AMENDED AND RESTATED
CREDIT AGREEMENT
(Five Year Facility)
by and among
SAKS INCORPORATED
as Borrower,
NATIONSBANK, N. A.,
as Administrative Agent,
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
as Lead Arranger,
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK,
and
THE CHASE MANHATTAN BANK,
as Co-Syndication Agents,
CITIBANK, N.A.,
as Documentation Agent
and
The Lenders from time to time party hereto
September 17, 1998
TABLE OF CONTENTS Page
ARTICLE I -- Definitions and Terms
1.01 Definitions. . . . . . . . . . . . . . . . . . . . . .2
1.02 Accounting Terms . . . . . . . . . . . . . . . . . . 26
1.03 Terms Consistent . . . . . . . . . . . . . . . . . . 27
ARTICLE II -- Revolving Credit Loans
2.01 Revolving Credit Loans . . . . . . . . . . . . . . . 28
2.02 Swing Line . . . . . . . . . . . . . . . . . . . . . 30
2.03 Competitive Bid Loans. . . . . . . . . . . . . . . . 31
2.04 Payment of Interest. . . . . . . . . . . . . . . . . 34
2.05 Payment of Principal . . . . . . . . . . . . . . . . 35
2.06 Payments; Non-Conforming Payments. . . . . . . . . . 36
2.07 Borrower's Account . . . . . . . . . . . . . . . . . 36
2.08 Notes. . . . . . . . . . . . . . . . . . . . . . . . 36
2.09 Pro Rata Payments. . . . . . . . . . . . . . . . . . 37
2.10 Reductions . . . . . . . . . . . . . . . . . . . . . 37
2.11 Conversions and Elections of Subsequent Interest
Periods . . . . . . . . . . . . . . . . . . . . . . . . . 37
2.12 Facility Fees and Utilization Premium. . . . . . . . 38
2.13 Deficiency Loans . . . . . . . . . . . . . . . . . . 38
2.14 Use of Proceeds. . . . . . . . . . . . . . . . . . . 39
2.15 Additional Fees. . . . . . . . . . . . . . . . . . . 39
ARTICLE III -- Letters of Credit
3.01 Letters of Credit. . . . . . . . . . . . . . . . . . 40
3.02 Reimbursement. . . . . . . . . . . . . . . . . . . . 40
3.03 Letter of Credit Fee . . . . . . . . . . . . . . . . 43
3.04 Administrative Fees. . . . . . . . . . . . . . . . . 44
3.05 Existing Letters of Credit . . . . . . . . . . . . . 44
ARTICLE IV -- Change in Circumstances
4.01 Increased Cost and Reduced Return. . . . . . . . . . 45
4.02 Limitation on Types of Loans . . . . . . . . . . . . 46
4.03 Illegality . . . . . . . . . . . . . . . . . . . . . 46
4.04 Treatment of Affected Loans. . . . . . . . . . . . . 47
4.05 Compensation . . . . . . . . . . . . . . . . . . . . 47
4.06 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 48
ARTICLE V -- Conditions to Making Loans and Issuing Letters of
Credit
5.01 Conditions of Initial Loan and Issuance of Letters
of Credit . . . . . . . . . . . . . . . . . . . . . . . . 51
5.02 Conditions of Loans. . . . . . . . . . . . . . . . . 53
ARTICLE VI -- Representations and Warranties
6.01 Representations and Warranties . . . . . . . . . . . 55
ARTICLE VII -- Affirmative Covenants
7.01 Financial Reports, Etc.. . . . . . . . . . . . . . . 62
7.02 Maintain Properties. . . . . . . . . . . . . . . . . 63
7.03 Existence, Qualification, Etc. . . . . . . . . . . . 63
7.04 Taxes. . . . . . . . . . . . . . . . . . . . . . . . 63
7.05 Insurance. . . . . . . . . . . . . . . . . . . . . . 64
7.06 True Books . . . . . . . . . . . . . . . . . . . . . 64
7.07 Right of Inspection. . . . . . . . . . . . . . . . . 64
7.08 Observe All Laws; Licenses . . . . . . . . . . . . . 64
7.09 Covenants Extending to Subsidiaries. . . . . . . . . 64
7.10 Officer's Knowledge of Default . . . . . . . . . . . 64
7.11 Suits or Other Proceedings . . . . . . . . . . . . . 64
7.12 Notice of Discharge of Hazardous Material or
Environmental Complaint . . . . . . . . . . . . . . . . . 65
7.13 Environmental Compliance . . . . . . . . . . . . . . 65
7.14 Year 2000 Notice . . . . . . . . . . . . . . . . . . 65
7.15 Further Assurances . . . . . . . . . . . . . . . . . 65
7.16 Benefit Plans. . . . . . . . . . . . . . . . . . . . 65
7.17 Continued Operations . . . . . . . . . . . . . . . . 66
7.18 New Subsidiaries . . . . . . . . . . . . . . . . . . 66
ARTICLE VIII -- Negative Covenants
8.01 Consolidated Net Worth . . . . . . . . . . . . . . . 68
8.02 Consolidated Fixed Charge Ratio. . . . . . . . . . . 68
8.03 Consolidated Funded Total Indebtedness to
Consolidated EBITDA . . . . . . . . . . . . . . . . . . . 68
8.04 Indebtedness . . . . . . . . . . . . . . . . . . . . 68
8.05 Liens. . . . . . . . . . . . . . . . . . . . . . . . 70
8.06 Transfer of Assets . . . . . . . . . . . . . . . . . 71
8.07 Investments; Acquisitions. . . . . . . . . . . . . . 72
8.08 Merger or Consolidation. . . . . . . . . . . . . . . 72
8.09 Transactions with Affiliates . . . . . . . . . . . . 73
8.10 Benefit Plans. . . . . . . . . . . . . . . . . . . . 73
8.11 Fiscal Year. . . . . . . . . . . . . . . . . . . . . 73
8.12 Dissolution, etc.. . . . . . . . . . . . . . . . . . 73
8.13 Rate Hedging Obligations . . . . . . . . . . . . . . 74
ARTICLE IX -- Events of Default and Acceleration
9.01 Events of Default. . . . . . . . . . . . . . . . . . 75
9.02 Agent to Act . . . . . . . . . . . . . . . . . . . . 78
9.03 Cumulative Rights. . . . . . . . . . . . . . . . . . 79
9.04 No Waiver. . . . . . . . . . . . . . . . . . . . . . 79
9.05 Allocation of Proceeds . . . . . . . . . . . . . . . 79
ARTICLE X -- The Agent
10.01. Appointment, Powers, and Immunities . . . . . . 81
10.02. Reliance by Agent . . . . . . . . . . . . . . . 81
10.03. Defaults. . . . . . . . . . . . . . . . . . . . 81
10.04. Rights as Lender. . . . . . . . . . . . . . . . 82
10.05. Indemnification . . . . . . . . . . . . . . . . 82
10.06. Non-Reliance on Agent and Other Lenders . . . . 82
10.07. Resignation of Agent. . . . . . . . . . . . . . 83
ARTICLE XI -- Miscellaneous
11.01 Assignments and Participations. . . . . . . . . 84
11.02 Notices . . . . . . . . . . . . . . . . . . . . 86
11.03 Confidentiality . . . . . . . . . . . . . . . . 87
11.04 Right of Setoff; Adjustments. . . . . . . . . . 87
11.05 Survival. . . . . . . . . . . . . . . . . . . . 88
11.06 Expenses. . . . . . . . . . . . . . . . . . . . 88
11.07 Amendments and Waivers. . . . . . . . . . . . . 88
11.08 Counterparts . . . . . . . . . . . . . . . . 89
11.09 Termination . . . . . . . . . . . . . . . . . . 89
11.10 Governing Law . . . . . . . . . . . . . . . . . 89
11.11 Indemnification . . . . . . . . . . . . . . . . 90
11.12 Headings and References . . . . . . . . . . . . 91
11.13 Severability. . . . . . . . . . . . . . . . . . 91
11.14 Entire Agreement. . . . . . . . . . . . . . . . 91
11.15 Agreement Controls. . . . . . . . . . . . . . . 91
11.16 Usury Savings Clause. . . . . . . . . . . . . . 91
11.17 Reserved. . . . . . . . . . . . . . . . . . . . 92
11.18 Waiver of Jury Trial. . . . . . . . . . . . . . 92
11.19 Removal of Lenders. . . . . . . . . . . . . . . 92
11.20 Guaranty Terminations.. . . . . . . . . . . . . 93
EXHIBIT A Commitments. . . . . . . . . . . . . . . . . . . . .A-1
EXHIBIT B Form of Assignment and Acceptance. . . . . . . . . .B-1
EXHIBIT C Notice of Appointment (or Revocation) of Authorized
Representative . . . . . . . . . . . . . . . . . . .C-1
EXHIBIT D Form of Borrowing Notice--Revolving Credit Loans and
Swing Line Loans and/or Competitive Bid Quote Request
(Five Year Facility) . . . . . . . . . . . . . . . .D-1
EXHIBIT E [Reserved] . . . . . . . . . . . . . . . . . . . . .E-1
EXHIBIT F Form of Competitive Bid Quote (Five Year Facility) .F-1
EXHIBIT G Form of Guaranty Agreement . . . . . . . . . . . . .G-1
EXHIBIT H Form of Guarantor Joinder Agreement. . . . . . . . .H-1
EXHIBIT I Form of Revolving Credit Notes (Five Year Facility).I-1
EXHIBIT J Form of Competitive Bid Notes (Five Year Facility) .J-1
EXHIBIT K Form of Swing Line Note (Five Year Facility). . . .K-1
EXHIBIT L Form of Interest Rate Selection Notice (Five Year
Facility). . . . . . . . . . . . . . . . . . . . . .L-1
EXHIBIT M Form of Opinion of Counsel to the Borrower and Counsel to
the Guarantors . . . . . . . . . . . . . . . . . . .M-1
EXHIBIT N Form of Compliance Certificate . . . . . . . . . . .N-1
EXHIBIT O Form of LC Account Agreement . . . . . . . . . . . .O-1
Schedule 6.01(d) Subsidiaries
Schedule 6.01(f) Contingent Liabilities
Schedule 6.01(g) Liens
Schedule 6.01(h) Tax Matters
Schedule 6.01(j) Litigation
Schedule 6.01(m) Patents
Schedule 6.01(o) Consents
Schedule 8.04 Indebtedness
AMENDED AND RESTATED CREDIT AGREEMENT
(Five Year Facility)
THIS AMENDED AND RESTATED CREDIT AGREEMENT (Five Year
Facility), dated as of September 17, 1998 (the "Agreement"), is
made by and among:
SAKS INCORPORATED, a Tennessee corporation having its
principal place of business in Birmingham, Alabama (the
"Borrower"); and
Each lender executing and delivering a signature page hereto
and each other lender which may hereafter execute and deliver an
instrument of assignment with respect to this Agreement pursuant to
Section 11.01 hereof (hereinafter such lenders may be referred to
individually as a "Lender" or collectively as the "Lenders"); and
NATIONSBANK, N. A., a national banking association organized
and existing under the laws of the United States of America
("NationsBank"), in its capacity as Administrative Agent for the
Lenders (in such capacity, the "Agent"); and
▇▇▇▇▇▇ GUARANTY TRUST COMPANY OF NEW YORK and THE CHASE
MANHATTAN BANK, each in its capacity as Co-Syndication Agents and
CITIBANK, N.A., in its capacity as Documentation Agent;
W I T N E S S E T H:
WHEREAS, the Borrower (formerly known as ▇▇▇▇▇▇▇▇'▇, Inc.),
the Agent and certain of the Lenders are party to that certain
Credit Agreement dated as of February 2, 1998 (the "Existing Credit
Agreement"); and
WHEREAS, the Borrower has requested that the Lenders amend and
restate the Existing Credit Agreement to make available to the
Borrower a revolving credit facility in the maximum aggregate
principal amount at any time outstanding of $750,000,000 with a
maturity of 5 years, which shall include (i) a standby letter of
credit facility of $150,000,000 and (ii) a swing line facility of
$50,000,000, the proceeds of such facilities to be used to provide
working capital, to finance capital expenditures, to finance
Permitted Acquisitions (as herein defined) and to provide for the
general corporate purposes of the Borrower and its Subsidiaries;
and
WHEREAS, the Lenders and the Agent are willing to amend and
restate the Existing Credit Agreement and to make all such
facilities available to the Borrower upon the terms and conditions
set forth herein;
NOW, THEREFORE, the Borrower, the Lenders and the Agent hereby
agree that the Existing Credit Agreement is amended and restated in
its entirety as follows:
ARTICLE I
Definitions and Terms
1.01 Definitions. For the purposes of this Agreement, in
addition to the definitions set forth above, the following terms
shall have the respective meanings set forth below:
"Absolute Rate" has the meaning assigned thereto in
Section 2.03(c)(ii)(C) hereof.
"Acquisition" means the acquisition, including without
limitation by means of merger or consolidation, by the
Borrower or any Subsidiary of (i) a controlling equity
interest in another Person (including the purchase of an
option, warrant or convertible or similar type security to
acquire such a controlling interest at the time it becomes
exercisable by the holder thereof), whether by purchase of
such equity interest or upon exercise of an option or warrant
for, or conversion of securities into, such equity interest,
(ii) assets of another Person which constitute all or
substantially all of the assets of such Person or (iii) a
Business Unit.
"Adjusted Eurodollar Rate" means, for any Eurodollar Loan
for any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) determined
by the Agent to be equal to the sum of (i) the quotient
obtained by dividing (x) the Eurodollar Rate for such
Eurodollar Loan for such Interest Period by (y) the difference
of 1 minus the Reserve Requirement for such Eurodollar Loan
for such Interest Period plus (ii) the Applicable Interest
Addition.
"Affiliate" means a Person (i) which directly or
indirectly through one or more intermediaries controls, or is
controlled by, or is under common control with, the Borrower,
(ii) which beneficially owns or holds 10% or more of any class
of the outstanding voting stock (or in the case of a Person
which is not a corporation, 10% or more of the equity
interest) of the Borrower, or (iii) 10% or more of any class
of the outstanding voting stock (or in the case of a Person
which is not a corporation, 10% or more of the equity
interest) of which is beneficially owned or held by the
Borrower. The term "control" means the possession, directly
or indirectly, of the power to direct or cause the direction
of the management and policies of such Person, whether through
ownership of voting stock, by contract or otherwise.
"Affiliate Transaction" has the meaning assigned thereto
in Section 8.09 hereof.
"Alternative Rating Agency" has the meaning assigned to
such term in the definition of "Applicable Interest Addition"
in Section 1.01 hereof.
"Applicable Commitment Percentage" means, at
any time for each Lender with respect to the Revolving Credit
Facility (including its Participations and its obligations
hereunder to the Issuing Bank and Swing Line Lender to acquire
Participations), a fraction (expressed as a percentage), (i)
the numerator of which shall be the amount of such Lender's
Revolving Credit Commitment at such date of determination
(which Revolving Credit Commitment for each Lender as of the
Closing Date is set forth in Exhibit A attached hereto and
incorporated herein by reference), and (ii) the denominator of
which shall be the Total Revolving Credit Commitment at such
date of determination; provided, that the Applicable
Commitment Percentage of each Lender shall be increased or
decreased to reflect any assignments to or by such Lender
effected in accordance with Section 11.01 hereof. The
Applicable Commitment Percentage hereunder shall at all times
be equal to the Applicable Commitment Percentage as defined in
the 364 Day Facility Credit Agreement.
"Applicable Facility Fee" means, at any time, that
percent per annum set forth in the table below corresponding
to the Level at which the Applicable Interest Addition is then
determined in accordance with the definition thereof:
Applicable
Level Facility Fee
-------- ------------
I 0.225%
II 0.200%
III 0.150%
IV 0.125%
V 0.100%
Any change in the Level at which the Applicable Interest
Addition is determined shall result in a corresponding and
simultaneous change in the Applicable Facility Fee. As of the
date hereof, the initial Applicable Facility Fee equals
0.150%.
"Applicable Interest Addition" means, for each Eurodollar
Loan and with respect to the fee per annum set forth in
Section 3.03(i) hereof, that percent per annum set forth below
in the applicable column, which shall be (i) determined based
upon the rating of each rated class of the Borrower's long-term,
senior unsecured Indebtedness for Money Borrowed,
including without limitation Indebtedness hereunder and, if no
such Indebtedness is then outstanding, a class of long-term,
senior unsecured Indebtedness for Money Borrowed that the
Borrower may issue from its shelf registration statement filed
with the Securities and Exchange Commission covering, among
other things, long-term senior unsecured Indebtedness for
Money Borrowed (the "Rated Debt"), assigned by S&P and ▇▇▇▇▇'▇
(or to the extent permitted as described below, such other
Alternative Rating Agency) (the "Debt Rating") as specified
below and (ii) applicable to all Eurodollar Loans existing on
and after the first date a specific Debt Rating is effective
and continuing until, but not including, the date any change
in such Debt Rating is effective (the "Debt Rating Date"):
Level Debt Rating Interest
--------- ---------------- -----------
I Less than or equal to BB by S&P and
Ba2 by ▇▇▇▇▇'▇
0.525%
II
BB+ by S&P and Ba1 by ▇▇▇▇▇'▇
0.425%
III
BBB- by S&P and Baa3 by ▇▇▇▇▇'▇
0.350%
IV
BBB by S&P and Baa2 by ▇▇▇▇▇'▇
0.275%
V
Greater than or equal to BBB+ by S&P
and Baa1 by ▇▇▇▇▇'▇
0.250%
As of the date hereof, the initial Applicable
Interest Addition equals 0.350%.
