BBL INTERNATIONAL (U.K.) LTD.
By:_____________________________________
Name:___________________________________
Title:__________________________________
Lending Office for Base Rate Loans and CD Rate Loans:
BBL International (U.K.) Ltd.
________________________________
________________________________
Attention: _____________________
Telephone: _____________________
Telefacsimile: _________________
Wire Transfer Instructions:
BBL International (U.K.) Ltd.
ABA# ___________________________
Account No.: ___________________
Reference: _____________________
Attention: _____________________
Lending Office for Eurodollar Rate Loans and Offshore
Rate Loans:
BBL International (U.K.) Ltd.
________________________________
________________________________
Attention: _____________________
Telephone: _____________________
Telefacsimile: _________________
Wire Transfer Instructions:
BBL International (U.K.) Ltd.
ABA# ___________________________
Account No.: ___________________
Reference: _____________________
Attention: _____________________
<PAGE> 104
EXHIBIT A
Applicable Commitment Percentages
<TABLE>
<CAPTION>
Applicable
Revolving Credit Commitment
Lender Commitment Percentage
- ------ ---------- ----------
<S> <C> <C>
Bank of America, N.A $110,000,000 14.666666666%
First Union National Bank $110,000,000 14.666666667%
Citibank, N.A $110,000,000 14.666666667%
The First National Bank
of Chicago $ 60,000,000 8.0%
PNC Bank,
National Association $ 60,000,000 8.0%
Wachovia Bank, N.A $ 60,000,000 8.0%
ABN AMRO Bank N.V $ 30,000,000 4.0%
The Fuji Bank, Limited,
New York Branch $ 30,000,000 4.0%
UMB Bank, N.A $ 30,000,000 4.0%
Banco Santander Central
Hispano S.A $ 30,000,000 4.0%
Morgan Guaranty Trust
Company of New York $ 30,000,000 4.0%
Barclays Bank Plc $ 30,000,000 4.0%
The Bank of Tokyo-
Mitsubishi, Ltd. $ 30,000,000 4.0%
BBL International (U.K.) Ltd. $ 30,000,000 4.0%
------------ -------------
TOTAL $750,000,000 100%
</TABLE>
<PAGE> 105
EXHIBIT B
Form of Assignment and Acceptance
Reference is made to the Credit Agreement dated as of July __ 1999 (the
"Credit Agreement") among V.F. Corporation, a Pennsylvania corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement), Bank of America,
N. A. as Administrative Agent for the Lenders (the "Agent"), and the
Documentation Agent and Syndication Agent named therein. Terms defined in the
Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on SCHEDULE 1 agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee, WITHOUT RECOURSE
and without representation or warranty except as expressly set forth herein, and
the Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Credit Agreement and the
other Loan Documents as of the date hereof equal to the percentage interest
specified on SCHEDULE 1 of all outstanding rights and obligations under the
Credit Agreement and the other Loan Documents. [If Bank of America is Assignor,
excluding any rights and obligations as Swing Line Lender]. After giving effect
to such sale and assignment, the Assignee's Revolving Credit Commitment and the
amount of the Revolving Loans and Competitive Bid Loans owing to the Assignee
will be as set forth on SCHEDULE 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Loan Documents
or the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any other instrument or document furnished
pursuant thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or its
Subsidiaries or the performance or observance by the Borrower or its
Subsidiaries of any of its obligations under the Loan Documents or any other
instrument or document furnished pursuant thereto; and (iv) attaches the
Revolving Note and Competitive Bid Note held by the Assignor and requests that
the Agent exchange such Revolving Note and Competitive Bid Note for new
Revolving Notes and Competitive Bid Notes payable to the order of the Assignee
in an amount equal to the Revolving Credit Commitment
<PAGE> 106
assumed by the Assignee pursuant hereto and to the Assignor in an amount equal
to the Revolving Credit Commitment retained by the Assignor, if any, as
specified on SCHEDULE 1.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
SECTION 7.1 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Agent, the Assignor or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible Assignee; (iv) appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Credit Agreement as are delegated to the
Agent by the terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in accordance
with their terms all of the obligations that by the terms of the Credit
Agreement are required to be performed by it as a Lender; and (vi) attaches any
U.S. Internal Revenue Service or other forms required under SECTION 4.6.
4. Following the execution of this Assignment and Acceptance, it will be
delivered to the Agent for acceptance and recording by the Agent. The effective
date for this Assignment and Acceptance (the "Effective Date") shall be the date
of acceptance hereof by the Agent, unless otherwise specified on SCHEDULE 1.
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement and, to the
extent provided in this Assignment and Acceptance, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Credit Agreement; PROVIDED, HOWEVER,
that the Assignor shall continue to be entitled to the indemnity and expense
reimbursement provisions of the Credit Agreement and the other Loan Documents
(including without limitation SECTIONS 4.1, 4.2(b), 4.6, 11.5 and 11.9 of the
Credit Agreement) for the period prior to the Effective Date.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit Agreement and
the Notes in respect of the interest assigned hereby (including, without
limitation, all
<PAGE> 107
payments of principal, interest and commitment fees with respect thereto) to the
Assignee. Notwithstanding the foregoing, unless otherwise agreed in writing, the
Assignor shall be entitled to all payments with respect to the interest assigned
hereby for the period prior to the Effective Date and the Assignee shall be
entitled to all such payments for the period from and after the Effective Date.
