EXHIBIT 10.2: FORM OF CREDIT AGREEMENT



 


EXHIBIT 10.2


EXECUTION COPY















CREDIT AGREEMENT


dated as of


November 18, 2002


among


POLO RALPH LAUREN CORPORATION,

as Borrower,


The Lenders Party Hereto


and


JPMORGAN CHASE BANK,

as Administrative Agent


THE BANK OF NEW YORK,

FLEET NATIONAL BANK,

SUNTRUST BANK,

WACHOVIA BANK, N.A.

as Syndication Agents


J.P. MORGAN SECURITIES INC.,

as Sole Bookrunner and Sole Lead Arranger





















 



 









Table of Contents



	 	 	 	 	 	 
	 	 	 	Page
	 	 	 	

	ARTICLE I Definitions
	 	 	1	 
	 	SECTION 1.01. Defined Terms
	 	 	1	 
	 	SECTION 1.02. Classification of Loans and Borrowings
	 	 	21	 
	 	SECTION 1.03. Terms Generally
	 	 	21	 
	 	SECTION 1.04. Accounting Terms; GAAP
	 	 	21	 
	 	SECTION 1.05. Exchange Rates
	 	 	22	 
	ARTICLE II The Credits
	 	 	22	 
	 	SECTION 2.01. Commitments
	 	 	22	 
	 	SECTION 2.02. Loans and Borrowings
	 	 	23	 
	 	SECTION 2.03. Requests for Revolving Borrowings
	 	 	24	 
	 	SECTION 2.04. Letters of Credit
	 	 	24	 
	 	SECTION 2.05. Funding of Borrowings
	 	 	30	 
	 	SECTION 2.06. Interest Elections
	 	 	31	 
	 	SECTION 2.07. Termination and Reduction of Commitments
	 	 	32	 
	 	SECTION 2.08. Repayment of Loans; Evidence of Debt
	 	 	33	 
	 	SECTION 2.09. Prepayment of Loans
	 	 	33	 
	 	SECTION 2.10. Fees
	 	 	34	 
	 	SECTION 2.11. Interest
	 	 	35	 
	 	SECTION 2.12. Alternate Rate of Interest
	 	 	36	 
	 	SECTION 2.13. Increased Costs
	 	 	36	 
	 	SECTION 2.14. Break Funding Payments
	 	 	38	 
	 	SECTION 2.15. Taxes
	 	 	38	 
	 	SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs
	 	 	40	 
	 	SECTION 2.17. Mitigation Obligations; Replacement of Lenders
	 	 	41	 
	 	SECTION 2.18. Change in Law
	 	 	42	 
	ARTICLE III Representations and Warranties
	 	 	43	 
	 	SECTION 3.01. Organization; Powers
	 	 	43	 
	 	SECTION 3.02. Authorization; Enforceability
	 	 	43	 
	 	SECTION 3.03. Governmental Approvals; No Conflicts
	 	 	43	 
	 	SECTION 3.04. Financial Condition; No Material Adverse Change
	 	 	44	 
	 	SECTION 3.05. Properties
	 	 	44	 
	 	SECTION 3.06. Litigation and Environmental Matters
	 	 	44	 
	 	SECTION 3.07. Compliance with Laws and Agreements
	 	 	44	 
	 	SECTION 3.08. Investment and Holding Company Status
	 	 	44	 
	 	SECTION 3.09. Taxes
	 	 	45	 
	 	SECTION 3.10. ERISA
	 	 	45	 
	 	SECTION 3.11. Disclosure
	 	 	45	 
	 	SECTION 3.12. Subsidiary Guarantors
	 	 	45	 
	ARTICLE IV Conditions
	 	 	46	 



i







 



 


	 	 	 	 	 	 
	 	SECTION 4.01. Effective Date
	 	 	46	 
	 	SECTION 4.02. Each Credit Event
	 	 	47	 
	ARTICLE V Affirmative Covenants
	 	 	47	 
	 	SECTION 5.01. Financial Statements; Ratings Change and Other Information
	 	 	47	 
	 	SECTION 5.02. Notices of Material Events
	 	 	49	 
	 	SECTION 5.03. Existence; Conduct of Business
	 	 	49	 
	 	SECTION 5.04. Payment of Obligations
	 	 	50	 
	 	SECTION 5.05. Maintenance of Properties; Insurance
	 	 	50	 
	 	SECTION 5.06. Books and Records; Inspection Rights
	 	 	50	 
	 	SECTION 5.07. Compliance with Laws
	 	 	50	 
	 	SECTION 5.08. Use of Proceeds and Letters of Credit
	 	 	50	 
	 	SECTION 5.09. Guarantee Agreement Supplement
	 	 	50	 
	ARTICLE VI Negative Covenants
	 	 	51	 
	 	SECTION 6.01. Indebtedness
	 	 	51	 
	 	SECTION 6.02. Liens
	 	 	52	 
	 	SECTION 6.03. Sale of Assets
	 	 	52	 
	 	SECTION 6.04. Fundamental Changes
	 	 	53	 
	 	SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions
	 	 	53	 
	 	SECTION 6.06. Transactions with Affiliates
	 	 	54	 
	 	SECTION 6.07. Consolidated Tangible Net Worth
	 	 	55	 
	 	SECTION 6.08. Consolidated Leverage Ratio
	 	 	55	 
	ARTICLE VII Events of Default
	 	 	55	 
	ARTICLE VIII The Administrative Agent
	 	 	58	 
	ARTICLE IX Miscellaneous
	 	 	60	 
	 	SECTION 9.01. Notices
	 	 	60	 
	 	SECTION 9.02. Waivers; Amendments
	 	 	61	 
	 	SECTION 9.03. Expenses; Indemnity; Damage Waiver
	 	 	62	 
	 	SECTION 9.04. Successors and Assigns
	 	 	63	 
	 	SECTION 9.05. Survival
	 	 	67	 
	 	SECTION 9.06. Counterparts; Integration; Effectiveness
	 	 	67	 
	 	SECTION 9.07. Severability
	 	 	67	 
	 	SECTION 9.08. Right of Setoff
	 	 	67	 
	 	SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process
	 	 	68	 
	 	SECTION 9.10. WAIVER OF JURY TRIAL
	 	 	68	 
	 	SECTION 9.11. Headings
	 	 	68	 
	 	SECTION 9.12. Confidentiality
	 	 	68	 
	 	SECTION 9.13. Satisfaction in Dollars
	 	 	69	 
	 	SECTION 9.14. Waivers and Agreements Under Existing Credit Agreements
	 	 	69	 



ii







 



 


	 	 	 	 	 
	SCHEDULES:	 	 	 	 
	Schedule 2.01	 	
—
	 	Commitments
	Schedule 2.04	 	
—
	 	Existing Letters of
Credit
	Schedule 3.06	 	
—
	 	Certain Litigation
	Schedule 3.12	 	
—
	 	Guarantor
Subsidiaries
	Schedule 6.01	 	
—
	 	Existing Indebtedness
	Schedule 6.02	 	
—
	 	Existing Liens
	Schedule 6.05	 	
—
	 	Existing Investments





	 	 	 	 	 
	EXHIBITS:	 	 	 	 
	Exhibit A	 	
—
	 	Form of Assignment and Assumption
	Exhibit B-1	 	
—
	 	Form of Opinion of Borrower’s Counsel
	Exhibit B-2	 	
—
	 	Form of Opinion of Borrower’s Corporate Counsel
	Exhibit C	 	
—
	 	Form of Guarantee Agreement
	Exhibit D-1	 	
—
	 	Form of New Lender Supplement
	Exhibit D-2	 	
—
	 	Form of Commitment Increase Supplement



iii







 



 

     CREDIT AGREEMENT, dated as of November 18, 2002, among POLO RALPH LAUREN
CORPORATION, the LENDERS party hereto, and JPMORGAN CHASE BANK, as
Administrative Agent.


          The parties hereto agree as follows:



ARTICLE I


Definitions


          SECTION 1.01. Defined Terms.



          As used in this Agreement, the following terms have the meanings specified
below:



          “ABR”, when used in reference to any Loan or Borrowing, refers to whether
such Loan, or the Loans comprising such Borrowing, are bearing interest at a
rate determined by reference to the Alternate Base Rate.



          “Adjusted Debt” means, for any date, all Indebtedness of the Borrower and
its Subsidiaries (computed on a consolidated basis) outstanding on such date
plus 800% of Consolidated Lease Expense for the period of four consecutive
Fiscal Quarters ended on such date.



          “Adjusted LIBO Rate” means, with respect to any Eurodollar Borrowing for
any Interest Period, an interest rate per annum (rounded upwards, if necessary,
to the next 1/100 of 1%) equal to (a) the LIBO Rate for such Interest Period
multiplied by (b) the Statutory Reserve Rate.



          “Administrative Agent” means JPMorgan Chase Bank, in its capacity as
administrative agent for the Lenders hereunder.



          “Administrative Questionnaire” means an Administrative Questionnaire in a
form supplied by the Administrative Agent.



          “Affiliate” means, with respect to a specified Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified.



          “Alternate Base Rate” means, for any day, a rate per annum equal to the
greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds
Effective Rate in effect on such day plus 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective date of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.






 



2



          “Alternative Currency” means any currency that is freely available, freely
transferable and freely convertible into dollars and in which dealings in
deposits are carried on in the London interbank market, provided that such
currency is reasonably acceptable to the Administrative Agent and the
applicable Issuing Bank.



          “Alternative Currency LC Exposure” means, at any time, the sum of (a) the
Dollar Equivalent, calculated in accordance with Section 1.05, of the aggregate
undrawn and unexpired amount of all outstanding Alternative Currency Letters of
Credit at such time plus (b) the Dollar Equivalent, calculated in each case
using the Exchange Rate at the time the applicable LC Disbursement is made, of
the aggregate principal amount of all LC Disbursements in respect of
Alternative Currency Letters of Credit that have not yet been reimbursed at
such time.



          “Alternative Currency Letter of Credit” means a Letter of Credit
denominated in an Alternative Currency.



          “Annual Increase” means, for any Fiscal Year, an amount equal to 50% of
Net Income of the Borrower and its Subsidiaries (computed on a consolidated
basis) for such Fiscal Year less the aggregate amount of Equity Payments during
such Fiscal Year.



          “Applicable Percentage” means, with respect to any Lender, the percentage
of the total Commitments represented by such Lender’s Commitment. If the
Commitments have terminated or expired, the Applicable Percentages shall be
determined based upon the Commitments most recently in effect, giving effect to
any assignments.



          “Applicable Rate” means, for any day, with respect to any Eurodollar Loan,
or with respect to the commitment fees payable hereunder, or with respect to
the Applicable Sight Draft Fee Percentage, as the case may be, the applicable
rate per annum set forth below (expressed in basis points) under the caption
“Eurodollar Spread” or “Commitment Fee Rate” or “Applicable Sight Draft Fee
Percentage”, as the case may be, based upon the ratings by Moody’s and S&P,
respectively, applicable on such date to the Index Debt:




	 	 	 	 	 	 	 
	 	 	Eurodollar	 	Commitment Fee	 	Applicable Sight
	Index Debt Ratings:	 	Spread	 	Rate	 	Draft Fee Percentage
	
	 	
	 	
	 	

	Category 1 

> or = A- by S&P or A3 

by Moody’s	 	


50.00
	 	

12.50
	 	

8.00
	Category 2 

BBB+ by S&P or 

Baa1 by Moody’s	 	


62.50
	 	

15.00
	 	

10.00
	Category 3 

BBB by S&P or 

Baa2 by Moody’s	 	


75.00
	 	

17.50
	 	

10.00
	Category 4 

= or < BBB- by S&P 

or Baa3 by Moody’s	 	


100.00
	 	

20.00
	 	

12.50








 



3

For purposes of the foregoing, (i) if either Moody’s or S&P shall not have
in effect a rating for the Index Debt (other than by reason of the
circumstances referred to in the last sentence of this definition), then such
rating agency shall be deemed to have established a rating for the Index Debt
in Category 4; (ii) if the ratings established or deemed to have been
established by Moody’s and S&P for the Index Debt shall fall within different
Categories, the Applicable Rate shall be based on the higher of the two ratings
unless one of the two ratings is two or more Categories lower than the other,
in which case the Applicable Rate shall be determined by reference to the
Category next below that of the higher of the two ratings; and (iii) if the
ratings established or deemed to have been established by Moody’s and S&P for
the Index Debt shall be changed (other than as a result of a change in the
rating system of Moody’s or S&P), such change shall be effective as of the date
on which it is first announced by the applicable rating agency, irrespective of
when notice of such change shall have been furnished by the Borrower to the
Agent and the Lenders pursuant to Section 5.01 or otherwise. Each change in
the Applicable Rate shall apply during the period commencing on the effective
date of such change and ending on the date immediately preceding the effective
date of the next such change. If the rating system of Moody’s or S&P shall
change, or if either such rating agency shall cease to be in the business of
rating corporate debt obligations, the Borrower and the Lenders shall negotiate
in good faith to amend this definition to reflect such changed rating system or
the unavailability of ratings from such rating agency, and, pending the
effectiveness of any such amendment, the Applicable Rate shall be determined by
reference to the rating most recently in effect prior to such change or
cessation.


          “Applicable Sight Draft Fee Percentage” has the meaning assigned to such
term in the definition of Applicable Rate.



          “Approved Fund” has the meaning assigned to such term in Section 9.04.



          “Assignment and Assumption” means an assignment and assumption entered
into by a Lender and an assignee (with the consent of any party whose consent
is required by Section 9.04), and accepted by the Administrative Agent, in the
form of Exhibit A or any other form approved by the Administrative Agent.



          “Availability Period” means the period from and including the Effective
Date to but excluding the earlier of the Maturity Date and the date of
termination of the Commitments.



          “Available Commitment” means, as to any Lender at any date of
determination, an amount in dollars equal to the excess, if any, of (a) the
amount of such Lender’s Commitment in effect on such date over (b) the
Revolving Credit Exposure of such Lender on such date.



          “Board” means the Board of Governors of the Federal Reserve System of the
United States of America.



          “Borrower” means Polo Ralph Lauren Corporation, a Delaware corporation.






 



4



          “Borrowing” means Revolving Loans of the same Type made, converted or
continued on the same date and, in the case of Eurodollar Loans, as to which a
single Interest Period is in effect.



          “Borrowing Request” means a request by the Borrower for a Revolving
Borrowing in accordance with Section 2.03.



          “Business Day” means any day that is not a Saturday, Sunday or other day
on which commercial banks in New York City are authorized or required by law to
remain closed; provided that, when used in connection with a Eurodollar Loan,
the term “Business Day” shall also exclude any day on which banks are not open
for dealings in dollar deposits in the London interbank market.



          “Capital Lease Obligations” of any Person means the obligations of such
Person to pay rent or other amounts under any lease of (or other arrangement
conveying the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and accounted for as
capital leases on a balance sheet of such Person under GAAP, and, for the
purposes of this Agreement, the amount of such obligations at any time shall be
the capitalized amount thereof at such time determined in accordance with GAAP.



          “Change in Law” means (a) the adoption of any law, rule, treaty or
regulation after the date of this Agreement, (b) any change in any law, rule,
treaty or regulation or in the interpretation or application thereof by any
Governmental Authority after the date of this Agreement or (c) compliance by
any Lender or any Issuing Bank (or, for purposes of Section 2.13(b), by any
office of such Lender from or at which Loans and/or Letters of Credit are made
or issued, or are booked, as the case may be, in accordance with the terms of
this Agreement) with any request, guideline or directive (whether or not having
the force of law) of any Governmental Authority made or issued after the date
of this Agreement.



          “Code” means the Internal Revenue Code of 1986, as amended from time to
time.



          “Commercial Letter of Credit” means a commercial documentary letter of
credit issued by an Issuing Bank for the account of the Borrower or any of its
Subsidiaries for the purchase of goods in the ordinary course of business.



          “Commitment” means, with respect to each Lender, the commitment of such
Lender to make Revolving Loans and to acquire participations in Letters of
Credit hereunder, expressed as an amount representing the maximum aggregate
amount of such Lender’s Revolving Credit Exposure hereunder, as such commitment
may be (a) reduced from time to time pursuant to Section 2.07, (b) reduced or
increased from time to time pursuant to assignments by or to such Lender
pursuant to Section 9.04 or (c) increased from time to time pursuant to Section
2.01(b). The initial amount of each Lender’s Commitment is set forth on
Schedule 2.01, in the New Lender Supplement pursuant to which such Lender shall
become a party hereto or in the Assignment and Assumption pursuant to which
such Lender shall have assumed its Commitment, as applicable. The initial
aggregate amount of the Lenders’ Commitments is $300,000,000.






 



5



          “Commitment Increase Supplement” means a supplement to this Agreement
substantially in the form of Exhibit D-2.



          “Consolidated EBITDAR” means, for any period, Consolidated Net Income for
such period plus, without duplication and to the extent reflected as a charge
in the statement of such Consolidated Net Income for such period, the sum of
(a) income tax expense, (b) interest expense, amortization or writeoff of debt
discount and debt issuance costs and commissions, discounts and other fees and
charges associated with Indebtedness (including the Loans), (c) depreciation
and amortization expense, (d) amortization of intangibles (including, but not
limited to, goodwill) and organization costs, (e) any extraordinary or
non-recurring non-cash expenses or losses (including, whether or not otherwise
includable as a separate item in the statement of such Consolidated Net Income
for such period, non-cash losses on sales of assets outside of the ordinary
course of business and including non-cash charges arising from the application
of Statement of Financial Accounting Standards No. 142) and (f) Consolidated
Lease Expense and minus, (x) to the extent included in the statement of such
Consolidated Net Income for such period, the sum of (i) interest income, (ii)
any extraordinary or non-recurring non-cash income or gains (including, whether
or not otherwise includable as a separate item in the statement of such
Consolidated Net Income for such period, gains on the sales of assets outside
of the ordinary course of business) and (iii) income tax credits (to the extent
not netted from income tax expense) and (y) any cash payments made during such
period in respect of items described in clause (e) above subsequent to the
fiscal quarter in which the relevant non-cash expenses or losses were reflected
as a charge in the statement of Consolidated Net Income, all as determined on a
consolidated basis.



          For the purposes of calculating Consolidated EBITDAR for any period of
four consecutive fiscal quarters (each, a “Reference Period”) pursuant to any
determination of the Consolidated Leverage Ratio, (i) if at any time during
such Reference Period the Borrower or any Subsidiary shall have made any
Material Disposition, the Consolidated EBITDAR for such Reference Period shall
be reduced by an amount equal to the Consolidated EBITDAR (if positive)
attributable to the property that is the subject of such Material Disposition
for such Reference Period or increased by an amount equal to the Consolidated
EBITDAR (if negative) attributable thereto for such Reference Period, and (ii)
if during such Reference Period the Borrower or any Subsidiary shall have made
a Material Acquisition, Consolidated EBITDAR for such Reference Period shall be
calculated after giving pro forma effect thereto (taking into account (A) such
cost savings as may be determined by the Borrower in a manner consistent with
the evaluation performed by the Borrower in deciding to make such Material
Acquisition, as presented to the Borrower’s Board of Directors, provided that
the Borrower may take into account such cost savings only if it in good faith
determines on the date of calculation that it is reasonable to expect that such
cost savings will be implemented within 90 days following the date of such
Material Acquisition (or in the case of any calculation made subsequent to such
90th day, that such cost savings have, in fact, been implemented) and (B) all
transactions that are directly related to such Material Acquisition and are
entered into in connection and substantially contemporaneously therewith) as if
such Material Acquisition occurred on the first day of such Reference Period.
As used in this definition, “Material Acquisition” means any acquisition of
property or series of related acquisitions of property that (a) constitutes (i)
assets comprising all or substantially all of a business or operating unit of a
business, (ii) all or substantially all of the






 



6



common stock or other Equity Interests of a Person or (iii) in any case
where clauses (i) and (ii) above are inapplicable, the rights of any licensee
(including by means of the termination of such licensee’s rights under such
license) under a trademark license to such licensee from the Borrower or any of
its Affiliates (the “Acquired Rights”), and (b) involves the payment of
consideration by the Borrower and its Subsidiaries in excess of $50,000,000;
“Material Disposition” means any Disposition of property or series of related
Dispositions of property that yields gross proceeds to the Borrower or any of
its Subsidiaries in excess of $50,000,000. In making any calculation pursuant
to this paragraph with respect to a Material Acquisition of a Person, business
or rights for which quarterly financial statements are not available, the
Borrower shall base such calculation on the financial statements of such
Person, business or rights for the then most recently completed period of
twelve consecutive calendar months for which such financial statements are
available and shall deem the contribution of such Person, business or rights to
Consolidated EBITDAR for the period from the beginning of the applicable
Reference Period to the date of such Material Acquisition to be equal to the
product of (x) the number of days in such period divided by 365 multiplied by
(y) the amount of Consolidated EBITDAR of such Person, business or rights for
the twelve-month period referred to above (calculated on the basis set forth in
this definition). In making any calculation pursuant to this paragraph in
connection with an acquisition of Acquired Rights to be followed by the
granting of a new license of such Acquired Rights (or any rights derivative
therefrom), effect may be given to such grant of such new license (as if it had
occurred on the date of such acquisition) if, and only if, the Borrower in good
faith determines on the date of such calculation that it is reasonable to
expect that such grant will be completed within 90 days following the date of
such acquisition (or in the case of any calculation made subsequent to such
90th day, that such grant has, in fact, been completed).


          “Consolidated Lease Expense” means, for any period, the aggregate amount
of fixed and contingent rentals payable by the Borrower and its Subsidiaries
for such period with respect to leases of real and personal property,
determined on a consolidated basis in accordance with GAAP; provided that
payments in respect of Capital Lease Obligations shall not constitute
Consolidated Lease Expense.



          “Consolidated Leverage Ratio” means on the last day of any Fiscal Quarter,
the ratio of (a) Adjusted Debt on such day to (b) Consolidated EBITDAR for the
period of four consecutive Fiscal Quarters ending on such day.



          “Consolidated Net Income” means for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries, determined on a
consolidated basis in accordance with GAAP; provided that there shall be
excluded (a) the income (or deficit) of any Person accrued prior to the date it
becomes a Subsidiary of the Borrower or is merged into or consolidated with the
Borrower or any of its Subsidiaries, (b) the income (or deficit) of any Person
(other than a Subsidiary of the Borrower) in which the Borrower or any of its
Subsidiaries has an ownership interest, except to the extent that any such
income is actually received by the Borrower or such Subsidiary in the form of
dividends or similar distributions and (c) the undistributed earnings of any
Subsidiary of the Borrower to the extent that the declaration or payment of
dividends or similar distributions by such Subsidiary is not at the time
permitted by the terms of any
Contractual Obligation (other than under any Loan Document) or Requirement
of Law applicable to such Subsidiary.