In the event that the Debt Ratings assigned by S&P
and ▇▇▇▇▇'▇ differ by one rating level, the Applicable
Interest Addition shall be determined by reference to the
rating level having the higher Debt Rating without regard
to the lower Debt Rating. In the event that the Debt
Ratings assigned by S&P and ▇▇▇▇▇'▇ differ by more than
one rating level, the Applicable Interest Addition shall
be determined by reference to the Debt Rating which is
one rating level higher than the lower assigned Debt
Rating without regard to the higher assigned Debt Rating.
The final Debt Rating level by which the Applicable
Interest Addition is determined is referred to herein as
a "Level". By way of illustration and not limitation, if
S&P assigned a rating of BB+ (i.e., Level II) and ▇▇▇▇▇'▇
assigns a rating of Baa3 (i.e., Level III), the
Applicable Interest Addition will be 0.350%; however if
S&P assigns a rating of BB (i.e., Level I) and ▇▇▇▇▇'▇
assigns a rating of Baa1 (i.e., Level V), the Applicable
Interest Addition will be 0.425%.
In the event that either S&P or ▇▇▇▇▇'▇ (but not
both) shall not make a rating of any class of Rated Debt,
the above calculations shall be made based on (i) the
rating provided by S&P or ▇▇▇▇▇'▇, whichever shall then
maintain a current rating, of the Rated Debt and (ii) the
rating provided by a nationally recognized securities
rating agency selected by the Borrower and approved by
the Agent, which shall be substituted for either S&P or
▇▇▇▇▇'▇, as the case may be (the "Alternative Rating
Agency"), of the Rated Debt and the Alternative Rating
Agency's equivalent rating levels shall be substituted
for the Debt Rating levels of either S&P or ▇▇▇▇▇'▇,
whichever shall no longer then make the applicable Debt
Rating; provided further; in the event that no
Alternative Rating Agency shall make a rating of each
class of Rated Debt and (i) only one of S&P or ▇▇▇▇▇'▇
shall then make a Debt Rating, the Applicable Interest
Addition shall be determined by the Debt Rating which is
one Level lower than the Debt Rating assigned by S&P or
▇▇▇▇▇'▇, as applicable (e.g., if only ▇▇▇▇▇'▇ provides a
Debt Rating and such Debt Rating is Level V, the
Applicable Interest Addition shall be 0.275%); or (ii)
neither S&P nor ▇▇▇▇▇'▇ shall then make a Debt Rating,
the Applicable Interest Addition shall be Level I.
"Applicable Lending Office" means, for each Lender
and for each Type of Loan, the "Applicable Lending
Office" of such Lender (or of an affiliate of such
Lender) designated for such Type of Loan on the signature
pages hereof or such other office of such Lender (or an
affiliate of such Lender) as such Lender may from time to
time specify to the Agent and the Borrower by written
notice in accordance with the terms hereof as the office
by which its Loans of such Type are to be made and
maintained.
"Applications and Agreements for Letters of Credit"
means, collectively, the Applications and Agreements for
Letters of Credit executed by the Borrower from time to
time and delivered to the Issuing Bank to support the
issuance of Letters of Credit.
"Assignment and Acceptance" means an Assignment and
Acceptance substantially in the form of Exhibit B
attached hereto and incorporated herein by reference
(with blanks appropriately filled in) delivered to the
Agent in connection with an assignment of a Lender's
interest under this Agreement pursuant to Section 11.01.
"Audited Restated Financial Statements" means,
collectively, the audited restated combined income
statement of the Borrower and its Subsidiaries (giving
effect to the Saks Acquisition) for the Fiscal Year ended
January 31, 1998 and the audited restated combined
balance sheet of the Borrower and its Subsidiaries
(giving effect to the Saks Acquisition) as at January 31,
1998.
"Authorized Representative" means any of the
Chairman, Vice Chairmen, President or Executive Vice
Presidents of the Borrower and, with respect to financial
matters, the Treasurer or Chief Financial Officer of the
Borrower and, with respect to Borrowing Notices,
Competitive Bid Quote Requests, Applications and
Agreements for Letters of Credit and notices of
Conversion or Continuation, any person designated by the
Treasurer or the Chief Financial Officer in writing to
the Agent, or any other person expressly designated by
the Board of Directors of the Borrower (or the
appropriate committee thereof) as an Authorized
Representative of the Borrower, as set forth from time to
time in a certificate substantially in the form attached
hereto as Exhibit C and incorporated herein by reference.
"Base Rate" means, for any day, the rate per annum
equal to the higher of (a) the Federal Funds Rate for
such day plus one-half of one percent (0.500%) and (b)
the Prime Rate for such day. Any change in the Base Rate
due to a change in the Prime Rate or the Federal Funds
Rate shall be effective on the effective date of such
change in the Prime Rate or Federal Funds Rate.
"Base Rate Loan" means any Loan for which the rate
of interest is determined by reference to the Base Rate.
"Board" means the Board of Governors of the Federal
Reserve System (or any successor body).
"Borrower's Account" means the demand deposit
account with the Agent designated by the Borrower from
time to time in writing delivered and acceptable to the
Agent, or any successor account thereto with the Agent,
which may be maintained at one or more offices of the
Agent or an agent of the Agent.
"Borrower's Audited Statements" has the meaning
assigned thereto in Section 6.01(f) hereof.
"Borrowing Notice" means the notice delivered by an
Authorized Representative in connection with a Loan
(other than a Competitive Bid Loan), in substantially the
form attached hereto as Exhibit D and incorporated herein
by reference.
"Business Day" means any day which is not a
Saturday, Sunday or a day on which banks in the State of
North Carolina are authorized or obligated by law,
executive order or governmental decree to be closed.
"Business Unit" means (i) one or more retail stores,
warehouses or distribution centers, including the related
land, buildings and trade fixtures of a Person or a
division of a Person, which may, but is not required to,
include inventory, receivables, furniture, fixtures and
equipment, and intangible and other assets related to
such retail stores, warehouses or distribution centers or
(ii) all or substantially all of a line or lines of
business conducted by a Person or a division of a Person.
"Capital Leases" means all leases which have been or
should be capitalized in accordance with Generally
Accepted Accounting Principles as in effect from time to
time including Statement No. 13 of the Financial
Accounting Standards Board and any successor thereof.
"Closing Date" means the date on which the
conditions set forth in Section 5.01 hereof have been
satisfied.
"Code" means the Internal Revenue Code of 1986, as
amended, any successor provision or provisions and any
regulations promulgated thereunder.
"Combined Three Month Statements" has the meaning
assigned thereto in Section 6.01(f) hereof.
"Common Stock" means the common stock, par value
$.10 per share, of the Borrower.
"Competitive Bid Borrowing" has the meaning assigned
thereto in Section 2.03(b) and shall consist of one or
more Competitive Bid Loans.
"Competitive Bid Facility" means the subfacility
under the Revolving Credit Facility described in Section
2.03 providing for Competitive Bid Loans to the Borrower.
"Competitive Bid Loan" means a Loan made by a Lender
pursuant to the Competitive Bid Facility provided for by
Section 2.03.
"Competitive Bid Notes" means, collectively, the
promissory notes of the Borrower evidencing Competitive
Bid Loans executed and delivered to the Lenders
substantially in the form of Exhibit J attached hereto
and incorporated herein by reference.
"Competitive Bid Outstandings" means, as of any date
of determination, the aggregate principal amount of all
Competitive Bid Loans then outstanding.
"Competitive Bid Quote" means an offer in accordance
with Section 2.03(c) by a Lender to make a Competitive
Bid Loan with one single specified interest rate, which
shall be in substantially the form of Exhibit F attached
hereto and incorporated herein by reference.
"Competitive Bid Quote Request" has the meaning
assigned to such term in Section 2.03(b) and shall be in
substantially the form of Exhibit D attached hereto and
incorporated herein by reference.
"Consistent Basis" in reference to the application
of Generally Accepted Accounting Principles means the
accounting principles observed in the period referred to
are comparable in all material respects to those applied
in the preparation of the Audited Restated Financial
Statements, which accounting principles shall be the same
in all material respects as those accounting principles
applied in the preparation of the Combined Three Month
Statements.
"Consolidated EBITDA" means, with respect to the
Borrower and its Subsidiaries for any period of
computation thereof, the sum of, without duplication, (i)
Consolidated Net Income, plus (ii) Consolidated Interest
Expense, plus (iii) taxes on income, plus (iv)
amortization, plus (v) depreciation, all determined on a
consolidated basis in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis;
provided, however, that (x) extraordinary and unusual
charges incurred by the Borrower directly as a result of
(A) the Saks Acquisition (including in any event
repayment or retirement of Indebtedness of the Saks REMIC
Subsidiaries), the Acquisition by the Borrower of ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ & Co. effective January 31, 1998, the
Acquisition by the Borrower of Parisian, Inc. effective
October 11, 1996, the Acquisition by the Borrower of
Younkers, Inc. effective February 3, 1996, the
Acquisition by the Borrower of ▇.▇. ▇▇▇▇▇▇▇▇▇'▇, Inc.
effective February 1, 1997, the prepayment of the Junior
Subordinated Debentures, the retirement of the Parisian
Senior Subordinated Notes and the retirement of the
Senior Notes and (B) any Permitted Acquisition after the
Closing Date in an amount up to and including 10% of the
Cost of Acquisition for such Permitted Acquisition, and
(y) any non-recurring, non-cash loss, shall all be
excluded from the computation of Consolidated Net Income;
provided further, however, that effective as of the
effective date of any Acquisition, Consolidated EBITDA
shall be computed giving pro forma effect to such
Acquisition for each Four-Quarter Period then and
thereafter occurring until such Acquisition has been
effective for a complete Four-Quarter Period.
"Consolidated Financing Charges" means those charges
owed and allocated to third parties with respect to
accounts receivable securitizations transacted in the
ordinary course of business.
"Consolidated Fixed Charge Ratio" means, with
respect to the Borrower and its Subsidiaries for the
Four-Quarter Period ending on the date of computation
thereof, the ratio of (i) Consolidated EBITDA plus
Consolidated Financing Charges plus, to the extent
deducted in arriving at Consolidated EBITDA, lease,
rental and all other payments made in respect of or in
connection with operating leases, to (ii) Consolidated
Fixed Charges during such Four-Quarter Period.
"Consolidated Fixed Charges" means, with respect to
Borrower and its Subsidiaries, for the periods indicated,
the sum of, without duplication, (i) Consolidated
Interest Expense, plus (ii) to the extent deducted in
arriving at Consolidated EBITDA, lease, rental and all
other payments made in respect of or in connection with
operating leases, plus (iii) Consolidated Financing
Charges, all determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis; provided further, however,
that effective as of the effective date of any
Acquisition, such calculations shall be computed giving
pro forma effect to such Acquisition for each Four-Quarter Period
then and thereafter occurring until such
Acquisition has been effective for a complete Four-Quarter Period.
"Consolidated Funded Total Indebtedness" means, at
any time as of which the amount thereof is to be
determined, all Indebtedness for Money Borrowed of the
Borrower and its Subsidiaries (including, but not limited
to, all current maturities and borrowings under short
term loans) plus the face amount of all issued and
outstanding standby letters of credit and all obligations
(to the extent not duplicative) arising under such
letters of credit, all determined on a consolidated basis
in accordance with Generally Accepted Accounting
Principles applied on a Consistent Basis.
"Consolidated Interest Expense" means, with respect
to any period of computation thereof, the gross interest
expense of the Borrower and its Subsidiaries, including
without limitation (i) the amortization of debt
discounts, (ii) the amortization of all fees (including,
without limitation, fees payable in respect of a Swap
Agreement) payable in connection with the incurrence of
Indebtedness to the extent included in interest expense
and (iii) the portion of any payments made in connection
with Capital Leases allocable to interest expense, all
determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a
Consistent Basis.
"Consolidated Net Income" means, for any period of
computation thereof, the net income of the Borrower and
its Subsidiaries as determined on a consolidated basis in
accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis; but excluding as income:
(i) net gains on the sale, conversion or other
disposition of capital assets and net gains on the
acquisition, retirement, sale or other disposition of
capital stock and other securities of the Borrower or its
Subsidiaries, (ii) any write-up of any asset, and (iii)
any other net gain or credit of an extraordinary nature,
all determined in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis.
"Consolidated Net Worth" means at any time as of
which the amount thereof is to be determined, the
shareholders' equity of the Borrower and its Subsidiaries
determined on a consolidated basis in accordance with
Generally Accepted Accounting Principles applied on a
Consistent Basis (excluding intercompany items among the
Borrower and its Subsidiaries and any upward adjustment
after the Closing Date due to revaluation of assets).
"Consolidated Subordinated Debt" means all
Consolidated Funded Total Indebtedness which is by its
terms subordinate to the Loans as required by, and in
substance acceptable to, the Agent.
"Consolidated Total Assets" means, as at any time of
determination thereof, the net book value of all assets
of the Borrower and its Subsidiaries as determined on a
consolidated basis in accordance with Generally Accepted
Accounting Principles applied on a Consistent Basis.
"Contingent Obligation" of any Person means (i) all
contingent liabilities required (or which, upon the
creation or incurring thereof, would be required) to be
included in the consolidated financial statements
(including footnotes) of such Person in accordance with
Generally Accepted Accounting Principles applied on a
Consistent Basis, including Statement No. 5 of the
Financial Accounting Standards Board, and (ii) all
reimbursement obligations of such Person with respect to
any letter of credit and all obligations of such Person
guaranteeing or in effect guaranteeing any Indebtedness
of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including
obligations of such Person however incurred:
(a) to purchase such Indebtedness or any
property or assets constituting security therefor;
(b) to advance or supply funds in any manner
(x) for the purchase or payment of such
Indebtedness or (y) to maintain a minimum working
capital, net worth or other balance sheet condition
or any income statement condition of the primary
obligor;
(c) to grant or convey any lien, security
interest, pledge, charge or other encumbrance on
any property or assets of such Person to secure
payment of such Indebtedness;
(d) to lease property or to purchase
securities or other property or services primarily
for the purpose of assuring the owner or holder of
such Indebtedness of the ability of the primary
obligor to make payment of such Indebtedness; or
(e) otherwise to assure the owner of the
Indebtedness of the primary obligor against loss in
respect thereof.
With respect to Contingent Obligations, such liabilities
shall be computed at the amount which, in light of all
the facts and circumstances existing at the time,
represent the present value of the amount which can
reasonably be expected to become an actual or matured
liability.
"Continue", "Continuation", and "Continued" shall
refer to the continuation pursuant to Section 2.11 hereof
of a Eurodollar Loan from one Interest Period to the next
Interest Period.
"Convert", "Conversion", and "Converted" shall refer
to a conversion pursuant to Section 2.11 or Article IV of
one Type of Loan into another Type of Loan.
"Cost of Acquisition" means, as at the date of
closing any Acquisition, the sum of the following: (i)
the value of the capital stock, or warrants or options to
acquire capital stock, of the Borrower or any Subsidiary
to be transferred in connection therewith, (ii) any cash
or other property (excluding property described in clause
(i)) or the unpaid principal amount of any debt
instrument given as consideration in such Acquisition,
and (iii) any Indebtedness or liabilities assumed by the
Borrower or its Subsidiaries in connection with such
Acquisition. For purposes of determining the Cost of
Acquisition for any transaction, (A) the capital stock of
the Borrower shall be valued (I) at its market value as
reported on the New York Stock Exchange or any national
securities exchange with respect to shares that are
freely tradeable, and (II) with respect to shares that
are not freely tradeable, as determined by the Board of
Directors of the Borrower (which determination shall be
conclusive), (B) the capital stock of any Subsidiary
shall be valued as determined by the Board of Directors
of such Subsidiary (which determination shall be
conclusive), and (C) with respect to any Acquisition
accomplished pursuant to the exercise of options or
warrants or the conversion of securities, the Cost of
Acquisition shall include both the cost of acquiring such
option, warrant or convertible security as well as the
cost of exercise or conversion.
"Credit Exposure" means for each Lender an amount
equal at all times (i) other than following the
occurrence and during the continuance of an Event of
Default, to its Revolving Credit Commitment, and
(ii) following the occurrence and during the continuance
of an Event of Default, to the sum of the aggregate
principal amount of Revolving Credit Loans owing to such
Lender plus the aggregate unutilized amounts of such
Lender's Revolving Credit Commitment plus the amount of
such Lender's Applicable Commitment Percentage of Swing
Line Outstandings and Letter of Credit Outstandings plus
the amount of such Lender's Competitive Bid Outstandings;
provided, if any Lender shall have failed to pay to the
Swing Line Lender or the Issuing Bank, as applicable,
such Lender's Applicable Commitment Percentage of any
Swing Line Loan or drawing under any Letter of Credit
resulting in an outstanding Reimbursement Obligation,
such Lender's Credit Exposure attributable to such Swing
Line Outstandings or Letter of Credit Outstandings or
both shall be deemed to be held by the Swing Line Lender
or the Issuing Bank, as applicable, for purposes of this
definition.
"Debt Rating" has the meaning assigned to such term
in the definition of "Applicable Interest Addition" in
Section 1.01 hereof.
"Debt Rating Date" has the meaning assigned to such
term in the definition of "Applicable Interest Addition"
in Section 1.01 hereof.
"Default" means any event or condition which, with
the giving or receipt of notice or lapse of time or both,
would constitute an Event of Default hereunder.
"Dollars" and the symbol "$" means dollars
constituting legal tender for the payment of public and
private debts in the United States of America.