The Assignor and Assignee shall make all appropriate adjustments in payments
under the Credit Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement. Delivery of an executed
counterpart of SCHEDULE 1 to this Assignment and Acceptance by telefacsimile
shall be effective as delivery of a manually executed counterpart of this
Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused SCHEDULE 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
<PAGE> 108
Schedule 1
<TABLE>
<S> <C>
Percentage interest assigned: ________%
Assignee's Revolving Credit Commitment: $_______
Aggregate outstanding principal amount
of Revolving Loans assigned: $_______
Aggregate outstanding principal amount
of Revolving Loans retained by Assignor: $_______
Aggregate outstanding principal amount
of Competitive Bid Loans assigned: $_______
Aggregate outstanding principal amount
of Competitive Bid Loans retained by
Assignor: $_______
Principal amount of Revolving Note
payable to Assignee: $_______
Principal amount of Revolving Note
payable to Assignor: $_______
Effective Date (if other than date
of acceptance by Agent): _______, 19__
</TABLE>
<PAGE> 109
[NAME OF ASSIGNOR], as Assignor
By:_______________________________
Title:
Dated: ____________________, ____
[NAME OF ASSIGNEE], as Assignee
By:_______________________________
Title:
Domestic Lending Office:
Eurodollar and Alternative Currency Lending Office:
Accepted and Approved
this ___ day of ___________, ____
BANK OF AMERICA, N.A., as Agent
By:______________________________
Title:
Approved this ____ day
of ____________, _____
V.F. CORPORATION
By:______________________________
Title:
<PAGE> 110
EXHIBIT C
Notice of Appointment (or Revocation)
of Authorized Representative
Reference is hereby made to the Credit Agreement dated as of July __, 1999
(the "Agreement") among V.F. Corporation, a Pennsylvania corporation (the
"Borrower"), the Lenders (as defined in the Agreement), Bank of America, N. A,.
as Administrative Agent for the Lenders ("Agent") and the Documentation Agent
and Syndication Agent named therein.. Capitalized terms used but not defined
herein shall have the respective meanings therefor set forth in the Agreement.
1. The Borrower hereby nominates, constitutes and appoints each individual named
below as an Authorized Representative for written notifications under the Loan
Documents, and hereby represents and warrants that (i) set forth opposite each
such individual's name is a true and correct statement of such individual's
office (to which such individual has been duly elected or appointed), a genuine
specimen signature of such individual and an address for the giving of notice,
and (ii) each such individual has been duly authorized by the Borrower to act as
Authorized Representative for written notifications under the Loan Documents:
<TABLE>
<CAPTION>
Name Office Specimen Signature
<S> <C> <C>
- -------------------- --------------- --------------------
- --------------------
- --------------------
- -------------------- --------------- --------------------
- -------------------- ---------------
- --------------------
</TABLE>
2. The Borrower hereby nominates, constitutes and appoints each individual named
below as an Authorized Representative for telephonic notifications under the
Loan Documents, and hereby represents and warrants that (i) set forth opposite
each such individual's name is a true and correct statement of such individual's
office (to which such individual has been duly elected or appointed), a genuine
specimen signature of such individual and an address for the giving of notice,
and (ii) each such individual has been duly authorized by the Borrower to act as
Authorized Representative for telephonic notifications under the Loan Documents:
<TABLE>
<CAPTION>
Name Office Specimen Signature
<S> <C> <C>
</TABLE>
<PAGE> 111
<TABLE>
<S> <C> <C>
- -------------------- --------------- --------------------
- --------------------
- --------------------
- -------------------- --------------- --------------------
- -------------------- ---------------
- --------------------
</TABLE>
3. Borrower hereby revokes (effective upon receipt hereof by the Agent) the
prior appointment of ________________ as an Authorized Representative.
This the ___ day of __________________, 19__.
V.F. CORPORATION
By:___________________________
Name:_________________________
Title:________________________
By:___________________________
Name:_________________________
Title:________________________
<PAGE> 112
EXHIBIT D-1
Form of Borrowing Notice
To: Bank of America, N.A. , as Agent
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704)386-9923
Reference is hereby made to the Credit Agreement dated as of July __, 1999
(the "Agreement") among V.F. Corporation (the "Borrower"), the Lenders (as
defined in the Agreement), Bank of America, N. A., as Agent for the Lenders
("Agent") and the Documentation Agent and Syndication Agent named therein.
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice to
the Agent that Loans of the type and amount set forth below be made on the date
indicated:
<TABLE>
<CAPTION>
TYPE OF LOAN INTEREST AGGREGATE
(CHECK ONE) PERIOD(1) AMOUNT(2) DATE OF LOAN(3) CURRENCY(4)
- ----------- --------- --------- --------------- -----------
<S> <C> <C> <C> <C>
REVOLVING LOANS IN DOLLARS:
Base Rate Loan
Eurodollar
Rate Loan
CD Rate Loan
REVOLVING LOANS IN AN ALTERNATIVE CURRENCY:
Offshore
Rate Loan
</TABLE>
- --------------------
(1) For any Eurodollar Rate Loan or Offshore Rate Loan, one, two, three, six,
and if available to all Lenders, nine or twelve months.
(2) Must be $15,000,000 (or the Alternative Currency Equivalent Amount thereof)
or if greater an integral multiple of $1,000,000 (or the Alternative
Currency Equivalent Amount thereof), unless a Base Rate Refunding Loan.
<PAGE> 113
(3) At least two (2) Business Days if a CD Rate Loan or three (3) Business Days
later if a Eurodollar Rate Loan or Offshore Rate Loan with a one, two,
three or six month Interest Period or four (4) Business Days if a
Eurodollar Rate Loan or Offshore Rate Loan with a nine or twelve month
Interest Period.
(4) Specify Dollars or the Alternative Currency.
The Borrower hereby requests that the proceeds of Loans described
in this Borrowing Notice be made available to the Borrower as
follows: [INSERT TRANSMITTAL INSTRUCTIONS].
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving effect
to the borrowing described herein; and
2. All the representations and warranties set forth in ARTICLE VI (other
than SECTION 6.5(c)) of the Agreement and in the Loan Documents (other than
those expressly stated to refer to a particular date) are true and correct as of
the date hereof except that the reference to the financial statements in SECTION
6.5(a) of the Agreement are to those financial statements most recently
delivered to you pursuant to SECTION 7.1 of the Agreement (it being understood
that any financial statements delivered pursuant to SECTION 7.1(b) have not been
certified by independent public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full .
V.F. CORPORATION
BY:_______________________________
Authorized Representative
DATE:_____________________________
<PAGE> 114
EXHIBIT D-2
Form of Borrowing Notice--Swing Line Loans
To: Bank of America, N.A.
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704)386-9923
Reference is hereby made to the Credit Agreement dated as of July __, 1999
(the "Agreement") among V.F. Corporation (the "Borrower"), the Lenders (as
defined in the Agreement), Bank of America, N. A., as Agent for the Lenders
("Agent") and the Documentation Agent and Syndication Agent named therein.