 



7

          “Consolidated Net Worth” means as of any date of determination thereof,
the excess of (a) the aggregate consolidated net book value of the assets of
the Borrower and its Subsidiaries after all appropriate adjustments in
accordance with GAAP (including, without limitation, reserves for doubtful
receivables, obsolescence, depreciation and amortization) over (b) all of the
aggregate liabilities of the Borrower and its Subsidiaries, including all items
which, in accordance with GAAP, would be included on the liability side of the
balance sheet (other than Equity Interests, treasury stock, capital surplus and
retained earnings), in each case determined on a consolidated basis (after
eliminating all inter-company items) in accordance with GAAP; provided however,
that in calculating Consolidated Net Worth the effects of the Statement of
Financial Accounting Standards No. 142 shall be disregarded.



          “Consolidated Tangible Net Worth” means Consolidated Net Worth minus the
aggregate consolidated net book value of the assets of the Borrower and its
Subsidiaries consisting of patents, patent rights, trademarks, trade names,
franchises, copyrights, licenses, permits, goodwill and other similar
intangible assets properly classified as such in accordance with GAAP.



          “Consolidated Total Tangible Assets” means as of any date of determination
thereof, the aggregate consolidated net book value of the assets of the
Borrower and its Subsidiaries (other than patents, patent rights, trademarks,
trade names, franchises, copyrights, licenses, permits, goodwill and other
similar intangible assets properly classified as such in accordance with GAAP)
after all appropriate adjustments in accordance with GAAP (including, without
limitation, reserves for doubtful receivables, obsolescence, depreciation and
amortization).



          “Control” means the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
“Controlling” and “Controlled” have meanings correlative thereto.



          “Default” means any event or condition which constitutes an Event of
Default or which upon notice, lapse of time or both would, unless cured or
waived, become an Event of Default.



          “Disposition” means with respect to any property, any sale, lease, sale
and leaseback, assignment, conveyance, transfer or other disposition thereof.
The terms “Dispose” and “Disposed of” shall have correlative meanings.



          “Dollar Equivalent” means, on any date of determination, (a) with respect
to any amount hereunder denominated in an Alternative Currency for purposes of
calculations with respect to the matters referred to in Section 1.05, the
amount of dollars that may be purchased with such amount of such currency at
the applicable rate of exchange determined in accordance with such Section, (b)
with respect to any calculation involving the amount of any drawing under






 



8



any Alternative Currency Letter of Credit, the amount in dollars into
which the relevant amount in such Alternative Currency would be converted based
upon the relevant Exchange Rate in effect at the time the applicable Issuing
Bank makes payment under such Letter of Credit and (c) with respect to any
calculation involving the amount of any Standby Letter of Credit fee payable
pursuant to Section 2.04(f)(ii) with respect to any Alternative Currency Letter
of Credit, the amount in dollars into which the relevant undrawn amount of such
Alternative Currency Letter of Credit would be converted based upon the
applicable Exchange Rate in effect on the date payment of such fee is due.


          “dollars” or “$” refers to lawful money of the United States of America.



          “Domestic Subsidiary” means any Subsidiary organized under the laws of any
jurisdiction within the United States of America.



          “Effective Date” means the date on which the conditions specified in
Section 4.01 are satisfied (or waived in accordance with Section 9.02).



          “Environmental Laws” means all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by any Governmental Authority,
relating in any way to the environment, preservation or reclamation of natural
resources, or to human health and safety (insofar as such health and safety may
be adversely affected by exposure to dangerous or harmful substances or
environmental conditions), as have been, are, or in the future become, in
effect.



          “Environmental Liability” means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation,
fines, penalties or indemnities), of the Borrower or any Subsidiary directly or
indirectly resulting from or based upon (a) violation of any Environmental Law,
(b) the generation, use, handling, transportation, storage, treatment or
disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials,
(d) the release or threatened release of any Hazardous Materials into the
environment or (e) any contract, agreement or other consensual arrangement
pursuant to which liability is assumed or imposed with respect to any of the
foregoing.



          “Equity Interests” means shares of capital stock, partnership interests,
membership interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person, and any warrants,
options or other rights entitling the holder thereof to purchase or acquire any
such equity interest.



          “Equity Payment” means with respect to the Borrower and any of its
Subsidiaries, (a) any declaration or payment of any dividend on, or the making
of or provision for any distribution on account of, any Equity Interests of
such Person (other than to the Borrower or another Subsidiary of the Borrower),
now or hereafter outstanding, whether in cash or property or in obligations of
the Borrower or any of its Subsidiaries, and (b) any purchase, redemption or
other acquisition or retirement for value of any Equity Interests of such
Person (other than from the Borrower or another Subsidiary of the Borrower) now
or hereafter outstanding.













 



 9


          “ERISA” means the Employee Retirement Income Security Act of 1974, as
amended from time to time.



          “ERISA Affiliate” means any trade or business (whether or not
incorporated) that, together with the Borrower, is treated as a single employer
under Section 414(b) or (c) of the Code or, solely for purposes of Section 302
of ERISA and Section 412 of the Code, is treated as a single employer under
Section 414 of the Code.



          “ERISA Event” means (a) any “reportable event”, as defined in Section 4043
of ERISA or the regulations issued thereunder with respect to a Plan (other
than an event for which the 30-day notice period is waived); (b) the existence
with respect to any Plan of an “accumulated funding deficiency” (as defined in
Section 412 of the Code or Section 302 of ERISA), whether or not waived; (c)
the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to any
Plan; (d) the incurrence by the Borrower or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan;
(e) the receipt by the Borrower or any ERISA Affiliate from the PBGC or a plan
administrator of any notice relating to an intention to terminate any Plan or
Plans or to appoint a trustee to administer any Plan; (f) the incurrence by the
Borrower or any of its ERISA Affiliates of any liability with respect to the
withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g)
the receipt by the Borrower or any ERISA Affiliate of any notice, or the
receipt by any Multiemployer Plan from the Borrower or any ERISA Affiliate of
any notice, concerning the imposition of Withdrawal Liability or a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.



          “Eurodollar”, when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are bearing interest
at a rate determined by reference to the Adjusted LIBO Rate.



          “Event of Default” has the meaning assigned to such term in Article VII.



          “Exchange Rate” means, on any day, with respect to any Alternative
Currency, the rate determined by the Administrative Agent at which such
Alternative Currency may be exchanged into dollars, as set forth at
approximately 11:00 a.m., London time, on such day (or, in the case of any
calculation involving the amount of any LC Disbursement under any Alternative
Currency Letter of Credit, at the time payment thereof is made) on the
applicable Reuters World Spot Page. In the event that any such rate does not
appear on any Reuters World Spot Page, the Exchange Rate shall be determined by
reference to such other publicly available service for displaying exchange
rates reasonably selected by the Administrative Agent in consultation with the
Borrower for such purpose or, at the discretion of the Administrative Agent in
consultation with the Borrower, such Exchange Rate shall instead be the
arithmetic average of the spot rates of exchange of the Administrative Agent in
the market where its foreign currency exchange operations in respect of such
Alternative Currency are then being conducted, at or about 11:00 a.m., local
time, on such day (or, in the case of any calculation involving the amount of
any LC Disbursement under any Alternative Currency Letter of Credit, at the
time payment thereof is made) for the purchase of the applicable Alternative
Currency for delivery two Business Days






 


10




later, provided that, if at the time of any such determination, for any
reason, no such spot rate is being quoted, the Administrative Agent may use any
other reasonable method it deems appropriate to determine such rate, and such
determination shall be presumed correct absent manifest error.


          “Excluded Taxes” means, with respect to the Administrative Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by or
on account of any obligation of the Borrower hereunder, (a) income or franchise
taxes imposed on (or measured by) its net income by the United States of
America, or by any other Governmental Authority as a result of a present or
former connection between the Administrative Agent, any Lender, any Issuing
Bank or any other recipient of any payment to be made by the Borrower under
this Agreement and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other
than any such connection arising solely from the Administrative Agent, any
Lender, any Issuing Bank or any other recipient of any payment to be made by
the Borrower under this Agreement having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
other Loan Document), (b) any branch profits taxes imposed by the United States
of America or any similar tax imposed by any other jurisdiction described in
clause (a) above, (c) in the case of a Foreign Lender, including any Issuing
Bank that is a Foreign Lender (other than an assignee pursuant to a request by
the Borrower under Section 2.17(b)), any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign Lender becomes
a party to this Agreement (or (i) causes pursuant to Section 2.02(b) a new
branch or an Affiliate to make any Loan, or (ii) designates a new lending
office) or is attributable to such Foreign Lender’s failure to comply with
Section 2.15(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new lending
office (or assignment), to receive additional amounts from the Borrower with
respect to such withholding tax pursuant to Section 2.15(a), and (d) any
amounts with respect to any taxes described in clause (a), (b) or (c) above
that are imposed as a result of any event occurring after the Administrative
Agent, any Lender, any Issuing Bank or any other recipient of any payment to be
made by the Borrower under this Agreement becomes a party to this Agreement,
other than a Change in Law.



          “Existing Credit Agreements” means the collective reference to (a) the
Credit Agreement, dated as of June 9, 1997, among the Borrower, the several
banks and other financial institutions parties thereto and JPMorgan Chase Bank,
as administrative agent and (b) the Credit Agreement, dated as of March 30,
1999, among the Borrower, the several banks and other financial institutions
parties thereto and JPMorgan Chase Bank, as administrative agent, each as
heretofore amended, supplemented or otherwise modified.



          “Federal Funds Effective Rate” means, for any day, the weighted average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day for such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized national standing selected by it, in its reasonable
discretion.






 


11



           “Financial Officer” means the chief financial officer, principal
accounting officer, treasurer or controller of the Borrower.



          “Fiscal Quarter” means with respect to the Borrower and its Subsidiaries,
and with respect to any Fiscal Year, (a) each of the quarterly periods ending
13 calendar weeks, 26 calendar weeks, 39 calendar weeks and 52 or 53 calendar
weeks, as the case may be, after the end of the prior Fiscal Year or (b) such
other quarterly periods as the Borrower shall adopt after giving prior written
notice thereof to the Lenders.



          “Fiscal Year” means with respect to the Borrower and its Subsidiaries, (a)
the 52- or 53-week annual period, as the case may be, ending on the Saturday
nearest to March 31 of each calendar year or (b) such other fiscal year as the
Borrower shall adopt with the prior written consent of the Required Lenders
(which consent shall not be unreasonably withheld). Any designation of a
particular Fiscal Year by reference to a calendar year shall mean the Fiscal
Year ending during such calendar year.



          “Foreign Lender” means any Lender that is organized under the laws of (or
the applicable lending office of which is located in) a jurisdiction other than
that in which the Borrower is located. For purposes of this definition, the
United States of America, each State thereof and the District of Columbia shall
be deemed to constitute a single jurisdiction.



          “Foreign Subsidiary” means any Subsidiary which is not a Domestic
Subsidiary.



          “GAAP” means generally accepted accounting principles in the United States
of America.



          “Governmental Authority” means the government of the United States of
America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.



          “Guarantee” of or by any Person (the “guarantor”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation of any other Person
(the “primary obligor”) in any manner, whether directly or indirectly, and
including any obligation of the guarantor, direct or indirect, (a) to purchase
or pay (or advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation or to purchase (or to advance or supply funds
for the purchase of) any security for the payment thereof, (b) to purchase or
lease property, securities or services for the purpose of assuring the owner of
such Indebtedness or other obligation of the payment thereof, (c) to maintain
working capital, equity capital or any other financial statement condition or
liquidity of the primary obligor so as to enable the primary obligor to pay
such Indebtedness or other obligation or (d) as an account party in respect of
any letter of credit or letter of guaranty issued to support such Indebtedness
or obligation; provided, that the term Guarantee shall not include endorsements
for collection or deposit in the ordinary course of business. For purposes of
all calculations provided for in this Agreement, the amount of any






 


12




Guarantee of any guarantor shall be deemed to be the lower of (x) an
amount equal to the stated or determinable amount of the primary obligation in
respect of which such Guarantee is made and (y) the maximum amount for which
such guarantor may be liable pursuant to the terms of the instrument embodying
such Guarantee, unless such primary obligation and the maximum amount for which
such guarantor may be liable are not stated or determinable, in which case the
amount of such Guarantee shall be such guarantor’s maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good
faith.


          “Guarantee Agreement” means the Guarantee Agreement to be executed and
delivered by each Guarantor, substantially in the form of Exhibit C.



          “Guarantor” means each Domestic Subsidiary that becomes a party to the
Guarantee Agreement on the Effective Date and each Domestic Subsidiary that,
subsequent to the Effective Date, becomes a Significant Subsidiary (as defined
in Regulation S-X part 210.1-02 of the Code of Federal Regulations) or any
Subsidiary which is designated to be a Guarantor by written notice from the
Borrower to the Administrative Agent and, in each case, becomes a party to the
Guarantee Agreement.



          “Hazardous Materials” means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
applicable Environmental Law.



          “Indebtedness” of any Person means, without duplication, (a) all
obligations of such Person for borrowed money or with respect to deposits or
advances of any kind, (b) all obligations of such Person evidenced by bonds,
debentures, notes or similar instruments, (c) all obligations of such Person
under conditional sale or other title retention agreements relating to property
acquired by such Person, (d) all obligations of such Person in respect of the
deferred purchase price of property or services (excluding accounts payable
incurred in the ordinary course of business), (e) all Indebtedness of others
secured by any Lien on property owned or acquired by such Person (to the extent
of such Person’s interest in such property), whether or not the Indebtedness
secured thereby has been assumed, (f) all Guarantees by such Person of
Indebtedness of others, (g) all Capital Lease Obligations of such Person, (h)
all obligations, contingent or otherwise, of such Person as an account party in
respect of letters of credit and letters of guaranty and (i) all obligations,
contingent or otherwise, of such Person in respect of bankers’ acceptances.
The Indebtedness of any Person shall include the Indebtedness of any other
entity (including any partnership in which such Person is a general partner) to
the extent such Person is liable therefor as a result of such Person’s
ownership interest in or other relationship with such entity, except to the
extent the terms of such Indebtedness provide that such Person is not liable
therefor. For purposes of all calculations provided for in this Agreement,
there shall be disregarded any Guarantee of any Person in respect of any
Indebtedness of any other Person with which the accounts of such first Person
are then required to be consolidated in accordance with GAAP.



          “Indemnified Taxes” means Taxes other than Excluded Taxes.






 


13



           “Index Debt” means senior, unsecured, long-term indebtedness for borrowed
money of the Borrower that is not guaranteed by any other Person or subject to
any other credit enhancement.



          “Information Memorandum” means the Confidential Information Memorandum
dated October, 2002 relating to the Transactions.



          “Interest Election Request” means a request by the Borrower to convert or
continue a Revolving Borrowing in accordance with Section 2.06.



          “Interest Payment Date” means (a) with respect to any ABR Loan, the last
day of each March, June, September and December and (b) with respect to any
Eurodollar Loan, the last day of the Interest Period applicable to the
Borrowing of which such Loan is a part and, in the case of a Eurodollar
Borrowing with an Interest Period of more than three months’ duration, each day
prior to the last day of such Interest Period that occurs at intervals of three
months’ duration after the first day of such Interest Period.



          “Interest Period” means with respect to any Eurodollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the calendar month that is one, two, three or six months
thereafter, as the Borrower may elect; provided, that (i) if any Interest
Period would end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless such next succeeding
Business Day would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day and (ii) any Interest
Period that commences on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the last calendar month
of such Interest Period) shall end on the last Business Day of the last
calendar month of such Interest Period. For purposes hereof, the date of a
Borrowing initially shall be the date on which such Borrowing is made and, in
the case of a Revolving Borrowing, thereafter shall be the effective date of
the most recent conversion or continuation of such Borrowing.



          “Investment” means, as applied to any Person, any direct or indirect
purchase or other acquisition by such Person of Equity Interests or other
securities of, or any assets constituting a business unit of, any other Person,
or any direct or indirect loan, advance or capital contribution by such Person
to any other Person. In computing the amount involved in any Investment at the
time outstanding, (a) undistributed earnings of, and unpaid interest accrued in
respect of Indebtedness owing by, such other Person shall not be included, (b)
there shall not be deducted from the amounts invested in such other Person any
amounts received as earnings (in the form of dividends, interest or otherwise)
on such Investment or as loans from such other Person and (c) unrealized
increases or decreases in value, or write-ups, write-downs or write-offs, of
Investments in such other Person shall be disregarded.



          “Issuing Bank” means, as the context may require, (a) JPMorgan Chase Bank,
with respect to Letters or Credit issued by it or (b) any other Lender that
becomes an Issuing Bank pursuant to Section 2.04(l), with respect to Letters of
Credit issued by it, and in each case its successors in such capacity as
provided in Section 2.04(j). Any Issuing Bank may, in its






 


14





	 	 	discretion, arrange for one or more Letters of Credit to be issued by
Affiliates of such Issuing Bank, in which case the term “Issuing Bank” shall
include any such Affiliate with respect to Letters of Credit issued by such
Affiliate; provided, however, that no arrangement of a type described in this
sentence shall be permitted if, immediately after giving effect thereto,
amounts would become payable by the Borrower under Section 2.13 or 2.15 that
are in excess of those that would be payable under such Section if such
arrangement were not implemented and, provided, further, that the fees payable
to any such Affiliate shall be subject to the second sentence of Section
2.10(b). JPMorgan Chase Bank and one other Issuing Bank designated from time
to time by the Borrower and reasonably acceptable to the Administrative Agent
are the only Issuing Banks authorized to issue Alternative Currency Letters of
Credit hereunder.



          “Lauren” means Ralph Lauren, an individual.



          “LC Disbursement” means a payment made by the applicable Issuing Bank
pursuant to a Letter of Credit.



          “LC Exposure” means, at any time, the sum of (a) the aggregate undrawn
amount of all outstanding Letters of Credit (other than Alternative Currency
Letters of Credit) at such time, (b) the aggregate amount of all LC
Disbursements under Letters of Credit (other than Alternative Currency Letters
of Credit) that have not yet been reimbursed by or on behalf of the Borrower at
such time and (c) the Alternative Currency LC Exposure at such time. The LC
Exposure of any Lender at any time shall be its Applicable Percentage of the
total LC Exposure at such time.



          “Lenders” means the Persons listed on Schedule 2.01 and any other Person
that shall have become a party hereto pursuant to an Assignment and Assumption
or a New Lender Supplement, other than any such Person that ceases to be a
party hereto pursuant to an Assignment and Assumption.



          “Letter of Credit” means any letter of credit issued pursuant to this
Agreement.



          “LIBO Rate” means, with respect to any Eurodollar Borrowing for any
Interest Period, the rate appearing on Page 3750 of the Dow Jones Market
Service (or on any successor or substitute page of such Service, or any
successor to or substitute for such Service, providing rate quotations
comparable to those currently provided on such page of such Service, as
determined by the Administrative Agent from time to time for purposes of
providing quotations of interest rates applicable to dollar deposits in the
London interbank market) at approximately 11:00 a.m., London time, two Business
Days prior to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the event that
such rate is not available at such time for any reason, then the “LIBO Rate”
with respect to such Eurodollar Borrowing for such Interest Period shall be the
rate at which dollar deposits of $5,000,000 and for a maturity comparable to
such Interest Period are offered by the principal London office of the
Administrative Agent in immediately available funds in the London interbank
market at approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period.






 


15



           “Lien” means, with respect to any asset, (a) any mortgage, deed of trust,
lien, pledge, hypothecation, encumbrance, charge or security interest in, on or
of such asset, (b) the interest of a vendor or a lessor under any conditional
sale agreement, capital lease or title retention agreement (or any financing
lease having substantially the same economic effect as any of the foregoing)
relating to such asset and (c) in the case of securities, any purchase option,
call or similar right of a third party with respect to such securities.



          “Loan Documents” means this Agreement and the Guarantee Agreement



          “Loan Party” means the Borrower and the Guarantors.



          “Loans” means the loans made by the Lenders to the Borrower pursuant to
this Agreement.



          “Material Adverse Effect” means a material adverse effect on (a) the
business, operations, property or condition (financial or otherwise) of the
Borrower and the Subsidiaries taken as a whole or (b) the rights and remedies
of the Lenders under the Loan Documents.



          “Material Indebtedness” means Indebtedness (other than the Loans and
Letters of Credit), or obligations in respect of one or more Swap Agreements,
of any one or more of the Borrower and its Subsidiaries in an aggregate
principal amount exceeding $20,000,000. For purposes of determining Material
Indebtedness, the “principal amount” of the obligations of the Borrower or any
Subsidiary in respect of any Swap Agreement at any time shall be the maximum
aggregate amount (giving effect to any netting agreements) that the Borrower or
such Subsidiary would be required to pay if such Swap Agreement were terminated
at such time.



          “Maturity Date” means November 18, 2005.



          “Moody’s” means Moody’s Investors Service, Inc.



          “Multiemployer Plan” means a multiemployer plan as defined in Section
4001(a)(3) of ERISA.



          “Net Income” (“Net Loss”) means with respect to any Person or group of
Persons, as the case may be, for any fiscal period, the difference between (a)
gross revenues of such Person or group of Persons and (b) all costs, expenses
and other charges incurred in connection with the generation of such revenue
(including, without limitation, taxes on income), determined on a consolidated
or combined basis, as the case may be, and in accordance with GAAP.



          “New Lender” has the meaning assigned to such term in Section 2.01(c).



          “New Lender Supplement” has the meaning assigned to such term in Section
2.01(c).



          “Other Taxes” means any and all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies arising
from any payment made






 


16




hereunder or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement.


          “Participant” has the meaning set forth in Section 9.04.



          “PBGC” means the Pension Benefit Guaranty Corporation referred to and
defined in ERISA and any successor entity performing similar functions.