"Eligible Assignee" means (i) a Lender; (ii) an
affiliate of a Lender; and (iii) any other Person
approved by the Agent and, unless an Event of Default has
occurred and is continuing at the time any assignment is
effected in accordance with Section 11.01, the Borrower,
such approval not to be unreasonably withheld or delayed
by the Borrower or the Agent, as applicable, and such
approval to be deemed given by the Borrower if no
objection is received by the assigning Lender and the
Agent from the Borrower within six (6) Business Days
after written notice of such proposed assignment has been
provided by the assigning Lender to the Borrower;
provided, however, that neither the Borrower nor an
affiliate of the Borrower shall qualify as an Eligible
Assignee.
"Eligible Securities" means the following
obligations and any other obligations previously approved
in writing by the Agent:
(i) Government Securities;
(ii) the following debt securities of the
following agencies or instrumentalities of the
United States of America if at all times the full
faith and credit of the United States of America is
pledged to the full and timely payment of all
interest and principal thereof:
(a) all direct or fully guaranteed
obligations of the United States Treasury; and
(b) mortgage-backed securities and
participation certificates guaranteed by the
Government National Mortgage Association;
(iii) the following obligations of the
following agencies or instrumentalities of or
corporations established by the United States of
America:
(a) participation certificates and debt
obligations of the Federal Home Loan Mortgage
Corporation;
(b) consolidated debt obligations, and
obligations secured by a letter of credit, of
the Federal Home Loan Banks; and
(c) debt obligations and mortgage-backed
securities of the Federal National Mortgage
Association which have not had the interest
portion thereof severed therefrom;
(iv) obligations of any corporation organized
under the laws of any state of the United States of
America or under the laws of any other nation,
payable in the United States of America, expressed
to mature not later than 180 days following the
date of issuance thereof and rated in an investment
grade rating category by S&P or ▇▇▇▇▇'▇;
(v) interest bearing demand or time deposits
issued by any Lender or certificates of deposit
maturing within one year from the date of
acquisition issued by a bank or trust company
organized under the laws of the United States or of
any state thereof having capital surplus and
undivided profits aggregating at least $500,000,000
and being rated A- or better by S&P or A-3 or
better by ▇▇▇▇▇'▇;
(vi) Repurchase Agreements;
(vii) Pre-Refunded Municipal Obligations;
(viii) shares of mutual funds which invest
in obligations described in paragraphs (i) through
(iii) above, the shares of which mutual funds are
at all times rated "AAA" by S&P or Aaa by ▇▇▇▇▇'▇;
(ix) asset-backed remarketed certificates of
participation representing a fractional undivided
interest in the assets of a trust, which
certificates are rated at least "A-1" by S&P or "P-1" by ▇▇▇▇▇'▇;
(x) shares of money market funds which comply
with the provisions of Rule 2a-7 of the Securities
and Exchange Commission (17 C.F.R. Section 270.2a-7); and
(xi) other investments approved in writing by
the Required Lenders, which approval shall not be
unreasonably withheld.
Obligations listed in paragraphs (i), (ii) and (iii)
above which are in book-entry form must be held in a
trust account with the Federal Reserve Bank or with a
clearing corporation or chain of clearing corporations
which has an account with the Federal Reserve Bank.
"Environmental Laws" means any federal, state or
local statute, law, ordinance, code, rule, regulation,
order, decree, permit or license regulating, relating to,
or imposing liability or standards of conduct concerning,
any environmental matters or conditions, environmental
protection or conservation, including without limitation,
the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended; the Superfund
Amendments and Reauthorization Act of 1986, as amended;
the Resource Conservation and Recovery Act, as amended;
the Toxic Substances Control Act, as amended; the Clean
Air Act, as amended; the Clean Water Act, as amended;
together with all regulations promulgated thereunder, and
any other "Superfund" or "Superlien" law.
"ERISA" means, at any date, the Employee Retirement
Income Security Act of 1974, as amended, and the
regulations thereunder, all as the same shall be in
effect at such date.
"Eurodollar Business Day" means a domestic Business
Day and one on which the relevant international financial
markets are open for the transaction of the business
contemplated by this Agreement (including without
limitation dealings in U.S. Dollar deposits) in London,
England, New York, New York and Charlotte, North
Carolina.
"Eurodollar Loan" means a Loan that bears interest
at rates based upon the Adjusted Eurodollar Rate.
"Eurodollar Rate" means, for any Eurodollar Loan for
any Interest Period therefor, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page)
as the London interbank offered rate for deposits in
Dollars at approximately 11:00 a.m. (London time) two
Eurodollar Business Days prior to the first day of such
Interest Period for a term comparable to such Interest
Period. If for any reason such rate is not available, the
term "Eurodollar Rate" shall mean, for any Eurodollar
Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of
1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Eurodollar
Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period;
provided, however, if more than one rate is specified on
Reuters Screen LIBO Page, the applicable rate shall be
the arithmetic mean of all such rates (rounded upwards,
if necessary, to the nearest 1/100 of 1%).
"Event of Default" means any of the occurrences set
forth as such in Section 9.01 hereof.
"Existing Letters of Credit" means those certain
standby letters of credit (i) number 919266 issued for
the account of the Borrower on December 4, 1996 by
NationsBank, N.A. (formerly known as NationsBank, N.A.
(South)) for the benefit of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Inc. in the
current stated amount of $7,033,495.00; (ii) issued for
the account of the Borrower on September 16, 1998 by
NationsBank, N.A. under the Existing Credit Agreement for
the benefit of The Chase Manhattan Bank in the original
stated amount of $1,446,394.95; and (iii) issued for the
account of the Borrower on September 16, 1998 by
NationsBank, N.A. under the Existing Credit Agreement for
the benefit of Bankers Trust Company in the original
stated amount of $2,831,850.00.
"Federal Funds Rate" means, for any day, the rate
per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) equal to the weighted average of the rates
on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such
day; provided that (i) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day as
so published on the next succeeding Business Day, and
(ii) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such
day shall be the average rate charged to the Agent (in
its individual capacity) on such day on such transactions
as determined by the Agent.
"Filing Date" has the meaning assigned thereto in
Section 5.01(a)(xiii) hereof.
"Fiscal Year" means the 52-week or 53-week period of
the Borrower ending on the Saturday of each calendar year
closest (whether before or after) to January 31 and
"Fiscal Year" followed by a numerical year means the
Fiscal Year which has a Fiscal Year Beginning occurring
during such numerical calendar year.
"Fiscal Year Beginning" means the first day of a
Fiscal Year.
"Fixed Rate Loan" means a Loan which is either a
Eurodollar Rate Loan or a Competitive Bid Loan.
"Foreign Benefit Law" means any applicable statute,
law, ordinance, code, rule, regulation, order or decree
of any foreign nation or any province, state, territory,
protectorate or other political subdivision thereof
regulating, relating to, or imposing liability or
standards of conduct concerning, any pension, retirement,
healthcare, death, disability or other employee benefit
plan.
"Foreign Subsidiary" means a Subsidiary not
organized or existing under the laws of the United States
of America, any state thereof, or the District of
Columbia.
"Four-Quarter Period" means a period of four full
consecutive fiscal quarterly periods, taken together as
one accounting period, and in the event any such fiscal
quarterly period occurs prior to the effective date of
any Acquisition, or is the period in which such effective
date occurs (each a "Pre-Acquisition Period"), all
financial statements, data, computations and
determinations for such Four-Quarter Period shall be made
on a pro forma basis for each Pre-Acquisition Period
giving effect to such Acquisition for all prior periods.
"GAAP" or "Generally Accepted Accounting Principles"
means those principles of accounting set forth in
pronouncements of the Financial Accounting Standards
Board, the American Institute of Certified Public
Accountants or which have other substantial authoritative
support and are applicable in the circumstances as of the
date of a report, as such principles are from time to
time supplemented and amended, subject to compliance at
all times with Section 1.02 hereof.
"Government Securities" means direct obligations of,
or obligations the timely payment of principal and
interest on which are fully and unconditionally
guaranteed by, the United States of America.
"Governmental Authority" means any Federal, state,
municipal, national, foreign or other governmental
department, commission, board, bureau, agency, court,
arbitration body or instrumentality or political
subdivision thereof or any entity or officer exercising
executive, legislative or judicial, regulatory or
administrative functions of or pertaining to any
government or any court, in each case whether a state of
the United States, the United States or foreign nation,
state, province or other governmental instrumentality.
"Guarantor Joinder Agreement" means a Guarantor
Joinder Agreement substantially in the form of Exhibit H
attached hereto and incorporated herein by reference
(with blanks appropriately filled in) executed and
delivered to the Agent in connection with a Material
Subsidiary (or other Person) becoming a Guarantor and
party to the Guaranty.
"Guarantors" means, collectively, (i) each Material
Subsidiary existing on the Closing Date and (ii) any
other Person who shall become a Material Subsidiary after
the Closing Date and shall become a party to the Guaranty
as provided in Section 7.18 hereof; provided further, for
all purposes of this Agreement, the term "Guarantor"
shall be deemed to be "Subsidiary" at all times following
the termination of the Guaranty in accordance with
Section 11.20 hereof.
"Guaranty" means the Guaranty Agreement of the
Guarantors (including without limitation those Guarantors
which subsequently become a party thereto in accordance
with Section 7.18 hereof) in favor of the Agent
guaranteeing in whole or in part the payment of
Obligations, substantially in the form of Exhibit G
attached hereto and incorporated herein by reference, as
the same may be amended, modified or supplemented.
"Hazardous Material" means and includes any
pollutant, contaminant, or hazardous, toxic or dangerous
waste, substance or material (including without
limitation petroleum products, asbestos-containing
materials and lead), the generation, handling, storage,
transportation, disposal, treatment, release, discharge
or emission of which is subject to any Environmental Law.
"Indebtedness" means with respect to any Person,
without duplication, all Indebtedness for Money Borrowed,
all indebtedness of such Person for the acquisition of
property, all indebtedness secured by any Lien on the
property of such Person whether or not such indebtedness
is assumed, all liability of such Person by way of
endorsements (other than for collection or deposit in the
ordinary course of business), all Contingent Obligations,
all Rate Hedging Obligations, that portion of obligations
with respect to Capital Leases which in accordance with
Generally Accepted Accounting Principles is classified as
a liability on a balance sheet and all Synthetic Lease
Indebtedness; but excluding all accounts payable in the
ordinary course of business and only so long as payment
therefor is due within one year; provided, that in no
event shall the term Indebtedness include surplus and
retained earnings, minority interest in Subsidiaries,
lease obligations (other than pursuant to Capital Leases
or in connection with any tax retention operating lease
or any form of synthetic lease as provided above),
reserves for deferred income taxes and investment
credits, other deferred credits and reserves, and
deferred compensation obligations.
"Indebtedness for Money Borrowed" means for any
Person all indebtedness in respect of money borrowed,
including without limitation all Capital Leases and the
deferred purchase price of any property or asset,
evidenced by a promissory note, bond or similar written
obligation for the payment of money (including, but not
limited to, conditional sales or similar title retention
agreements).
"Interest Period"
(a) means for each Eurodollar Loan a period
commencing on the date such Eurodollar Loan is made or
Converted and each subsequent period commencing on the
last day of the immediately preceding Interest Period for
such Eurodollar Loan, and ending, at the Borrower's
option, on the date one, two, three, six or (if
available) nine months thereafter as notified to the
Agent by an Authorized Representative three (3)
Eurodollar Business Days prior to the beginning of such
Interest Period; provided, that,
(i) if the Authorized Representative fails to
notify the Agent of the length of an Interest
Period three (3) Eurodollar Business Days prior to
the first day of such Interest Period, the Loan for
which such Interest Period was to be determined
shall be deemed to be a Base Rate Loan;
(ii) if an Interest Period for a Eurodollar
Loan would end on a day which is not a Eurodollar
Business Day such Interest Period shall be extended
to the next Eurodollar Business Day (unless such
extension would cause the applicable Interest
Period to end in the succeeding calendar month, in
which case such Interest Period shall end on the
next preceding Eurodollar Business Day);
(iii) any Interest Period which begins on
the last Eurodollar Business Day of a calendar
month (or on a day for which there is no
numerically corresponding day in the calendar month
at the end of such Interest Period) shall end on
the last Eurodollar Business Day of a calendar
month;
(iv) no Interest Period shall extend past the
Stated Revolving Credit Termination Date; and
(v) on any day, with respect to all
Fixed Rate Loans hereunder and as defined in the
364 Day Facility Credit Agreement, there shall be
not more than twenty (20) Interest Periods in
effect; and
(b) means for each Competitive Bid Loan, the period
commencing on the date such Competitive Bid Loan is made
and ending on the date specified in the Competitive Bid
Quote Request and related Competitive Bid Quote for such
Competitive Bid Loan; provided that,
(i) no Interest Period for a Competitive Bid
Loan shall be for a period of less than seven days
or greater than 120 days;
(ii) no Interest Period for a Competitive Bid
Loan shall extend past the Stated Revolving Credit
Termination Date;
(iii) there shall not be more than twenty
(20) Interest Periods in effect on any day for all
Fixed Rate Loans hereunder and as defined in the
364 Day Facility Credit Agreement; and
(iv) each Interest Period shall end on a day
that is a Business Day.
"Investment Grade Rating" means the assignment of a
rating of both BBB- or higher by S&P and Baa3 or higher
by ▇▇▇▇▇'▇ to the Rated Debt issued by the Borrower.
"Issuing Bank" means, as of the Closing Date,
NationsBank, and thereafter any replacement or successor
thereto which is then a Lender and shall agree with the
Borrower to succeed to and become vested with all the
rights, powers, discretions, privileges and duties of the
Issuing Bank, including without limitation as set forth
in Article III; provided further, the term "Issuing Bank"
means NationsBank with respect to the Existing Letters of
Credit.
"Junior Subordinated Debentures" means the 7.5%
Junior Subordinated Debentures Due March 31, 2004 of the
Borrower issued in the original principal amount of
$17,500,000.
"LC Account Agreement" means the LC Account
Agreement dated as of the date hereof between the
Borrower and the Agent substantially in the form of
Exhibit O attached hereto and incorporated herein by
reference, as amended, modified or supplemented from time
to time.
"Lending Party" has the meaning assigned thereto in
Section 11.03.
"Letter of Credit" means any standby or documentary
letter of credit issued by the Issuing Bank under the
Revolving Credit Facility for the account of the Borrower
in favor of a Person advancing credit or securing an
obligation on behalf of the Borrower and shall include
the Existing Letters of Credit.
"Letter of Credit Commitment" means with respect to
each Lender, the obligation of such Lender to acquire
Participations up to an aggregate stated amount at any
one time outstanding equal to such Lender's Applicable
Commitment Percentage of the Total Letter of Credit
Commitment as the same may be increased or decreased from
time to time pursuant to this Agreement; each Lender's
Letter of Credit Commitment is included within, and is
not in addition to, its Revolving Credit Commitment.
"Letter of Credit Facility" means the facility
described in Article III hereof providing for the
issuance by the Issuing Bank for the account of the
Borrower of Letters of Credit under the Revolving Credit
Facility in an aggregate stated amount at any time
outstanding not exceeding the Total Letter of Credit
Commitment.
"Letter of Credit Outstandings" means all undrawn
amounts of Letters of Credit plus all Reimbursement
Obligations then due and payable.
"Level" has the meaning assigned to such term in the
definition of "Applicable Interest Addition" in Section
1.01 hereof.
"Lien" means any interest in property securing any
obligation owed to, or a claim by, a Person other than
the owner of the property, whether such interest is based
on the common law, statute or contract, and including but
not limited to the lien or security interest arising from
a mortgage, encumbrance, pledge, security agreement,
conditional sale or trust receipt or a lease, consignment
or bailment for security purposes. For the purposes of
this Agreement, the Borrower and its Subsidiaries shall
be deemed to be the owners of any property which either
of them have acquired or hold subject to a conditional
sale agreement, financing lease, or other arrangement
pursuant to which title to the property has been retained
by or vested in some other Person for security purposes.
"Loan" or "Loans" means any of the Eurodollar Loans
or Base Rate Loans and includes, unless the context
otherwise requires or as specifically otherwise
referenced, Competitive Bid Loans and Swing Line Loans.
"Loan Documents" means this Agreement, the Notes,
the Guaranty, Applications and Agreements for Letters of
Credit, each Letter of Credit, the LC Account Agreement,
any Pledge Agreement and all other instruments and
documents heretofore or hereafter executed or delivered
to and in favor of any Lender or the Agent in connection
with the Loans made or the Letters of Credit issued under
this Agreement as the same may be amended, modified or
supplemented from time to time.
"Loan Parties" means, collectively, the Borrower
and, until such time as the Guaranty is terminated in
accordance with Section 11.20 hereof, each of the
Guarantors.
"Material Adverse Effect" means a material adverse
effect on (i) the business, business prospects, results
of operations or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole or
(ii) the ability of any Loan Party to observe and perform
the covenants and agreements contained herein or in any
other Loan Document or the ability of any Lender to
receive the benefit of any remedy provided thereto under
any Loan Document.