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice to
Bank of America that a Swing Line Loan of the amount set forth below be made on
the date indicated:
<TABLE>
<CAPTION>
AMOUNT(1) DATE OF LOAN
<S> <C>
--------- ------------
--------- ----------, ----
</TABLE>
- -----------------------
(1) Must be $1,000,000 or if greater an integral multiple of $1,000,000.
The Borrower hereby requests that the proceeds of Swing Line
Loans described in this Borrowing Notice be made available to the
Borrower as follows: [INSERT TRANSMITTAL INSTRUCTIONS].
The undersigned hereby certifies that:
1. No Default or Event of Default exists either now or after giving effect
to the borrowing described herein; and
2. All the representations and warranties set forth in ARTICLE VI (other
than SECTION 6.5(c)) of the Agreement and in the Loan Documents (other than
those expressly stated to refer to a particular date) are true and correct as of
the date hereof except that the reference to the financial statements in SECTION
6.5(a) of the Agreement are to those financial statements most recently
delivered to you pursuant to SECTION 7.1 of the
<PAGE> 115
Agreement (it being understood that any financial statements delivered pursuant
to SECTION 7.1(b) have not been certified by independent public accountants).
3. All conditions contained in the Agreement to the making of any Loan
requested hereby have been met or satisfied in full.
V.F. CORPORATION
BY:_____________________________________
Authorized Representative
DATE:___________________________________
<PAGE> 116
EXHIBIT E
Form of Interest Rate Selection Notice
To: Bank of America, N. A., as Agent
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 386-9923
Reference is hereby made to the Credit Agreement dated as of July __, 1999
(the "Agreement") among V.F. Corporation (the "Borrower"), the Lenders (as
defined in the Agreement), Bank of America, N.A., as Agent for the Lenders
("Agent") and the Documentation Agent and Syndication Agent named therein.
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
The Borrower through its Authorized Representative hereby gives notice to
the Agent of the following selection of a type of Loan and Interest Period:
<TABLE>
<CAPTION>
TYPE OF LOAN INTEREST AGGREGATE
(CHECK ONE) PERIOD(1) AMOUNT(2) DATE OF LOAN(3) CURRENCY(4)
- ----------- --------- --------- --------------- -----------
<S> <C> <C> <C> <C>
REVOLVING LOANS IN DOLLARS:
Eurodollar
Rate Loan
CD Rate Loan
REVOLVING LOANS IN AN ALTERNATIVE CURRENCY:
Offshore
Rate Loan
</TABLE>
- ----------------------------------
(1) For any Eurodollar Rate Loan or Offshore Rate Loan, one, two, three, six,
and if available to all Lenders, nine or twelve months.
(2) Must be $15,000,000 (or the Alternative Currency Equivalent Amount thereof)
or if greater an integral multiple of $1,000,000 (or the Alternative
Currency Equivalent Amount thereof), unless a Base Rate Refunding Loan.
(3) At least two (2) Business Days if a CD Rate Loan or three (3) Business Days
later if a Eurodollar Rate Loan or Offshore Rate Loan with a one, two,
three or six month
<PAGE> 117
Interest Period or four (4) Business Days if a Eurodollar Rate Loan or
Offshore Rate Loan with a nine or twelve month Interest Period.
(4) Specify the Alternative Currency.
V.F. CORPORATION
BY:________________________________
Authorized Representative
DATE:______________________________
<PAGE> 118
EXHIBIT F-1
Form of Revolving Note
Promissory Note
(Revolving Loan)
$______________ _________, North Carolina
July __, 1999
FOR VALUE RECEIVED, V.F. CORPORATION, a Pennsylvania corporation having its
principal place of business located in Greensboro, North Carolina (the
"Borrower"), hereby promises to pay to the order of ____________________________
_______________ (the "Lender"), in its individual capacity, at the office of
BANK OF AMERICA, N.A., as Administrative Agent for the Lenders (the "Agent"),
located at 101 North Tryon Street, NC1-001-15-04, Charlotte, North Carolina
28255 (or at such other place or places as the Agent may designate in writing)
at the times set forth in the Credit Agreement dated as of July ___, 1999 among
the Borrower, the financial institutions party thereto (collectively, the
"Lenders"), the Agent and the Documentation Agent and Syndication Agent named
therein (the "Agreement" -- all capitalized terms not otherwise defined herein
shall have the respective meanings set forth in the Agreement), in lawful money
of the United States of America, in immediately available funds, the principal
amount of ___________ DOLLARS ($__________) or, if less than such principal
amount, the aggregate unpaid principal amount of all Revolving Loans made by the
Lender to the Borrower pursuant to the Agreement on the Revolving Credit
Termination Date or such earlier date as may be required pursuant to the terms
of the Agreement, and to pay interest from the date hereof on the unpaid
principal amount hereof, in like money, at said office, on the dates and at the
rates provided in ARTICLES II AND III of the Agreement. All or any portion of
the principal amount of Revolving Loans may be prepaid or required to be prepaid
as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of the
Agreement or under the terms of the other Loan Documents executed in connection
with the Agreement, the then remaining principal amount and accrued but unpaid
interest thereon evidenced by this Revolving Note shall become immediately due
and payable, without presentation, demand, protest or notice of any kind, all of
which are hereby waived by the Borrower.
In the event this Revolving Note is not paid when due at any stated or
accelerated maturity, the Borrower agrees to pay, in addition to the principal
and interest, all costs of collection,
<PAGE> 119
including reasonable attorneys' fees, and interest due hereunder thereon at the
rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Revolving Note is one of the Revolving Notes referred to in the
Agreement and is issued pursuant to and entitled to the benefits and security of
the Agreement to which reference is hereby made for a more complete statement of
the terms and conditions upon which the Revolving Loans evidenced hereby were or
are made and are to be repaid. This Revolving Note is subject to certain
restrictions on transfer or assignment as provided in the Agreement.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Revolving Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be made,
executed and delivered by its duly authorized representative as of the date and
year first above written, all pursuant to authority duly granted.