          “Permitted Acquisition” means any acquisition (in one transaction or a
series of related transactions) by the Borrower or any Subsidiary, on or after
the Effective Date (whether effected through a purchase of Equity Interests or
assets or through a merger, consolidation or amalgamation), of (i) another
Person, (ii) the assets constituting all or substantially all of a business or
operating business unit of another Person or (iii) in any case where clauses
(i) and (ii) above are inapplicable, the rights of any licensee (including by
means of the termination of such license’s rights under such license) under a
trademark license to such licensee from the Borrower or any of its Affiliates,
provided that:




		
	 	     (a) the assets so acquired or, as the case may be, the assets of the
Person so acquired shall be in a Related Line of Business;
	 
	 	     (b) no Default shall have occurred and be continuing at the time
thereof or would result therefrom;
	 
	 	     (c) such acquisition shall be effected in such manner so that the
acquired Equity Interests, assets or rights are owned either by the
Borrower or a Subsidiary and, if effected by merger, consolidation or
amalgamation, the continuing, surviving or resulting entity shall be the
Borrower or a Subsidiary, provided that, nothing in this clause shall be
deemed to limit the ability of the Borrower or any Subsidiary to grant to
a different licensee any acquired license rights described in clause
(iii) above (or any rights derivative therefrom);
	 
	 	     (d) the Borrower and its Subsidiaries shall be in compliance, on a
pro forma basis after giving effect to such acquisition, with the
covenants contained in Sections 6.07 and 6.08 recomputed as at the last
day of the most recently ended fiscal quarter of the Borrower for which
financial statements are available, as if such acquisition had occurred
on the first day of each relevant period for testing such compliance; and
	 
	 	     (e) the Borrower shall have delivered to the Administrative Agent
(which shall, promptly following its receipt thereof, deliver to the
Lenders the officers’ certificate and related calculations referred to
below) prior to the consummation thereof an officers’ certificate to the
effect set forth in clauses (a), (b), (c) and (d) above, together with
(i) reasonably detailed calculations demonstrating satisfaction of the
requirement set forth in clause (d) above and (ii) in any case where the
purchase price is greater than $100,000,000, all material financial
information for the Person or assets to be acquired utilized by the
Borrower in making its determination to complete such acquisition and
reasonably detailed information relating to any cost savings with respect
to such








 


17




	 	 	acquisition included in any calculation of Consolidated EBITDAR
pursuant to clause (d) above.




		
	 	     “Permitted Encumbrances” means:
	 
	 	     (a) Liens imposed by law for taxes and duties, assessments,
governmental charges or levies that are not yet due or are being
contested in compliance with Section 5.04;
	 
	 	     (b) carriers’, warehousemen’s, mechanics’, materialmen’s,
repairmen’s and other like Liens imposed by law, arising in the ordinary
course of business and securing obligations that are not overdue by more
than 30 days or are being contested in compliance with Section 5.04;
	 
	 	     (c) pledges and deposits made in the ordinary course of business in
connection with workers’ compensation, unemployment insurance and other
social security laws or regulations;
	 
	 	     (d) deposits to secure the performance of bids, trade contracts,
leases, statutory obligations, surety and appeal bonds, performance bonds
and other obligations of a like nature, in each case in the ordinary
course of business;
	 
	 	     (e) Liens incurred in the ordinary course of business in connection
with the sale, lease, transfer or other disposition of any credit card
receivables of the Borrower or any of its Subsidiaries;
	 
	 	     (f) judgment, attachment or other similar liens in respect of
judgments that do not constitute an Event of Default under clause (k) of
Article VII;
	 
	 	     (g) easements, zoning restrictions, restrictive covenants,
encroachments, rights-of-way and similar encumbrances on real property
imposed by law or arising in the ordinary course of business that do not
secure any monetary obligations and do not materially detract from the
value of the affected property or interfere with the ordinary conduct of
business of the Borrower or any Subsidiary; and
	 
	 	     (h) possessory Liens in favor of brokers and dealers arising in
connection with the acquisition or disposition of Permitted Investments.



          provided that the term “Permitted Encumbrances” shall not include any Lien
securing Indebtedness.






 


18



           “Permitted Investments” means:



          (a) direct obligations of, or obligations the principal of and
interest on which are directly and fully guaranteed or insured by, the
United States of America (or by any agency thereof to the extent such
obligations are backed by the full faith and credit of the United States
of America), in each case maturing within one year from the date of
acquisition thereof;



          (b) investments in commercial paper having, at such date of
acquisition, a credit rating of at least A-2 from S&P or P-2 from
Moody’s;



          (c) investments in certificates of deposit, eurodollar time
deposits, banker’s acceptances and time deposits maturing within one year
from the date of acquisition thereof issued or guaranteed by or placed
with, and money market deposit accounts issued or offered by, any Lender
or any commercial bank which has a combined capital and surplus and
undivided profits of not less than $100,000,000;



          (d) repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with a
financial institution satisfying the criteria described in clause (c)
above;



          (e) securities with maturities of one year or less from the date of
acquisition issued or fully guaranteed by any state, commonwealth or
territory of the United States or by any political subdivision or taxing
authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth or territory,
political subdivision, taxing authority or foreign government (as the
case may be) are rated at least A by S&P or A2 by Moody’s;



          (f) securities with maturities of one year or less from the date of
acquisition backed by standby letters of credit issued by any Lender or
any commercial bank satisfying the requirements of clause (c) of this
definition;



          (g) shares of money market funds that (i) comply with the criteria
set forth in Securities and Exchange Commission Rule 2a-7 under the
Investment Company Act of 1940, and (ii) have portfolio assets of at
least (x) in the case of funds that invest exclusively in assets
satisfying the requirements of clause (a) of this definition,
$250,000,000 and (y) in all other cases, $500,000,000; and



          (h) in the case of investments by any Foreign Subsidiary,
obligations of a credit quality and maturity comparable to that of the
items referred to in clauses (a) through (g) above that are available in
local markets.



          “Person” means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.



          “Plan” means any employee pension benefit plan (other than a Multiemployer
Plan) subject to the provisions of Title IV of ERISA or Section 412 of the Code
or Section 302 of






 


19




ERISA, and in respect of which the Borrower or any ERISA Affiliate is (or,
if such plan were terminated, would under Section 4069 of ERISA be deemed to
be) an “employer” as defined in Section 3(5) of ERISA.


          “Prime Rate” means the rate of interest per annum publicly announced from
time to time by JPMorgan Chase Bank as its prime rate in effect at its
principal office in New York City; each change in the Prime Rate shall be
effective from and including the date such change is publicly announced as
being effective.



          “Priority Indebtedness” means (a) Indebtedness of the Borrower or any
Subsidiary (other than that described in Section 6.01(e)) secured by any Lien
on any asset of the Borrower or any Subsidiary and (b) Indebtedness of any
Subsidiary which is not a Guarantor, in each case owing to a Person other than
the Borrower or any Subsidiary.



          “Register” has the meaning set forth in Section 9.04.



          “Related Line of Business” means: (a) any line of business in which the
Borrower or any of its Subsidiaries is engaged as of, or immediately prior to,
the Effective Date, (b) any wholesale, retail or other distribution of products
or services under any domestic or foreign patent, trademark, service mark,
trade name, copyright or license or (c) any similar business and any business
which provides a service and/or supplies products in connection with any
business described in clause (a) or (b) above.



          “Related Parties” means, with respect to any specified Person, such
Person’s Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person’s Affiliates.



          “Required Lenders” means, at any time, Lenders having Revolving Credit
Exposures and unused Commitments representing more than 50% of the sum of the
total Revolving Credit Exposures and unused Commitments at such time.



          “Requirement of Law” means, as to any Person, the Articles or Certificate
of Incorporation and By-Laws or Certificate of Partnership or partnership
agreement or other organizational or governing documents of such Person, and
any law, treaty, rule or regulation or determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.



          “Revolving Credit Exposure” means, with respect to any Lender at any time,
the sum of the outstanding principal amount of such Lender’s Revolving Loans
and its LC Exposure at such time.



          “Revolving Loan” means a Loan made pursuant to Section 2.03.



          “S&P” means Standard & Poor’s.






 


20



           “Standby Letter of Credit” means an irrevocable letter of credit pursuant
to which an Issuing Bank agrees to make payments in dollars or an Alternative
Currency for the account of the Borrower or any of its Subsidiaries in respect
of obligations of the Borrower or any of its Subsidiaries incurred pursuant to
contracts made or performances undertaken or to be undertaken or like matters
relating to contracts to which the Borrower or any of its Subsidiaries is or
proposes to become a party in the ordinary course of the Borrower’s or any of
its Subsidiaries’ business, including for insurance purposes and in connection
with lease transactions.



          “Statutory Reserve Rate” means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which is the number
one minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
established by the Board to which the Administrative Agent is subject for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in
Regulation D of the Board). Such reserve percentages shall include those
imposed pursuant to such Regulation D. The Statutory Reserve Rate shall be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.



          “subsidiary” means, with respect to any Person (the “parent”) at any date,
any corporation, limited liability company, partnership, association or other
entity the accounts of which would be consolidated with those of the parent in
the parent’s consolidated financial statements if such financial statements
were prepared in accordance with GAAP as of such date, as well as any other
corporation, limited liability company, partnership, association or other
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or, in the
case of a partnership, more than 50% of the general partnership interests are,
as of such date, owned, controlled or held, or (b) that is, as of such date,
otherwise Controlled, by the parent or one or more subsidiaries of the parent
or by the parent and one or more subsidiaries of the parent.



          “Subsidiary” means any subsidiary of the Borrower.



          “Swap Agreement” means any agreement with respect to any swap, forward,
future or derivative transaction or option or similar agreement involving, or
settled by reference to, one or more rates, currencies, commodities, equity or
debt instruments or securities, or economic, financial or pricing indices or
measures of economic, financial or pricing risk or value or any similar
transaction or any combination of these transactions; provided that no phantom
stock or similar plan providing for payments only on account of services
provided by current or former directors, officers, employees or consultants of
the Borrower or the Subsidiaries shall be a Swap Agreement.



          “Taxes” means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.



          “Transactions” means the execution, delivery and performance by the
Borrower of this Agreement and by the Guarantors of the Guarantee Agreement,
the borrowing of Loans, the use of the proceeds thereof and the issuance of
Letters of Credit hereunder.






 


21




          “Type”, when used in reference to any Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing,
is determined by reference to the Adjusted LIBO Rate or the Alternate Base
Rate.



          “Voting Stock” means stock of any class or classes (however designated),
or other equity ownership interests, of any Person, the holders of which are at
the time entitled, as such holders, to vote for the election of the directors
or other governing body of the Person involved, whether or not the right so to
vote exists by reason of the happening of a contingency.



          “Withdrawal Liability” means liability to a Multiemployer Plan as a result
of a complete or partial withdrawal from such Multiemployer Plan, as such terms
are defined in Part I of Subtitle E of Title IV of ERISA.



          SECTION 1.02. Classification of Loans and Borrowings. For purposes of
this Agreement, Loans may be classified and referred to by Type (e.g., a
“Eurodollar Loan”). Borrowings also may be classified and referred to by Type
(e.g., a “Eurodollar Borrowing”).



          SECTION 1.03. Terms Generally. The definitions of terms herein shall
apply equally to the singular and plural forms of the terms defined. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “include”, “includes” and “including”
shall be deemed to be followed by the phrase “without limitation”. The word
“will” shall be construed to have the same meaning and effect as the word
“shall”. Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth
herein), (b) any reference herein to any Person shall be construed to include
such Person’s successors and assigns, (c) the words “herein”, “hereof” and
“hereunder”, and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement and (e) the words “asset” and “property” shall be construed to
have the same meaning and effect and to refer to any and all tangible and
intangible assets and properties, including cash, securities, accounts and
contract rights.



          SECTION 1.04. Accounting Terms; GAAP. Except as otherwise expressly
provided herein, all terms of an accounting or financial nature shall be
construed in accordance with GAAP, as in effect from time to time; provided
that, if the Borrower notifies the Administrative Agent that the Borrower
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to
any provision hereof for such purpose), regardless of whether any such
notice is given before or after such change in GAAP or in the application
thereof, then such provision shall be interpreted on the basis of GAAP as in
effect and applied immediately before such change shall have become effective
until such notice shall have been withdrawn or such provision amended in
accordance herewith.






 


22




          SECTION 1.05. Exchange Rates. For purposes of calculating the Alternative
Currency LC Exposure at any time during any period and the Dollar Equivalent at
the time of issuance of any Alternative Currency Letter of Credit then
requested to be issued pursuant to Section 2.04(b), the Administrative Agent
will at least once during each calendar month and at such other times as it in
its sole discretion decides to do so, determine the respective rate of exchange
into dollars of each Alternative Currency in which an Alternative Currency
Letter of Credit is then outstanding (which rate of exchange shall be based
upon the Exchange Rate in effect on date of such determination). Such rates of
exchange so determined on each such determination date shall, for purposes of
the calculations described in the preceding sentence, be deemed to remain
unchanged and in effect until the next such determination date.



ARTICLE II

The Credits


          SECTION 2.01. Commitments. (a) Subject to the terms and conditions set
forth herein, each Lender severally agrees to make Revolving Loans in dollars
to the Borrower from time to time during the Availability Period in an
aggregate principal amount that will not result in such Lender’s Revolving
Credit Exposure exceeding such Lender’s Commitment. Within the foregoing limits
and subject to the terms and conditions set forth herein, the Borrower may
borrow, prepay and reborrow Revolving Loans.



          (b) The Borrower and any one or more Lenders (including New Lenders) may
from time to time after the Effective Date agree that such Lender or Lenders
shall establish a new Commitment or Commitments or increase the amount of its
or their Commitment or Commitments by executing and delivering to the
Administrative Agent, in the case of each New Lender, a New Lender Supplement
meeting the requirements of Section 2.01(c) or, in the case of each Lender
which is not a New Lender, a Commitment Increase Supplement meeting the
requirements of Section 2.01(d). Notwithstanding the foregoing, without the
consent of the Required Lenders, (x) the aggregate amount of incremental
Commitments established or increased after the Effective Date pursuant to this
paragraph shall not exceed $75,000,000, (y) unless otherwise agreed to by the
Administrative Agent, each increase in the aggregate Commitments effected
pursuant to this paragraph shall be in a minimum aggregate amount of at least
$15,000,000 and (z) unless otherwise agreed by the Administrative Agent,
increases in Commitments may be effected on no more than three occasions
pursuant to this paragraph. No
Lender shall have any obligation to participate in any increase described
in this paragraph unless it agrees to do so in its sole discretion.



          (c) Any additional bank, financial institution or other entity which, with
the consent of the Borrower and the Administrative Agent (which consents shall
not be unreasonably withheld), elects to become a “Lender” under this Agreement
in connection with any transaction described in Section 2.01(b) shall execute a
New Lender Supplement (each, a “New Lender Supplement”), substantially in the
form of Exhibit D-1, whereupon such bank, financial institution or other entity
(a “New Lender”) shall become a Lender, with a Commitment in the amount set
forth therein that is effective on the date specified therein, for all purposes
and to the








 


23




same extent as if originally a party hereto and shall be bound by
and entitled to the benefits of this Agreement.


          (d) Any Lender, which, with the consent of the Borrower and the
Administrative Agent, elects to increase its Commitment under this Agreement
shall execute and deliver to the Borrower and the Administrative Agent a
Commitment Increase Supplement specifying (i) the amount of such Commitment
increase, (ii) the amount of such Lender’s total Commitment after giving effect
to such Commitment increase, and (iii) the date upon which such Commitment
increase shall become effective.



          (e) Unless otherwise agreed by the Administrative Agent, on each date upon
which the Commitments shall be increased pursuant to this Section, the Borrower
shall prepay all then outstanding Revolving Loans, which prepayment shall be
accompanied by payment of all accrued interest on the amount prepaid and any
amounts payable pursuant to Section 2.14 in connection therewith, and, to the
extent it determines to do so, reborrow Revolving Loans from all the Lenders
(after giving effect to the new and/or increased Commitments becoming effective
on such date). Any prepayment and reborrowing pursuant to the preceding
sentence shall be effected, to the maximum extent practicable, through the
netting of amounts payable between the Borrower and the respective Lenders.



          SECTION 2.02. Loans and Borrowings. (a) Each Revolving Loan shall be
made as part of a Borrowing consisting of Revolving Loans made by the Lenders
ratably in accordance with their respective Commitments. The failure of any
Lender to make any Loan required to be made by it shall not relieve any other
Lender of its obligations hereunder; provided that the Commitments of the
Lenders are several and no Lender shall be responsible for any other Lender’s
failure to make Loans as required.



          (b) Subject to Section 2.12, each Revolving Borrowing shall be comprised
entirely of ABR Loans or Eurodollar Loans as the Borrower may request in
accordance herewith. Each Lender at its option may make any Eurodollar Loan by
causing any domestic or foreign branch or Affiliate of such Lender to make such
Loan; provided that any exercise of such option shall not affect the obligation
of the Borrower to repay such Loan in accordance with the terms of this
Agreement; and provided, further, that no such option may be exercised by any
Lender if, immediately after giving effect thereto, amounts would become
payable by the Borrower under
Section 2.13 or 2.15 that are in excess of those that would be payable
under such Section if such option were not exercised.



          (c) At the commencement of each Interest Period for any Eurodollar
Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an
integral multiple of $500,000 and not less than $5,000,000. At the time that
each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate
amount that is an integral multiple of $500,000 and not less than $500,000;
provided that an ABR Revolving Borrowing may be in an aggregate amount that is
equal to the entire unused balance of the total Commitments or that is required
to finance the reimbursement of an LC Disbursement as contemplated by Section
2.04(e). Borrowings of more than one Type may be outstanding at the same time;
provided that there






 


24




shall not at any time be more than a total of fifteen (15)
Eurodollar Revolving Borrowings outstanding.


          (d) Notwithstanding any other provision of this Agreement, the Borrower
shall not be entitled to request, or to elect to convert or continue, any
Borrowing if the Interest Period requested with respect thereto would end after
the Maturity Date.



          SECTION 2.03. Requests for Revolving Borrowings. To request a Revolving
Borrowing, the Borrower shall notify the Administrative Agent of such request
by telephone (a) in the case of a Eurodollar Borrowing, not later than 11:00
a.m., New York City time, three Business Days before the date of the proposed
Borrowing or (b) in the case of an ABR Borrowing, not later than 11:00 a.m.,
New York City time, on the date of the proposed Borrowing. Each such
telephonic Borrowing Request shall be irrevocable and shall be confirmed
promptly by hand delivery or telecopy to the Administrative Agent of a written
Borrowing Request in a form approved by the Administrative Agent and signed by
the Borrower. Each such telephonic and written Borrowing Request shall specify
the following information in compliance with Section 2.02:




		
	 	     (i) the aggregate amount of the requested Borrowing;
	 
	 	     (ii) the date of such Borrowing, which shall be a Business Day;
	 
	 	     (iii) whether such Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing;
	 
	 	     (iv) in the case of a Eurodollar Borrowing, the initial Interest
Period to be applicable thereto, which shall be a period contemplated by
the definition of the term “Interest Period”; and
	 
	 	     (v) the location and number of the Borrower’s account to which funds
are to be disbursed, which shall comply with the requirements of Section
2.05.



If no election as to the Type of Revolving Borrowing is specified, then the
requested Revolving Borrowing shall be an ABR Borrowing. If no Interest Period
is specified with respect to any requested Eurodollar Revolving Borrowing, then
the Borrower shall be deemed to have selected
an Interest Period of one month’s duration. Promptly following receipt of a
Borrowing Request in accordance with this Section, the Administrative Agent
shall advise each Lender of the details thereof and of the amount of such
Lender’s Loan to be made as part of the requested Borrowing.


          SECTION 2.04. Letters of Credit. (a) General. Subject to the terms and
conditions set forth herein, the Borrower may request the issuance of Letters
of Credit (or the amendment, renewal or extension of an outstanding Letter of
Credit) in the form of Commercial Letters of Credit or Standby Letters of
Credit for its own account or the account of its Subsidiaries, in a form
reasonably acceptable to the applicable Issuing Bank (provided that each Letter
of Credit shall provide for payment against sight drafts drawn thereunder), at
any time and from time to time during the Availability Period. In the event of
any inconsistency between the terms and conditions of this Agreement and the
terms and conditions of any form of letter of






 


25




credit application or other
agreement submitted by the Borrower to, or entered into by the Borrower with,
the applicable Issuing Bank relating to any Letter of Credit, the terms and
conditions of this Agreement shall control. The letters of credit identified on
Schedule 2.04 shall be deemed to be “Letters of Credit” issued on the Effective
Date for all purposes of the Loan Documents.


          (b) Notice of Issuance, Amendment, Renewal, Extension; Certain Conditions.
To request the issuance of a Letter of Credit (or the amendment, renewal or
extension of an outstanding Letter of Credit), the Borrower shall hand deliver
or telecopy (or transmit by electronic communication, if arrangements for doing
so have been approved by the applicable Issuing Bank) to the applicable Issuing
Bank and, in the case of a Commercial Letter of Credit if the Administrative
Agent shall have so requested and in the case of all Standby Letters of Credit,
the Administrative Agent (in each case, reasonably in advance of the requested
date of issuance, amendment, renewal or extension) a notice requesting the
issuance of a Letter of Credit, or identifying the Letter of Credit to be
amended, renewed or extended, and specifying the date of issuance, amendment,
renewal or extension, the currency in which such Letter of Credit is to be
denominated (which shall be dollars or, subject to Section 2.18, an Alternative
Currency), the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such
Letter of Credit, provided that in no event shall any Issuing Bank other than
JPMorgan Chase Bank or one other Issuing Bank designated from time to time by
the Borrower and reasonably acceptable to the Administrative Agent issue any
Alternative Currency Letter of Credit hereunder. If requested by the
applicable Issuing Bank, the Borrower also shall submit a letter of credit
application on such Issuing Bank’s standard form in connection with any request
for a Letter of Credit. A Letter of Credit shall be issued, amended, renewed
or extended only if (and upon issuance, amendment, renewal or extension of each
Letter of Credit the Borrower shall be deemed to represent and warrant that),
after giving effect to such issuance, amendment, renewal or extension (i) the
LC Exposure shall not exceed (x) $30,000,000, in the case of Standby Letters of
Credit, or (y) $100,000,000, in the case of Commercial Letters of Credit, (ii)
the Alternative Currency LC Exposure with respect to Letters of Credit
denominated in an Alternative Currency shall not exceed $20,000,000, and (iii)
the total Revolving Credit Exposures shall not exceed the total Commitments.
Subsequent to the receipt by any Issuing Bank of a Notification Instruction (as
defined below) from the Administrative Agent which shall not have been
withdrawn, such Issuing Bank will contact the Administrative Agent prior to
the
issuance or increase in any Letter of Credit to determine whether or not
such issuance or increase would result in any of the limitations set forth in
the preceding sentence being exceeded. For purposes of this Section 2.04(b), a
“Notification Instruction” shall mean any instruction from the Administrative
Agent requiring that an Issuing Bank make the contacts described in the
preceding sentence, which instruction the Administrative Agent (i) may deliver
at any time when it determines that the percentage which the aggregate
Revolving Credit Exposure constitutes of the aggregate Commitments then in
effect is greater than 80% and (ii) will withdraw when it determines that such
percentage is less than 80%. For purposes of the third preceding sentence the
amount of any Alternative Currency Letter of Credit shall be the Dollar
Equivalent thereof calculated on the basis of the applicable rate of exchange
determined in accordance with Section 1.05.






 


26




          (c) Expiration Date. Each Letter of Credit shall expire at or prior to
the close of business on the earlier of (i) the date one year after the date of
the issuance of such Letter of Credit (or, in the case of any renewal or
extension thereof, one year after such renewal or extension) and (ii) the date
that is one Business Day prior to the Maturity Date.