"Material Subsidiary" means any direct or indirect
Subsidiary of the Borrower, other than a Securitization
Subsidiary or a Saks REMIC Subsidiary, which (i) has
total assets equal to or greater than 5% of Consolidated
Total Assets (calculated as of the most recent fiscal
period with respect to which the Agent shall have
received financial statements required to be delivered
pursuant to Sections 7.01(a) or (b) (or if prior to
delivery of any financial statements pursuant to such
Sections, then calculated with respect to the Combined
Three Month Statements) (the "Required Financial
Information")) or (ii) has net income equal to or greater
than 5% of Consolidated Net Income (each calculated for
the most recent period for which the Agent has received
the Required Financial Information); provided, however,
that notwithstanding the foregoing, the term "Material
Subsidiaries" shall mean Subsidiaries of the Borrower,
other than Securitization Subsidiaries and Saks REMIC
Subsidiaries, that together with the Borrower have assets
equal to not less than 95% of Consolidated Total Assets
(calculated as described above but excluding assets
directly owned by Securitization Subsidiaries and Saks
REMIC Subsidiaries) and net income of not less than 95%
of Consolidated Net Income (calculated as described above
but excluding income directly earned by Securitization
Subsidiaries and Saks REMIC Subsidiaries); provided
further that if more than one combination of Subsidiaries
satisfies such threshold, then those Subsidiaries so
determined to be "Material Subsidiaries" shall be
specified by the Borrower.
"Moody's" means ▇▇▇▇▇'▇ Investors Services, Inc.
"Multi-employer Plan" means an employee pension
benefit plan covered by Title IV of ERISA and in respect
of which the Borrower or any Subsidiary is an "employer"
as described in Section 4001(b) of ERISA, which is also
a multi-employer plan as defined in Section 4001(a)(3) of
ERISA.
"Net Proceeds" from a disposition of assets (other
than assets sold in the ordinary course of business and
accounts receivable sold in connection with an accounts
receivable securitization transacted in the ordinary
course of business by a Securitization Subsidiary) or
issuance of equity means cash payments received therefrom
as and when received, net of (i) all reasonable legal,
accounting, banking, underwriting, title and recording
expenses, commissions, discounts and other fees and
expenses incurred in connection therewith, (ii) all taxes
required to be paid or accrued as a consequence of such
disposition or issuance and (iii) all amounts necessary
to repay Indebtedness for Borrowed Money the repayment of
which is secured by such disposed assets.
"NMS" means NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC,
a Delaware limited liability company.
"Notes" means, collectively, the Revolving Credit
Notes, the Competitive Bid Notes and the Swing Line Note.
"Obligations" means the obligations, liabilities and
Indebtedness of the Borrower with respect to (i) the
principal and interest on the Loans as evidenced by the
Notes, (ii) the Reimbursement Obligations, (iii) all
liabilities of Borrower to any Lender which arise under
a Swap Agreement, and (iv) the payment and performance of
all other obligations, liabilities, fees and Indebtedness
of the Borrower to the Lenders or the Agent hereunder,
under any one or more of the other Loan Documents or with
respect to the Loans.
"Operating Documents" means with respect to any
corporation, limited liability company, partnership,
limited partnership, limited liability partnership or
other legally authorized incorporated or unincorporated
entity, the bylaws, operating agreement, partnership
agreement, limited partnership agreement or other
comparable documents relating to the operation,
governance or management of such entity.
"Organizational Action" means with respect to any
corporation, limited liability company, partnership,
limited partnership, limited liability partnership or
other legally authorized incorporated or unincorporated
entity, any corporate, organizational or partnership
action (including any required shareholder, member or
partner action), or other similar official action, as
applicable, taken by such entity.
"Organizational Documents" means with respect to any
corporation, limited liability company, partnership,
limited partnership, limited liability partnership or
other legally authorized incorporated or unincorporated
entity, the articles of incorporation, certificate of
incorporation, articles of organization, certificate of
limited partnership or other comparable organizational or
charter documents relating to the creation of such
entity.
"Parisian Indenture" means that certain Amended and
Restated Indenture dated as of October 11, 1996 among the
Borrower, Parisian, Inc. and AmSouth Bank of Alabama
(formerly known as AmSouth Bank, N.A.), trustee, as
amended from time to time thereafter.
"Parisian Senior Subordinated Notes" means the
9.875% Senior Subordinated Notes Due 2003 of Parisian,
Inc. in the original aggregate principal amount of
$125,000,000 issued pursuant to the Parisian Indenture.
"Participation" means, with respect to any Lender
(other than the Swing Line Lender or Issuing Bank, as
applicable), the extension of credit represented by the
participation of such Lender hereunder in the liability
of the Swing Line Lender in respect of a Swing Line Loan
made or the liability of the Issuing Bank in respect of
a Letter of Credit issued in accordance with the terms
hereof.
"Permitted Acquisition" means an Acquisition beyond
the normal course of business effected with the consent
and approval of the board of directors or other
applicable governing body of the Person being acquired,
and with the duly obtained approval of such shareholders
or other holders of equity interest as such Person may be
required to obtain, so long as (i) immediately prior to
and immediately after the consummation of such
Acquisition, no Default or Event of Default has occurred
and is continuing, (ii) substantially all of the sales
and operating profits generated by such Person (or
assets) so acquired or invested are derived from (A) the
same or related line or lines of business as conducted by
the Borrower and its Subsidiaries on the Closing Date or
(B) a line or lines of business not inconsistent with the
business substantially as conducted by the Borrower and
its Subsidiaries on the Closing Date; provided that the
Cost of Acquisition of all such Acquisitions permitted
pursuant to this clause (ii)(B) shall not in the
aggregate exceed $100,000,000 during any Four-Quarter
Period and (iii) if the Cost of Acquisition therefor
equals or exceeds $250,000,000, pro forma historical
financial statements as of the end of the most recently
completed Four-Quarter Period giving effect to such
Acquisition are delivered to the Agent not less than five
(5) Business Days prior to the consummation of such
Acquisition, together with a certificate of an Authorized
Representative demonstrating compliance with the
financial covenants set forth in Article VIII hereof
after giving effect to such Acquisition.
"Person" means an individual, partnership, limited
partnership, corporation, limited liability company,
limited liability partnership, trust, unincorporated
organization, association, joint venture or a government
or agency or political subdivision thereof.
"Pledge Agreement", "Pledged Stock" and "Pledgor"
each has the meaning assigned thereto in Section
7.18(b)(i) hereof.
"Pre-Refunded Municipal Obligations" means
obligations of any state of the United States of America
or of any municipal corporation or other public body
organized under the laws of any such state which are
rated, based on the escrow, in the highest investment
rating category by either S&P or Moody's and which have
been irrevocably called for redemption and advance
refunded through the deposit in escrow of Government
Securities or other debt securities which are (i) not
callable at the option of the issuer thereof prior to
maturity, (ii) irrevocably pledged solely to the payment
of all principal and interest on such obligations as the
same becomes due and (iii) in a principal amount and bear
such rate or rates of interest as shall be sufficient to
pay in full all principal of, interest, and premium, if
any, on such obligations as the same becomes due as
verified by a nationally recognized firm of certified
public accountants.
"Prime Rate" means the per annum rate of interest
established from time to time by NationsBank as its prime
rate, which rate may not be the lowest rate of interest
charged by NationsBank to its customers.
"Principal Office" means the office of the Agent at
NationsBank, N.A., presently located at Independence
Center, ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, 15th Floor, NC1-001-15-04,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇ ▇▇▇▇,
Agency Services, or such other office and address as the
Agent may from time to time designate.
"Quotation Date" has the meaning assigned to such
term in Section 2.03(b).
"Rate Hedging Obligations" means any and all
obligations of the Borrower or any Subsidiary, whether
absolute or contingent and howsoever and whensoever
created, arising, evidenced or acquired (including all
renewals, extensions and modifications thereof and
substitutions therefor), under (i) any and all
agreements, devices or arrangements designed to protect
at least one of the parties thereto from the fluctuations
of interest rates, exchange rates or forward rates
applicable to such party's assets, liabilities or
exchange transactions, including, but not limited to,
Dollar-denominated or cross-currency interest rate
exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate
options, puts, warrants and those commonly known as
interest rate "swap" agreements; and (ii) any and all
cancellations, buybacks, reversals, terminations or
assignments of any of the foregoing.
"Rated Debt" has the meaning assigned to such term
in the definition of "Applicable Interest Addition" in
Section 1.01 hereof.
"Registration Statement" has the meaning assigned
thereto in Section 5.01(a)(xiii) hereof.
"Regulation D" means Regulation D of the Board as
the same may be amended or supplemented from time to
time.
"Reimbursement Obligation" means at any time, the
obligation of the Borrower with respect to any Letter of
Credit to reimburse the Issuing Bank for amounts
theretofore paid by the Issuing Bank pursuant to a
drawing under such Letter of Credit.
"Repurchase Agreement" means a repurchase agreement
entered into with (i) any financial institution whose
debt obligations or commercial paper are rated "A" or
"A2" by either of S&P or Moody's or "A-1" by S&P or "P-1"
by Moody's, or (ii) any Lender.
"Required Financial Information" has the meaning
assigned to such term in the definition of "Material
Subsidiary" in Section 1.01 hereof.
"Required Lenders" means, as of any date, Lenders on
such date having Credit Exposures aggregating more than
50% of the aggregate Credit Exposures of all the Lenders
on such date.
"Reserve Requirement" means, at any time, the
maximum rate at which reserves (including, without
limitation, any marginal, special, supplemental, or
emergency reserves) are required to be maintained under
regulations issued from time to time by the Board (or
any successor) by member banks of the Federal Reserve
System against "Eurocurrency liabilities" (as such term
is used in Regulation D). Without limiting the effect of
the foregoing, the Reserve Requirement shall reflect any
other reserves required to be maintained by such member
banks with respect to (i) any category of liabilities
which includes deposits by reference to which the
Adjusted Eurodollar Rate is to be determined, or (ii) any
category of extensions of credit or other assets which
include Eurodollar Loans. The Adjusted Eurodollar Rate
shall be adjusted automatically on and as of the
effective date of any change in the Reserve Requirement.
"Revolving Credit Commitment" means with respect to
each Lender, the obligation of such Lender to make
Revolving Credit Loans to, and purchase Participations in
Letters of Credit issued for the benefit of and Swing
Line Loans to, the Borrower up to an aggregate principal
amount at any one time outstanding equal to the amount
set forth opposite such Lender's name on Exhibit A hereto
as the same may be increased or decreased from time to
time pursuant to this Agreement; provided, however, that
amounts advanced by any Lender as Competitive Bid Loans
shall not reduce such Lender's Revolving Credit
Commitment or modify its obligation to make its
Applicable Commitment Percentage of Revolving Credit
Loans.
"Revolving Credit Facility" means the facility
described in Section 2.01 hereof providing (i) for
Revolving Credit Loans to the Borrower by the Lenders in
the maximum aggregate principal amount at any time
outstanding equal to (A) the Total Revolving Credit
Commitment, minus (B) the aggregate principal amount of
Swing Line Outstandings and Letter of Credit
Outstandings, (ii) for Swing Line Loans to the Borrower
by the Swing Line Lender in the maximum aggregate
principal amount at any time outstanding not to exceed
the Total Swing Line Commitment and (iii) for Letters of
Credit issued for the benefit of the Borrower by the
Issuing Bank in the maximum aggregate stated amount at
any time not to exceed the Total Letter of Credit
Commitment.
"Revolving Credit Loan" means a Loan made pursuant
to the Revolving Credit Facility (but specifically
excluding all Swing Line Loans and all Competitive Bid
Loans).
"Revolving Credit Notes" means, collectively, the
promissory notes of the Borrower evidencing Revolving
Credit Loans executed and delivered to the Lenders as
provided in Section 2.08(a) hereof substantially in the
form attached hereto as Exhibit I and incorporated herein
by reference, with appropriate insertions as to amounts,
dates and names of Lenders, as the same shall be amended,
modified or supplemented and in effect from time to time.
"Revolving Credit Termination Date" means the
earliest of (i) the Stated Revolving Credit Termination
Date or (ii) such date of termination of Lenders'
obligations pursuant to Section 9.01 upon the occurrence
of an Event of Default, or (iii) such date as the
Borrower may voluntarily and permanently terminate the
Revolving Credit Facility by payment in full of all Total
Outstandings.
"S&P" means Standard & Poor's Rating Group, a
division of ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Saks" means Saks Holdings, Inc., a Delaware
corporation.
"Saks Acquisition" has the meaning assigned thereto
in Section 5.01(a)(xiv) hereof.
"Saks Acquisition Agreement" has the meaning
assigned thereto in Section 5.01(a)(xv) hereof.
"Saks REMIC Subsidiary" means any of Calwin Realty
II, Inc., Win Realty Holdings II, Inc., Florida Win
Trust, Or. Win, Inc., York Win Realty, Inc., Fifth Win,
Inc., Ohio Win, Inc., Tex Win II, Inc., Vir. Win, Inc.,
Cal SFA, Inc., Penn SFA, Inc., Tex SFA, Inc., Fifth
Avenue Capital Trust and Fifteenth Win, Inc.
"Securitization Subsidiary" means ▇▇▇▇▇▇▇▇'▇ Credit
Corporation, National Bank of the Great Lakes, SFA
Finance Company, SFA Finance Company II and any other
present or future Subsidiary (including any credit card
bank) of the Borrower that is, directly or indirectly,
wholly owned by the Borrower (except, in the case of SFA
Finance Company and SFA Finance Company II, for 1000
shares of Series A Preferred Stock of SFA Finance
Company owned by certain independent directors of SFA
Finance Company) and organized for the purpose of and is
only engaged in (i) originating, purchasing, acquiring,
financing, servicing or collecting accounts receivable
obligations of customers of the Borrower or its
Subsidiaries, (ii) issuing or servicing credit cards,
engaging in other credit card operations or financing
accounts receivable obligations of customers of the
Borrower and its Subsidiaries, (iii) the sale or
financing of such accounts receivable and interests
therein and (iv) other activities incident thereto.
"Senior Indenture" means that certain Indenture
dated as of May 21, 1997 among the Borrower and The First
National Bank of Chicago, as trustee, as amended from
time to time thereafter.
"Senior Notes" means the 8.125% Senior Notes due
2004 of the Borrower in the aggregate principal amount of
$125,000,000 issued pursuant to the Senior Indenture.
"Single Employer Plan" means any employee pension
benefit plan covered by Title IV of ERISA and in respect
of which the Borrower or any Subsidiary is an "employer"
as described in Section 4001(b) of ERISA, which is not a
Multi-employer Plan.
"Solvent" means, when used with respect to any
Person, that at the time of determination:
(i) the fair value of its assets (both at
fair valuation and at present fair saleable value
on an orderly basis) is in excess of the total
amount of its liabilities, including, without
limitation, Contingent Obligations; and
(ii) it is then able and expects to be able to
pay its debts as they mature; and
(iii) it has capital sufficient to carry
on its business as conducted and as proposed to be
conducted.
"Stated Revolving Credit Termination Date" means
September 17, 2003.
"Subsidiary" means any corporation or other entity
in which more than 50% of its outstanding voting stock or
more than 50% of all equity interests is owned directly
or indirectly by the Borrower and/or by one or more of
the Borrower's Subsidiaries at or after the Closing Date,
and specifically includes Saks and each of its
subsidiaries as of the Closing Date; notwithstanding the
foregoing, the reference to "Subsidiary" or
"Subsidiaries" in Sections 6.01(f)(iii), (g), (k), (l),
(m), (o), or (r), Section 7.01(d), Section 7.09 (as
applicable to Sections 7.02 and 7.05) and Sections 7.12,
7.13, 7.18, 8.04, 8.05, 8.06, 8.07 (other than 8.07
(viii)), 8.08, 8.09, 8.12 and 11.20 and in the
introductory paragraph of Article VIII to the extent
relating to any of the Sections of such Article referred
to above does not include any Securitization Subsidiary.
"Swap Agreement" means one or more agreements
between the Borrower and another Person, on terms
mutually acceptable to the Borrower and such Person,
which agreements create Rate Hedging Obligations.
"Swing Line" means the revolving line of credit
established under the Revolving Credit Facility by the
Swing Line Lender in favor of the Borrower pursuant to
Section 2.02.
"Swing Line Lender" means, as of the Closing Date,
NationsBank, and thereafter any replacement or successor
thereto which is then a Lender and shall agree with the
Borrower to succeed to and become vested with all the
rights, powers, discretions, privileges and duties of the
Swing Line Lender, including without limitation as set
forth in Section 2.02 hereof.
"Swing Line Loans" means Loans made by the Swing
Line Lender to the Borrower under the Revolving Credit
Facility pursuant to Section 2.02.
"Swing Line Note" means the promissory note of the
Borrower evidencing Swing Line Loans executed and
delivered to the Swing Line Lender substantially in the
form attached hereto as Exhibit K and incorporated herein
by reference, as the same shall be amended, modified or
supplemented and in effect from time to time.
"Swing Line Outstandings" means, as of any date of
determination, the aggregate principal amount of all
Swing Line Loans then outstanding.
"Swing Line Termination Date" has the meaning
assigned to such term in Section 2.02(g) hereof.
"Synthetic Lease Indebtedness" means, with respect
to a Person that is a lessee under a synthetic lease, an
amount equal to (i) the aggregate purchase price of any
property that the lessor under such synthetic lease
acquired, through one or a series of related
transactions, and thereafter leased to such Person
pursuant to such synthetic lease less (ii) the aggregate
amount of all payments of fixed rent or other rent
payments which reduce such Person's obligation under such
synthetic lease and which are not the financial
equivalent of interest. Synthetic Lease Indebtedness of
a Person shall also include, without duplication, the
amount of Synthetic Lease Indebtedness of others to the
extent guarantied by such Person.
"364 Day Facility" means the revolving credit
facility made available to the Borrower by the Lenders
under the 364 Day Facility Credit Agreement.
"364 Day Facility Commitment" means with respect to
each Lender, the obligation of such Lender to make loans
to the Borrower under the 364 Day Facility.