V.F. CORPORATION
By:____________________________________
Name:___________________________________
Title:__________________________________
<PAGE> 120
EXHIBIT F-2
Form of Swing Line Note
Promissory Note
(Swing Line Loan)
$50,000,000 ________, North Carolina
July __, 1999
FOR VALUE RECEIVED, V.F. CORPORATION, a Pennsylvania corporation having its
principal place of business located in Greensboro, North Carolina (the
"Borrower"), hereby promises to pay to the order of BANK OF AMERICA, N.A. ("Bank
of America"), in its individual capacity, at Bank of America's offices located
at 101 North Tryon Street, NC1-001-15-04, Charlotte, North Carolina 28255 (or at
such other place or places as Bank of America may designate) at the times set
forth in the Credit Agreement dated as of July ___, 1999 among the Borrower, the
financial institutions party thereto (collectively, the "Lenders"), Bank of
America, N. A., as Administrative Agent for the Lenders (the "Agent") and the
Documentation Agent and Syndication Agent named therein (as amended,
supplemented or otherwise modified from time to time, the "Agreement" -- all
capitalized terms not otherwise defined herein shall have the respective
meanings set forth in the Agreement), in lawful money of the United States of
America, in immediately available funds, the principal amount of FIFTY MILLION
DOLLARS ($50,000,000) or if less than such principal amount, the aggregate
unpaid principal amount of all Swing Line Loans made by Bank of America to the
Borrower pursuant to the Agreement on the Revolving Credit Termination Date or
such earlier date as may be required pursuant to the terms of the Agreement, and
to pay interest from the date hereof on the unpaid principal amount hereof, in
like money, at said office, on the dates and at the rates provided in ARTICLES
II AND III of the Agreement. All or any portion of the principal amount of Swing
Line Loans may be prepaid as provided in the Agreement.
If payment of all sums due hereunder is accelerated under the terms of the
Agreement or under the terms of the other Loan Documents executed in connection
with the Agreement, the then remaining principal amount and accrued but unpaid
interest shall bear interest which shall be payable on demand at the Default
Rate until such principal and interest have been paid in full. Further, in the
event of such acceleration, this Note, and all other indebtedness of the
Borrower to the Lender shall become immediately due and payable, without
presentation, demand, protest or notice of any kind, all of which are hereby
waived by
<PAGE> 121
the Borrower.
In the event this Note is not paid when due at any stated or accelerated
maturity, the Borrower agrees to pay, in addition to the principal and interest,
all costs of collection, including reasonable attorneys' fees, and interest
thereon at the rates set forth above.
Interest hereunder shall be computed on the basis of a 365/366 day year for
the actual number of days in the interest period.
This Note is the Swing Line Note referred to in the Agreement and is issued
pursuant to and entitled to the benefits and security of the Agreement to which
reference is hereby made for a more complete statement of the terms and
conditions upon which the Swing Line Loans evidenced hereby were or are made and
are to be repaid. This Note is subject to certain restrictions on transfer or
assignment as provided in the Agreement.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Note any collateral
deposited by any of said Persons as security. Protest, notice of protest, notice
of dishonor, diligence or any other formality are hereby waived by all parties
bound hereon.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, the Borrower has caused this Note to be made, executed
and delivered by its duly authorized representative as of the date and year
first above written, all pursuant to authority duly granted.
<PAGE> 122
V.F. CORPORATION
By:_______________________________
Name:_____________________________
Title:____________________________
<PAGE> 123
EXHIBIT F-3
Form of Competitive Bid Note
Promissory Note
(Competitive Bid Loan)
$___________________ _________, North Carolina
July __, 1999
FOR VALUE RECEIVED, V.F. CORPORATION, a Pennsylvania corporation having its
principal place of business located in Greensboro, North Carolina (the
"Borrower"), hereby promises to pay to the order of ____________________________
______________ (the "Lender"), in its individual capacity, at the office of BANK
OF AMERICA, N.A., as Administrative Agent for the Lenders (the "Agent"), located
at 101 North Tryon Street, NC1-001-15-04, Charlotte, North Carolina 28255 (or at
such other place or places as the Agent may designate in writing) at the times
set forth in the Credit Agreement dated as of July ___, 1999 among the Borrower,
the financial institutions party thereto (collectively, the "Lenders"), the
Agent and the Documentation Agent and Syndication Agent named therein (the
"Agreement" -- all capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Agreement), in lawful money of the United
States of America, in immediately available funds, the aggregate unpaid
principal amount of all Competitive Bid Loans made by the Lender to the Borrower
pursuant to the Agreement, and to pay interest on the unpaid principal amount of
each such Competitive Bid Loan, in like money, at said office, for the period
commencing on the date of such Competitive Bid Loan until such Competitive Bid
Loan shall be paid in full, on the dates and at the rates provided in ARTICLES
II AND III of the Agreement. The date, amount, type, interest rate and maturity
date of each Competitive Bid Loan made by the Lender to the Borrower, and each
payment made on account of the principal thereof, shall be recorded by the
Lender on its books and, prior to any transfer of this Competitive Bid Note,
endorsed by the Lender on the schedule attached hereto or any continuation
thereof; provided that the failure of the Lender to any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment
when due of any amount owing under the Agreement or hereunder in respect of the
Competitive Bid Loans made by the Lender. All or any portion of the principal
amount of Revolving Loans may be prepaid or required to be prepaid as provided
in the Agreement.
If payment of all sums due hereunder is accelerated under
<PAGE> 124
the terms of the Agreement or under the terms of the other Loan Documents
executed in connection with the Agreement, the then remaining principal amount
and accrued but unpaid interest thereon evidenced by this Competitive Bid Note
shall become immediately due and payable, without presentation, demand, protest
or notice of any kind, all of which are hereby waived by the Borrower.
In the event this Competitive Bid Note is not paid when due at any stated
or accelerated maturity, the Borrower agrees to pay, in addition to the
principal and interest, all costs of collection, including reasonable attorneys'
fees, and interest due hereunder thereon at the rates set forth above.
Interest hereunder shall be computed as provided in the Agreement.