          (d) Participations. By the issuance of a Letter of Credit (or an
amendment to a Letter of Credit increasing the amount thereof) and without any
further action on the part of the applicable Issuing Bank or the Lenders, such
Issuing Bank hereby grants to each Lender, and each Lender hereby acquires from
such Issuing Bank, a participation in such Letter of Credit equal to such
Lender’s Applicable Percentage of the aggregate amount available to be drawn
under such Letter of Credit. In consideration and in furtherance of the
foregoing, each Lender hereby absolutely and unconditionally agrees to pay to
the Administrative Agent in dollars, for the account of such Issuing Bank, such
Lender’s Applicable Percentage of (i) each LC Disbursement made by such Issuing
Bank in dollars and (ii) the Dollar Equivalent, using the Exchange Rate at the
time such payment is made, of each LC Disbursement made by such Issuing Bank in
an Alternative Currency and, in each case, not reimbursed by the Borrower on
the date due as provided in paragraph (e) of this Section, or of any
reimbursement payment required to be refunded to the Borrower for any reason.
Each Lender acknowledges and agrees that its obligation to acquire
participations pursuant to this paragraph in respect of Letters of Credit is
absolute and unconditional and shall not be affected by any circumstance
whatsoever, including any amendment, renewal or extension of any Letter of
Credit or the occurrence and continuance of a Default or reduction or
termination of the Commitments, and that each such payment shall be made
without any offset, abatement, withholding or reduction whatsoever.



          (e) Reimbursement. If any Issuing Bank shall make any LC Disbursement in
respect of a Letter of Credit, the Borrower shall reimburse such LC
Disbursement by paying to such Issuing Bank an amount equal to such LC
Disbursement in dollars, on the date that such LC Disbursement is made (or, if
such date is not a Business Day, on or before the next Business Day); provided
that, if such LC Disbursement is made under an Alternative Currency Letter of
Credit, automatically and with no further action required, such Borrower’s
obligation to reimburse the applicable LC Disbursement shall be permanently
converted into an obligation to reimburse the Dollar Equivalent, calculated
using the Exchange Rate at the time such payment is made, of such LC
Disbursement, and provided, further, that, in the case of any such
reimbursement obligation which is in an amount of not less than $500,000, the
Borrower may,
subject to the conditions to borrowing set forth herein, request in
accordance with Section 2.03 that such payment be financed in dollars with an
ABR Revolving Borrowing in an equivalent amount and, to the extent so financed,
the Borrower’s obligation to make such payment shall be discharged and replaced
by the resulting ABR Revolving Borrowing. If the Borrower fails to make when
due any reimbursement payment required pursuant to this paragraph, the
applicable Issuing Bank shall immediately notify the Administrative Agent,
which shall promptly notify each Lender of the applicable LC Disbursement, the
Dollar Equivalent thereof calculated in accordance with the preceding sentence
(if such LC Disbursement relates to an Alternative Currency Letter of Credit),
the reimbursement payment then due from the Borrower in respect thereof and
such Lender’s Applicable Percentage thereof. Promptly following receipt of
such notice, each Lender (other than such Issuing Bank) shall pay to the
Administrative Agent in dollars its Applicable Percentage of the reimbursement
payment then due from the Borrower, in






 


27




the same manner as provided in Section
2.05 with respect to Loans made by such Lender (and Section 2.05 shall apply,
mutatis mutandis, to the payment obligations of the Lenders), and the
Administrative Agent shall promptly pay to such Issuing Bank in dollars the
amounts so received by it from the Lenders. Promptly following receipt by the
Administrative Agent of any payment from the Borrower pursuant to this
paragraph, the Administrative Agent shall distribute such payment to the
applicable Issuing Bank or, to the extent that Lenders have made payments
pursuant to this paragraph to reimburse such Issuing Bank, then to such Lenders
and such Issuing Bank as their interests may appear. Any payment made by a
Lender pursuant to this paragraph to reimburse an Issuing Bank for any LC
Disbursement (other than the funding of ABR Loans as contemplated above) shall
not constitute a Loan and shall not relieve the Borrower of its obligation to
reimburse such LC Disbursement.


          (f) Letter of Credit Fees.




		
	 	     (i) Commercial Letter of Credit Fee. The Borrower agrees that, on
the date of each LC Disbursement under a Commercial Letter of Credit, it
will pay to the applicable Issuing Bank, for the account of the Lenders,
a Commercial Letter of Credit fee. Such fee shall be equal to the higher
of (x) $50 and (y) the Applicable Sight Draft Fee Percentage then in
effect of the amount of such drawing (calculated on the basis of the
Dollar Equivalent thereof, using the applicable Exchange Rate in effect
at the time payment of such drawing is made, of such drawing in the case
of any Alternative Currency Letter of Credit). On the fifth Business Day
following the last day of each March, June, September and December, each
Issuing Bank will pay over to the Administrative Agent an amount equal to
the aggregate amount of such fees received by such Issuing Bank from the
Borrower during the three-month period ended on such last day, and the
Administrative Agent will allocate and pay to each Lender a fee equal to
its pro rata share of the aggregate amount of such fees so received by
such Issuing Bank during such three-month period.
	 
	 	     (ii) Standby Letter of Credit Fees. The Borrower agrees to pay to
the Administrative Agent, for the account of the applicable Issuing Bank
and the Lenders, a Standby Letter of Credit fee calculated at the rate
per annum equal to the Applicable Rate applicable to Eurodollar Loans
from time to time in effect on the aggregate average daily amount
available to be drawn (calculated, in the case of any Alternative
Currency Letter
of Credit, on the basis of the Dollar Equivalent thereof using the
applicable Exchange Rate in effect on the date payment of such fee is
due) under each Standby Letter of Credit issued hereunder (and in no
event less than $500 with respect to each such Standby Letter of Credit).
Standby Letter of Credit Fees accrued through and including the last day
of March and September of each year shall be payable in arrears on the
fifth Business Day following such last day, commencing on the first such
date to occur after the date hereof. The Administrative Agent will
promptly pay to the Issuing Banks and the Lenders their pro rata shares
of any amounts received from the Borrower in respect of any such fees.
Standby Letter of Credit fees shall be computed on the basis of a year of
360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).








 


28



          (g) Obligations Absolute. The Borrower’s obligation to reimburse LC
Disbursements as provided in paragraph (e) of this Section shall be absolute,
unconditional and irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement under any and all circumstances whatsoever and
irrespective of (i) any lack of validity or enforceability of any Letter of
Credit, any application for the issuance of a Letter of Credit or this
Agreement, or any term or provision therein, (ii) any draft or other document
presented under a Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or inaccurate in any
respect, (iii) payment by the applicable Issuing Bank under a Letter of Credit
against presentation of a draft or other document that does not comply with the
terms of such Letter of Credit, or (iv) any other event or circumstance
whatsoever, whether or not similar to any of the foregoing, that might, but for
the provisions of this Section, constitute a legal or equitable discharge of,
or provide a right of setoff against, the Borrower’s obligations hereunder.
Neither the Administrative Agent, the Lenders nor any Issuing Bank, nor any of
their Related Parties, shall have any liability or responsibility by reason of
or in connection with the issuance or transfer of any Letter of Credit or any
payment or failure to make any payment thereunder (irrespective of any of the
circumstances referred to in the preceding sentence), or any error, omission,
interruption, loss or delay in transmission or delivery of any draft, notice or
other communication under or relating to any Letter of Credit (including any
document required to make a drawing thereunder), any error in interpretation of
technical terms or any consequence arising from causes beyond the control of
the applicable Issuing Bank; provided that the foregoing shall not be construed
to excuse such Issuing Bank from liability to the Borrower to the extent of any
direct damages (as opposed to consequential damages, claims in respect of which
are hereby waived by the Borrower to the extent permitted by applicable law)
suffered by the Borrower that are caused by such Issuing Bank’s failure to
exercise care when determining whether drafts and other documents presented
under a Letter of Credit comply with the terms thereof. The parties hereto
expressly agree that, in the absence of gross negligence, bad faith or willful
misconduct on the part of an Issuing Bank (as finally determined by a court of
competent jurisdiction), such Issuing Bank shall be deemed to have exercised
care in each such determination. In furtherance of the foregoing and without
limiting the generality thereof, the parties agree that, with respect to
documents presented which appear on their face to be in substantial compliance
with the terms of a Letter of Credit, an Issuing Bank may, in its sole
discretion, either accept and make payment upon such documents without
responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept
and make payment upon such documents if such documents are not in strict
compliance with the terms of such Letter of Credit.



          (h) Disbursement Procedures. The applicable Issuing Bank shall, promptly
following its receipt thereof, examine all documents purporting to represent a
demand for payment under a Letter of Credit. Such Issuing Bank shall promptly
notify the Administrative Agent and the Borrower by telephone (confirmed by
telecopy) of such demand for payment and whether such Issuing Bank has made or
will make an LC Disbursement thereunder; provided that any failure to give or
delay in giving such notice shall not relieve the Borrower of its obligation to
reimburse such Issuing Bank and the Lenders with respect to any such LC
Disbursement.



          (i) Interim Interest. If an Issuing Bank shall make any LC Disbursement,
then, unless the Borrower shall reimburse such LC Disbursement in full on the
date such LC






 


29




Disbursement is made (or, if such date is not a Business Day, on
or prior to the next Business Day), the unpaid amount thereof shall bear
interest, for each day from and including the date such LC Disbursement is made
to but excluding the date that the Borrower reimburses such LC Disbursement, at
the rate per annum then applicable to ABR Loans; provided that, if the Borrower
fails to reimburse such LC Disbursement when due pursuant to paragraph (e) of
this Section, then Section 2.11(c) shall apply; and provided, further, that, in
the case of an LC Disbursement made under an Alternative Currency Letter of
Credit, the amount of interest due with respect thereto shall accrue on the
Dollar Equivalent, calculated using the Exchange Rate at the time such LC
Disbursement was made, of such LC Disbursement. Interest accrued pursuant to
this paragraph shall be for the account of the applicable Issuing Bank, except
that interest accrued on and after the date of payment by any Lender pursuant
to paragraph (e) of this Section to reimburse such Issuing Bank shall be for
the account of such Lender to the extent of such payment.


          (j) Replacement of any Issuing Bank. Any Issuing Bank may be replaced at
any time by written agreement among the Borrower, the Administrative Agent, the
replaced Issuing Bank and the successor Issuing Bank. The Administrative Agent
shall notify the Lenders of any such replacement of such Issuing Bank. At the
time any such replacement shall become effective, the Borrower shall pay all
unpaid fees accrued for the account of the replaced Issuing Bank pursuant to
Section 2.04(f) and 2.10(b). From and after the effective date of any such
replacement, (i) the successor Issuing Bank shall have all the rights and
obligations of such Issuing Bank under this Agreement with respect to Letters
of Credit to be issued thereafter and (ii) references herein to the term
“Issuing Bank” shall be deemed to include a reference to such successor or to
any previous Issuing Bank, or to such successor and all previous Issuing Banks,
as the context shall require. After the replacement of an Issuing Bank
hereunder, the replaced Issuing Bank shall remain a party hereto and shall
continue to have all the rights and obligations of an Issuing Bank under this
Agreement with respect to Letters of Credit issued by it prior to such
replacement, but shall not be required to issue additional Letters of Credit.



          (k) Cash Collateralization. If any Event of Default shall occur and be
continuing, on the Business Day that the Borrower receives notice from the
Administrative Agent or the Required Lenders (or, if the maturity of the Loans
has been accelerated, Lenders with LC Exposure representing greater than 50% of
the then total LC Exposure) demanding the deposit of
cash collateral pursuant to this paragraph, the Borrower shall deposit in
an account with the Administrative Agent, in the name of the Administrative
Agent and for the benefit of the Lenders, an amount in dollars and in cash
equal to the LC Exposure as of such date plus any accrued and unpaid interest
thereon; provided that (i) the portions of such amount attributable to undrawn
Alternative Currency Letters of Credit shall be deposited in the applicable
Alternative Currencies in the actual amounts of such undrawn Letters of Credit
and (ii) the obligation to deposit such cash collateral shall become effective
immediately, and such deposit shall become immediately due and payable, without
demand or other notice of any kind, upon the occurrence of any Event of Default
with respect to the Borrower described in paragraph (h) or (i) of Article VII.
Each deposit pursuant to this paragraph shall be held by the Administrative
Agent as collateral for the payment and performance of the obligations of the
Borrower under this Agreement. The Administrative Agent shall have exclusive
dominion and control, including the exclusive right of withdrawal, over such
account. Other than any interest earned on the






 


30




investment of such deposits,
which investments shall be made at the option and sole discretion of the
Administrative Agent and at the Borrower’s risk and expense, such deposits
shall not bear interest. Interest or profits, if any, on such investments
shall accumulate in such account. Moneys in such account shall be applied by
the Administrative Agent to reimburse the Issuing Banks for LC Disbursements
for which they have not been reimbursed (to be applied ratably among them
according to the respective aggregate amounts of the then unreimbursed LC
Disbursements) and, to the extent not so applied, shall be held for the
satisfaction of the reimbursement obligations of the Borrower for the LC
Exposure at such time or, if the maturity of the Loans has been accelerated
(but subject to the consent of Lenders with LC Exposure representing greater
than 50% of the then total LC Exposure), be applied to satisfy other
obligations of the Borrower under this Agreement. If the Borrower is required
to provide an amount of cash collateral hereunder as a result of the occurrence
of an Event of Default or, in accordance with Section 2.09(c), the total
Revolving Credit Exposure exceeding 105% of the total Commitments, such amount
(to the extent not applied as aforesaid) shall be returned to the Borrower
within three Business Days after all Events of Default have been cured or
waived or, as the case may be, the total Revolving Credit Exposure not
exceeding the total Commitments.


          (l) Additional Issuing Banks. The Borrower may, at any time and from time
to time with the consent of the Administrative Agent (which consent shall not
be unreasonably withheld) and such Lender, designate one or more additional
Lenders to act as an issuing bank under the terms of this Agreement, provided
that the total number of Issuing Banks at any time shall not exceed four. Any
Lender designated as Issuing Bank pursuant to this paragraph (l) shall be
deemed to be an “Issuing Bank” for the purposes of this Agreement (in addition
to being a Lender) with respect to Letters of Credit issued by such Lender.



          (m) Reporting. Unless the Administrative Agent otherwise agrees, each
Issuing Bank will report in writing to the Administrative Agent (i) on the
first Business Day of each week and on the second Business Day to occur after
the last day of each March, June, September and December, and on such other
dates as the Administrative Agent may reasonably request, the daily activity
during the preceding week, calendar quarter or other period, as the case may
be, with respect to Letters of Credit issued by it, including the aggregate
outstanding LC Exposure with respect to such Letters of Credit on each day
during such week, quarter or other period, in such form and detail as shall be
satisfactory to the Administrative Agent, (ii) on any Business
Day on which the Borrower fails to reimburse an LC Disbursement required
to be reimbursed to such Issuing Bank on such day, the date of such failure and
the amount of such LC Disbursement and (iii) such other information with
respect to Letters of Credit issued by such Issuing Bank as the Administrative
Agent may reasonably request.



          SECTION 2.05. Funding of Borrowings. (a) Each Lender shall make each
Loan to be made by it hereunder on the proposed date thereof by wire transfer
of immediately available funds by 12:00 noon, New York City time, to the
account of the Administrative Agent most recently designated by it for such
purpose by notice to the Lenders. The Administrative Agent will make such
Loans available to the Borrower by promptly crediting the amounts so received,
in like funds, to an account of the Borrower maintained with the Administrative
Agent in New York City and designated by the Borrower in the applicable
Borrowing Request; provided that






 


31




ABR Loans made to finance the reimbursement of
an LC Disbursement as provided in Section 2.04(e) shall be remitted by the
Administrative Agent to the applicable Issuing Bank.


          (b) Unless the Administrative Agent shall have received notice from a
Lender prior to the proposed date of any Borrowing that such Lender will not
make available to the Administrative Agent such Lender’s share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
share available on such date in accordance with paragraph (a) of this Section
and may, in reliance upon such assumption, make available to the Borrower a
corresponding amount. In such event, if a Lender has not in fact made its
share of the applicable Borrowing available to the Administrative Agent, then
the applicable Lender agrees to pay to the Administrative Agent forthwith on
demand such corresponding amount with interest thereon, for each day from and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at the greater of
the Federal Funds Effective Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank compensation. If
such Lender pays such amount to the Administrative Agent, then such amount
shall constitute such Lender’s Loan included in such Borrowing. If such
Lender’s share of such Borrowing is not made available to the Administrative
Agent by such Lender within three Business Days after the date such amount is
made available to the Borrower, the Administrative Agent shall also be entitled
to recover such amount from the Borrower, on demand, with interest thereon at
the rate per annum applicable to ABR Loans hereunder accruing from the date of
such Borrowing.



          SECTION 2.06. Interest Elections. (a) Each Revolving Borrowing initially
shall be of the Type specified in the applicable Borrowing Request and, in the
case of a Eurodollar Revolving Borrowing, shall have an initial Interest Period
as specified in such Borrowing Request. Thereafter, the Borrower may elect to
convert such Borrowing to a different Type or to continue such Borrowing and,
in the case of a Eurodollar Revolving Borrowing, may elect Interest Periods
therefor, all as provided in this Section. The Borrower may elect different
options with respect to different portions of the affected Borrowing, in which
case each such portion shall be allocated ratably among the
Lenders holding the Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing.



          (b) To make an election pursuant to this Section, the Borrower shall
notify the Administrative Agent of such election by telephone by the time that
a Borrowing Request would be required under Section 2.03 if the Borrower were
requesting a Revolving Borrowing of the Type resulting from such election to be
made on the effective date of such election. Each such telephonic Interest
Election Request shall be irrevocable and shall be confirmed promptly by hand
delivery or telecopy to the Administrative Agent of a written Interest Election
Request in a form approved by the Administrative Agent and signed by the
Borrower.



          (c) Each telephonic and written Interest Election Request shall specify
the following information in compliance with Section 2.02:




		
	 	     (i) the Borrowing to which such Interest Election Request applies
and, if different options are being elected with respect to different
portions








 


32




	 	 	thereof, the portions thereof to be allocated to each resulting
Borrowing (in which case the information to be specified pursuant to
clauses (iii) and (iv) below shall be specified for each resulting
Borrowing);




		
	 	     (ii) the effective date of the election made pursuant to such
Interest Election Request, which shall be a Business Day;
	 
	 	     (iii) whether the resulting Borrowing is to be an ABR Borrowing or a
Eurodollar Borrowing; and
	 
	 	     (iv) if the resulting Borrowing is a Eurodollar Borrowing, the
Interest Period to be applicable thereto after giving effect to such
election, which shall be a period contemplated by the definition of the
term “Interest Period”.



If any such Interest Election Request requests a Eurodollar Borrowing but does
not specify an Interest Period, then the Borrower shall be deemed to have
selected an Interest Period of one month’s duration.


          (d) Promptly following receipt of an Interest Election Request, the
Administrative Agent shall advise each Lender of the details thereof and of
such Lender’s portion of each resulting Borrowing.



          (e) If the Borrower fails to deliver a timely Interest Election Request
with respect to a Eurodollar Revolving Borrowing prior to the end of the
Interest Period applicable thereto, then, unless such Borrowing is repaid as
provided herein, at the end of such Interest Period such Borrowing shall be
converted to an ABR Borrowing. Notwithstanding any contrary provision hereof,
if an Event of Default has occurred and is continuing and the Administrative
Agent, at the request of the Required Lenders, so notifies the Borrower, then,
so long as an Event of Default is continuing (i) no outstanding Revolving
Borrowing may be converted to or continued as a Eurodollar Borrowing and (ii)
unless repaid, each Eurodollar Revolving Borrowing shall be converted to an ABR
Borrowing at the end of the Interest Period applicable thereto.



          SECTION 2.07. Termination and Reduction of Commitments. (a) Unless
previously terminated, the Commitments shall terminate on the Maturity Date.



          (b) The Borrower may at any time terminate, or from time to time reduce,
the Commitments; provided that (i) each reduction of the Commitments shall be
in an amount that is an integral multiple of $100,000 and not less than
$1,000,000 or, if less, the remaining amount of the total Commitments, and (ii)
the Borrower shall not terminate or reduce the Commitments if, after giving
effect to any concurrent prepayment of the Loans in accordance with Section
2.09, the Revolving Credit Exposures would exceed the total Commitments.



          (c) The Borrower shall notify the Administrative Agent of any election to
terminate or reduce the Commitments under paragraph (b) of this Section at
least two (2) Business Days prior to the effective date of such termination or
reduction, specifying such election and the effective date thereof. Promptly
following receipt of any notice, the Administrative Agent shall advise the
Lenders of the contents thereof. Each notice delivered by






 


33





	 	 	the Borrower
pursuant to this Section shall be irrevocable; provided that a notice of
termination of the Commitments delivered by the Borrower may state that such
notice is conditioned upon the effectiveness of other credit facilities, in
which case such notice may be revoked by the Borrower (by notice to the
Administrative Agent on or prior to the specified effective date) if such
condition is not satisfied. Any termination or reduction of the Commitments
shall be permanent. Each reduction of the Commitments shall be made ratably
among the Lenders in accordance with their respective Commitments.



          SECTION 2.08. Repayment of Loans; Evidence of Debt. (a) The Borrower
hereby unconditionally promises to pay to the Administrative Agent for the
account of each Lender the then unpaid principal amount of each Revolving Loan
on the Maturity Date.



          (b) Each Lender shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrower to such Lender
resulting from each Loan made by such Lender, including the amounts of
principal and interest payable and paid to such Lender from time to time
hereunder.



          (c) The Administrative Agent shall maintain accounts in which it shall
record (i) the amount of each Loan made hereunder, the Type thereof and the
Interest Period applicable thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder and (iii) the amount of any sum received by the Administrative
Agent hereunder for the account of the Lenders and each Lender’s share thereof.



          (d) The entries made in the accounts maintained pursuant to paragraph (b)
or (c) of this Section shall be prima facie evidence of the existence and
amounts of the obligations recorded therein; provided that the failure of any
Lender or the Administrative Agent to maintain



          such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Loans in accordance with the terms of
this Agreement.



          (e) Any Lender may request that Loans made by it be evidenced by a
promissory note. In such event, the Borrower shall prepare, execute and
deliver to such Lender a promissory note payable to the order of such Lender
(or, if requested by such Lender, to such Lender and its registered assigns)
and in a form approved by the Administrative Agent. Thereafter, the Loans
evidenced by such promissory note and interest thereon shall at all times
(including after assignment pursuant to Section 9.04) be represented by one or
more promissory notes in such form payable to the order of the payee named
therein (or, if such promissory note is a registered note, to such payee and
its registered assigns).