"364 Day Facility Credit Agreement" means that
certain Credit Agreement (364 Day Facility) among the
Borrower, the Agent, the Co-Syndication Agents, the
Documentation Agent and the Lenders of even date, as
amended, modified or supplemented from time to time.
"364 Day Facility Loans" means the Loans as defined
in the 364 Day Facility Credit Agreement.
"Total Combined Outstandings" means, as at any time
of determination, the sum of all Total Outstandings plus
all Revolving Credit Outstandings (as defined in the 364
Day Facility Credit Agreement).
"Total Facility Termination Date" has the meaning
assigned thereto in Section 11.09 hereof.
"Total Letter of Credit Commitment" means an amount
equal to $150,000,000.
"Total Outstandings" means, as at any time of
determination, the sum of the aggregate principal amount
of all Revolving Credit Loans then outstanding, Letter of
Credit Outstandings, Swing Line Outstandings and
Competitive Bid Outstandings.
"Total Swing Line Commitment" means an amount equal
to $50,000,000.
"Total Revolving Credit Commitment" means an amount
equal to $750,000,000, as reduced from time to time in
accordance with Section 2.10 hereof; the Total Letter of
Credit Commitment and the Total Swing Line Commitment are
included within, and are not in addition to, the Total
Revolving Credit Commitment.
"Type" means any type of Loan (i.e., a Base Rate
Loan, a Eurodollar Loan or a Competitive Bid Loan).
"Utilization Premium" means an additional interest
payment in an amount equal to 10 basis points per annum
calculated in accordance with Section 2.12(b) hereof.
"wholly owned" means, when used with respect to a
Subsidiary of the Borrower, that all of the outstanding
capital stock (excluding director qualifying shares) or
other comparable equity interest of such Subsidiary are
owned directly or indirectly by the Borrower.
"Year 2000 Compliant" has the meaning assigned
thereto in Section 6.01(u) hereof.
1.02 Accounting Terms. All accounting terms not
specifically defined herein shall have the meanings assigned
to such terms and shall be interpreted in accordance with
Generally Accepted Accounting Principles as in effect on the
date of the Audited Restated Financial Statements, which shall
be the same in all material respects as those accounting
principles applied in the preparation of the Combined Three
Month Statements, and applied on a Consistent Basis.
1.03 Terms Consistent. All of the terms defined in this
Agreement shall have such defined meanings when used in any of
the Loan Documents unless the context shall require otherwise.
All references to the Borrower, the Agent and any Lender shall
be deemed to include any successor or permitted assignee of
any thereof. All plural references and definitions shall have
a corresponding meaning in the singular, and all singular
references and definitions shall have a corresponding meaning
in the plural.
ARTICLE II
Revolving Credit Loans
2.01 Revolving Credit Loans.
(a) Revolving Credit Commitment. Subject to the terms
and conditions of this Agreement, each Lender severally agrees
to make Revolving Credit Loans to the Borrower, from time to
time on a pro rata basis as to the total borrowing of
Revolving Credit Loans requested by the Borrower on any day
determined by such Lender's Applicable Commitment Percentage
of the Total Revolving Credit Commitment up to but not
exceeding the Revolving Credit Commitment of such Lender;
provided, however, that the Lenders will not be required and
shall have no obligation to make any Revolving Credit Loans
(i) so long as a Default or an Event of Default has occurred
and is continuing or (ii) if the maturity of the Revolving
Credit Notes has been accelerated as a result of an Event of
Default. Within such limits, the Borrower may borrow, repay
and reborrow hereunder, a Base Rate Loan on a Business Day and
a Eurodollar Loan on a Eurodollar Business Day, from the
Closing Date until, but (as to borrowings and reborrowings)
not including, the Revolving Credit Termination Date;
(b) Amounts. The aggregate unpaid principal amount of
the Total Outstandings shall not exceed at any time an amount
equal to the Total Revolving Credit Commitment. Each
Revolving Credit Loan made, Converted or Continued, unless
made in accordance with Sections 2.01(c)(iv), 2.02(e) or
3.02(c) hereof, shall be in a principal amount of at least
$5,000,000 (or the remaining Total Revolving Credit Commitment
if less), and, if greater than $5,000,000, an integral
multiple of $1,000,000.
(c) Loans and Rate Selection.
(i) An Authorized Representative shall give the
Agent (1) at least three (3) Eurodollar Business Days'
irrevocable telephonic notice of each Eurodollar Loan
(whether representing an additional borrowing hereunder
or the Conversion of borrowing hereunder from Base Rate
Loans to Eurodollar Loans or the Continuation of
borrowing hereunder of Eurodollar Loans) prior to 11:30
A.M., Charlotte, North Carolina time; and (2) irrevocable
telephonic notice of each Base Rate Loan representing an
additional borrowing hereunder or the Conversion of
borrowing hereunder from Eurodollar Loans to Base Rate
Loans prior to 11:30 A.M. Charlotte, North Carolina time
on the day of such proposed Base Rate Loan. Each such
notice shall specify the amount of the Loan, the Type of
Loan, the date of the Loan and, if a Eurodollar Loan, the
Interest Period to be used in the computation of
interest. The Authorized Representative shall provide
the Agent written confirmation of each such telephonic
notice on the same day by telefacsimile transmission in
the form of a Borrowing Notice, for additional Loans, or
in the form attached hereto as Exhibit L and incorporated
herein by reference as to selection or Conversion of
interest rates as to outstanding Loans, in each case with
appropriate insertions, but failure to provide such
confirmation shall not affect the validity of such
telephonic notice. The duration of the initial Interest
Period for each Loan that is a Eurodollar Loan shall be
as specified in the initial Borrowing Notice. The
Borrower shall have the option to elect the duration of
subsequent Interest Periods and to Convert the Loans in
accordance with Section 2.11 hereof. If the Agent does
not receive a notice of election of duration of an
Interest Period or to Convert by the time prescribed
hereby and by Section 2.11 hereof, the Borrower shall be
deemed to have elected to Convert such Loan to (or
Continue such Loan as) a Base Rate Loan until the
Borrower notifies the Agent in accordance herewith and
with Section 2.11.
. (ii) Notice of receipt of each Borrowing Notice
shall be provided by the Agent to each Lender by
telephone with reasonable promptness, but not later than
1:00 P.M. Charlotte, North Carolina time on the same day
as Agent's receipt of such notice. The Agent shall
provide each Lender written confirmation of such
telephonic confirmation by telefacsimile transmission but
failure to provide such notice shall not affect the
validity of such telephonic notice.
(iii) Not later than 3:00 P.M., Charlotte, North
Carolina time on the date specified for each Loan, each
Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make the amount of the Loan
or Loans to be made by it on such day available to the
Agent, by depositing or transferring the proceeds thereof
in Dollars and in immediately available funds at the
Principal Office. The amount so received by the Agent
shall, subject to the terms and conditions of this
Agreement, be made available to the Borrower not later
than 3:30 P.M., Charlotte, North Carolina time by
delivery of the proceeds thereof to the Borrower's
Account or otherwise as shall be directed in the
applicable Borrowing Notice by the Authorized
Representative.
(iv) Notwithstanding the foregoing, if a drawing is
made under any Letter of Credit prior to the Revolving
Credit Termination Date and payment in full to the
Issuing Bank of all amounts so drawn is not made by the
Borrower by 11:30 a.m. on the day of such drawing, then
notice of such drawing shall be provided promptly by the
Issuing Bank to the Agent and the drawing shall be paid
by the Agent without the requirement of notice from the
Borrower in immediately available funds which shall be
advanced by the Swing Line Lender under the Swing Line
(provided that a Swing Line Loan shall then be
available). If a drawing is presented under any Letter
of Credit in accordance with the terms thereof and the
Borrower shall not reimburse the Issuing Bank for the
amount of such drawing as provided above, and if a Swing
Line Loan in the amount of such drawing shall not be
available, then notice of such drawing or payment shall
be provided promptly by the Issuing Bank to the Agent and
the Agent shall provide notice to each Lender by
telephone. If notice to the Lenders of a drawing under
any Letter of Credit is given by the Agent at or before
1:00 P.M. Charlotte, North Carolina time on any Business
Day, the Borrower shall be deemed to have requested, and
each Lender shall, pursuant to the conditions of this
Agreement, make a Base Rate Loan under the Revolving
Credit Facility in the amount of such Lender's Applicable
Commitment Percentage of such drawing or payment and
shall pay such amount to the Agent for the account of the
Issuing Bank at the Principal Office in Dollars and in
immediately available funds before 3:00 P.M. Charlotte,
North Carolina time on the same Business Day. If notice
to the Lenders is given by the Agent after 1:00 P.M.
Charlotte, North Carolina time on any Business Day, the
Borrower shall be deemed to have requested, and each
Lender shall, pursuant to the terms and subject to the
conditions of this Agreement, make a Base Rate Loan under
the Revolving Credit Facility in the amount of such
Lender's Applicable Comitment Percentage of such drawing
or payment and shall pay such amount to the Agent for the
account of the Issuing Bank at the Principal Office in
Dollars and in immediately available funds before 1:00
P.M. Charlotte, North Carolina time on the next following
Business Day. Such Base Rate Loan shall continue unless
and until the Borrower Converts such Base Rate Loan in
accordance with the terms of Section 2.11 hereof.
2.02 Swing Line. Notwithstanding any other provision of
this Agreement to the contrary, in order to administer the
Revolving Credit Facility in an efficient manner and to
minimize the transfer of funds between the Agent and the
Lenders, the Swing Line Lender shall make available Swing Line
Loans under the Revolving Credit Facility to the Borrower
prior to the Revolving Credit Termination Date. Each
provision of Section 2.01(c) hereof applicable to Base Rate
Loans shall be applicable in all respects to each Swing Line
Loan.
(a) The Swing Line Lender shall not make any Swing Line
Loan pursuant hereto (i) if the Borrower is not in compliance
with all the conditions to the making of Revolving Credit
Loans set forth in this Agreement, (ii) if after giving effect
to such Swing Line Loan, the Swing Line Outstandings exceed
the Total Swing Line Commitment, or (iii) if after giving
effect to such Swing Line Loan, the sum of the Total
Outstandings exceeds the Total Revolving Credit Commitment.
(b) All Swing Line Loans shall bear interest at the rate
agreed to between the Borrower and the Swing Line Lender
(provided that in the absence of any agreed upon interest rate
for a Swing Line Loan, such Swing Line Loan shall bear
interest at the Base Rate) and, unless made in accordance with
Sections 2.01(c)(iv), 2.02(e) or 3.02(c), shall be in the
minimum principal amount of $1,000,000 (or the remaining Total
Swing Line Commitment, if less) and any increment of $100,000
in excess thereof.
(c) The principal amount of each Swing Line Loan shall
be payable on the earlier to occur of (i) the demand for
repayment thereof with a Revolving Credit Loan pursuant to
Section 2.02(e) below and (ii) the Swing Line Termination
Date.
(d) The Borrower and each Lender acknowledge that all
Swing Line Loans are to be made solely by the Swing Line
Lender to the Borrower but that each such Lender shall share
the risk of loss with respect to such Swing Line Loans by
making a Revolving Credit Loan in the manner set forth in
Section 2.02(e) below to repay such Swing Line Loan in an
amount equal to such Lender's Applicable Commitment Percentage
of such Swing Line Loan. The obligation of each Lender to so
pay its ratable share of the principal amount of outstanding
Swing Line Loans by making such Revolving Credit Loans up to
but not exceeding the Revolving Credit Commitment of such
Lender shall be absolute and unconditional and shall be made
without counterclaim, deduction or set-off by such Lender.
Without limiting the generality of the foregoing, each
Lender's obligation to pay its ratable share of the principal
amount of all outstanding Swing Line Loans by making such
Revolving Credit Loans as set forth above in this Section
2.02(d) shall not be affected by:
(i) any failure or inability of the Borrower to
satisfy the applicable conditions to borrowing set forth
in Section 5.02,
(ii) any lack of validity or enforceability of this
Agreement or any of the other Loan Documents (including
such documents as defined in the 364 Day Facility Credit
Agreement), or
(iii) the occurrence of any Default or Event of
Default.
(e) The Swing Line Lender may, at any time, in its sole
discretion, by written notice to the Borrower, the Agent and
the Lenders, demand repayment of its Swing Line Loans. Any
such demand for repayment of the Swing Line Loans, and the
occurrence of the Swing Line Termination Date, shall be deemed
to constitute a Borrowing Notice delivered and received
pursuant to Section 2.01(c)(i) and (ii), effective on the date
of such demand or occurrence, respectively, with respect to a
Base Rate Loan advanced under the Revolving Credit Facility on
the date of such Borrowing Notice in the aggregate principal
amount of all outstanding Swing Line Loans. Each Lender shall
pay to the Agent, for the account of the Swing Line Lender, an
amount of such Base Rate Loan under the Revolving Credit
Facility equal to its Applicable Commitment Percentage
(determined before giving effect to any termination of the
Revolving Credit Commitments pursuant to Section 9.01) in the
manner described in Section 2.01(c)(iii).
(f) The Agent shall upon the receipt of a Revolving
Credit Loan pursuant to Section 2.02(e) in an amount
sufficient to repay any or all Swing Line Loan(s) then
outstanding, provide to the Swing Line Lender the amount
necessary to repay such Swing Line Loan(s) (which the Swing
Line Lender shall then apply to such repayment) and credit any
balance of the Revolving Credit Loan in immediately available
funds to the Borrower's Account.
(g) The Swing Line shall continue in effect until the
Revolving Credit Termination Date (the "Swing Line
Termination Date").
2.03 Competitive Bid Loans. (a) In addition to
borrowings of Revolving Credit Loans, at any time prior to the
Revolving Credit Termination Date the Borrower may, as set
forth in this Section 2.03, request the Lenders to make offers
to make Competitive Bid Loans to the Borrower in Dollars. The
Lenders may, but shall have no obligation to, make such offers
and the Borrower may, but shall have no obligation to, accept
any such offers in the manner set forth in this Section 2.03.
The making of a Competitive Bid Loan by any Lender shall not
reduce such Lender's available Revolving Credit Commitment
except as a result of such Competitive Bid Loan reducing the
availability under the Total Revolving Credit Commitment.
Immediately after giving effect to each Competitive Bid Loan,
Total Outstandings shall not exceed the Total Revolving Credit
Commitment. Each Competitive Bid Loan may be repaid only on
the last day of the Interest Period with respect thereto
unless such payment is accompanied by the additional payment,
if any, required by Section 4.05.
(b) When the Borrower wishes to request offers from
Lenders to make Competitive Bid Loans, it shall give the Agent
(which shall promptly notify the Lenders) notice (a
"Competitive Bid Quote Request") to be received no later than
10:00 A.M. on the Business Day immediately preceding the date
of borrowing proposed therein (or such other time and date as
the Borrower and the Agent, with the consent of the Required
Lenders, may agree). The Borrower may request offers from
Lenders to make Competitive Bid Loans for up to four (4)
different Interest Periods in a single notice; provided that
the request for each separate Interest Period shall be deemed
to be a separate Competitive Bid Quote Request for a separate
borrowing (a "Competitive Bid Borrowing") of one or more
Competitive Bid Loans from the Lenders. Each such Competitive
Bid Quote Request shall be substantially in the form of
Exhibit D hereto and shall specify as to each Competitive Bid
Borrowing:
(i) the proposed date of such Competitive Bid
Borrowing, which shall be a Business Day;
(ii) the amount of such Competitive Bid Borrowing,
which shall be at least $5,000,000 (or a larger multiple
of $1,000,000) but shall not cause the limits specified
in Section 2.03(a) to be violated;
(iii) the duration of the Interest Period
applicable thereto; and
(iv) the date on which the Competitive Bid Quotes
are to be submitted if it is before the proposed date of
borrowing (the date on which such Competitive Bid Quotes
are to be submitted is called the "Quotation Date").
Except as otherwise provided in this Section 2.03(b), no
Competitive Bid Quote Request shall be given within five (5)
Business Days (or such other number of days as the Borrower
and the Agent, with the consent of the Required Lenders, may
agree) of any other Competitive Bid Quote Request.
(c) (i) Each Lender may submit one or more Competitive
Bid Quotes, each containing an offer to make a
Competitive Bid Loan, in response to any Competitive Bid
Quote Request; provided that, if the Borrower's request
under Section 2.03(b) specifies more than one Interest
Period, such Lender may make a single submission
containing one or more Competitive Bid Quotes for each
such Interest Period. Each Competitive Bid Quote must be
submitted to the Agent not later than 10:00 A.M.
Charlotte, North Carolina time on the Quotation Date (or
such other time and date as the Borrower and the Agent,
with the consent of the Required Lenders, may agree; the
Agent shall promptly notify all Lenders of such other
agreed upon time and date); provided, that any
Competitive Bid Quote may be submitted by the Agent (or
its Applicable Lending Office) only if the Agent (or such
Applicable Lending Office) notifies the Borrower of the
terms of the offer contained therein not later than 9:45
A.M. (or 15 minutes prior to such other agreed upon time)
Charlotte, North Carolina time on the Quotation Date.
Subject to the express provisions of this Agreement, any
Competitive Bid Quote so made shall be irrevocable except
with the consent of the Agent given at the instruction of
the Borrower.