This Competitive Bid Note is one of the Competitive Bid Notes referred to
in the Agreement and is issued pursuant to and entitled to the benefits and
security of the Agreement to which reference is hereby made for a more complete
statement of the terms and conditions upon which the Competitive Bid Loans
evidenced hereby were or are made and are to be repaid. This Competitive Bid
Note is subject to certain restrictions on transfer or assignment as provided in
the Agreement.
This Competitive Bid Note shall be governed by and construed in accordance
with the laws of the State of New York.
All Persons bound on this obligation, whether primarily or secondarily
liable as principals, sureties, guarantors, endorsers or otherwise, hereby waive
to the full extent permitted by law all defenses based on suretyship or
impairment of collateral and the benefits of all provisions of law for stay or
delay of execution or sale of property or other satisfaction of judgment against
any of them on account of liability hereon until judgment be obtained and
execution issued against any other of them and returned satisfied or until it
can be shown that the maker or any other party hereto had no property available
for the satisfaction of the debt evidenced by this instrument, or until any
other proceedings can be had against any of them, also their right, if any, to
require the holder hereof to hold as security for this Competitive Bid Note any
collateral deposited by any of said Persons as security. Protest, notice of
protest, notice of dishonor, diligence or any other formality are hereby waived
by all parties bound hereon.
[SIGNATURE PAGE FOLLOWS.]
<PAGE> 125
IN WITNESS WHEREOF, the Borrower has caused this Competitive Bid Note to be
made, executed and delivered by its duly authorized representative as of the
date and year first above written, all pursuant to authority duly granted.
V.F. CORPORATION
By:_____________________________________
Name:___________________________________
Title:__________________________________
<PAGE> 126
SCHEDULE OF COMPETITIVE BID LOANS
This Competitive Bid Note evidences Competitive Bid Loans made under the within
described Agreement to the Borrower, on the dates, in the principal amounts, of
the Types, bearing interest at the rates and maturing on the dates set forth
below, subject to the payments and prepayments of principal set forth below:
<TABLE>
<CAPTION>
Principal Maturity Principal Unpaid Notation
Date of Amount Interest Date of Amount Principal Made
Loan of Loan Rate Loan Prepaid Amount By
---- ------- ---- ---- ------- ------ --
<S> <C> <C> <C> <C> <C> <C>
</TABLE>
<PAGE> 127
EXHIBIT G
Form of Opinion of Borrower's Counsel
July ___, 1999
Bank of America, N. A.,
as Agent and
Each of the Lenders Party to the
Credit Agreement Referenced Below
Bank of America Corporate Center
Charlotte, North Carolina 28255-0065
RE: $1,000,000,000 CREDIT AGREEMENT AMONG BANK OF AMERICA, N.A.,
AS ADMINISTRATIVE AGENT, THE SYNDICATION AGENT AND
DOCUMENTATION AGENT NAMED THEREIN, THE LENDERS PARTY THERETO
AND V.F. CORPORATION
Ladies and Gentlemen:
We have acted as counsel to V.F. Corporation, a Pennsylvania corporation
(the "Borrower"), in connection with the negotiation, execution, and delivery of
the Credit Agreement of even date herewith among you, the Lenders and the
Borrower (the "Credit Agreement"; capitalized terms not otherwise defined herein
shall have the meanings provided therefor in the Credit Agreement) and the
execution and delivery of the other Transaction Documents (as defined below) by
the Borrower, pursuant to which the Lenders are providing the Revolving Credit
Facility in the amount of $1,000,000,000 (initially $750,000,000), including the
$100,000,000 sublimit for multi-currency borrowings and the $50,000,000 Swing
Line, each constituting part of the Revolving Credit Facility, and the other
transactions contemplated under the Credit Agreement.
This opinion is being delivered in accordance with the conditions set forth
in SECTION 5.1 of the Credit Agreement.
As such counsel, we have reviewed originals, or copies certified or
otherwise authenticated to our satisfaction, of the following documents as
executed and delivered as of the date hereof (collectively, the "Transaction
Documents"):
1. the Credit Agreement; and
2. the Notes;
For purposes of the opinions expressed below, we have assumed that all
natural persons executing the Transaction Documents have legal capacity to do
so; that all signatures
<PAGE> 128
(other than those of representatives of the Borrower on the Transaction
Documents) on all documents submitted to us are genuine; that all documents
submitted to us as originals (other than the Transaction Documents) are
authentic; and that all documents submitted to us as certified copies or
photocopies conform to the originals of such documents, which themselves are
authentic.
For purposes of giving this opinion, we have examined such corporate and
other records of the Borrower, certificates of public officials, certificates of
appropriate officers or other representatives of the Borrower, and such other
documents, and have made such inquiries as we have deemed appropriate.
Based upon and subject to the foregoing, it is our opinion that:
1. The Borrower is a corporation duly organized, validly existing and in
good standing under the laws of its state of formation and is duly qualified to
transact business as a foreign corporation and is in good standing in the
following jurisdictions: ___________________ ___________________, and in each
other jurisdiction in which, in light of the nature of the business transacted
by it or the property owned by it, such qualification is necessary and the
failure so to qualify might impair title to any property material to its
operations or its right to enforce any material contract against others, or
expose it to any substantial liability or impairment of rights or defenses in
such jurisdiction. The Borrower has full corporate power and authority to own
its assets and conduct the businesses in which it is now engaged and as are
expressly contemplated by the Transaction Documents, and has full corporate
power and authority to enter into each of the Transaction Documents to which it
is a party and to perform its obligations thereunder and consummate the
transactions contemplated therein.
2. Each of the Transaction Documents to which the Borrower is a party has
been duly authorized by the Board of Directors of the Borrower (and by any
required shareholder action), has been duly executed and delivered by the
Borrower, and constitutes the legal, valid and binding obligation, agreement,
instrument or conveyance, as the case may be, of the Borrower, enforceable
against the Borrower in accordance with its terms, except as the enforceability
thereof may be limited by applicable bankruptcy, insolvency, reorganization and
other similar laws relating to or affecting creditors' rights generally and by
the application of general equitable principles (whether considered in
proceedings at law or in equity).