          SECTION 2.09. Prepayment of Loans. (a) The Borrower shall have the right
at any time and from time to time to prepay voluntarily any Borrowing in whole
or in part without premium or penalty, subject to prior notice in accordance
with paragraph (b) of this Section.



          (b) The Borrower shall notify the Administrative Agent by telephone
(confirmed by telecopy) of any voluntary prepayment hereunder prior to (i) in
the case of ABR Loans, 11:00 a.m., New York City time, on such date of
prepayment or (ii) in the case of Eurodollar Loans, 12:00 noon, New York City
time, on the Business Day immediately preceding such date of






 


34




prepayment. Each
such notice shall be irrevocable and shall specify the prepayment date, the
principal amount of each Borrowing or portion thereof to be prepaid and whether
the prepayment is of Eurodollar Loans, ABR Loans or a combination thereof, and,
if of a combination thereof, the amount allocable to each; provided that, if a
notice of voluntary prepayment is given in connection with a conditional notice
of termination of the Commitments as contemplated by Section 2.07, then such
notice of prepayment may be revoked if such notice of termination is revoked in
accordance with Section 2.07. Promptly following receipt of any such notice
the Administrative Agent shall advise the Lenders of the contents thereof.
Each partial voluntary prepayment of any Revolving Borrowing shall be in an
aggregate principal amount of $500,000 or a multiple of $100,000 in excess
thereof. Each voluntary prepayment of a Revolving Borrowing shall be applied
ratably to the Loans included in the prepaid Borrowing.


          (c) If on any date the total Revolving Credit Exposure exceeds 105% of the
total Commitments, the Borrower shall, without notice or demand, within three
Business Days after such date, prepay Loans in an aggregate amount sufficient
to reduce the total Revolving Credit Expense to less than the total
Commitments, provided that if, after giving effect to such prepayment, the
total Revolving Credit Exposure would still exceed the total Commitments, the
Borrower shall, without notice or demand, deposit cash collateral in an account
with the Administrative Agent established and maintained in accordance with
Section 2.04(k) in an aggregate amount such that, after deducting therefrom the
amount so deposited in such account, the total Revolving Credit Exposure does
not exceed the total Commitments.



          (d) Prepayments shall be accompanied by accrued interest to the extent
required by Section 2.11 and any amounts payable pursuant to Section 2.14.



          SECTION 2.10. Fees. (a) The Borrower agrees to pay to the Administrative
Agent for the account of each Lender a commitment fee for the period from and
including the Effective Date to the last day of the Availability Period,
computed at the Applicable Rate on the average daily amount of the Available
Commitment of such Lender during the period for which payment is made.
Commitment fees accrued through and including the last day of March, June,
September and December of each year shall be payable on the fifth Business Day
following such last day, commencing on the first such date to occur after the
date hereof; provided that all such fees shall be payable on the date on which
the Commitments terminate and any such fees accruing after the date on which
the Commitments terminate shall be payable on demand. All commitment fees
shall be computed on the basis of a year of 360 days and shall be payable for
the actual number of days elapsed (including the first day but excluding the
last day).



          (b) The Borrower agrees to pay to each Issuing Bank the fees agreed upon
by the Borrower with such Issuing Bank with respect to the issuance, amendment,
renewal or extension of any Letter of Credit or processing of drawings
thereunder. For the avoidance of doubt, in any case where, in accordance with
the second sentence of the definition of Issuing Bank, an Issuing Bank arranges
for one or more Letters of Credit to be issued by an Affiliate of such Issuing
Bank, the fees agreed upon by such Issuing Bank with the Borrower shall be
deemed to have been agreed upon by such Affiliate unless the Borrower and such
Affiliate otherwise agree.






 


35




          (c ) The Borrower agrees to pay to the Administrative Agent, for the
account of each Lender, a utilization fee accruing for each day on which the
aggregate amount of the Revolving Credit Exposure of all Lenders exceeds 50% of
the aggregate amount of the Commitments then in effect at a rate per annum
equal to 0.125% on the amount of the Revolving Credit Exposure of such Lender
outstanding on such day. Utilization fees accrued through and including the
last day of March, June, September and December of each year shall be payable
on the fifth Business Day following such last day, commencing on the first such
date to occur after the date hereof, and on the Maturity Date; provided that if
there shall exist any Revolving Credit Exposure at any time after the
Commitments are terminated or expire, the Commitments, for purposes of
calculations pursuant to this Section, shall be deemed to remain outstanding in
the amounts in effect immediately prior to such termination or expiration and
any utilization fees accruing after such termination or expiration shall be
payable on demand. All utilization fees shall be computed on the basis of a
year of 360 days and shall be payable for the actual number of days elapsed
(including the first day but excluding the last day).



          (d) The Borrower agrees to pay to the Administrative Agent, for its own
account, fees payable in the amounts and at the times separately agreed upon
between the Borrower and the Administrative Agent.



          (e) All fees payable hereunder shall be paid on the dates due, in
immediately available funds, to the Administrative Agent (or to each Issuing
Bank, in the case of fees payable to it) for distribution, in the case of
commitment fees and participation fees, to the Lenders. Fees paid shall not be
refundable under any circumstances (other than in the case, and to the extent,
of any overpayment thereof by the Borrower).



          SECTION 2.11. Interest. (a) The Loans comprising each ABR Borrowing
shall bear interest at the Alternate Base Rate.



          (b) The Loans comprising each Eurodollar Borrowing shall bear interest at
the Adjusted LIBO Rate for the Interest Period in effect for such Borrowing
plus the Applicable Rate.



          (c) Notwithstanding the foregoing, if any principal of or interest on any
Loan or any fee or other amount payable by the Borrower hereunder is not paid
when due, whether at stated maturity, upon acceleration or otherwise, such
overdue amount shall bear interest, after as well as before judgment, at a rate
per annum equal to (i) in the case of overdue principal of any Loan, 2% plus
the rate otherwise applicable to such Loan as provided in the preceding
paragraphs of this Section or (ii) in the case of any other amount, 2% plus the
rate applicable to ABR Loans as provided in paragraph (a) of this Section.



          (d) Accrued interest on each Loan shall be payable in arrears on each
Interest Payment Date for such Loan and upon termination of all of the
Commitments; provided that (i) interest accrued pursuant to paragraph (c) of
this Section shall be payable on demand, (ii) in the event of any repayment or
prepayment of any Loan (other than a prepayment of an ABR Loan prior to the end
of the Availability Period), accrued interest on the principal amount repaid or
prepaid shall be payable on the date of such repayment or prepayment and (iii)
in the event of any






 


36




conversion of any Eurodollar Loan prior to the end of the
current Interest Period therefor, accrued interest on such Loan shall be
payable on the effective date of such conversion.


          (e) All interest hereunder shall be computed on the basis of a year of 360
days, except that interest computed by reference to the Alternate Base Rate at
times when the Alternate Base Rate is based on the Prime Rate shall be computed
on the basis of a year of 365 days (or 366 days in a leap year), and in each
case shall be payable for the actual number of days elapsed (including the
first day but excluding the last day). The applicable Alternate Base Rate,
Adjusted LIBO Rate or LIBO Rate shall be determined by the Administrative
Agent, and such determination shall be conclusive absent manifest error.



          SECTION 2.12. Alternate Rate of Interest. If prior to the commencement of
any Interest Period for a Eurodollar Borrowing:




		
	 	     (a) the Administrative Agent determines (which determination shall
be conclusive absent manifest error) that by reason of circumstances
affecting the relevant market adequate and reasonable means do not exist
for ascertaining the Adjusted LIBO Rate or the LIBO Rate, as applicable,
for such Interest Period; or
	 
	 	     (b) the Administrative Agent is advised by the Required Lenders that
the Adjusted LIBO Rate or the LIBO Rate, as applicable, for such Interest
Period will not adequately and fairly reflect the cost to such Lenders
(or Lender) of making or maintaining their Loans (or its Loan) included
in such Borrowing for such Interest Period;



then the Administrative Agent shall give notice thereof to the Borrower and the
Lenders by telephone or telecopy as promptly as practicable thereafter and,
until the Administrative Agent notifies the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) any Interest
Election Request that requests the conversion of any Revolving Borrowing to, or
continuation of any Revolving Borrowing as, a Eurodollar Borrowing shall be
ineffective, (ii) if any Borrowing Request requests a Eurodollar Revolving
Borrowing, such Borrowing shall be made as an ABR Borrowing; provided that if
the circumstances giving rise to such notice affect only one Type of
Borrowings, then the other Type of Borrowings shall be permitted.


          SECTION 2.13. Increased Costs. (a) If any Change in Law shall:




		
	 	     (i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or any Issuing Bank; or
	 
	 	     (ii) impose on any Lender or any Issuing Bank or the London
interbank market any other condition affecting this Agreement or
Eurodollar Loans made by such Lender or any Letter of Credit or
participation therein;



and the result of any of the foregoing shall be to increase the cost to such
Lender of making or maintaining any Eurodollar Loan (or of maintaining its
obligation to make such Loan) or to increase the cost to such Lender or such
Issuing Bank of participating in, issuing or maintaining






 


37



any Letter of Credit
or to reduce the amount of any sum received or receivable by such Lender or
such Issuing Bank hereunder (whether of principal, interest or otherwise), then
the Borrower will pay to such Lender or such Issuing Bank, as the case may be,
such additional amount or amounts as will compensate such Lender or such
Issuing Bank, as the case may be, for such additional costs incurred or
reduction suffered.


          (b) If any Lender or any Issuing Bank determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender’s or such Issuing Bank’s capital as a consequence
of this Agreement or the Loans made by, or participations in Letters of Credit
held by, such Lender, or the Letters of Credit issued by such Issuing Bank, to
a level below that which such Lender could have achieved but for such Change in
Law (taking into consideration such Lender’s or such Issuing Bank’s policies
with respect to capital adequacy), then from time to time the Borrower will pay
to such Lender or such Issuing Bank, as the case may be, such additional amount
or amounts as will compensate such Lender or such Issuing Bank for any such
reduction suffered.



          (c) A certificate of a Lender or an Issuing Bank setting forth the amount
or amounts necessary to compensate such Lender or such Issuing Bank, as the
case may be, as specified in paragraph (a) or (b) of this Section, containing a
reasonably detailed explanation of the basis on which such amount or amounts
were calculated and explaining the Change in Law by reason of which it has
become entitled to be so compensated, shall be delivered to the
Borrower and shall be conclusive absent manifest error. No Lender or
Issuing Bank shall be entitled to the benefits of this Section 2.13 unless such
Lender or Issuing Bank shall have complied with the requirements of this
Section 2.13. The Borrower shall pay such Lender or such Issuing Bank, as the
case may be, the amount shown as due on any such certificate within 10 days
after receipt thereof.



          (d) Failure or delay on the part of any Lender or any Issuing Bank to
demand compensation pursuant to this Section shall not constitute a waiver of
such Lender’s or such Issuing Bank’s right to demand such compensation;
provided that the Borrower shall not be required to compensate a Lender or an
Issuing Bank pursuant to this Section for any increased costs or reductions
incurred more than 90 days prior to the date that such Lender or such Issuing
Bank, as the case may be, notifies the Borrower of the Change in Law giving
rise to such increased costs or reductions and of such Lender’s or such Issuing
Bank’s intention to claim compensation therefor; provided further that, if the
Change in Law giving rise to such increased costs or reductions is retroactive,
then the 90-day period referred to above shall be extended to include the
period of retroactive effect thereof. Notwithstanding any other provision of
this Section 2.13, no Lender shall demand compensation for any increased costs
or reduction referred to above in this Section if it shall not then be the
general policy of such Lender to demand such compensation in similar
circumstances from comparable borrowers under comparable provisions of other
credit agreements, if any (it being understood, for the avoidance of doubt,
that a waiver by any Lender in any given case of its right to demand such
compensation from any given borrower shall not, in and of itself, be deemed to
constitute a change in the general policy of such Lender).






 


38




          (e) Notwithstanding any other provision to the contrary, this Section 2.13
shall have no application with respect to any Indemnified Taxes, Other Taxes or
any Excluded Taxes, which matters, for the avoidance of doubt, shall be dealt
with exclusively under Section 2.15.



          SECTION 2.14. Break Funding Payments. In the event of (a) the payment of
any principal of any Eurodollar Loan other than on the last day of an Interest
Period applicable thereto (including as a result of an Event of Default), (b)
the conversion of any Eurodollar Loan other than on the last day of the
Interest Period applicable thereto, (c) the failure to borrow, convert,
continue or prepay any Eurodollar Loan on the date specified in any notice
delivered pursuant hereto (regardless of whether such notice may be revoked
under Section 2.09(b) and is revoked in accordance therewith), or (d) the
assignment of any Eurodollar Loan other than on the last day of the Interest
Period applicable thereto as a result of a request by the Borrower pursuant to
Section 2.17, then, in any such event, the Borrower shall compensate each
Lender for the loss, cost and expense attributable to such event. In the case
of a Eurodollar Loan, such loss, cost or expense to any Lender shall be deemed
to include an amount determined by such Lender to be the excess, if any, of (i)
the amount of interest which would have accrued on the principal amount of such
Loan had such event not occurred, at the Adjusted LIBO Rate that would have
been applicable to such Loan, for the period from the date of such event to the
last day of the then current Interest Period therefor (or, in the case of a
failure to borrow, convert or continue, for the period that would have been the
Interest Period for such Loan), over (ii) the amount of interest which would
accrue on such
principal amount for such period at the interest rate which such Lender
would bid were it to bid, at the commencement of such period, for dollar
deposits of a comparable amount and period from other banks in the eurodollar
market. A certificate of any Lender setting forth any amount or amounts that
such Lender is entitled to receive pursuant to this Section shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay such Lender the amount shown as due on any such certificate within 10
days after receipt thereof. No Lender or Issuing Bank shall be entitled to the
benefits of this Section 2.14 unless such Lender or Issuing Bank shall have
complied with the requirements of this Section 2.14.



          SECTION 2.15. Taxes. (a) Any and all payments by or on account of any
obligation of the Borrower hereunder shall be made free and clear of and
without deduction for any Indemnified Taxes or Other Taxes; provided that if
the Borrower shall be required to deduct any Indemnified Taxes or Other Taxes
from such payments, then (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable to
additional sums payable under this Section) the Administrative Agent, Lender or
the relevant Issuing Bank (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.



          (b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.



          (c) The Borrower shall indemnify the Administrative Agent, each Lender and
any Issuing Bank, as promptly as possible but in any event within 30 days after
written demand






 


39




therefor, for the full amount of any Indemnified Taxes or Other
Taxes paid by the Administrative Agent, such Lender or such Issuing Bank, as
the case may be, on or with respect to any payment by or on account of any
obligation of the Borrower hereunder (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section) and any penalties, interest and reasonable expenses arising therefrom
or with respect thereto, whether or not such Indemnified Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. A certificate as to the amount of such payment or liability
delivered to the Borrower by a Lender or any Issuing Bank, or by the
Administrative Agent on its own behalf or on behalf of a Lender or any Issuing
Bank, shall be conclusive absent manifest error.


          (d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver
to the Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy of the
return reporting such payment or other evidence of such payment reasonably
satisfactory to the Administrative Agent.



          (e) Each Foreign Lender (including each Issuing Bank that is a Foreign
Lender) shall deliver to the Borrower (with a copy to the Administrative
Agent), at the time it becomes a Lender (or, in the case of any Participant, on
or before the date such Participant purchases the
related Participation) and at all times prescribed by applicable law, such
properly completed and executed documentation prescribed by applicable law or
reasonably requested by the Borrower as will permit such payments to be made
without withholding. Each Foreign Lender (including each Issuing Bank that is a
Foreign Lender) shall promptly notify the Borrower at any time it determines
that it is no longer in a position to provide any documentation required to be
delivered to the Borrower pursuant to this paragraph. No Person shall be
entitled to become a Lender or Participant unless it shall have complied with
the requirements of the first sentence of this paragraph (if such requirements
are applicable to it).



          (f) If the Administrative Agent, a Lender or an Issuing Bank determines
that it has received a refund which, in the good faith judgment of the
Administrative Agent, such Lender or such Issuing Bank, as the case may be, is
allocable to any Indemnified Taxes or Other Taxes as to which it has been
indemnified by the Borrower or with respect to which the Borrower has paid
additional amounts pursuant to this Section 2.15, it shall promptly pay over
such refund to the Borrower (but only to the extent of indemnity payments made,
or additional amounts paid, by the Borrower under this Section 2.15 with
respect to the Taxes or Other Taxes giving rise to such refund), net of all
out-of-pocket expenses of the Administrative Agent or such Lender and without
interest (other than any interest paid by the relevant Governmental Authority
with respect to such refund); provided, that the Borrower, upon the request of
the Administrative Agent or such Lender, agrees to repay the amount paid over
to the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Administrative Agent or such Lender in
the event the Administrative Agent or such Lender is required to repay such
refund to such Governmental Authority. This Section shall not be construed to
require the Administrative Agent or any Lender to make available its tax
returns (or any other information relating to its taxes which it deems
confidential) to the Borrower or any other Person.






 


40




          SECTION 2.16. Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.13, 2.14 or 2.15, or otherwise) prior to
12:00 noon, New York City time, on the date when due, in immediately available
funds, without set-off or counterclaim. Any amounts received after such time
on any date may, in the discretion of the Administrative Agent or an Issuing
Bank, as applicable, be deemed to have been received on the next succeeding
Business Day for purposes of calculating interest thereon. All such payments
shall be made to the Administrative Agent at its offices at 270 Park Avenue,
New York, New York, except payments to be made directly to an Issuing Bank as
expressly provided herein and except that payments pursuant to Sections 2.13,
2.14, 2.15 and 9.03 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be payable for the period of such extension. All payments
hereunder shall be made in dollars except as provided in Section 2.04(k).



          (b) If at any time insufficient funds are received by and available to the
Administrative Agent to pay fully all amounts of principal, unreimbursed LC
Disbursements, interest, fees, expenses and other amounts then due hereunder,
such funds shall be applied (i) first, towards payment of interest, fees,
expenses and other amounts then due hereunder, ratably among the parties
entitled thereto in accordance with the amounts of interest, fees, expenses and
other amounts then due to such parties, and (ii) second, towards payment of
principal and unreimbursed LC Disbursements then due hereunder, ratably among
the parties entitled thereto in accordance with the amounts of principal and
unreimbursed LC Disbursements then due to such parties.



          (c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements
resulting in such Lender receiving payment of a greater proportion of the
aggregate amount of its Revolving Loans and participations in LC Disbursements
and accrued interest thereon than the proportion received by any other Lender,
then the Lender receiving such greater proportion shall purchase (for cash at
face value) participations in the Revolving Loans and participations in LC
Disbursements of other Lenders to the extent necessary so that the benefit of
all such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective
Revolving Loans and participations in LC Disbursements; provided that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest,
and (ii) the provisions of this paragraph shall not be construed to apply to
any payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration
for the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements to any assignee or participant, other than
to the Borrower or any Subsidiary or Affiliate thereof (as to which the
provisions of this paragraph shall apply). The Borrower consents to the






 


41




foregoing and agrees, to the extent it may effectively do so under applicable
law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.


          (d) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Administrative
Agent for the account of the Lenders or an Issuing Bank hereunder that the
Borrower will not make such payment, the Administrative Agent may assume that
the Borrower has made such payment on such date in accordance herewith and may,
in reliance upon such assumption, distribute to the Lenders or such Issuing
Bank, as the case may be, the amount due. In such event, if the Borrower has
not in fact made such payment, then each of the Lenders or such Issuing Bank,
as the case may be, severally agrees to repay to the Administrative Agent
forthwith on demand the amount so distributed to such Lender or such Issuing
Bank with interest thereon, for each day from and including the date such
amount is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Effective Rate and a
rate determined by the Administrative Agent in accordance with banking industry
rules on interbank compensation.



          (e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.04(d) or (e), 2.05(b) or 2.16(d), then the Administrative
Agent may, in its discretion (notwithstanding any contrary provision hereof),
apply any amounts thereafter received by the Administrative Agent for the
account of such Lender to satisfy such Lender’s obligations under such Sections
until all such unsatisfied obligations are fully paid.



          SECTION 2.17. Mitigation Obligations; Replacement of Lenders. (a) If any
Lender (including any Issuing Bank) requests compensation under Section 2.13,
or if the Borrower is required to pay any additional amount to any Lender
(including any Issuing Bank) or any Governmental Authority for the account of
any Lender (including any Issuing Bank) pursuant to Section 2.15, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the
judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable pursuant to Section 2.13 or 2.15, as the case may be, in
the future and (ii) would not subject such Lender to any material unreimbursed
cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable out-of-pocket costs and expenses
incurred by any Lender in connection with any such designation or assignment.



          (b) If any Lender (including any Issuing Bank) requests compensation under
Section 2.13, or if the Borrower is required to pay any additional amount to
any Lender (including any Issuing Bank) or any Governmental Authority for the
account of any Lender (including any Issuing Bank) pursuant to Section 2.15, or
if any Lender (including any Issuing Bank) defaults in its obligation to fund
Loans hereunder, then the Borrower may, at its sole expense, upon notice to
such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 9.04, provided that the Borrower shall be required to pay
the processing and recordation






 


42




fee referred to in Section 9.04(b)(ii)(C)), all
its interests, rights and obligations under this Agreement to an assignee that
shall assume such obligations (which assignee may be another Lender, if a
Lender accepts such assignment); provided that (i) the Borrower shall have
received the prior written consent of the Administrative Agent, which consent
shall not unreasonably be withheld, (ii) such Lender shall have received
payment of an amount equal to the outstanding principal of its Loans and
participations in LC Disbursements, accrued interest thereon, accrued fees and
all other amounts payable to it hereunder, from the assignee (to the extent of
such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) (and, if such Lender is an Issuing Bank, all
Letters of Credit issued by it shall have been cancelled or other arrangements
reasonably satisfactory to such Issuing Bank shall have been made with respect
to such Letters of Credit) and (iii) in the case of any such assignment
resulting from a claim for compensation under Section 2.13 or payments required
to be made pursuant to Section 2.15, such assignment will result in a reduction
in such compensation or payments. A Lender (including any Issuing Bank) shall
not be required to make any such assignment and delegation if, prior thereto,
as a result of a waiver by such Lender or otherwise, the circumstances
entitling the Borrower to require such assignment and delegation cease to
apply. No such assignment shall be deemed to be a waiver of any rights
which the Borrower, the Administrative Agent or any other Lender shall have
against the replaced Lender.


SECTION 2.18. Change in Law. If (a) any Change in Law shall make it
unlawful for any Issuing Bank to issue Letters of Credit denominated in an
Alternative Currency or (b) there shall have occurred any change in national or
international financial, political or economic conditions (including the
imposition of or any change in exchange controls) or currency exchange rates
that would make it impracticable for such Issuing Bank to issue Letters of
Credit denominated in such Alternative Currency, then by prompt written notice
thereof to the Borrower and to the Administrative Agent (which notice shall be
withdrawn whenever such circumstances no longer exist), such Issuing Bank may
declare that Letters of Credit will not thereafter be issued by it in the
affected Alternative Currency or Alternative Currencies, whereupon the affected
Alternative Currency or Alternative Currencies shall be deemed (for the
duration of such declaration) not to constitute an Alternative Currency for
purposes of the issuance of Letters of Credit by such Issuing Bank.