(ii) Each Competitive Bid Quote shall be
substantially in the form of Exhibit F hereto and shall
specify:
(A) the proposed date of borrowing and the
Interest Period therefor;
(B) the principal amount of the Competitive
Bid Loan for which such offer is being made, which
principal amount shall be at least $1,000,000 (or a
larger multiple of $1,000,000); provided that (x)
the aggregate principal amount of all Competitive
Bid Loans for which a Lender submits Competitive
Bid Quotes in response to a Competitive Bid Quote
Request may not exceed the principal amount of the
Competitive Bid Borrowing for the Interest Period
for which offers were requested, and (y) the limits
specified in Section 2.03(a) shall not be exceeded;
(C) the rate of interest per annum (rounded
upwards, if necessary, to the nearest 1/10,000th of
1%) offered for each such Competitive Bid Loan (the
"Absolute Rate"); and
(D) the identity of the quoting Lender.
Unless otherwise agreed by the Agent and the Borrower, no
Competitive Bid Quote shall contain qualifying,
conditional or similar language or propose terms other
than or in addition to those set forth in the applicable
Competitive Bid Quote Request, and, in particular, no
Competitive Bid Quote may be conditioned upon acceptance
by the Borrower of all (or some specified minimum) of the
principal amount of the Competitive Bid Loan for which
such Competitive Bid Quote is being made.
(d) The Agent shall, as promptly as practicable after
the Competitive Bid Quote is submitted (but in any event not
later than 10:30 A.M. Charlotte, North Carolina time on the
Quotation Date), notify the Borrower of the terms (i) of any
Competitive Bid Quote submitted by a Lender that is in
accordance with Section 2.03(c) and (ii) of any Competitive
Bid Quote that amends, modifies or is otherwise inconsistent
with a previous Competitive Bid Quote submitted by such Lender
with respect to the same Competitive Bid Quote Request. Any
such subsequent Competitive Bid Quote shall be disregarded by
the Agent unless such subsequent Competitive Bid Quote is
submitted solely to correct a manifest error in such former
Competitive Bid Quote. The Agent's notice to the Borrower
shall specify (A) the aggregate principal amount of the
Competitive Bid Loans for which Competitive Bid Quotes have
been received and (B) the respective principal amounts and
Absolute Rates so offered by each Lender (identifying the
Lender that made each Competitive Bid Quote).
(e) Not later than 11:00 A.M. Charlotte, North Carolina
time on the Quotation Date (or such other time and date as the
Borrower and the Agent, with the consent of the Required
Lenders, may agree), the Borrower shall notify the Agent of
its acceptance or nonacceptance of the Competitive Bid Quotes
so notified to it pursuant to Section 2.03(d) (and the failure
of the Borrower to give such notice by such time shall
constitute nonacceptance) and the Agent shall promptly notify
each affected Lender. In the case of acceptance, such notice
shall specify the aggregate principal amount of Competitive
Bid Quotes for each Interest Period that are accepted. The
Borrower may accept any Competitive Bid Quote in whole or in
part (provided that any Competitive Bid Quote accepted in part
shall be at least $1,000,000 or a larger multiple of
$1,000,000); provided that:
(i) the aggregate principal amount of each
Competitive Bid Borrowing may not exceed the applicable
amount set forth in the related Competitive Bid Quote
Request;
(ii) the aggregate principal amount of each
Competitive Bid Borrowing shall be at least $5,000,000
(or a larger multiple of $1,000,000) but shall not cause
the limits specified in Section 2.03(a) to be violated;
(iii) acceptance of Competitive Bid Quotes may
be made only in ascending order of Absolute Rates,
beginning with the lowest rate so offered; and
(iv) the Borrower may not accept any Competitive Bid
Quote where the Agent has correctly advised the Borrower
that such offer fails to comply with Section 2.03(c)(ii)
or otherwise fails to comply with the requirements of
this Agreement (including, without limitation, Section
2.03(a)).
If Competitive Bid Quotes are made by two or more Lenders with
the same Absolute Rates, for an aggregate principal amount
that is greater than the amount in respect of which
Competitive Bid Quotes are accepted for the related Interest
Period (after taking into account the acceptance of all
Competitive Bid Quotes with lower Absolute Rates, if any,
offered by any Lender for such related Interest Period), then
the principal amount of Competitive Bid Loans in respect of
which such Competitive Bid Quotes are accepted shall be
allocated by the Borrower among such Lenders as nearly as
possible (in amounts of at least $1,000,000) in proportion to
the aggregate principal amount of such Competitive Bid Quotes.
Determinations by the Borrower of the amounts of Competitive
Bid Loans and the Absolute Rates as provided in Section
2.03(e)(iii) shall be conclusive in the absence of manifest
error.
(f) Any Lender whose Competitive Bid Quote has been
accepted in accordance with Section 2.03(e) shall, not later
than 1:00 P.M. Charlotte, North Carolina time on the date
specified for the making of such Competitive Bid Loan, make
the amount of such Competitive Bid Loan as accepted by the
Borrower available to the Agent at the Principal Office in
Dollars and in immediately available funds, for the account of
the Borrower. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made
available to the Borrower on such date by depositing the same,
in Dollars and in immediately available funds, in the
Borrower's Account or otherwise as shall be directed by the
Borrower.
2.04 Payment of Interest. (a) The Borrower shall pay
interest to the Agent at the Principal Office (i) for the
account of each Lender in the case of each Revolving Credit
Loan, on the outstanding and unpaid principal amount of each
Revolving Credit Loan made by such Lender for the period
commencing on the date of such Loan until such Loan shall be
due at the Adjusted Eurodollar Rate or the Base Rate, as
elected or deemed elected by the Borrower or otherwise
applicable to such Loan as herein provided, (ii) for the
account of the Swing Line Lender in the case of each Swing
Line Loan, on the outstanding and unpaid principal amount of
each Swing Line Loan made by the Swing Line Lender for the
period commencing on the date of such Swing Line Loan until
such Swing Line Loan is paid in full by the Borrower or with
a Revolving Credit Loan pursuant to Section 2.02(e) at the
rate per annum as determined pursuant to Section 2.02(b), and
(iii) for the account of each Lender making a Competitive Bid
Loan, on the outstanding and unpaid principal amount of such
Competitive Bid Loan for the period commencing on the date of
such Competitive Bid Loan until such Competitive Bid Loan is
paid in full at the applicable Absolute Rate; provided,
however, that if any Event of Default shall have occurred and
be continuing, all amounts outstanding hereunder shall bear
interest thereafter (i) in the case of a Eurodollar Loan, at
a rate of interest per annum which shall be two percent (2%)
above the Adjusted Eurodollar Rate for such Eurodollar Loan
until the end of the Interest Period during which such Event
of Default occurred, and thereafter at a rate of interest per
annum which shall be two percent (2%) above the Base Rate,
(ii) or in the case of a Competitive Bid Loan, at a rate of
interest per annum which shall be two percent (2%) above the
applicable Absolute Rate for such Competitive Bid Loan until
the end of the Interest Period during which such Event of
Default occurred, and thereafter at a rate of interest per
annum which shall be two percent (2%) above the Base Rate, and
(iii) in the case of a Base Rate Loan or a Swing Line Loan, at
a rate of interest per annum which shall be two percent (2%)
above the Base Rate, or in each of (i), (ii) and (iii) above,
the maximum rate permitted by applicable law, whichever is
lower, from the date such amount was due and payable until the
date such amount is paid in full; provided further, it is
expressly agreed that the imposition of an additional or
higher rate of interest as provided in this Section 2.04 shall
not constitute a penalty or forfeiture.
(b) Interest on the outstanding principal balance of
each Loan shall be computed on the basis of a year of 360 days
and calculated for the actual number of days elapsed.
Interest on each Loan shall be paid (i) quarterly in arrears
on the first Business Day of each February, May, August and
November commencing November 2, 1998, on each Base Rate Loan
and each Swing Line Loan, (ii) on the last day of the
applicable Interest Period for each Fixed Rate Loan and, for
any Eurodollar Rate Loan having an Interest Period longer than
three months also on the last day of every third month of such
Interest Period, and (iii) upon payment or prepayment in full
of the principal amount of such Loan (or the date such payment
or prepayment is due if earlier).
2.05 Payment of Principal. All Total Outstandings shall
be due and payable to the Agent for the benefit of each Lender
(or the Swing Line Lender in the case of Swing Line
Outstandings and the Lender making Competitive Bid Loans in
the case of Competitive Bid Outstandings) in full on the
Revolving Credit Termination Date, or earlier as herein
expressly provided. Competitive Bid Loans shall be due and
payable to the Agent for the benefit of the Lender making such
Competitive Bid Loan in full on the last day of the Interest
Period for such Loan. The principal amount of any Loan may be
prepaid in whole or in part at any time without penalty;
provided, however, in connection with the prepayment of a
Fixed Rate Loan, the Borrower shall pay to the Agent for the
account of the applicable Lenders the amount, if any, required
under Section 4.05 hereof. In the event that at any time
Total Outstandings exceed the Total Revolving Credit
Commitment, the Borrower shall promptly repay an amount of the
Total Outstandings equal to or greater than such excess. All
prepayments made by the Borrower shall be in the amount of
$5,000,000 or such greater amount which is an integral
multiple of $1,000,000 (or with respect to Swing Line Loans,
in the amount of $1,000,000 or such greater amount which is an
integral multiple of $100,000), or such other amount as
necessary to comply with this Section 2.05 or with
Section 2.10, together with accrued and unpaid interest on the
amounts paid.
2.06 Payments; Non-Conforming Payments. (a) Each
payment of principal (including any prepayment), interest and
other amounts to be made by the Borrower under this Agreement
and other Loan Documents shall be made to the Agent at the
Principal Office, for the account of each Lender's Applicable
Lending Office, in Dollars and in immediately available funds,
without setoff, deduction or counterclaim, before 1:30 P.M.
Charlotte, North Carolina time on the date such payment is
due. With respect to Swing Line Loans and Competitive Bid
Loans, each payment of principal and payment of interest shall
be made to the Agent, for the account of the Swing Line
Lender's Applicable Lending Office or the Applicable Lending
Office of the Lender making such Competitive Bid Loan, as
applicable, at the Principal Office in Dollars and in
immediately available funds before 1:30 P.M. Charlotte, North
Carolina, time on the date such payment is due. The Borrower
shall give the Agent prior telephonic notice of any payment of
principal, such notice to be given by not later than 11:30
A.M. Charlotte, North Carolina time, on the date of such
payment.
(b) The Agent shall deem any payment by or on behalf of
the Borrower hereunder that is not made both (i) in Dollars
and in immediately available funds and (ii) prior to 1:30 P.M.
Charlotte, North Carolina time on the date payment is due to
be a non-conforming payment. Any such payment shall not be
deemed to be received by the Agent until the time such funds
become available funds. Any non-conforming payment shall be
deemed not to have been made for purposes of Section 9.01(a)
and (b) hereof. The Agent shall give prompt notice to the
Authorized Representative and each of the Lenders (confirmed
in writing) if any payment is non-conforming. Interest shall
continue to accrue on any principal as to which a non-conforming
payment is made until such funds become available
funds (but in no event less than the period from the date of
such payment to the next succeeding Business Day) at the
respective rates of interest per annum specified in Section
2.04(a) in respect of late payments of interest, from the date
such amount was due and payable until the date such amount is
paid in full.
(c) In the event that any payment hereunder or under the
Notes becomes due and payable on a day other than a Business
Day, then such due date shall be extended to the next
succeeding Business Day unless provided otherwise under
clause (a) (ii) under the definition of "Interest Period";
provided, that interest shall continue to accrue during the
period of any such extension.
2.07 Borrower's Account. The Borrower shall
continuously maintain the Borrower's Account for the purposes
herein contemplated.
2.08 Notes. (a) Revolving Credit Loans made by each
Lender shall be evidenced by, and be repayable with interest
in accordance with the terms of, the Revolving Credit Note
payable to the order of such Lender in the amount of its
Revolving Credit Commitment, which Revolving Credit Note shall
be dated the Closing Date or such later date pursuant to an
Assignment and Acceptance and shall be duly completed,
executed and delivered by the Borrower.
(b) Competitive Bid Loans made by each Lender shall be
evidenced by, and be repayable with interest in accordance
with the terms of, the Competitive Bid Note payable to the
order of such Lender, which shall be dated the Closing Date or
such later date pursuant to an Assignment and Acceptance and
shall be duly completed, executed and delivered by the
Borrower.
(c) Swing Line Loans made by the Swing Line Lender shall
be evidenced by, and be repayable with interest in accordance
with the terms of, the Swing Line Note dated the Closing Date
or such later date in the event of a substitute Swing Line
Lender and shall be duly executed and delivered by the
Borrower.
2.09 Pro Rata Payments. Except as otherwise provided
herein, (a) each payment and prepayment on account of the
principal of and interest on the Revolving Credit Loans and
the fees described in Section 2.12 hereof shall be made to the
Agent in the aggregate amount payable to the Lenders for the
account of the Lenders pro rata based on their Applicable
Commitment Percentages, (b) each payment on account of the
principal of and interest on a Competitive Bid Loan shall be
made to the Agent for the account of the respective Lender
making such Competitive Bid Loan, (c) each payment on account
of the principal of and interest on a Swing Line Loan shall be
made to the Agent for the account of the Swing Line Lender,
(d) all payments to be made by the Borrower for the account
of each of the Lenders on account of principal, interest and
fees, shall be made without set-off or counterclaim, and
(e) the Agent will promptly distribute such payments received
to the Lenders as provided for herein.
2.10 Reductions. The Borrower shall, by notice from an
Authorized Representative, have the right from time to time
(but not more frequently than once during each calendar
quarter upon not less than five (5) Business Days written
notice to the Agent) to reduce the Total Revolving Credit
Commitment. The Agent shall give each Lender, within one (1)
Business Day, telephonic notice (confirmed in writing) of such
reduction. Each such reduction shall be in the amount of
$10,000,000 or such greater amount which is in an integral
multiple of $5,000,000, and shall permanently reduce the Total
Revolving Credit Commitment and the Revolving Credit
Commitment of each Lender pro rata. Each reduction of the
Total Revolving Credit Commitment shall be accompanied by
payment of the principal amount of the Total Outstandings to
the extent that the Total Outstandings exceed the Total
Revolving Credit Commitment after giving effect to such
reduction, together with amounts required under Section 4.05.
2.11 Conversions and Elections of Subsequent Interest
Periods. The Borrower may:
(a) upon notice to the Agent on or before 11:30 A.M.
Charlotte, North Carolina time on any Business Day Convert all
or a part of Eurodollar Loans to Base Rate Loans on the last
day of the Interest Period for such Eurodollar Loans; and
(b) provided that no Default or Event of Default shall
have occurred and be continuing and subject to the limitations
set forth below and in Sections 4.01, 4.02 and 4.03 hereof, on
three (3) Eurodollar Business Days' notice to the Agent on or
before 11:30 A.M. Charlotte, North Carolina time:
(i) Continue Eurodollar Loans and elect a
subsequent Interest Period for all or a portion of
Eurodollar Loans to begin on the last day of the current
Interest Period for such Eurodollar Loans; or
(ii) Convert Base Rate Loans (other than Swing Line
Loans) to Eurodollar Loans on any Eurodollar Business
Day.
Notice of any such Continuation or Conversion shall
specify the effective date of such Continuation or Conversion
and, with respect to Eurodollar Loans, the Interest Period to
be applicable to the Loan as Continued or Converted. Each
Continuation and Conversion pursuant to this Section 2.11
shall be subject to the limitations on Eurodollar Loans set
forth in the definition of "Interest Period" herein and in
Sections 2.01(a), (b) and (c) and Article IV hereof. All such
Continuations or Conversions of Loans shall be effected pro
rata based on the Applicable Commitment Percentages of the
Lenders.
2.12 Facility Fees and Utilization Premium.
(a) Facility Fees. For the period beginning on the
Closing Date and ending on the Revolving Credit Termination
Date, the Borrower agrees to pay to the Agent, for the
pro rata benefit of the Lenders based on their Applicable
Commitment Percentages, the Applicable Facility Fee payable
quarterly in arrears on the amount of the Total Revolving
Credit Commitment. Such payments of fees provided for in this
Section 2.12 (a) shall be due in arrears on the first Business
Day of each February, May, August and November, beginning
November 2, 1998 to and on the Revolving Credit Termination
Date. Notwithstanding the foregoing, so long as any Lender
fails to make available any portion of its Revolving Credit
Commitment when requested, such Lender shall not be entitled
to receive payment of its pro rata share of such fee until
such Lender shall make available such portion. Such fee shall
be calculated on the basis of a year of 360 days for the
actual number of days elapsed.
(b) Utilization Premium. For the period beginning on
the Closing Date and ending on the Total Facility Termination
Date, the Borrower agrees to pay to the Agent, for the pro
rata benefit of the Lenders based on their Applicable
Commitment Percentages, an additional interest payment on each
day on which the amount of Total Combined Outstandings exceeds
$750,000,000 in an amount equal to the Utilization Premium
times the difference of Total Outstandings less all Swing Line
Outstandings and Competitive Bid Outstandings ("Adjusted Total
Outstandings") calculated on the basis of a year of 360 days.
Notwithstanding the foregoing, such additional interest
payment shall also be payable on the average daily amount of
the Adjusted Total Outstandings during the period commencing
on the Closing Date and continuing until but excluding the
date on which the certificate is delivered to the Agent
pursuant to Section 7.01(b)(ii) hereof immediately following
the third fiscal quarter of Fiscal Year 1998. Such additional
interest payment shall be payable in arrears on the first
Business Day of each February, May, August and November,
beginning November 2, 1998.
2.13 Deficiency Loans. No Lender shall be responsible
for any default of any other Lender in respect to such other
Lender's obligation to make any Loan hereunder nor shall the
Revolving Credit Commitment of any Lender hereunder be
increased as a result of such default of any other Lender.