3. Neither the execution or delivery of, nor performance
<PAGE> 129
by the Borrower of its obligations under, the Transaction Documents (a) does or
will conflict with, violate or constitute a breach of (i) any of the
Organizational Documents or by-laws of the Borrower, (ii) any laws, rules or
regulations applicable to the Borrower, or (iii) any contract, agreement,
indenture, lease, instrument, commitment, judgment, writ, determination, order,
decree or arbitral award, of which we have knowledge after due inquiry of
appropriate representatives of the Borrower, to which the Borrower or any
Subsidiary is a party or by which the Borrower or any Subsidiary or any of their
properties is bound, (b) requires the prior consent of, notice to, license from
or filing with any Governmental Authority which has not been duly obtained or
made on or prior to the date hereof, or (c) does or will result in the creation
or imposition of any lien, pledge, charge or encumbrance of any nature upon or
with respect to any of the properties of the Borrower or any other Subsidiary,
except for the Liens in your favor expressly created pursuant to the Transaction
Documents.
4. Insofar as we have knowledge of the operations and affairs of the
Borrower and its Subsidiaries and upon due inquiry of appropriate
representatives of the Borrower and its Subsidiaries, there is no pending or
overtly threatened, action, suit, investigation or proceeding (including,
without limitation, any action, suit, investigation, or proceeding under any
environmental or labor law) before or by any court, or governmental department,
commission, board, bureau, instrumentality, agency or arbitral authority, (i)
which calls into question the validity or enforceability of any of the
Transaction Documents, or the titles to their respective offices or authority of
any officers of the Borrower or (ii) an adverse result in which would reasonably
be likely to have a Material Adverse Effect.
5. Insofar as we have knowledge of the operations and affairs of the
Borrower and its Subsidiaries and upon due inquiry of appropriate
representatives of the Borrower and its Subsidiaries, there exists no event,
circumstance or condition (except that we express no opinion as to financial
reporting or accounting matters) which, immediately upon giving effect to the
Transaction Documents, would constitute a Default or Event of Default under the
Credit Agreement.
6. None of the transactions contemplated by the Credit Agreement, including
without limitation the use of the proceeds of the Loans provided for in the
Transaction Documents, will violate or result in a violation of Section 7 of the
Securities Exchange Act of 1934, as amended, any regulations issued pursuant
thereto, or regulations T, U or X of the Board of Governors of the Federal
Reserve System.
<PAGE> 130
7. A state or federal court located in the State of New York, if properly
presented with the question and applying the choice of laws rules of the State
of New York, would in a properly reasoned opinion give effect to the provisions
of the Transaction Documents providing that the Transaction Documents shall be
governed by and construed in accordance with the internal substantive laws of
the State of New York.
8. The rate or rates of interest provided for in the Transaction Documents,
including all late payment charges and the Default Rate provided for therein, do
not and will violate or conflict with, or give rise to any defense to payment of
the Obligations or to any claim, counterclaim, setoff or recoupment under, any
usury or other law or regulation of the State of New York governing the maximum
rate of interest or amount of other charges that may be charged or incurred in
transactions of the type contemplated under the Transaction Documents.
9. No documentary, stamp, intangibles, excise or other tax is payable to
any Governmental Authority of the State of New York in connection with the
execution, delivery, enforcement, recording or filing of any of the Transaction
Documents, other than court costs and fees that may be or become payable in
connection with the enforcement of the Transaction Documents.
10. Solely by reason of (i) the execution and delivery of, and performance
by the parties thereto under, the Transaction Documents, (ii) the acceptance of
the Notes and the receipt of payments in respect of the Obligations, or (iii)
the enforcement of rights and remedies by the Agent or any Lender under the
Transaction Documents, neither the Agent nor any Lender is or shall (a) be
required to qualify to do business in the State of New York or (b) be subject to
the payment of any franchise or income tax or other tax imposed by the State of
New York or any agency thereof payable in respect of payments received under the
Transaction Documents.
Our opinions contained herein are rendered solely in connection with the
transactions contemplated under the Transaction Documents and may not be relied
upon in any manner by any Person other than the addressees hereof, any successor
or assignee of any addressee (including successive assignees) and any Person who
shall acquire a participation interest in the interest of any Lender
(collectively, the "Reliance Parties"), or by any Reliance Party for any other
purpose. Our opinions herein shall not be quoted or otherwise included,
summarized or referred to in any publication or document, in whole or in part,
for any purpose whatsoever, or furnished to any Person other than a Reliance
Party (or a Person considering whether to become a
<PAGE> 131
Reliance Party), except as may be required of any Reliance Party by applicable
law or regulation or in accordance with any auditing or oversight function or
request of regulatory agencies to which a Reliance Party is subject.
Very truly yours,
<PAGE> 132
EXHIBIT H
Compliance Certificate
Bank of America, N.A.,
as Agent
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704) 386-9923
Bank of America, N.A.,
as Agent
Corporate Textile & Apparel Group
100 North Tryon Street, 17th Floor
NC1-007-17-12
Attention: Leesa C. Sluder
Telefacsimile: (704) 386-1270
Reference is hereby made to the Credit Agreement dated as of July __, 1999
(the "Agreement") among V.F. Corporation, a Pennsylvania corporation (the
"Borrower"), the Lenders (as defined in the Agreement), Bank of America, N.A.,
as Administrative Agent for the Lenders ("Agent") and the Documentation Agent
and Syndication Agent named therein. Capitalized terms used but not otherwise
defined herein shall have the respective meanings therefor set forth in the
Agreement. The undersigned, a duly authorized and acting Authorized
Representative, hereby certifies to you as of __________ (the "Determination
Date") as follows:
1. Calculations:
A. Compliance with Section 8.1: Consolidated Indebtedness to Consolidated
Net Worth
<TABLE>
<S> <C>
1. Consolidated Indebtedness as of
the Determination Date $_____________
2. Consolidated Net Worth as of the
Determination Date $_____________
3. Ratio of A.1 to A.2 _______ to 1.00
</TABLE>
REQUIRED: A.3 MUST NOT BE GREATER THAN 2.00 TO 1.00 AT ANY TIME.