 


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ARTICLE III


Representations and Warranties


          The Borrower represents and warrants to the Lenders that:



          SECTION 3.01. Organization; Powers. Each of the Borrower and its
Subsidiaries is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, has all requisite power and
authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business
in, and is in good standing in, every jurisdiction where such qualification is
required.



          SECTION 3.02. Authorization; Enforceability. The Transactions are within
each Loan Party’s corporate powers and have been duly authorized by all
necessary corporate and, if required, stockholder action. Each Loan Document
has been duly executed and delivered by each Loan Party which is a party
thereto and constitutes a legal, valid and binding obligation of such Loan
Party, enforceable in accordance with its terms, subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other laws affecting
creditors’ rights generally and subject to general principles of equity,
regardless of whether considered in a proceeding in equity or at law.



          SECTION 3.03. Governmental Approvals; No Conflicts. The Transactions (a)
do not require any consent or approval of, registration or filing with, or any
other action by, any Governmental Authority, except such as have been obtained
or made and are in full force and effect, (b) will not violate any applicable
law or
regulation or the charter, by-laws or other organizational documents of
the Borrower or any of its Subsidiaries or any order of any Governmental
Authority, (c) will not violate or result in a default under any indenture or
any material agreement or other instrument binding upon the Borrower or any of
its Subsidiaries or its assets, or give rise to a right thereunder to require
any payment to be made by the Borrower or any of its Subsidiaries, and (d) will
not result in the creation or imposition of any Lien on any asset of the
Borrower or any of its Subsidiaries.



          SECTION 3.04. Financial Condition; No Material Adverse Change. (a) The
Borrower has heretofore furnished to the Lenders its consolidated balance sheet
and statements of income, stockholders equity and cash flows (i) as of and for
the fiscal year ended March 30, 2002, reported on by Deloitte & Touche LLP,
independent public accountants, and (ii) as of and for the fiscal quarter and
the portion of the fiscal year ended September 30, 2002, certified by its chief
financial officer. Such financial statements present fairly, in all material
respects, the financial position and results of operations and cash flows of
the Borrower and its consolidated Subsidiaries as of such dates and for such
periods in accordance with GAAP, subject to year-end audit adjustments and the
absence of footnotes in the case of the statements referred to in clause (ii)
above.






 


44


          (b) Since March 30, 2002, there has been no material adverse change in the
business, operations, property or condition (financial or otherwise) of the
Borrower and its Subsidiaries, taken as a whole.



          SECTION 3.05. Properties. (a) Each of the Borrower and its Subsidiaries
has good title to, or valid leasehold interests in, all its real and personal
property material to the operation of its business, except for minor defects in
title that do not interfere with its ability to conduct its business as
currently conducted or to utilize such properties for their intended purposes
or such other defects as, in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.



          (b) Each of the Borrower and its Subsidiaries owns, or is licensed to use,
all trademarks, tradenames, copyrights, patents and other intellectual property
material to its business as currently conducted, and the use thereof by the
Borrower and its Subsidiaries does not infringe upon the rights of any other
Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.



          SECTION 3.06. Litigation and Environmental Matters. (a) There are no
actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of the Borrower, threatened
against or affecting the Borrower or any of its Subsidiaries (i) which could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect or (ii) that involve this Agreement or the
Transactions. Schedule 3.06 lists all litigation pending on the date of this
Agreement against the Borrower or any of its Subsidiaries in which the amount
in controversy or potential liability of the Borrower or any of its
Subsidiaries exceeds $20,000,000 and is not covered by insurance.



          (a) Except with respect to any matters that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect, neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii)
has become subject to any Environmental Liability, (iii) has received notice of
any claim with respect to any Environmental Liability or (iv) knows of any
basis for any Environmental Liability.



          SECTION 3.07. Compliance with Laws and Agreements. Each of the Borrower
and its Subsidiaries is in compliance with all laws, regulations and orders of
any Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect. No Default has occurred and
is continuing.



          SECTION 3.08. Investment and Holding Company Status. Neither the Borrower
nor any of its Subsidiaries is (a) required to be registered as an “investment
company” as defined in the Investment Company Act of 1940 or (b) a “holding
company” or a “subsidiary company”







 


45




or an Affiliate of a “holding company” as
defined in the Public Utility Holding Company Act of 1935.


          SECTION 3.09. Taxes. Each of the Borrower and its Subsidiaries has timely
filed or caused to be filed all Tax returns and reports required to have been
filed and has paid or caused to be paid all Taxes required to have been paid by
it, except (a) Taxes that are being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as applicable, has
set aside on its books adequate reserves or (b) to the extent that the failure
to do so could not reasonably be expected to result in a Material Adverse
Effect.



          SECTION 3.10. ERISA. No ERISA Event has occurred or is reasonably
expected to occur that, when taken together with all other such ERISA Events
for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Accounting Standards No. 87) did not, as
of the date of the most recent financial statements reflecting such amounts,
exceed by more than $5,000,000 the fair market value of the assets of such
Plan, and the present value of all accumulated benefit obligations of all
underfunded Plans (based on the assumptions used for purposes of Statement of
Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements
reflecting such amounts, exceed by more than $5,000,000 the fair market
value of the assets of all such underfunded Plans.



          SECTION 3.11. Disclosure. The Information Memorandum together with all of
the other reports, financial statements, certificates or other information
furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender in connection with the negotiation of this Agreement or hereafter
delivered hereunder (as modified or supplemented by other information so
furnished prior to the date on which this representation and warranty is made
or deemed made) do not contain any material misstatement of fact or omit to
state any material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading; provided that,
with respect to projected financial information, the Borrower represents only
that such information was prepared in good faith based upon assumptions
believed to be reasonable at the time; and provided, further, that the Borrower
makes no representation or warranty whatsoever concerning the information
contained in the Information Memorandum under the heading “Industry Overview”
or any financial information delivered pursuant to clause (e) of the definition
of “Permitted Acquisition”.



          SECTION 3.12. Subsidiary Guarantors. Set forth on Schedule 3.12 is a list
of each Subsidiary which, in accordance with Section 4.01(b), is required to be
a Guarantor under the Guarantee Agreement on the Effective Date.






 


46




ARTICLE IV


Conditions


          SECTION 4.01. Effective Date. The obligations of the Lenders to make
Loans and of the Issuing Banks to issue Letters of Credit hereunder shall not
become effective until the date on which each of the following conditions is
satisfied (or waived in accordance with Section 9.02):




		
	 	     (a) The Administrative Agent (or its counsel) shall have received
from each party hereto either (i) a counterpart of this Agreement signed
on behalf of such party or (ii) written evidence reasonably satisfactory
to the Administrative Agent (which may include telecopy transmission of a
signed signature page of this Agreement) that such party has signed a
counterpart of this Agreement.
	 
	 	     (b) The Administrative Agent shall have received the Guarantee
Agreement executed and delivered by (i) each Domestic Subsidiary which is
a guarantor under the Existing Credit Agreements, and (ii) each Domestic
Subsidiary, if any, which, as of the Effective Date, is a Significant
Subsidiary (as defined in Regulation S-X part 210.1-02 of
the Code of Federal Regulations) and which is not a guarantor under
the Existing Credit Agreements.
	 
	 	     (c) The Administrative Agent shall have received evidence, in form
and substance reasonably satisfactory to it that all obligations of the
Borrower under the Existing Credit Agreements (other than the indemnity
and other obligations (including obligations in relation to the letters
of credit identified on Schedule 2.04) that expressly survive the
termination thereof) shall have been paid in full, and all commitments of
the Lenders to extend credit thereunder shall have been terminated.
	 
	 	     (d) The Administrative Agent shall have received a favorable written
opinion (addressed to the Administrative Agent and the Lenders and dated
the Effective Date) of (i) Paul, Weiss, Rifkind, Wharton & Garrison,
counsel for the Loan Parties, substantially in the form of Exhibit B-1
and (ii) the Corporate Counsel of the Borrower, substantially in the form
of Exhibit B-2. The Borrower hereby requests Paul, Weiss, Rifkind,
Wharton & Garrison to deliver the opinion provided for in clause (i),
above.
	 
	 	     (e) The Administrative Agent shall have received such documents and
certificates as the Administrative Agent or its counsel may reasonably
request relating to the organization, existence and good standing of the
Loan Parties, the authorization of the Transactions by the Loan Parties
and any other legal matters relating to the Loan Parties, this Agreement
or the Transactions, all in form and substance reasonably satisfactory to
the Administrative Agent and its counsel.
	 
	 	     (f) The Administrative Agent shall have received a certificate,
dated the Effective Date and signed by the President, a Vice President or
a Financial Officer of the 








 


47



Borrower, confirming compliance with the
conditions set forth in paragraphs (a) and (b) of Section 4.02.



		
	 	     (g) The Administrative Agent shall have received all fees and other
amounts due and payable on or prior to the Effective Date, including, to
the extent invoiced, reimbursement or payment of all out-of-pocket
expenses required to be reimbursed or paid by the Borrower hereunder.



The Administrative Agent shall notify the Borrower and the Lenders of the
Effective Date, and such notice shall be conclusive and binding.
Notwithstanding the foregoing, the obligations of the Lenders to make Loans and
of the Issuing Banks to issue Letters of Credit hereunder shall not become
effective unless each of the foregoing conditions is satisfied (or waived
pursuant to Section 9.02) at or prior to 3:00 p.m., New York City time, on
November 22, 2002 (and, in the event such conditions are not so satisfied or
waived, the Commitments shall terminate at such time).



          SECTION
4.02. Each Credit Event. The obligation of each Lender to make a Loan
on the occasion of any Borrowing, and of each Issuing Bank to issue,
increase, renew or extend any Letter of Credit, is subject to the
satisfaction of the following conditions:




		
	 	     (a) The representations and warranties made by any Loan Party in or
pursuant to the Loan Documents shall be true and correct in all material
respects on and as of the date of such Borrowing or the date of issuance,
increase, renewal or extension of such Letter of Credit, as applicable
(other than such representations as are made as of a specific earlier
date, in which case such representations and warranties shall be true and
correct in all material respects as of such earlier date).
	 
	 	     (b) At the time of and immediately after giving effect to such
Borrowing or the issuance, increase, renewal or extension of such Letter
of Credit, as applicable, no Default shall have occurred and be
continuing.



Each Borrowing and each issuance, increase, renewal or extension of a Letter of
Credit shall be deemed to constitute a representation and warranty by the
Borrower on the date thereof as to the matters specified in paragraphs (a) and
(b) of this Section.


ARTICLE V


Affirmative Covenants


          Until the Commitments have expired or been terminated and the principal of
and interest on each Loan and all fees payable hereunder shall have been paid
in full and all Letters of Credit shall have expired or terminated and all LC
Disbursements shall have been reimbursed, the Borrower covenants and agrees
with the Lenders that:



          SECTION 5.01. Financial Statements; Ratings Change and Other Information.
The Borrower will furnish to each Lender through the Administrative Agent:







 


48



		
	 	     (a) within 90 days after the end of each Fiscal Year of the
Borrower, its audited consolidated balance sheet and related statements
of operations, stockholders’ equity and cash flows as of the end of and
for such year, setting forth in each case in comparative form the figures
for the previous fiscal year, all reported on by Deloitte & Touche or
other independent public accountants of recognized national standing
(without a “going concern” or like qualification or exception and without
any qualification or exception as to the scope of such audit) to the
effect that such consolidated financial statements present fairly in all
material respects the financial condition and results of operations of
the Borrower and its consolidated Subsidiaries on a consolidated basis in
accordance with GAAP consistently applied; provided, however, that, so
long as the Borrower is required to file reports under Section 13 of the
Securities and Exchange Act of 1934, the requirements of this paragraph
shall be deemed satisfied by the delivery of, the Annual Report of the
Borrower on Form 10-K for such Fiscal Year, signed by the duly authorized
officer or officers of the Borrower;
	 
	 	     (b) within 60 days after the end of each of the first three Fiscal
Quarters of each fiscal year of the Borrower, its consolidated balance
sheet and related statements of operations, stockholders’ equity and cash
flows as of the end of and for such fiscal quarter and the then elapsed
portion of the fiscal year, setting forth in each case in comparative
form the figures for the corresponding period or periods of (or, in the
case of the balance sheet, as of the end of) the previous fiscal year,
all certified by one of its Financial Officers as presenting fairly in
all material respects the financial condition and results of operations
of the Borrower and its consolidated Subsidiaries on a consolidated basis
in accordance with GAAP consistently applied, subject to normal year-end
audit adjustments and the absence of footnotes; provided, however, that,
so long as the Borrower is required to file reports under Section 13 of
the Securities and Exchange Act of 1934, the requirements of this
paragraph shall be deemed satisfied by the delivery of the Quarterly
Report of the Borrower on Form 10-Q for the relevant Fiscal Quarter,
signed by the duly authorized officer or officers of the Borrower.
	 
	 	     (c) concurrently with any delivery of financial statements under
clause (a) or (b) above, a certificate of a Financial Officer of the
Borrower (i) stating that he or she has obtained no knowledge that a
Default has occurred (except as set forth in such certificate), (ii) if a
Default has occurred, specifying the details thereof and any action taken
or proposed to be taken with respect thereto, (iii) setting forth
reasonably detailed calculations demonstrating compliance with Sections
6.03, 6.07 and 6.08; and (iv) stating whether any change in GAAP or in
the application thereof has occurred since the date of the audited
financial statements referred to in Section 3.04 which has had an effect
on such financial statements and, if any such change has occurred,
specifying the effect of such change on the financial statements
accompanying such certificate;
	 
	 	     (d) concurrently with any delivery of financial statements under
clause (a) above, a certificate of the accounting firm that reported on
such financial statements stating whether they obtained knowledge during
the course of their examination of such financial statements of any
Default (which certificate may be limited to the extent required by
accounting rules or guidelines);









 


49



		
	 	     (e) promptly after the same become publicly available, copies of all
other periodic and other reports, proxy statements and other materials
filed by the Borrower or any Subsidiary with the Securities and Exchange
Commission, or any Governmental Authority succeeding to any or all of the
functions of said Commission, or with any national securities exchange,
or distributed by the Borrower to its shareholders generally, as the case
may be;
	 
	 	     (f) promptly after the Borrower shall have received notice that
Moody’s or S&P has announced a change in the rating established or deemed
to have been established for the Index Debt, written notice of such
rating change; and
	 
	 	     (g) promptly following any request therefor, such other information
regarding the business affairs or financial position of the Borrower or
any Subsidiary, or compliance
with the terms of this Agreement, as the Administrative Agent or any
Lender may reasonably request.



          SECTION 5.02. Notices of Material Events. The Borrower will furnish to
the Lenders through the Administrative Agent prompt written notice of the
following:




		
	 	     (a) the occurrence of any Default;
	 
	 	     (b) the filing or commencement of any action, suit or proceeding by
or before any arbitrator or Governmental Authority against or affecting
the Borrower or any Affiliate thereof that, if adversely determined,
could reasonably be expected to result in a Material Adverse Effect;
	 
	 	     (c) the occurrence of any ERISA Event that, alone or together with
any other ERISA Events that have occurred, could reasonably be expected
to result in liability of the Borrower and its Subsidiaries in an
aggregate amount exceeding $5,000,000; and
	 
	 	     (d) any other development that results in, or could reasonably be
expected to result in, a Material Adverse Effect.



Each notice delivered under this Section shall be accompanied by a statement of
a Financial Officer or other executive officer of the Borrower setting forth
the details of the event or development requiring such notice and any action
taken or proposed to be taken with respect thereto.


          SECTION 5.03. Existence; Conduct of Business. The Borrower will, and will
cause each of its Subsidiaries to, do or cause to be done all things necessary
to preserve, renew and keep in full force and effect its legal existence and
the rights, licenses, permits, privileges and franchises material to the
conduct of its business except, in each case (other than the case of the
foregoing requirements insofar as they relate to the legal existence of the
Borrower and the Guarantors), to the extent that failure to do so could not
reasonably be expected to result in a Material Adverse Effect; provided that
the foregoing shall not prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 6.04.













 


50

          SECTION 5.04. Payment of Obligations. The Borrower will, and will cause
each of its Subsidiaries to, pay its obligations, including Tax liabilities,
that, if not paid, could reasonably be expected to result in a Material Adverse
Effect before the same shall become delinquent or in default, except where (a)
the validity or amount thereof is being contested in good faith by appropriate
proceedings, (b) the Borrower or such Subsidiary has set aside on its books
adequate reserves with respect thereto in accordance with GAAP and (c) the
failure to make payment pending such contest could not reasonably be expected
to result in a Material Adverse Effect.



          SECTION 5.05. Maintenance of Properties; Insurance. Except where the
failure to do so could not reasonably be expected to result in a Material
Adverse Effect, the Borrower will, and will cause each of its Subsidiaries to,
(a) keep and maintain all property material to the conduct of its business in
good working order and condition, ordinary wear and tear excepted, and (b)
maintain, with financially sound and reputable insurance companies, insurance
on such of its property and in such amounts and against such risks as are
customarily maintained by companies engaged in the same or similar businesses
operating in the same or similar locations.



          SECTION 5.06. Books and Records; Inspection Rights. The Borrower will,
and will cause each of its Subsidiaries to, keep proper books of record and
account in which entries in conformity in all material respects with all
applicable laws, rules and regulations of any Governmental Authority are made
of all dealings and transactions in relation to its business and activities.
The Borrower will, and will cause each of its Subsidiaries to, on an annual
basis at the request of the Administrative Agent (or at any time after the
occurrence and during the continuance of a Default), permit any representatives
designated by the Administrative Agent or any Lender, upon reasonable prior
notice, to visit and inspect its properties, to examine and make extracts from
its books and records, and to discuss its affairs, finances and condition with
its officers and independent accountants, all during reasonable business hours.



          SECTION 5.07. Compliance with Laws. The Borrower will, and will cause
each of its Subsidiaries to, comply with all laws, rules, regulations and
orders of any Governmental Authority applicable to it or its property, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to result in a Material Adverse Effect.



          SECTION 5.08. Use of Proceeds and Letters of Credit. The proceeds of the
Loans will be used only to finance the working capital needs and general
corporate purposes of the Borrower and its Subsidiaries (including the
refinancing of the Existing Credit Agreements). No part of the proceeds of any
Loan will be used, whether directly or indirectly, for any purpose that entails
a violation of any of the Regulations of the Board, including Regulations T, U
and X. The Commercial Letters of Credit shall be used solely to finance
purchases of inventory by the Borrower and its Subsidiaries in the ordinary
course of their business, and the Standby Letters of Credit shall be used
solely for the purposes described in the definition of such term in Section
1.01.



          SECTION 5.09. Guarantee Agreement Supplement. Each Domestic Subsidiary
that becomes a “Significant Subsidiary” (as defined in Regulation S-X, part
210.1-02 of the Code of Federal Regulations) subsequent to the Effective Date
shall promptly (and in any event within






 



51



60 days of becoming such a “Significant
Subsidiary”) execute and deliver to the Administrative Agent (with a
counterpart for each
Lender) a supplement to the Guarantee Agreement pursuant to which such
Subsidiary shall become a party thereto as a Guarantor, together with such
other documents and legal opinions with respect thereto as the Administrative
Agent shall reasonably request (which documents and opinions shall be in form
and substance reasonably satisfactory to the Administrative Agent).


ARTICLE VI


Negative Covenants


          Until the Commitments have expired or terminated and the principal of and
interest on each Loan and all fees payable hereunder have been paid in full and
all Letters of Credit have expired or terminated and all LC Disbursements shall
have been reimbursed, the Borrower covenants and agrees with the Lenders that:



          SECTION 6.01. Indebtedness. The Borrower will not, and will not permit
any Subsidiary to, create, incur, assume or permit to exist any Indebtedness,
except:




		
	 	     (a) Indebtedness created hereunder;
	 
	 	     (b) Indebtedness existing on the date hereof and set forth in
Schedule 6.01 and extensions, renewals and replacements of any such
Indebtedness that do not increase the outstanding principal amount
thereof or shorten the final maturity or weighted average life to
maturity thereof;
	 
	 	     (c) Indebtedness of the Borrower to any Subsidiary and of any
Subsidiary to the Borrower or any other Subsidiary;
	 
	 	     (d) Guarantees by the Borrower of Indebtedness of any Subsidiary and
by any Subsidiary of Indebtedness of the Borrower or any other
Subsidiary;
	 
	 	     (e) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or
capital assets, including Capital Lease Obligations, and extensions,
renewals and replacements of any such Indebtedness that do not increase
the outstanding principal amount thereof; provided that such Indebtedness
is incurred no more than 90 days prior to or within 90 days after such
acquisition or the completion of such construction or improvement;
	 
	 	     (f) Priority Indebtedness in an aggregate principal amount at any
one time outstanding not to exceed 10% of the Borrower’s then
Consolidated Net Worth; and
	 
	 	     (g) unsecured Indebtedness, not otherwise permitted by this Section,
of the Borrower or any Subsidiary which is a Guarantor so long as (i) on
a pro forma basis after giving effect to the incurrence of such
Indebtedness, the ratio of (x) Adjusted Debt then outstanding to (y)
Consolidated EBITDAR for the then most recently ended period of








 



52



		
	 	four consecutive Fiscal Quarters for which financial statements
shall have been delivered to the Lenders pursuant to Section 5.01 is not
greater than 3.75 to 1.00 and (ii) the aggregate principal amount at any
one time outstanding of all Indebtedness permitted by this paragraph (g)
having a maturity date or any scheduled amortization or other mandatory
prepayment or repurchase on or prior to the Maturity Date shall not
exceed $200,000,000.



          For purposes of this subsection 6.01, any Person becoming a Subsidiary of
the Borrower after the date of this Agreement shall be deemed to have incurred
all of its then outstanding Indebtedness at the time it becomes a Subsidiary,
and any Indebtedness assumed by the Borrower or any of its Subsidiaries shall
be deemed to have been incurred on the date of assumption.