Without limiting the generality of the foregoing, in the event
any Lender shall fail to advance funds to the Borrower as
herein provided, the Agent may in its discretion, but shall
not be obligated to, advance under the applicable Note in its
favor as a Lender all or any portion of such amount or amounts
(each, a "deficiency advance") and shall thereafter be
entitled to payments of principal of and interest on such
deficiency advance in the same manner and at the same interest
rate or rates to which such other Lender would have been
entitled had it made such advance under its applicable Note;
provided, that upon payment to the Agent from such other
Lender of the entire outstanding amount of each such
deficiency advance, together with accrued and unpaid interest
thereon, from the most recent date or dates interest was paid
to the Agent by the Borrower on each Loan comprising the
deficiency advance at the interest rate per annum for
overnight borrowing by the Agent from the Federal Reserve
Bank, then such payment shall be credited against the
applicable Note of the Agent in full payment of such
deficiency advance and the Borrower shall be deemed to have
borrowed the amount of such deficiency advance from such other
Lender as of the most recent date or dates, as the case may
be, upon which any payments of interest were made by the
Borrower thereon.
2.14 Use of Proceeds. The proceeds of the Loans shall
be used by the Borrower and its Subsidiaries to provide
working capital, to finance capital expenditures, to finance
Permitted Acquisitions and to provide for the general
corporate purposes of the Borrower and its Subsidiaries. None
of such proceeds will be used, directly or indirectly, for the
purpose of purchasing or carrying any margin stock or for the
purpose of reducing or retiring any Indebtedness which was
originally incurred to purchase or carry margin stock or for
any other purpose which might constitute any of the Loans
under this Agreement a "purpose credit" directly or indirectly
secured by margin stock within the meaning of Regulation U (12
C.F.R. Part 221) or Regulation X (12 C.F.R. Part 224) of the
Board.
2.15 Additional Fees. In addition to any fees described
above, the Borrower agrees to pay to the Agent, NMS and
NationsBank such other fees as may be agreed to in a separate
writing or writings.
ARTICLE III
Letters of Credit
3.01 Letters of Credit. The Issuing Bank agrees,
subject to the terms and conditions of this Agreement, upon
request and for the account of Borrower, to issue from time to
time Letters of Credit for the Borrower's general corporate
purposes upon delivery to the Issuing Bank of an Application
and Agreement for Letter of Credit in form and content
acceptable to the Issuing Bank; provided, that the Letter of
Credit Outstandings shall not exceed the Total Letter of
Credit Commitment. No Letter of Credit shall be issued by the
Issuing Bank with an expiry date or payment date occurring
subsequent to the fifth Business Day preceding the Stated
Revolving Credit Termination Date. The Issuing Bank shall not
issue any Letter of Credit if the Total Outstandings when
added to the face amount of any requested Letter of Credit
would exceed the Total Revolving Credit Commitment.
3.02 Reimbursement.
(a) The Borrower hereby unconditionally and irrevocably
agrees immediately to pay to the Issuing Bank on demand at the
office designated by the Issuing Bank all amounts required to
pay all drafts drawn under the Letters of Credit and all
reasonable and customary expenses incurred by the Issuing Bank
in connection with the Letters of Credit. The Borrower's
obligations to pay the Issuing Bank under this Section 3.02,
and the Issuing Bank's right to receive the same, shall be
absolute, irrevocable and unconditional and shall not be
affected by any circumstance whatsoever. If the Borrower
fails to make payment in full to the Issuing Bank of all
amounts drawn under any Letter of Credit by 11:30 a.m. on the
date of such drawing, then to the extent permitted by
Sections 2.01(c)(iv) and 3.02(c)(i) and (ii) hereof, all
amounts owing in connection with a Letter of Credit shall be
paid pursuant to Swing Line Loans or Revolving Credit Loans.
The Borrower agrees that the Issuing Bank may, in its sole
discretion, accept or pay, as complying with the terms of any
Letter of Credit, any drafts or other documents otherwise in
order which may be signed or issued by an administrator,
executor, trustee in bankruptcy, debtor in possession,
assignee for the benefit of creditors, liquidator, receiver,
attorney in fact or other legal representative of a party who
is authorized under such Letter of Credit to draw or issue any
drafts or other documents. The Borrower agrees to pay the
Issuing Bank interest on any amounts not paid when due
hereunder at the Base Rate plus two percent (2%), or the
maximum rate permitted by applicable law, if lower.
(b) In accordance with the provisions of Section
2.01(c) hereof, the Issuing Bank shall notify the Agent (and
shall also notify the Borrower) of any drawing under any
Letter of Credit as promptly as practicable following the
receipt by the Issuing Bank of such drawing.
(c) Each Lender (other than the Issuing Bank) shall
automatically acquire on the date of issuance thereof, a
Participation in the liability of the Issuing Bank in respect
of each Letter of Credit in an amount equal to such Lender's
Applicable Commitment Percentage of such liability, and to the
extent that the Borrower is obligated to pay the Issuing Bank
under Section 3.02(a), each Lender (other than the Issuing
Bank) thereby shall, as hereinafter described, absolutely,
unconditionally and irrevocably assume, and shall be
unconditionally obligated to pay to the Issuing Bank its
Applicable Commitment Percentage of the liability of the
Issuing Bank under such Letter of Credit in the manner set
forth below:
(i) With respect to amounts owing in connection
with a Letter of Credit for which Swing Line Loans shall
then be available, such Swing Line Loans shall be
advanced under the Swing Line and each Lender (including
the Swing Line Lender in its capacity as a Lender) shall
share in the risk of loss with respect to such Swing Line
Loans by, at the request of the Swing Line Lender, making
a Revolving Credit Loan to repay such Swing Line Loan in
an amount equal to such Lender's Applicable Commitment
Percentage of such Swing Line Loan as set forth in
Section 2.02.
(ii) With respect to amounts owing in connection
with a Letter of Credit for which a Swing Line Loan shall
not be available, each Lender (including the Issuing Bank
in its capacity as a Lender) prior to the Revolving
Credit Termination Date, shall, subject to the terms and
conditions of Article II, make a Revolving Credit Loan
bearing interest at the Base Rate to the Borrower by
paying to the Agent for the account of the Issuing Bank
at the Principal Office in Dollars and in immediately
available funds, an amount equal to its Applicable
Commitment Percentage of any drawing under a Letter of
Credit, all as described in and pursuant to Section
2.01(c)(iv).
(iii) With respect to drawings under any of the
Letters of Credit for which a Revolving Credit Loan is
not made as set forth in clause (ii) above, each Lender,
upon receipt from the Agent of notice of a drawing in the
manner described in Section 2.01(c), shall promptly pay
to the Agent for the account of the Issuing Bank, prior
to the applicable time set forth in Section 2.01(c), its
Applicable Commitment Percentage of such drawing.
Simultaneously with the making of each such payment by a
Lender to the Agent for the account of the Issuing Bank,
such Lender shall, automatically and without any further
action on the part of the Issuing Bank or such Lender,
acquire a Participation in an amount equal to such
payment (excluding the portion thereof constituting
interest) in the related Reimbursement Obligation of the
Borrower. The Lenders' acquisition of and payment for
Participations in any Reimbursement Obligation as set
forth in this clause (iii) shall occur only if such
Reimbursement Obligation is not paid pursuant to Swing
Line Loans or Revolving Credit Loans. The Reimbursement
Obligations of the Borrower shall be immediately due and
payable whether by Revolving Credit Loans made in
accordance with Section 2.01(c) or otherwise.
(iv) Each Lender's obligation to make payment to the
Agent for the account of the Issuing Bank pursuant to
this Section 3.02(c), and the right of the Issuing Bank
to receive the same, shall be made without any offset,
abatement, withholding or reduction whatsoever. If any
Lender is obligated to pay but does not pay amounts to
the Agent for the account of the Issuing Bank in full
upon such request as required by this Section 3.02(c),
such Lender shall, on demand, pay to the Agent for the
account of the Issuing Bank interest on the unpaid amount
for each day during the period commencing on the date of
notice given to such Lender pursuant to Section 2.01(c)
until such Lender pays such amount to the Agent for the
account of the Issuing Bank in full at the interest rate
per annum for overnight borrowing by the Issuing Bank
from the Federal Reserve Bank.
(v) In the event the Lenders have purchased
Participations in any Reimbursement Obligation as set
forth in clause (iii) above, then at any time payment is
received by the Issuing Bank as issuer of the Letter of
Credit from the Borrower of such Reimbursement
Obligation, in whole or in part, the Issuing Bank shall
pay to each Lender an amount equal to its Applicable
Commitment Percentage of such payment from the Borrower.
(vi) Nothing contained herein shall be deemed to
release the Issuing Bank from any obligation it may incur
to reimburse any Lender arising from the Issuing Bank's
wrongful payment of a drawing under any Letter of Credit
as a result of its gross negligence or willful
misconduct.
(d) Promptly following the end of each calendar quarter,
the Issuing Bank shall deliver to the Agent, and the Agent
shall deliver to each Lender, a notice describing the
aggregate undrawn amount of all Letters of Credit at the end
of such quarter. Upon the request of any Lender from time to
time, the Issuing Bank shall deliver to the Agent, and the
Agent shall deliver to such Lender, any other information
reasonably requested by such Lender with respect to each
Outstanding Letter of Credit.
(e) The issuance by the Issuing Bank of each Letter of
Credit shall, in addition to the conditions precedent set
forth in Section 5.01 and Section 5.02 hereof, be subject to
the conditions that such Letter of Credit be in such form and
contain such terms as shall be reasonably satisfactory to the
Issuing Bank consistent with the then current practices and
procedures of the Issuing Bank with respect to similar letters
of credit, and the Borrower shall have executed and delivered
such other instruments and agreements relating to such Letters
of Credit as the Issuing Bank shall have reasonably requested
consistent with such practices and procedures. All Letters of
Credit shall be issued pursuant to and subject to the Uniform
Customs and Practice for Documentary Credits, 1993 revision,
International Chamber of Commerce Publication No. 500 and all
subsequent amendments and revisions thereto.
(f) Without duplication of Section 11.11 hereof, the
Borrower hereby agrees to defend, indemnify and hold harmless
the Issuing Bank, each other Lender and the Agent from and
against any and all claims and damages, losses, liabilities,
reasonable costs and expenses which the Issuing Bank, such
other Lender or the Agent may incur (or which may be claimed
against the Issuing Bank, such other Lender or the Agent) by
any Person by reason of or in connection with the issuance or
transfer of or payment or failure to pay under any Letter of
Credit; provided, that the Borrower shall not be required to
indemnify the Issuing Bank, any other Lender or the Agent for
any claims, damages, losses, liabilities, costs or expenses to
the extent, but only to the extent, caused by the willful
misconduct or gross negligence of the party to be indemnified.
The provisions of this Section 3.02(f) shall survive repayment
of the Obligations, the occurrence of the Total Facility
Termination Date, and expiration or termination of this
Agreement.
(g) Without limiting Borrower's rights as set forth in
Section 3.02(f) above, the obligation of the Borrower to
immediately reimburse the Issuing Bank for drawings made under
Letters of Credit shall be absolute, unconditional and
irrevocable, and shall be performed strictly in accordance
with the terms of this Agreement and such Letters of Credit
and the related Applications and Agreements for Letters of
Credit, notwithstanding the existence of any of the following
circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, the obligation supported by the Letter
of Credit or any other agreement or instrument relating
thereto (collectively, the "Related Documents");
(ii) any amendment or waiver of or any consent to or
departure from all or any of the Related Documents;
(iii) the existence of any claim, setoff,
defense or other rights which the Borrower may have at
any time against any beneficiary or any transferee of a
Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), Agent,
Lenders or any other Person, whether in connection with
the Loan Documents (including without limitation such
documents as defined in the 364 Day Facility Credit
Agreement), the Related Documents or any unrelated
transaction;
(iv) any breach of contract or other dispute between
the Borrower and any beneficiary or any transferee of a
Letter of Credit (or any persons or entities for whom
such beneficiary or any such transferee may be acting),
Agent, Lenders or any other Person;
(v) any draft, statement or any other document
presented under the Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or
inaccurate in any respect whatsoever;
(vi) any delay, extension of time, renewal,
compromise or other indulgence or modification granted or
agreed to by Agent, with or without notice to or approval
by the Borrower in respect of any of Borrower's
Obligations under this Agreement; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the
foregoing; provided, however, that nothing contained
herein shall be deemed to release the Issuing Bank or any
other Lender of any liability for actual loss arising as
a result of its gross negligence or willful misconduct.
3.03 Letter of Credit Fee. The Borrower agrees to pay
(i) to the Agent, for the pro rata benefit of the Lenders
based on their Applicable Commitment Percentages, a fee per
annum on the aggregate amount available to be drawn on each
outstanding Letter of Credit at a rate equal to the Applicable
Interest Addition as in effect from time to time which fee
shall be deemed immediately earned when paid and (ii) to the
Issuing Bank for its own account, as issuer of each Letter of
Credit, a fee per annum equal to 0.125% of the aggregate
amount available to be drawn on each outstanding Letter of
Credit which fee shall be deemed immediately earned when paid.
Such payments of fees provided for in this Section 3.03 with
respect to each Letter of Credit shall be payable in arrears
in quarterly installments on the first Business Day of each
February, May, August and November, commencing November 2,
1998. Such fees shall be calculated on the basis of a year of
360 days for the actual number of days elapsed.
3.04 Administrative Fees. The Borrower shall pay to the
Issuing Bank such administrative fee and other fees, if any,
in connection with the Letters of Credit in such amounts and
at such times as the Issuing Bank and the Borrower shall agree
in writing from time to time.
3.05 Existing Letters of Credit. The Existing Letters
of Credit shall be deemed issued hereunder as of the Closing
Date and constitute both usage of the Total Letter of Credit
Commitment and Letter of Credit Outstandings. Accordingly,
each of the Lenders (other than the Issuing Bank) shall be
deemed to have, as of the Closing Date, a Participation in the
liability of the Issuing Bank in respect of each such Existing
Letter of Credit in an amount equal to such Lender's
Applicable Commitment Percentage of such liability.
ARTICLE IV
Change in Circumstances
4.01 Increased Cost and Reduced Return.
(a) If, after the date hereof, the adoption of any
applicable law, rule, or regulation, or any change in any
applicable law, rule, or regulation, or any change in the
interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the
interpretation or administration thereof, or compliance by any
Lender (or its Applicable Lending Office) with any request or
directive (whether or not having the force of law) of any such
Governmental Authority, central bank, or comparable agency:
(i) shall subject such Lender (or its Applicable
Lending Office) to any tax, duty, or other charge with
respect to any Fixed Rate Loans, its Note, or its
obligation to make Eurodollar Loans, or change the basis
of taxation of any amounts payable to such Lender (or its
Applicable Lending Office) under this Agreement or its
Note in respect of any Fixed Rate Loans (other than taxes
imposed on the overall net income of such Lender by the
jurisdiction in which such Lender has its principal
office or such Applicable Lending Office);
(ii) shall impose, modify, or deem applicable any
reserve, special deposit, assessment, or similar
requirement (other than the Reserve Requirement utilized
in the determination of the Adjusted Eurodollar Rate)
relating to any extensions of credit or other assets of,
or any deposits with or other liabilities or commitments
of, such Lender (or its Applicable Lending Office),
including the Revolving Credit Commitment of such Lender
hereunder; or
(iii) shall impose on such Lender (or its
Applicable Lending Office) or on the London interbank
market any other condition affecting this Agreement or
its Notes or any of such extensions of credit or
liabilities or commitments;
and the result of any of the foregoing is to increase the cost
to such Lender (or its Applicable Lending Office) of making,
Converting into, Continuing, or maintaining any Fixed Rate
Loans or to reduce any sum received or receivable by such
Lender (or its Applicable Lending Office) under this Agreement
or its Notes with respect to any Fixed Rate Loans, then the
Borrower shall pay to such Lender on demand such amount or
amounts as will compensate such Lender for such increased cost
or reduction. If any Lender requests compensation by the
Borrower under this Section 4.01(a), the Borrower may, by
notice to such Lender (with a copy to the Agent), suspend the
obligation of such Lender to make or Continue Eurodollar
Loans, or to Convert Base Rate Loans into Loans of such Type,
until the event or condition giving rise to such request
ceases to be in effect (in which case the provisions of
Section 4.04 shall be applicable); provided that such
suspension shall not affect the right of such Lender to
receive the compensation so requested.
(b) If, after the date hereof, any Lender shall have
determined that the adoption of any applicable law, rule, or
regulation regarding capital adequacy or any change therein or
in the interpretation or administration thereof by any
Governmental Authority, central bank, or comparable agency
charged with the interpretation or administration thereof, or
any request or directive regarding capital adequacy (whether
or not having the force of law) of any such Governmental
Authority, central bank, or comparable agency, has or would
have the effect of reducing the rate of return on the capital
of such Lender or any corporation controlling such Lender as
a consequence of such Lender's obligations hereunder to a
level below that which such Lender or such corporation could
have achieved but for such adoption, change, request, or
directive (taking into consideration its policies with respect
to capital adequacy), then from time to time upon demand the
Borrower shall pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.