B. Compliance with Section 8.2(i): Liens
<PAGE> 133
<TABLE>
<S> <C>
1. Consolidated Net Worth as of the
Determination Date $_____________
2. B.1 X 5% $_____________
3. Is Indebtedness secured by
Liens not permitted under
Section 8.2(a)-(h) less
than B.2? Yes____ No_____
</TABLE>
C. Compliance with Section 8.3(e): Indebtedness of Subsidiaries
<TABLE>
<S> <C>
1. Is Indebtedness not permitted
under Section 8.3(a)-(d) less
than $300,000,000? Yes____ No_____
</TABLE>
2. No Default
A. Since __________ (the date of the last similar certification),
(a) the Borrower has not defaulted in the keeping, observance,
performance or fulfillment of its obligations pursuant to any of the
Loan Documents; and (b) no Default or Event of Default specified in
ARTICLE IX of the Agreement has occurred and is continuing.
B. If a Default or Event of Default has occurred since __________
(the date of the last similar certification), the Borrower proposes to
take the following action with respect to such Default or Event of
Default: _____________________________________________________________
__________________________________.
(NOTE, if no Default or Event of Default has occurred,
insert "Not Applicable").
The Determination Date is the date of the last required financial
statements submitted to the Lenders in accordance with SECTION 7.1 of the
Agreement.
IN WITNESS WHEREOF, I have executed this Certificate this _____ day of
__________, 19___.
By:_____________________________________
Authorized Representative
Name:___________________________________
Title:__________________________________
<PAGE> 134
EXHIBIT I
Form of Competitive Bid Quote Request
To: Bank of America, N.A.,
as Agent
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704)386-9923
Reference is hereby made to the Credit Agreement dated as of July __, 1999
(the "Agreement") among V.F. Corporation (the "Borrower"), the Lenders (as
defined in the Agreement), Bank of America, N.A., as Agent for the Lenders
("Agent") and the Documentation Agent and Syndication Agent named therein.
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
Pursuant to Section 2.2 of the Agreement, the Borrower through its
Authorized Representative hereby gives notice to the Agent that the Borrower
requests Competitive Bid Quotes for the following proposed Competitive Bid
Borrowings:
<TABLE>
<CAPTION>
INTEREST AGGREGATE
QUOTATION DATE PERIOD(1) AMOUNT DATE OF LOAN CURRENCY (2)
- -------------- --------- ------ ------------ ------------
<S> <C> <C> <C> <C>
____________________________________________________________________
</TABLE>
V.F. CORPORATION
By:_______________________________
Authorized Representative
Name:_____________________________
Title:____________________________
_____________________
(1) Not to extend beyond the Revolving Credit Termination Date.
(2) Specify Dollars or the Alternative Currency. At least $15,000,000 (or
the Dollar Equivalent Amount thereof) or a larger integral multiple of
$1,000,000 (or the Dollar Equivalent Amount thereof).
<PAGE> 135
EXHIBIT J
Form of Competitive Bid Quote
To: Bank of America, N.A.,
as Agent
101 North Tryon Street, 15th Floor
NC1-001-15-04
Charlotte, North Carolina 28255
Attention: Agency Services
Telefacsimile: (704)386-9923
Re: Competitive Bid Quote to V.F. Corporation
Reference is hereby made to the Credit Agreement dated as of July __, 1999
(the "Agreement") among V.F. Corporation (the "Borrower"), the Lenders (as
defined in the Agreement), Bank of America, N.A., as Agent for the Lenders
("Agent") and the Documentation Agent and Syndication Agent named therein.
Capitalized terms used but not defined herein shall have the respective meanings
therefor set forth in the Agreement.
This Competitive Bid Quote is given in accordance with Section 2.2(c) of
the Agreement. In response to the Borrower's Competitive Bid Quote Request dated
_____________, we hereby make the following Competitive Bid Quote(s) on the
following terms:
1. Quoting Bank:_______________________
2. Person to Contact at Quoting Bank: ___________________
3. We hereby offer to make Competitive Bid Loan(s) in the following
principal amount(s), for the following Interest Period(s) and at the following
rate(s):
<TABLE>
<CAPTION>
QUOTATION INTEREST AGGREGATE ABSOLUTE
DATE(1) PERIOD(2) AMOUNT(3) DATE OF LOAN RATE(4) CURRENCY
<S> <C> <C> <C> <C> <C>
_________ _________ _________ ____________ ________ ________
_________ _________ _________ ____________ ________ ________
_________ _________ _________ ____________ ________ ________
</TABLE>
___________________
(1) As specified in the related Competitive Bid Quote Request.
(2) May not extend beyond the Revolving Credit Termination Date.
(3) The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000 (or
the Alternative Currency Equivalent Amount thereof) or a larger integral
multiple of
<PAGE> 136
$1,000,000 (or the Alternative Currency Equivalent Amount thereof).
(4) Rounded to the nearest 1/10,000 of 1%.
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Agreement,
irrevocably obligate(s) us to make the Competitive Bid Loan(s) for which any
offer(s) is/are accepted, in whole or in part (subject to the third sentence of
SECTION 2.2(e) of the Agreement.
Very truly yours,
[INSERT NAME OF LENDER]
By:_________________________
Name:_______________________
Title: _____________________
Dated: _____________
<PAGE> 137
EXHIBIT K
Form of Amendment Agreement
AMENDMENT NO. ___ TO
CREDIT AGREEMENT
THIS AMENDMENT AGREEMENT is made and entered into this _____ day of
________, ____, by and among V.F. CORPORATION, a Pennsylvania corporation (the
"Borrower"), BANK OF AMERICA, N. A. (the "Agent"), as Agent for the lenders (the
"Lenders") party to that certain Credit Agreement dated July __, 1999 among such
Lenders, Borrower, and the Agent, as amended (the "Agreement") and
__________________________ [(the "New Lender")].
W I T N E S S E T H:
WHEREAS, the Borrower, the Agent and the Lenders have entered into the
Agreement pursuant to which the Lenders have agreed to make revolving loans to
the Borrower in the principal amount of up to $750,000,000 (which may be
increased to $1,000,000,000) as evidenced by the Notes (as defined in the
Agreement); and
WHEREAS, the New Lender has agreed to [provide the Borrower Revolving Loans
of up to $__,000,000][increase its Revolving Credit Commitment to $__________]
thereby increasing the then applicable Total Revolving Credit Commitment to
$__,000,000 and the parties hereto desire to amend the Agreement in accordance
with SECTION 2.7 of the Agreement in the manner herein set forth effective as of
the date hereof;
NOW, THEREFORE, the Borrower, the Agent and the New Lender do hereby agree
as follows:
1. DEFINITIONS. The term "Agreement" as used herein and in the Loan
Documents (as defined in the Agreement) shall mean the Agreement as hereby
amended and modified. Unless the context otherwise requires, all terms used
herein without definition shall have the definition provided therefor in the
Agreement.