          SECTION 6.02. Liens. The Borrower will not, and will not permit any
Subsidiary to, create, incur, assume or permit to exist any Lien on any
property or asset now owned or hereafter acquired by it, or assign or sell any
income or revenues (including accounts receivable) or rights in respect of any
thereof, except:




		
	 	     (a) Permitted Encumbrances;
	 
	 	     (b) Liens existing on the date hereof and set forth on Schedule
6.02;
	 
	 	     (c) any Lien on any property or asset of the Borrower or any
Subsidiary securing Indebtedness permitted by Section 6.01(e) incurred to
acquire, construct or improve such property or asset;
	 
	 	     (d) Liens solely constituting the right of any other Person to a
share of any licensing royalties (pursuant to a licensing agreement or
other related agreement entered into by the Borrower or any of its
Subsidiaries with such Person in the ordinary course of the Borrower’s or
such Subsidiary’s business) otherwise payable to the Borrower or any of
its Subsidiaries, provided that such right shall have been conveyed to
such Person for consideration received by the Borrower or such Subsidiary
on an arm’s-length basis;
	 
	 	     (e) Liens arising from precautionary Uniform Commercial Code
financing statement filings with respect to operating leases entered into
by the Borrower or any of its Subsidiaries in the ordinary course of
business; and
	 
	 	     (f) Liens securing Indebtedness described in clause (a) of the
definition of Priority Indebtedness.



          SECTION 6.03. Sale of Assets. Except in the ordinary course of business
(including the sale, lease, transfer or other disposition of any credit card
receivable of the Borrower or any of its Subsidiaries), the Borrower will not,
nor will it permit any of its Subsidiaries to, sell, lease, transfer or
otherwise
dispose of any of its assets, including any of the Equity Interests in any
of its Subsidiaries, provided that (a) any Subsidiary may sell, transfer, lease
or otherwise dispose of its assets to the Borrower or to another Subsidiary,
(b) the Borrower may sell, transfer, lease or otherwise dispose of its assets
to any of its Subsidiaries and (c) so long






 



53



as no Default shall have occurred
and be continuing or would result therefrom, no such sale, lease, transfer or
other disposition of assets or Equity Interests out of the ordinary course of
business shall constitute a violation of this Section so long as the aggregate
fair market value of the assets or Equity Interests so sold, leased,
transferred or otherwise disposed of during any Fiscal Year of the Borrower
(other than as permitted by clauses (a) and (b) immediately preceding) shall
not exceed 10% of Consolidated Total Tangible Assets as at the end of the
preceding Fiscal Year. In addition, the Borrower may sell, transfer, lease or
otherwise dispose of any asset or Equity Interests out of the ordinary course
of business, provided that the net cash proceeds thereof are used within 180
days after the receipt thereof to purchase assets to be utilized by the
Borrower in any Related Line of Business and/or to reduce the Commitments; and
provided, further, that the aggregate fair market value of the assets or Equity
Interests so sold, transferred, leased or otherwise disposed of during any
Fiscal Year of the Borrower in reliance on this sentence shall not exceed
$75,000,000.


          SECTION 6.04. Fundamental Changes. (a) The Borrower will not, and will
not permit any Subsidiary to, merge into or consolidate with any other Person,
or permit any other Person to merge into or consolidate with it, or liquidate
or dissolve, except that, if at the time thereof and immediately after giving
effect thereto no Default shall have occurred and be continuing, (i) any
Subsidiary may merge into the Borrower in a transaction in which the Borrower
is the surviving corporation, (ii) any Subsidiary (including a Guarantor) may
merge into any other Subsidiary in a transaction in which the surviving entity
is a Subsidiary, and (iii) any Subsidiary may liquidate or dissolve if the
Borrower determines in good faith that such liquidation or dissolution is in
the best interests of the Borrower and is not materially disadvantageous to the
Lenders and except that the Borrower or any Subsidiary may effect any
acquisition permitted by Section 6.05 by means of a merger of the Person that
is the subject of such acquisition with the Borrower or any of its Subsidiaries
(provided that, in the case of a merger with the Borrower, the Borrower is the
survivor); and



          (b) The Borrower will not, and will not permit any of its Subsidiaries to,
engage to any material extent in any business other than a Related Line of
Business.



          SECTION 6.05. Investments, Loans, Advances, Guarantees and Acquisitions.
The Borrower will not, and will not permit any of its Subsidiaries to,
purchase, hold or acquire (including pursuant to any merger with any Person
that was not a wholly owned Subsidiary prior to such merger) any capital stock,
evidences of indebtedness or other securities (including any option, warrant or
other right to acquire any of the foregoing) of, make or permit to exist any
loans or advances to, Guarantee any obligations of, or make or permit to exist
any investment or any other interest in, any other Person, or purchase or
otherwise acquire (in one transaction or a series of transactions) any assets
of any other Person constituting a business unit or the rights of any licensee
under a trademark license to such licensee from the Borrower or any of its
Affiliates, except:



          (a) Permitted Investments;



          (b) investments by the Borrower in the capital stock of its Subsidiaries;








 



54



          (c) loans or advances made by the Borrower to any Subsidiary and made by
any Subsidiary to the Borrower or any other Subsidiary;



          (d) Guarantees constituting Indebtedness permitted by Section 6.01;



          (e) advances or loans made in the ordinary course of business to employees
of the Borrower and its Subsidiaries;



          (f) existing Investments not otherwise permitted under this Agreement and
described in Schedule 6.05 hereto;



          (g) Investments received in connection with the bona fide settlement of
any defaulted Indebtedness or other liability owed to the Borrower or any
Subsidiary;



          (h) Permitted Acquisitions; provided that if, as a result of a Permitted
Acquisition, (i) a new Domestic Subsidiary shall be created and such Domestic
Subsidiary is a Significant Subsidiary (as defined in Regulation S-X part
210.1-02 of the Code of Federal Regulations) or (ii) any then existing Domestic
Subsidiary shall become such a Significant Subsidiary, such Domestic Subsidiary
shall promptly thereafter become party to the Guarantee Agreement as a
Guarantor;



          (i) Investments in an aggregate amount not to exceed $125,000,000 in any
Person or Persons, including Onward Kashiyama Co., Ltd., or any of its
subsidiaries or Affiliates, which will hold any rights to one or more
sublicenses under the licensing arrangements embodied in the License Agreement,
dated March 1, 1998, between the Polo/Lauren Company, L.P. and Polo/Ralph
Lauren Japan Co., Ltd, or any amendment, replacement or restatement thereof;
and



          (j) additional Investments in an amount not in excess of an amount equal
to the sum of (x) $125,000,000, and (y) the Annual Increase for each Fiscal
Year which shall have been completed, including, for the avoidance of doubt,
Fiscal Year 2003, and for which financial statements and the related
certificates shall have been delivered pursuant to Sections 5.01(a) and (c),
during the period from the Effective Date through the date at which compliance
with this paragraph is being determined (as reflected in such financial
statements and certificates); provided that the aggregate amount of Investments
under this paragraph (j) shall in no event exceed $200,000,000.



          SECTION 6.06. Transactions with Affiliates. The Borrower will not, and
will not permit any of its Subsidiaries to, sell, lease or otherwise transfer
any property or assets to, or purchase, lease or otherwise acquire any property
or assets from, or otherwise engage in any other transactions with, (a) any of
its Affiliates, (b) a spouse or any relative (by blood, adoption or marriage)
within the third degree of any such Affiliate or (c) any other Person which is
an Affiliate of any such spouse or relative,
except (x) in the ordinary course of business at prices and on terms and
conditions, in the aggregate (taking into account all of the Borrower’s or such
Subsidiary’s transactions with, and the benefits to the Borrower and its
Subsidiaries derived from the Borrower’s or such Subsidiary’s Investment in,
such Affiliate), not less favorable to the Borrower or such Subsidiary than
could be obtained on an arm’s-length basis from unrelated






 



55



third parties and (y)
transactions between or among the Borrower and its Subsidiaries not involving
any other Affiliate.


          SECTION 6.07. Consolidated Tangible Net Worth. The Borrower will not
permit Consolidated Tangible Net Worth as at the end of any Fiscal Quarter
ending after the Effective Date to be less than the sum of (a) $535,000,000,
(b) 50% of Consolidated Net Income for each Fiscal Year of the Borrower
(beginning with the Fiscal Year ending March 29, 2003), for which Consolidated
Net Income is positive, (c) 100% of the amount by which, in accordance with
GAAP, Consolidated Tangible Net Worth shall increase in connection with any
offering by the Borrower of its Equity Interests consummated after the
Effective Date, and (d) 100% of the amount by which, in accordance with GAAP,
Consolidated Tangible Net worth shall increase in connection with any capital
contribution made to the Borrower or any of its Subsidiaries after the
Effective Date by any holder of the Borrower’s Equity Interests.



          SECTION 6.08. Consolidated Leverage Ratio. The Borrower will not permit
the Consolidated Leverage Ratio as at the last day of any period of four
consecutive Fiscal Quarters ending after the Effective Date to be greater than
3.75 to 1.00.



ARTICLE VII


Events of Default


          If any of the following events (“Events of Default”) shall occur:



		
	 	     (a) the Borrower shall fail to pay (i) any principal of any Loan
when and as the same shall become due and payable, whether at the due
date thereof or at a date fixed for prepayment thereof or otherwise, or
(ii) any reimbursement obligation in respect of any LC Disbursement when
and as the same shall become due and payable and such failure to pay such
reimbursement obligation shall continue unremedied for a period of two
Business Days;
	 
	 	     (b) the Borrower shall fail to pay any interest on any Loan or
unreimbursed LC Disbursement or any fee or any other amount (other than
an amount referred to in clause (a) of this Article) payable under this
Agreement, when and as the same shall become due and payable, and such
failure shall continue unremedied for a period of five days;
	 
	 	     (c) any representation or warranty made or deemed made by or on
behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or the Guarantee
Agreement or any amendment or modification hereof or thereof or
waiver hereunder or thereunder, or in any report, certificate, financial
statement or other document furnished pursuant to or in connection with
this Agreement or the Guarantee Agreement or any amendment or
modification hereof or thereof or waiver hereunder or thereunder, shall
prove to have been incorrect in any material respect when made or deemed
made;








 



56





		
	 	     (d) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in Section 5.03 (with respect to the
Borrower’s existence) or 5.08 or in Article VI;
	 
	 	     (e) the Borrower shall fail to observe or perform any covenant,
condition or agreement contained in this Agreement (other than those
specified in clause (a), (b) or (d) of this Article), and such failure
shall continue unremedied for a period of 30 days after notice thereof
from the Administrative Agent to the Borrower (which notice will be given
at the request of any Lender);
	 
	 	     (f) the Borrower or any Subsidiary shall fail to make any payment of
principal or interest, regardless of amount, in respect of any Material
Indebtedness, when and as the same shall become due and payable beyond
the period (without giving effect to any extensions, waivers, amendments
or other modifications of or to such period) of grace, if any, provided
in the instrument or agreement under which such Material Indebtedness was
created;
	 
	 	     (g) any event or condition occurs (after giving effect to any
applicable grace periods and after giving effect to any extensions,
waivers, amendments or other modifications of any applicable provision or
agreement) that results in any Material Indebtedness becoming due prior
to its scheduled maturity or that enables or permits the holder or
holders of any Material Indebtedness or any trustee or agent on its or
their behalf to cause, with the giving of an acceleration or similar
notice if required, any Material Indebtedness to become due, or to
require the prepayment, repurchase, redemption or defeasance thereof,
prior to its scheduled maturity; provided that this clause (g) shall not
apply to secured Indebtedness that becomes due as a result of the
voluntary sale or transfer of the property or assets securing such
Indebtedness to the extent such Indebtedness is paid when due;
	 
	 	     (h) an involuntary proceeding shall be commenced or an involuntary
petition shall be filed seeking (i) liquidation, reorganization or other
relief in respect of the Borrower or any Subsidiary or its debts, or of a
substantial part of its assets, under any Federal, state or foreign
bankruptcy, insolvency, receivership or similar law now or hereafter in
effect or (ii) the appointment of a receiver, trustee, custodian,
sequestrator, conservator or similar official for the Borrower or any
Subsidiary or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60 days
or an order or decree approving or ordering any of the foregoing shall be
entered; provided, however, that the occurrence of any of the events
specified in this paragraph (h) with respect to any Person other than the
Borrower shall not be deemed to be an Event of Default unless (x) the net
assets of such Person, determined in accordance
with GAAP, shall have exceeded $15,000,000 as of the date of the
most recent audited financial statements delivered to the Lenders
pursuant to Section 5.01 or on the date of occurrence of any such event
and/or (y) the aggregate net assets of all Loan Parties and other
Subsidiaries in respect of which any of the events specified in this
paragraph (h) and in paragraphs (i) and (j) of this Article VII shall
have occurred shall have exceeded 








 



57



		
	 	$20,000,000 as of the date of the most
recent audited financial statements delivered to the Lenders pursuant to
Section 5.01 or on the date of occurrence of any such event;
	 
	 	     (i) the Borrower or any Subsidiary shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization
or other relief under any Federal, state or foreign bankruptcy,
insolvency, receivership or similar law now or hereafter in effect, (ii)
consent to the institution of, or fail to contest in a timely and
appropriate manner, any proceeding or petition described in clause (h) of
this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar
official for the Borrower or any Subsidiary or for a substantial part of
its assets, (iv) file an answer admitting the material allegations of a
petition filed against it in any such proceeding, (v) make a general
assignment for the benefit of creditors or (vi) take any action for the
purpose of effecting any of the foregoing; provided, however, that the
occurrence of any of the events specified in this paragraph (i) with
respect to any Person other than the Borrower shall not be deemed to be
an Event of Default unless (x) the net assets of such Person, determined
in accordance with GAAP, shall have exceeded $15,000,000 as of the date
of the most recent audited financial statements delivered to the Lenders
pursuant to Section 5.01 or on the date of occurrence of any such event
and/or (y) the aggregate net assets of all Loan Parties and other
Subsidiaries in respect of which any of the events specified in this
paragraph (i) and in paragraphs (h) and (j) of this Article VII shall
have occurred shall have exceeded $20,000,000 as of the date of the most
recent audited financial statements delivered to the Lenders pursuant to
Section 5.01 or on the date of occurrence of any such event;
	 
	 	     (j) the Borrower or any Subsidiary shall become unable, admit in
writing its inability or fail generally to pay its debts as they become
due; provided, however, that the occurrence of any of the events
specified in this paragraph (j) with respect to any Person other than the
Borrower shall not be deemed to be an Event of Default unless (x) the net
assets of such Person, determined in accordance with GAAP, shall have
exceeded $15,000,000 as of the date of the most recent audited financial
statements delivered to the Lenders pursuant to Section 5.01 or on the
date of occurrence of any such event and/or (y) the aggregate net assets
of all Loan Parties and other Subsidiaries in respect of which any of the
events specified in this paragraph (j) and in paragraphs (h) and (i) of
this Article VII shall have occurred shall have exceeded $20,000,000 as
of the date of the most recent audited financial statements delivered to
the Lenders pursuant to Section 5.01 or on the date of occurrence of any
such event;
	 
	 	     (k) one or more judgments for the payment of money in an aggregate
amount (not paid or covered by insurance) in excess of $20,000,000 shall
be rendered against the Borrower, any Subsidiary or any combination
thereof and the same shall remain undischarged for a period of 30
consecutive days from the entry thereof during which
execution shall not be effectively stayed or bonded, or any action
shall be legally taken by a judgment creditor to attach or levy upon any
assets of the Borrower or any Subsidiary to enforce any such judgment;








 



58





		
	 	     (l) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with all other ERISA Events that
have occurred, could reasonably be expected to result in a Material
Adverse Effect;
	 
	 	     (m) Lauren, his estate or Persons related to him by blood, adoption
or marriage and/or trusts or other entities principally for the benefit
of any of the foregoing (the “Lauren Interests”) shall cease to own in
the aggregate, directly or indirectly either (x) Voting Stock of the
Borrower having the voting power to elect a majority of the Board of
Directors of the Borrower or (y) Voting Stock representing more than 25%
of the voting power of the Borrower’s Equity Interests; or
	 
	 	     (n) the Guarantee Agreement ceases to be in full force and effect;



then, and in every such event (other than an event with respect to the Borrower
described in clause (h) or (i) of this Article), and at any time thereafter
during the continuance of such event, the Administrative Agent may, and at the
request of the Required Lenders shall, by notice to the Borrower, take either
or both of the following actions, at the same or different times: (i)
terminate the Commitments, and thereupon the Commitments shall terminate
immediately, and (ii) declare the Loans then outstanding to be due and payable
in whole (or in part, in which case any principal not so declared to be due and
payable may thereafter be declared to be due and payable), and thereupon the
principal of the Loans so declared to be due and payable, together with accrued
interest thereon and all fees and other obligations of the Borrower accrued
hereunder, shall become due and payable immediately, without presentment,
demand, protest or other notice of any kind, all of which are hereby waived by
the Borrower; and in case of any event with respect to the Borrower described
in clause (h) or (i) of this Article, the Commitments shall automatically
terminate and the principal of the Loans then outstanding, together with
accrued interest thereon and all fees and other obligations of the Borrower
accrued hereunder, shall automatically become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower.


ARTICLE VIII


The Administrative Agent


          Each of the Lenders hereby irrevocably appoints the Administrative Agent
as its agent and authorizes the Administrative Agent to take such actions on
its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms hereof, together with such actions and powers as are
reasonably incidental thereto.



          The bank serving as the Administrative Agent hereunder shall have the same
rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as
though it were not the Administrative Agent, and such bank and its
Affiliates may accept deposits from, lend money to and generally engage in any
kind of business with the Borrower or any Subsidiary or other Affiliate thereof
as if it were not the Administrative Agent hereunder.








 



59



          The Administrative Agent shall not have any duties or obligations except
those expressly set forth herein. Without limiting the generality of the
foregoing, (a) the Administrative Agent shall not be subject to any fiduciary
or other implied duties, regardless of whether a Default has occurred and is
continuing, (b) the Administrative Agent shall not have any duty to take any
discretionary action or exercise any discretionary powers, except discretionary
rights and powers expressly contemplated hereby that the Administrative Agent
is required to exercise in writing as directed by the Required Lenders (or such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02), and (c) except as expressly set
forth herein, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Subsidiaries that is communicated to or obtained by
the bank serving as Administrative Agent or any of its Affiliates in any
capacity. The Administrative Agent shall not be liable for any action taken or
not taken by it with the consent or at the request of the Required Lenders (or
such other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section 9.02) or in the absence of its own gross
negligence or willful misconduct. The Administrative Agent shall be deemed not
to have knowledge of any Default unless and until written notice thereof is
given to the Administrative Agent by the Borrower or a Lender, and the
Administrative Agent shall not be responsible for or have any duty to ascertain
or inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement, (ii) the contents of any certificate, report or
other document delivered hereunder or in connection herewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or
conditions set forth herein, (iv) the validity, enforceability, effectiveness
or genuineness of this Agreement or any other agreement, instrument or
document, or (v) the satisfaction of any condition set forth in Article IV or
elsewhere herein, other than to confirm receipt of items expressly required to
be delivered to the Administrative Agent.



          The Administrative Agent shall be entitled to rely upon, and shall not
incur any liability for relying upon, any notice, request, certificate,
consent, statement, instrument, document or other writing believed by it to be
genuine and to have been signed or sent by the proper Person. The
Administrative Agent also may rely upon any statement made to it orally or by
telephone and believed by it to be made by the proper Person, and shall not
incur any liability for relying thereon. The Administrative Agent may consult
with legal counsel (who may be counsel for the Borrower), independent
accountants and other experts selected by it, and shall not be liable for any
action taken or not taken by it in accordance with the advice of any such
counsel, accountants or experts.



          The Administrative Agent may perform any and all its duties and exercise
its rights and powers by or through any one or more sub-agents appointed by the
Administrative Agent. The Administrative Agent and any such sub-agent may
perform any and all its duties and exercise its rights and powers through their
respective Related Parties. The exculpatory provisions of the preceding
paragraphs shall apply to any such sub-agent and to the Related Parties of the
Administrative Agent and any such sub-agent, and shall apply to their
respective
activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Administrative Agent.








 



60



          Subject to the appointment and acceptance of a successor Administrative
Agent as provided in this paragraph, the Administrative Agent may resign at any
time by notifying the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right, with the consent of the Borrower, to
appoint a successor. If no successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent which shall be a bank with an office in New
York, New York, or an Affiliate of any such bank. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the Administrative Agent’s resignation
hereunder, the provisions of this Article and Section 9.03 shall continue in
effect for the benefit of such retiring Administrative Agent, its sub-agents
and their respective Related Parties in respect of any actions taken or omitted
to be taken by any of them while it was acting as Administrative Agent.



          Each Lender (including each Issuing Bank) acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender (including each Issuing Bank) also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement, any related agreement or any
document furnished hereunder or thereunder.



          The Syndication Agents shall not have any duties or responsibilities
hereunder in their capacity as such.



ARTICLE IX


Miscellaneous


          SECTION 9.01. Notices. (a) Except in the case of notices and other
communications expressly permitted to be given by telephone (and subject to
paragraph (b) below), all notices and other communications provided for herein
and in the Guarantee Agreement shall be in writing and
shall be delivered by hand or overnight courier service, mailed by
certified or registered mail or sent by telecopy, as follows:




		
	 	     (i) if to the Borrower, to Polo Ralph Lauren Corporation, 650
Madison Avenue, New York, New York 10022, Attention of Gerald M. Chaney,
Senior Vice President, Finance and Chief Financial Officer (Telecopy No.
(212) 318-7705);








 



61





		
	 	     (ii) if to the Administrative Agent, to JPMorgan Chase Bank, Loan
and Agency Services Group, One Chase Manhattan Plaza, 8th Floor, New
York, New York 10081, Attention of Jesus Sang (Telecopy No. (212)
552-5650), with a copy to JPMorgan Chase Bank, 1411 Broadway, 5th Floor,
New York 10018, Attention of Paul O’Neill (Telecopy No. (212) 391-7118);
and
	 
	 	     (iii) if to any other Lender or any Issuing Bank, to it at its
address (or telecopy number) set forth in its Administrative
Questionnaire.



          (b) Notices and other communications to the Lenders (including any Issuing
Bank) hereunder may be delivered or furnished to the Lenders through the
Administrative Agent by electronic communications pursuant to procedures
approved by the Administrative Agent; provided that the foregoing shall not
apply to notices pursuant to Article II unless otherwise agreed by the
Administrative Agent and the applicable Lender. The Administrative Agent or
the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it; provided that approval of such procedures may be
limited to particular notices or communications.



          (c) Any party hereto may change its address or telecopy number for notices
and other communications hereunder by notice to the other parties hereto (or,
in the case of any Lender, by notice to the Administrative Agent and the
Borrower). All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have been
given on the date of receipt.



          SECTION 9.02. Waivers; Amendments. (a) No failure or delay by the
Administrative Agent, any Issuing Bank or any Lender in exercising any right or
power hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. The
rights and remedies of the Administrative Agent, the Issuing Banks and the
Lenders hereunder and under the Guarantee Agreement are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of any provision of this Agreement or the Guarantee Agreement or consent to any
departure by the Borrower or any Guarantor therefrom shall in any event be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given. Without limiting the generality
of the foregoing, the making of a Loan or issuance of a Letter of Credit shall
not be construed as
a waiver of any Default, regardless of whether the Administrative Agent,
any Lender or any Issuing Bank may have had notice or knowledge of such Default
at the time.



          (b) Neither this Agreement nor the Guarantee Agreement nor any provision
hereof or thereof may be waived, amended or modified except pursuant to an
agreement or agreements in writing entered into by the Borrower or the
Guarantors, as the case may be, and the Required Lenders or by the Borrower or
the Guarantors, as the case may be, and the Administrative Agent with the
consent of the Required Lenders; provided that no such agreement shall (i)
increase the Commitment of any Lender without the written consent of such
Lender, (ii)






 



62



reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
scheduled date of payment of the principal amount of any Loan or LC
Disbursement, or any interest thereon, or any fees payable hereunder, or reduce
the amount of, waive or excuse any such payment, or postpone the scheduled date
of expiration of any Commitment, without the written consent of each Lender
affected thereby, (iv) change Section 2.16(b) or (c) in a manner that would
alter the pro rata sharing of payments required thereby, without the written
consent of each Lender, (v) release all or substantially all of the Guarantors
from their obligations under the Guarantee Agreement, without the written
consent of each Lender, or (vi) change any of the provisions of this Section or
the definition of “Required Lenders” or any other provision hereof specifying
the number or percentage of Lenders required to waive, amend or modify any
rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender; provided further that no such
agreement shall amend, modify or otherwise affect the rights or duties of the
Administrative Agent or an Issuing Bank without the prior written consent of
the Administrative Agent or such Issuing Bank, as the case may be.


          SECTION 9.03. Expenses; Indemnity; Damage Waiver. (a) The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the Administrative
Agent and J.P. Morgan Securities, Inc., as sole bookrunner and sole lead
arranger, including the reasonable fees, charges and disbursements of one
domestic counsel for the Administrative Agent and J.P.Morgan Securities, Inc.,
collectively, in connection with the syndication of the credit facilities
provided for herein, the preparation and administration of this Agreement or
any amendments, modifications or waivers of the provisions hereof and (ii) all
reasonable out-of-pocket expenses incurred by the Administrative Agent, any
Issuing Bank or any Lender, including the fees, charges and disbursements of
any counsel for the Administrative Agent, any Issuing Bank or any Lender, in
connection with the enforcement or preservation of its rights in connection
with this Agreement, including its rights under this Section, or in connection
with the Loans made or Letters of Credit issued hereunder, including all such
out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of such Loans or Letters of Credit .



          (b) The Borrower shall indemnify the Administrative Agent, each Issuing
Bank and each Lender, and each Related Party of any of the foregoing Persons
(each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and
related expenses, including the reasonable fees, charges and
disbursements of any counsel for any Indemnitee, incurred by or asserted
against any Indemnitee arising out of, in connection with, or as a result of
(i) the execution or delivery of this Agreement or any agreement or instrument
contemplated hereby, the performance by the parties hereto of their respective
obligations hereunder or the consummation of the Transactions or any other
transactions contemplated hereby, (ii) any Loan or Letter of Credit or the use
of the proceeds therefrom (including any refusal by an Issuing Bank to honor a
demand for payment under a Letter of Credit if the documents presented in
connection with such demand do not strictly comply with the terms of such
Letter of Credit), (iii) any actual or alleged presence or release of Hazardous
Materials on or from any property owned or operated by the Borrower or any of
its Subsidiaries, or any Environmental Liability related in any way to the
Borrower or any of its Subsidiaries, or (iv) any actual or prospective claim,
litigation, investigation or proceeding






 



63



relating to any of the foregoing,
whether based on contract, tort or any other theory and regardless of whether
any Indemnitee is a party thereto; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses resulted from the gross negligence,
bad faith or willful misconduct of such Indemnitee or such Indemnitee’s
employer or any Affiliate of either thereof or any of their respective
officers, directors, employees, advisors or agents.


          (c) To the extent that the Borrower fails to pay any amount required to be
paid by it to the Administrative Agent or any Issuing Bank under paragraph (a)
or (b) of this Section, each Lender severally agrees to pay to the
Administrative Agent or such Issuing Bank, as the case may be, such Lender’s
Applicable Percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided that the unreimbursed expense or indemnified loss, claim, damage,
liability or related expense, as the case may be, was incurred by or asserted
against the Administrative Agent or such Issuing Bank in its capacity as such.



          (d) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages) arising out of, in connection with, or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
Transactions, any Loan or Letter of Credit or the use of the proceeds thereof.



          (e) All amounts due under this Section shall be payable promptly after
written demand therefor.



          SECTION 9.04. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns permitted hereby (including any
Affiliate of any Issuing Bank that issues any Letter of Credit), except that
(i) the Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of each Lender (and any
attempted assignment or transfer by the Borrower without such consent shall be
null and void) and (ii) no Lender (including any Issuing Bank) may assign or
otherwise transfer its rights or obligations hereunder except in accordance
with this Section. Nothing in this Agreement, expressed or implied, shall be
construed to confer
upon any Person (other than the parties hereto, their respective
successors and assigns permitted hereby (including any Affiliate of any Issuing
Bank that issues any Letter of Credit), Participants (to the extent provided in
paragraph (c) of this Section) and, to the extent expressly contemplated
hereby, the Related Parties of each of the Administrative Agent, each Issuing
Bank and the Lenders) any legal or equitable right, remedy or claim under or by
reason of this Agreement.



          (b) (i) Subject to the conditions set forth in paragraph (b)(ii) below,
any Lender may assign to one or more assignees all or a portion of its rights
and obligations under this Agreement (including all or a portion of its
Commitment and the Loans at the time owing to it) with the prior written
consent (such consent not to be unreasonably withheld or delayed) of:








 



64




		
	 	     (A) the Borrower, provided that no consent of the Borrower shall be
required for an assignment to a Lender, an Affiliate of a Lender, an
Approved Fund or, if an Event of Default under clause (a), (b), (h) or
(i) of Article VII has occurred and is continuing, any other assignee;
and




		
	 	     (B) the Administrative Agent , provided that no consent of the
Administrative Agent shall be required for an assignment of any
Commitment to an assignee that is a Lender with a Commitment immediately
prior to giving effect to such assignment.




		
	 	     (ii) Assignments shall be subject to the following additional conditions:




		
	 	     (A) except in the case of an assignment to a Lender or an Affiliate
of a Lender or an assignment of the entire remaining amount of the
assigning Lender’s Commitment or Loans, the amount of the Commitment or
Loans of the assigning Lender subject to each such assignment (determined
as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent) shall not be less
than $5,000,000 unless each of the Borrower and the Administrative Agent
otherwise consent, provided that no such consent of the Borrower shall be
required if an Event of Default under clause (a), (b), (h) or (i) of
Article VII has occurred and is continuing;




		
	 	     (B) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender’s rights and obligations
under this Agreement;




		
	 	     (C) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and recordation fee of $3,500;




		
	 	     (D) the assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire; and.




		
	 	     (E) no assignment, (including any assignment to a Lender, an
Affiliate of a Lender or an Approved Fund) shall be permitted if,
immediately after giving effect thereto, amounts would become payable by
the Borrower under Section 2.13 or 2.15
(including amounts payable under Section 2.15 in respect of
withholding taxes) that are in excess of those that would be payable
under such Section in respect of the amount assigned if such assignment
were not made.



          For the purposes of this Section 9.04(b), the term “Approved Fund” has the
following meaning:



          “Approved Fund” means any Person (other than a natural person) that is
engaged in making, purchasing, holding or investing in bank loans and similar
extensions of credit in the ordinary course of its business and that is
administered or managed by (a) a Lender, (b) an







 



65


 Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a Lender.


          (iii) Subject to acceptance and recording thereof pursuant to paragraph
(b)(iv) of this Section, from and after the effective date specified in each
Assignment and Assumption the assignee thereunder shall be a party hereto and,
to the extent of the interest assigned by such Assignment and Assumption, have
the rights and obligations of a Lender under this Agreement (including, in the
case of any Foreign Lender (including each Issuing Bank that is a Foreign
Lender), obligations under Section 2.15(e)), and the assigning Lender
thereunder shall, to the extent of the interest assigned by such Assignment and
Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lender’s
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto but shall continue to be entitled to the benefits of Sections
2.13, 2.14, 2.15 and 9.03); provided, however, that no such assignment or
transfer shall be deemed to be a waiver of any rights which the Borrower, the
Administrative Agent or any other Lender shall have against such Lender. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this Section 9.04 shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with paragraph (c) of this Section.



          (iv) The Administrative Agent, acting for this purpose as an agent of the
Borrower, shall maintain at one of its offices a copy of each Assignment and
Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitment of, and principal amount of the
Loans and LC Disbursements owing to, each Lender pursuant to the terms hereof
from time to time (the “Register”). The entries in the Register shall be
conclusive, and the Borrower, the Administrative Agent, the Issuing Banks and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower, any Issuing Bank and any Lender, at
any reasonable time and from time to time upon reasonable prior notice.



          (v) Upon its receipt of a duly completed Assignment and Assumption
executed by an assigning Lender and an assignee, the assignee’s completed
Administrative Questionnaire (unless the assignee shall already be a Lender
hereunder), the processing and recordation fee referred to in paragraph (b) of
this Section and any written consent to such assignment required by paragraph
(b) of this Section, the Administrative Agent shall accept such Assignment and
Assumption and record the information contained therein in the Register.
No assignment shall be effective for purposes of this Agreement unless it has
been recorded in the Register as provided in this paragraph.



          (c) (i) Any Lender may, without the consent of the Borrower, the
Administrative Agent or any Issuing Bank, sell participations to one or more
banks or other entities (a “Participant”) in all or a portion of such Lender’s
rights and obligations under this Agreement (including all or a portion of its
Commitment and the Loans owing to it); provided that (A) such Lender’s
obligations under this Agreement shall remain unchanged, (B) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (C) the







 



66



Borrower, the Administrative Agent, the applicable
Issuing Bank and the other Lenders shall continue to deal solely and directly
with such Lender in connection with such Lender’s rights and obligations under
this Agreement. Any agreement or instrument pursuant to which a Lender sells
such a participation shall provide that such Lender shall retain the sole right
to enforce this Agreement and to approve any amendment, modification or waiver
of any provision of this Agreement; provided that such agreement or instrument
may provide that such Lender will not, without the consent of the Participant,
agree to any amendment, modification or waiver described in clauses (i),
(ii),(iii),(iv) and (vi) of the first proviso to Section 9.02(b) that affects
such Participant. Subject to paragraph (c)(ii) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Sections
2.13, 2.14 and 2.15 to the same extent as if it were a Lender and had acquired
its interest by assignment pursuant to paragraph (b) of this Section. To the
extent permitted by law, each Participant also shall be entitled to the
benefits of Section 9.08 as though it were a Lender, provided such Participant
agrees to be subject to Section 2.16(c) as though it were a Lender.


          (ii) A Participant shall not be entitled to the benefits of Section 2.13,
2.14 or 2.15 unless such Participant shall have complied with the requirements
of such Section; provided, that in any case in which a Participant is so
entitled, any such Participant shall not be entitled to receive any greater
payment under Section 2.13, 2.14 or 2.15 than the applicable Lender would have
been entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower’s prior written consent. A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.15 unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the Borrower, to
comply with Section 2.15(e) as though it were a Lender.



          (d) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement to secure obligations of
such Lender, including without limitation any pledge or assignment to secure
obligations to a Federal Reserve Bank, and this Section shall not apply to any
such pledge or assignment of a security interest; provided that no such pledge
or assignment of a security interest shall release a Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.








 



67



          SECTION 9.05. Survival. All representations and warranties made by the
Borrower herein and in the certificates or other instruments delivered in
connection with or pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the making of any Loans and issuance of any
Letters of Credit, and shall terminate at such time as no principal of or
accrued interest on any Loan or any fee or any other amount payable under this
Agreement is outstanding and unpaid, no Letter of Credit is outstanding and the
Commitments have expired or been terminated. The provisions of Sections 2.13,
2.14, 2.15 and 9.03 and Article VIII shall survive and remain in full force and
effect regardless of the consummation of the transactions contemplated hereby,
the repayment of the Loans, the expiration or termination of the Letters of
Credit and the Commitments or the termination of this Agreement or any
provision hereof.



          SECTION 9.06. Counterparts; Integration; Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which
when taken together shall constitute a single contract. This Agreement and any
separate letter agreements with respect to fees payable to the Administrative
Agent constitute the entire contract among the parties relating to the subject
matter hereof and supersede any and all previous agreements and understandings,
oral or written, relating to the subject matter hereof. Except as provided in
Section 4.01, this Agreement shall become effective when it shall have been
executed by the Administrative Agent and when the Administrative Agent shall
have received counterparts hereof which, when taken together, bear the
signatures of each of the other parties hereto, and thereafter shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.



          SECTION 9.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision
in a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.



          SECTION 9.08. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent permitted by law, to
set off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held and other obligations at any time owing
by such Lender or Affiliate to or for the credit or the account of the Borrower
against any of and all the obligations of the Borrower now or hereafter
existing under this Agreement held by such Lender, irrespective of whether or
not such Lender shall have made any demand under this Agreement and although
such obligations may be unmatured. The rights of each Lender under this
Section are in addition to other rights and remedies (including other rights of
setoff) which such Lender may have.



          SECTION 9.09. Governing Law; Jurisdiction; Consent to Service of Process.
(a) This Agreement shall be construed in accordance with and governed by the
law of the State of New York.








 



68



          (b) Each party to this Agreement hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of the
Supreme Court of the State of New York sitting in New York County and of the
United States District Court of the Southern District of New York, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the parties hereto hereby irrevocably and unconditionally agrees
that all claims in respect of any such action or proceeding may be heard and
determined in such New York State or, to the extent permitted by law, in such
Federal court. Each of the parties hereto agrees that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party hereto may
otherwise have to bring any action or proceeding relating to this Agreement
against any other party hereto or its properties in the courts of any
jurisdiction.



          (c) Each party to this Agreement hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection which it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement in any
court referred to in paragraph (b) of this Section. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.



          (d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 9.01. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.



          SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A
TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES
THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.



          SECTION 9.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of
this Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.



          SECTION 9.12. Confidentiality. Each of the Administrative Agent, each
Issuing Bank and the Lenders agrees to maintain the confidentiality of the
Information (as defined below), except that Information may be disclosed (a) to
its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors, in each case who






 



69



have a need to
know such Information in accordance with customary banking practices (it being
understood that the Persons to whom such disclosure is made will be informed of
the confidential nature of such Information and instructed to keep such
Information confidential), (b) to the extent requested by any regulatory
authority, (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process, (d) to any other party to this
Agreement, (e) in connection with the exercise of any remedies hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, (f) subject to an agreement containing provisions
substantially the same as those of this Section, to (i) any assignee of or
Participant in, or any prospective assignee of or Participant in, any of its
rights or obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations, (g) with the consent of the Borrower or
(h) to the extent such Information (i) becomes publicly available other than as
a result of a breach of this Section or (ii) becomes available to the
Administrative Agent, any Issuing Bank or any Lender on a nonconfidential basis
from a source other than the Borrower. For the purposes of this Section,
“Information” means all information received from the Borrower relating to the
Borrower or its business, other than any such information that is available to
the Administrative Agent, any Issuing Bank or any Lender on a nonconfidential
basis prior to disclosure by the Borrower; provided that, in the case of
information received from the Borrower after the date hereof, such information
is clearly identified at the time of delivery as confidential. Any Person
required to maintain the confidentiality of Information as provided in this
Section shall be considered to have complied with its obligation to do so if
such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.


          SECTION 9.13. Satisfaction in Dollars. The obligation of the Borrower
hereunder and in respect of the Letters of Credit to make payments in dollars
shall not be discharged or satisfied by any tender or recovery pursuant to any
judgment expressed in or converted into any currency other than dollars or any
other realization in such currency, whether as proceeds of set-off, security,
guarantee, distributions, or otherwise, except to the extent to which such
tender, recovery or realization shall
result in the effective receipt by the Administrative Agent and the
Lenders of the full amount of dollars expressed to be payable hereunder and in
respect of the Letters of Credit and the Borrower shall indemnify the
Administrative Agent, the Issuing Banks and each Lender (as an alternative or
additional cause of action) for the amount (if any) by which such effective
receipt shall fall short of the full amount of dollars expressed to be payable
hereunder and in respect of the Letters of Credit and such obligation to
indemnify shall not be affected by judgment being obtained for any other sums
due under this Agreement and in respect of the Letters of Credit.



          SECTION 9.14. Waivers and Agreements Under Existing Credit Agreements.
(a) The Lenders which are parties to the Existing Credit Agreements (which
Lenders constitute, in each case, the “Required Lenders” as defined in each of
the Existing Credit Agreements) hereby (i) waive the requirement, set forth in
subsection 6.8 of each Existing Credit Agreement, that the Borrower give not
less than five Business Days’ notice of any termination of the Revolving Credit
Commitments (as defined therein), provided that such notice shall be given on
or prior to the date of such termination, (ii) acknowledge and agree that, for
purposes of determining the “Aggregate Revolving Credit Extensions of Credit”
(as defined therein) that






 



70



would be outstanding thereunder on the date of such
termination, the letters of credit issued thereunder that are listed on
Schedule 2.04 shall (as a result of the operation of the last sentence of
Section 2.04(a), which provides that on the Effective Date such letters of
credit shall be deemed to be “Letters of Credit” issued hereunder) on the
Effective Date be deemed no longer outstanding under the Existing Credit
Agreements and (iii) pursuant to subsection 13.1 of each Existing Credit
Agreement, consent to the execution and delivery by JPMorgan Chase Bank, in its
capacity as Agent (under and as defined in each of the Existing Credit
Agreements) for and on behalf of the Lenders (under and as defined in each of
the Existing Credit Agreements), of this Agreement to evidence or effectuate
(as set forth in Section 9.14(b)) the waivers and agreements set forth in
clauses (i) and (ii) above.


          (b) JPMorgan Chase Bank, in its capacity as Agent as defined in each of
the Existing Credit Agreements hereby (i) waives, for and on behalf of the
Lenders (as defined therein), the requirement, set forth in subsection 6.8 of
each Existing Credit Agreement, that the Borrower give not less than five
Business Days’ notice of any termination of the Revolving Credit Commitments
(as defined therein), provided that such notice shall be given on or prior to
the date of such termination, and (ii) acknowledges and agrees, for and on
behalf of the Lenders (as defined therein), that for purposes of determining
the “Aggregate Revolving Credit Extensions of Credit” (as defined therein) that
would be outstanding thereunder on the date of such termination, the letters of
credit issued thereunder that are listed on Schedule 2.04 shall on the
Effective Date be deemed no longer outstanding under the Existing Credit
Agreements.








 



71



          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.




	 	 	 	 	 	 
	 	 	POLO RALPH LAUREN CORPORATION
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:
	 	 	 	 	 
	 	 	JPMORGAN CHASE BANK, individually and as
Administrative Agent,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:








 



 


	 	 	 	 	 	 
	 	 	THE BANK OF NEW YORK,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	FLEET NATIONAL BANK,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	SUNTRUST BANK,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	WACHOVIA BANK NATIONAL ASSOCIATION,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	CITIBANK, N.A.,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	COMERICA BANK,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	BANK LEUMI USA,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	ISRAEL DISCOUNT BANK OF NEW YORK,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	UNION BANK OF CALIFORNIA, N.A.,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION.,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	BARCLAYS BANK PLC,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 


	 	 	 	 	 	 
	 	 	LASALLE BANK,
	 	 	 	 	 
	 	 	
By	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:



Polo Ralph Lauren Credit Agreement







 



 

EXHIBIT A


[FORM OF]

ASSIGNMENT AND ASSUMPTION


          Reference is made to the Credit Agreement dated as of November 18, 2002
(as amended and in effect on the date hereof, the “Credit Agreement”), among
Polo Ralph Lauren Corporation, the Lenders named therein and JPMorgan Chase
Bank, as Administrative Agent for the Lenders. Terms defined in the Credit
Agreement are used herein with the same meanings.



          The Assignor named on the reverse hereof hereby irrevocably sells and
assigns, without recourse, to the Assignee named on the reverse hereof, and the
Assignee hereby irrevocably purchases and assumes, without recourse, from the
Assignor, subject to the terms and conditions of the Credit Agreement and
effective as of the Assignment Date set forth on the reverse hereof, the
interests set forth on the reverse hereof (the “Assigned Interest”) in the
Assignor’s rights and obligations under the Credit Agreement, including,
without limitation, the interests set forth on the reverse hereof in the
Commitment of the Assignor on the Assignment Date and Revolving Loans owing to
the Assignor which are outstanding on the Assignment Date, together with the
participations in Letters of Credit and LC Disbursements held by the Assignor
on the Assignment Date, but excluding accrued interest and fees to and
excluding the Assignment Date. The Assignee hereby acknowledges receipt of a
copy of the Credit Agreement. From and after the Assignment Date (i) the
Assignee shall be a party to and be bound by the provisions of the Credit
Agreement and, to the extent of the Assigned Interest, have the rights and
obligations of a Lender thereunder and (ii) the Assignor shall, to the extent
of the Assigned Interest, relinquish its rights and be released from its
obligations under the Credit Agreement.



          This Assignment and Assumption is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.15(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The [Assignee/Assignor] [Borrower] shall pay the fee payable
to the Administrative Agent pursuant to Section [9.04(b)] [2.17(b)] of the
Credit Agreement.



          This Assignment and Assumption shall be governed by and construed in
accordance with the laws of the State of New York.



Date of Assignment:


Legal Name of Assignor:


Legal Name of Assignee:


Assignee’s Address for Notices:







 



2

Effective Date of Assignment (the “Assignment Date”):



	 	 	 	 	 
	 	 	Percentage Assigned of Commitment
	Principal Amount of	 	(set forth, to at least 8 decimals,
	Revolving Loans	 	as a percentage of the aggregate
	Assigned	 	Commitments of all Lenders)
	
	 	

	$
	 	 	%	 



The terms set forth above and on the reverse side hereof are hereby agreed to:



	 	 	 	 	 	 
	 	 	[Name of Assignor] , as Assignor
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	Name:

Title:
	 	 	 	 	 
	 	 	[Name of Assignee] , as Assignee
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	Name:

Title:



The undersigned hereby consent to the within assignment:2



	 	 	 	 	 	 	 	 
	POLO RALPH LAUREN CORPORATION
	 	JPMORGAN CHASE BANK,

as Administrative Agent,
	 	 	 	 	 
	By:	 	 	 	
By:	 	 	 
	 	 	
	 	 	 	
	 
	Name:

Title:	 	 Name:

Title:








	2	 	Consents to be included to the extent required by Section 9.04(b) of the
Credit Agreement.