2. AMENDMENTS. Subject to the conditions hereof, the Agreement is hereby
amended, effective as of the date hereof, by deleting EXHIBIT A and inserting in
lieu thereof EXHIBIT A attached hereto, and the New Lender agrees by the
execution of this Amendment Agreement that it [shall be a party to the Agreement
as a Lender and] shall provide to the Borrower its Revolving Credit Commitment.
EXHIBIT A attached hereto shall be unchanged from EXHIBIT A to the Agreement
immediately prior to the effectiveness hereof with respect to the Revolving
Credit
<PAGE> 138
Commitment of each Lender which is not the New Lender.
3. REPRESENTATIONS AND WARRANTIES. The Borrower hereby certifies that:
(a) The representations and warranties made by the Borrower in ARTICLE
VI of the Agreement are true on and as of the date hereof except that the
financial statements referred to in SECTION 6.5(a) shall be those most
recently furnished to each Lender pursuant to SECTION 7.1(a) and (b);
(b) There has been no Material Adverse Effect;
(c) No event has occurred and no condition exists which, upon the
consummation of the transaction contemplated hereby, constituted a Default
or an Event of Default on the part of the Borrower under the Agreement or
the Notes either immediately or with the lapse of time or the giving of
notice, or both.
4. CONDITIONS. As a condition to the effectiveness of this Amendment
Agreement, the Borrower shall deliver, or cause to be delivered to the Agent,
the following:
(a) Four (4) counterparts of this Amendment Agreement executed by the
Borrower and the New Lender; and
(b) A fully-executed Revolving Note payable to the New Lender in the
amount of the New Lender's Revolving Credit Commitment and a fully-executed
Competitive Bid Note payable to the New Lender in the amount of
$1,000,000,000.
5. NEW LENDER. Upon the effectiveness of this Amendment Agreement, the New
Lender, if not a Lender prior to the effectiveness of this Amendment Agreement,
shall be a party to the Credit Agreement and have the rights and obligations of
a Lender thereunder.
6. OTHER DOCUMENTS. All instruments and documents incident to the
consummation of the transactions contemplated hereby shall be satisfactory in
form and substance to the Agent and its counsel; the Agent shall have received
copies of all additional agreements, instruments and documents which it may
reasonably request in connection therewith, including evidence of the authority
of the Borrower to enter into the transactions contemplated by this Amendment
Agreement, in each case such documents, when appropriate, to be certified by
appropriate corporate or governmental authorities; and all proceedings of the
Borrower relating to the matters provided for herein shall be satisfactory to
the Agent and its counsel.
<PAGE> 139
7. ENTIRE AGREEMENT. This Amendment Agreement sets forth the entire
understanding and agreement of the parties hereto in relation to the subject
matter hereof and supersedes any prior negotiations and agreements among the
parties relative to such subject matter. No promise, conditions, representation
or warranty, express or implied, not herein set forth shall bind any party
hereto, and no one of them has relied on any such promise, condition,
representation or warranty. Each of the parties hereto acknowledges that, except
as in this Amendment Agreement or otherwise expressly stated, no
representations, warranties or commitments, express or implied, have been made
by any other party to the other. None of the terms of conditions of this
Amendment Agreement may be changed, modified, waived or canceled orally or
otherwise, except in accordance with the Agreement.
8. FULL FORCE AND EFFECT OF AGREEMENT. Except as hereby specifically
amended, modified or supplemented, the Agreement and all of the other Loan
Documents are hereby confirmed and ratified in all respects and shall remain in
full force and effect according to their respective terms.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment agreement
to be duly executed by their duly authorized officers, all as of the day and
year first above written.
V.F. CORPORATION
By:_____________________________________
Name:___________________________________
Title:__________________________________
BANK OF AMERICA, N. A., AS AGENT
By:____________________________________
Name:__________________________________
Title:_________________________________
__________________________________
[Insert Name of Lender]
By:_______________________________
Name:_____________________________
Title:____________________________
<PAGE> 140
EXHIBIT A
Applicable Commitment Percentages
<TABLE>
<CAPTION>
APPLICABLE
REVOLVING CREDIT COMMITMENT
LENDER COMMITMENT PERCENTAGE
- ------ ---------- ----------
<S> <C> <C>
Bank of America, N. A. $ %
First Union National Bank $
Citibank, N.A. $
$
-------------- ---
Total $__,000,000.00 100%
</TABLE>
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM FINANCIAL
STATEMENTS INCLUDED IN FORM 10-Q FOR OCTOBER 2, 1999 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> JAN-01-2000
<PERIOD-END> OCT-02-1999
<CASH> 81,783
<SECURITIES> 0
<RECEIVABLES> 883,737
<ALLOWANCES> 54,498
<INVENTORY> 1,005,263
<CURRENT-ASSETS> 2,071,986
<PP&E> 1,789,059
<DEPRECIATION> 987,431
<TOTAL-ASSETS> 4,182,336
<CURRENT-LIABILITIES> 1,283,553
<BONDS> 523,057
117,918
36,490
<COMMON> 0
<OTHER-SE> 2,035,249
<TOTAL-LIABILITY-AND-EQUITY> 4,182,336
<SALES> 4,187,930
<TOTAL-REVENUES> 4,187,930
<CGS> 2,755,612
<TOTAL-COSTS> 2,755,612
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 53,831
<INCOME-PRETAX> 436,972
<INCOME-TAX> 167,928
<INCOME-CONTINUING> 269,044
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 269,044
<EPS-BASIC> 2.22
<EPS-DILUTED> 2.19
</TABLE>