(c) Each Lender shall promptly notify the Borrower and
the Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Lender to
compensation pursuant to this Section 4.01 for a period not
greater than 180 days and will designate a different
Applicable Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation and will
not, in the judgment of such Lender, be otherwise
disadvantageous to it. Any Lender claiming compensation under
this Section 4.01 shall furnish to the Borrower and the Agent
a statement setting forth the additional amount or amounts to
be paid to it hereunder which shall be conclusive when made in
good faith and in the absence of manifest error. In
determining such amount, such Lender may use any reasonable
averaging and attribution methods. Any claim for compensation
under this Section 4.01 shall be made by the applicable Lender
within 180 days after the date on which the officer of such
Lender who has responsibility for compliance with the
obligations under this Agreement knows or has reason to know
of such Lender's right to any compensation under this Section
4.01 or, if any such Lender fails to deliver such demand
within such 180-day period, such Lender shall only be entitled
to compensation under this Section 4.01 from and after the
date that is 180 days prior to the date such Lender delivers
such demand.
4.02. Limitation on Types of Loans. If on or prior to
the first day of any Interest Period for any Eurodollar Loan:
(a) the Agent reasonably determines (which
determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the
Adjusted Eurodollar Rate for such Interest Period; or
(b) the Required Lenders reasonably determine
(which determination shall be conclusive) and notify the
Agent that the Adjusted Eurodollar Rate will not
adequately and fairly reflect the cost to the Lenders of
funding Eurodollar Loans for such Interest Period;
then the Agent shall give the Borrower prompt notice thereof
and so long as such condition remains in effect, the Lenders
shall be under no obligation to make additional Eurodollar
Loans, Continue Eurodollar Loans, or to Convert Base Rate
Loans into Eurodollar Loans.
4.03 Illegality. Notwithstanding any other provision of
this Agreement, in the event that it becomes unlawful for any
Lender or its Applicable Lending Office to make, maintain, or
fund Eurodollar Loans hereunder, then such Lender shall
promptly notify the Borrower thereof and such Lender's
obligation to make or Continue Eurodollar Loans and to Convert
Base Rate Loans into Eurodollar Loans shall be suspended until
such time as such Lender may again make, maintain, and fund
Eurodollar Loans (in which case the provisions of Section 4.04
shall be applicable).
4.04 Treatment of Affected Loans. If the obligation of
any Lender to make a Eurodollar Loan or to Continue, or to
Convert Base Rate Loans into, Eurodollar Loans shall be
suspended pursuant to Section 4.01, 4.02 or 4.03 hereof (such
Eurodollar Loans being herein called "Affected Loans"), such
Lender's Affected Loans shall be automatically Converted into
Base Rate Loans on the last day(s) of the then current
Interest Period(s) for Affected Loans (or, in the case of a
Conversion required by Section 4.03 hereof, on such earlier
date as such Lender may specify to the Borrower with a copy to
the Agent) and, unless and until such Lender gives notice as
provided below that the circumstances specified in Section
4.01, 4.02 or 4.03 hereof that gave rise to such Conversion no
longer exist:
(a) to the extent that such Lender's Affected Loans
have been so Converted, all payments and prepayments of
principal that would otherwise be applied to such
Lender's Affected Loans shall be applied instead to its
Base Rate Loans; and
(b) all Loans that would otherwise be made or
Continued by such Lender as Eurodollar Loans shall be
made or Continued instead as Base Rate Loans, and all
Loans of such Lender that would otherwise be Converted
into Eurodollar Loans shall be Converted instead into (or
shall remain as) Base Rate Loans.
If such Lender gives notice to the Borrower (with a copy to
the Agent) that the circumstances specified in Section 4.01,
4.02 or 4.03 hereof that gave rise to the Conversion of such
Lender's Affected Loans pursuant to this Section 4.04 no
longer exist (which such Lender agrees to do promptly upon
such circumstances ceasing to exist) at a time when Eurodollar
Loans made by other Lenders are outstanding, such Lender's
Base Rate Loans shall be automatically Converted, on the first
day(s) of the next succeeding Interest Period(s) for such
outstanding Eurodollar Loans made by other Lenders, to the
extent necessary so that, after giving effect thereto, all
Loans held by the Lenders holding Eurodollar Loans and by such
Lender are held pro rata (as to principal amounts, Types, and
Interest Periods) in accordance with their respective
Revolving Credit Commitment.
4.05 Compensation. Upon the request of any Lender, the
Borrower shall pay to such Lender such amount or amounts as
shall be sufficient (in the reasonable opinion of such Lender)
to compensate it for any loss, cost, or expense incurred by it
as a result of:
(a) any payment, prepayment, or Conversion of a
Fixed Rate Loan for any reason (including, without
limitation, the acceleration of the Loans pursuant to
Section 9.01) on a date other than the last day of the
Interest Period for such Loan; or
(b) any failure by the Borrower for any reason
(including, without limitation, the failure of any
condition precedent specified in Section 5.02 to be
satisfied) to borrow, Convert, Continue, or prepay a
Fixed Rate Loan on the date for such borrowing,
Conversion, Continuation, or prepayment specified in the
relevant Borrowing Notice, prepayment, Continuation, or
Conversion under this Agreement.
4.06 Taxes. (a) Any and all payments by the Borrower
to or for the account of any Lender or the Agent hereunder or
under any other Loan Document shall be made free and clear of
and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings,
and all liabilities with respect thereto, excluding, in the
case of each Lender and the Agent, (i) taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender (or its Applicable Lending
Office) or the Agent (as the case may be) is organized or any
political subdivision thereof (ii) any taxes (other than
withholding taxes) that would not be imposed but for a
connection between the Agent or a Lender and the jurisdiction
imposing such taxes (other than a connection arising solely by
virtue of the activities of the Agent or such Lender pursuant
to or in respect of this Agreement or any other Loan
Document), (iii) any withholding taxes payable with respect
to payments hereunder or under any other Loan Document under
applicable law in effect on the date hereof, and (iv) and
taxes arising after the date hereof solely as a result of or
attributable to a Lender changing its Applicable Lending
Office after the date such Lender becomes a party hereto (all
such non-excluded taxes, duties, levies, imposts, deductions,
charges, withholdings, and liabilities being hereinafter
referred to as "Taxes"). If the Borrower shall be required by
law to deduct any Taxes from or in respect of any sum payable
under this Agreement or any other Loan Document to any Lender
or the Agent, (i) the sum payable shall be increased as
necessary so that after making all required deductions
(including deductions applicable to additional sums payable
under this Section 4.06) such Lender or the Agent receives an
amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such
deductions, (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority
in accordance with applicable law, and (iv) the Borrower shall
furnish to the Agent, at its principal office, the original or
a certified copy of a receipt evidencing payment thereof.
(b) In addition, the Borrower agrees to pay any and all
present or future stamp or documentary taxes and any other
excise or property taxes or charges or similar levies which
arise from any payment made under this Agreement or any other
Loan Document or from the execution or delivery of, or
otherwise with respect to, this Agreement or any other Loan
Document (hereinafter referred to as "Other Taxes").
(c) The Borrower agrees to indemnify each Lender and the
Agent for the full amount of Taxes and Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed or
asserted by any jurisdiction on amounts payable under this
Section 4.06) paid by such Lender or the Agent (as the case
may be) and any liability (including penalties, interest, and
expenses) arising therefrom or with respect thereto.
(d) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the
date of its execution and delivery of this Agreement in the
case of each Lender listed on the signature pages hereof and
on or prior to the date on which it becomes a Lender in the
case of each other Lender, and from time to time thereafter if
requested in writing by the Borrower or the Agent (but only so
long as such Lender remains lawfully able to do so), shall
provide the Borrower and the Agent with (i) Internal Revenue
Service Form 1001 or 4224, as appropriate, or any successor
form prescribed by the Internal Revenue Service, certifying
that such Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the
rate of withholding tax on payments of interest or certifying
that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business
in the United States, (ii) Internal Revenue Service Form W-8
or W-9, as appropriate, or any successor form prescribed by
the Internal Revenue Service, and (iii) any other form or
certificate required by any taxing authority (including any
certificate required by Sections 871(h) and 881(c) of the
Internal Revenue Code), certifying that such Lender is
entitled to an exemption from or a reduced rate of tax on
payments pursuant to this Agreement or any of the other Loan
Documents.
(e) For any period with respect to which a Lender has
failed to provide the Borrower and the Agent with the
appropriate form pursuant to Section 4.06(d) (unless such
failure is due to a change in treaty, law, or regulation
occurring subsequent to the date on which a form originally
was required to be provided), such Lender shall not be
entitled to indemnification under Section 4.06(a) or 4.06(b)
with respect to Taxes imposed by the United States; provided,
however, that should a Lender, which is otherwise exempt from
or subject to a reduced rate of withholding tax, become
subject to Taxes because of its failure to deliver a form
required hereunder, the Borrower shall take such steps as such
Lender shall reasonably request to assist such Lender to
recover such Taxes.
(f) If the Borrower is required to pay additional
amounts to or for the account of any Lender pursuant to this
Section 4.06, then such Lender will agree to use reasonable
efforts to change the jurisdiction of its Applicable Lending
Office so as to eliminate or reduce any such additional
payment which may thereafter accrue if such change, in the
judgment of such Lender, is not otherwise disadvantageous to
such Lender.
(g) Within thirty (30) days after the date of any
payment of Taxes, the Borrower shall furnish to the Agent the
original or a certified copy of a receipt evidencing such
payment.
(h) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in this Section 4.06
shall survive the expiration or termination of this Agreement
and repayment in full of the Notes and all other Obligations
and the occurrence of the Total Facility Termination Date.
(i) Any Lender claiming additional amounts payable
pursuant to this Section 4.06 shall use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to file any certificate or document requested by
the Borrower or to change the jurisdiction of its Applicable
Lending Office if the making of such filing or change would
avoid the need for or reduce the amount of any such additional
amounts which may thereafter accrue and would not, in the sole
judgment of such Lender, be disadvantageous to such Lender.
The Borrower shall promptly upon request by any Lender or the
Agent take all actions (including, without limitation, the
completion of forms and the provisions of information to the
appropriate taxing authorities) reasonably requested by such
Lender or the Agent to secure the benefit of any exemption
from, or relief with respect to, Taxes or Other Taxes in
relation to any amounts payable under this Agreement.
(j) In the event that an additional payment is made
under Section 4.06(a) or 4.06(c) for the account of any Lender
and such Lender, in its reasonable opinion, determines that it
has received or been granted a credit against or release or
remission for, or repayment of, any tax paid or payable by it
in respect of or calculated with reference to the deduction or
withholding giving rise to such payment, such Lender shall, to
the extent that it can do so without prejudice to the
retention of the amount of such credit, relief, remission or
repayment, pay to the Borrower such amount as such Lender
shall reasonably determine to be attributable to such
deduction or withholding and as will leave such Lender (after
such payment) in no better or worse position than it would
have been in if the Borrower had not been required to make
such deduction or withholding.
ARTICLE V
Conditions to Making Loans and Issuing Letters of Credit
5.01 Conditions of Initial Loan and Issuance of Letters
of Credit. The obligation of the Lenders to make the initial
Loan and of the Issuing Bank to issue the Letters of Credit is
subject to the following conditions precedent:
(a) The Agent shall have received on the Closing Date,
in form and substance satisfactory to the Agent and Lenders,
or otherwise be satisfied as to, each of the following:
(i) executed originals of each of this Agreement,
the Notes and the other Loan Documents and the 364 Day
Facility Credit Agreement and the promissory notes and
loan documents referred to therein, together with all
schedules and exhibits thereto;
(ii) favorable written opinions of special counsel
or in-house counsel to the Borrower and the Guarantors
dated the Closing Date, addressed to the Agent and the
Lenders and satisfactory to the Agent, the Lenders and to
▇▇▇▇▇ ▇▇▇▇▇ Mulliss & ▇▇▇▇▇, L.L.P., special counsel to
the Agent, substantially in the form of Exhibit M
attached hereto and incorporated herein by reference;
(iii) Organizational Action of the Borrower and
each of the Guarantors certified by its secretary or
assistant secretary or other appropriate official as of
the Closing Date, appointing (in the case of the
Borrower) the initial Authorized Representatives and
approving and adopting the Loan Documents to be executed
by such Person, and authorizing the execution and
delivery thereof and the incurrence of obligations
thereunder;
(iv) specimen signatures of officers of the Borrower
and each Guarantor executing the Loan Documents on behalf
of such Person, certified by the secretary or assistant
secretary or other appropriate official of the Borrower
or Guarantor, as applicable;
(v) the Organizational Documents of the Borrower
and each Guarantor certified as of a recent date by the
Secretary of State or other appropriate Governmental
Authority of its jurisdiction of incorporation (or other
organization, as applicable);
(vi) the Operating Documents of the Borrower and
each Guarantor certified as of the Closing Date as true
and correct by the secretary or assistant secretary or
other appropriate official of the Person to whom such
Operating Documents relate;
(vii) certificates issued as of a recent date by
the Secretary of State or other appropriate Governmental
Authority of its jurisdiction of incorporation (or other
organization, as applicable) as to the due existence and,
if issued by such governmental authority, good standing
of the Borrower and each Guarantor therein;
(viii) appropriate certificates of qualification
to do business, good standing and, where appropriate,
authority to conduct business under assumed name, issued
in respect of the Borrower and each Guarantor as of a
recent date by the Secretary of State or other
appropriate Governmental Authority of each jurisdiction
in which the failure to be qualified to do business or
authorized so to conduct business could reasonably be
expected to have a Material Adverse Effect;
(ix) notice of appointment of the initial Authorized
Representative of the Borrower in the form of Exhibit C
hereto;
(x) certificate of an Authorized Representative
dated the Closing Date demonstrating pro forma compliance
with the financial covenants contained in Sections 8.02
and 8.03, all as of May 2, 1998, substantially in the
form of Exhibit N attached hereto;
(xi) an initial Borrowing Notice;
(xii) all fees payable by the Borrower on the
Closing Date to the Agent, NationsBank, NMS and the
Lenders, including any upfront fee as agreed to in
writing;
(xiii) historical pro forma consolidated
financial statements giving effect to the proposed
combination with Saks (the "Saks Acquisition") as set
forth in the Borrower's Registration Statement on Form
S-4, Registration No.333-60123, as filed with the
Securities and Exchange Commission on July 29, 1998 (the
"Filing Date") as amended by each amendment thereto (as
so amended, the "Registration Statement"), as well as the
actual historical consolidated financial statements of
the Borrower and its Subsidiaries incorporated by
reference in such Registration Statement;
(xiv) certificate of an Authorized
Representative stating that all conditions precedent to
the consummation of the Saks Acquisition as set forth in
the Agreement and Plan of Merger dated as of July 4, 1998
(the "Saks Acquisition Agreement") have been satisfied or
waived;
(xv) fully executed copy of the Saks Acquisition
Agreement and other related documents, instruments and
agreements requested by the Agent, each certified as true
and complete by an Authorized Representative;
(xvi) evidence as to the termination of that
certain Credit Agreement among Saks, The Chase Manhattan
Bank, as Administrative Agent, and the other lenders
party thereto dated as of October 8, 1996 and repayment
in full of all obligations (other than the undrawn
principal amount of the letters of credit then
outstanding listed on Schedule 8.04 hereof) owing
thereunder;
(xvii) a certificate of an Authorized
Representative as to the occurrence or truthfulness, as
applicable, of the matters set forth in Section 5.01(b)
hereof as of the Closing Date; and
(xviii) such other documents, instruments,
certificates and opinions as the Agent or any Lender may
reasonably request on or prior to the Closing Date in
connection with the consummation of the transactions
contemplated hereby.
(b) Each of the following shall have occurred or be
true:
(i) there shall not be any action, suit,
investigation or proceeding pending or threatened by,
before or otherwise involving any Governmental Authority
or other Person that could reasonably be expected to have
a material adverse effect on (x) the business, business
prospects, results of operations or condition (financial
or otherwise) of the Borrower or its Subsidiaries or (y)
the ability of the Borrower or its Subsidiaries to
observe and perform the covenants and agreements
contained herein or in any other Loan Document or the
ability of any Lender to receive the benefit of any
remedy provided thereto under any Loan Document or (z)
any transaction contemplated hereby;
(ii) consummation of the Saks Acquisition, which
shall not have a Material Adverse Effect; and
(iii) the Borrower and its Subsidiaries shall be
in compliance with respect to all existing financial
obligations.
(c) In the good faith judgment of the Agent and the
Lenders:
(i) there shall not have occurred a material
adverse change since the Filing Date in the business,
business prospects, results of operations or condition
(financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole or Saks and its
Subsidiaries taken as a whole, or in the facts and
information regarding such entities as represented to
date;
(ii) the Agent and NMS shall have completed all due
diligence deemed necessary with respect to the business,
operations, financial condition and prospects of Saks and
its Subsidiaries; and
(iii) the Agent shall have received and
reviewed, with results satisfactory to the Agent and its
counsel, all information regarding litigation, tax,
accounting, labor, insurance, pension liabilities (actual
or contingent), real estate leases, material contracts,
debt agreements, property ownership, and contingent
liabilities of the Borrower and its Subsidiaries.
5.02 Conditions of Loans. The obligations of the
Lenders to make any Loan, the Swing Line Lender to make Swing
Line Loans and the Issuing Bank to issue Letters of Credit
hereunder, on or subsequent to the Closing Date are (except as
set forth in Section 2.01(c)(iv), 2.02(e) or 3.02(c)) subject
to the satisfaction of the following conditions (which are not
applicable as conditions precedent to any Loan being Continued
or Converted pursuant to Section 2.11 hereof).
(a) the Agent shall have received a notice of such
borrowing or request if required by Article II hereof;
(b) the representations and warranties of the Borrower
and each Guarantor set forth in Article VI hereof and in each
of the other Loan Documents shall be true and correct in all
material respects on and as of the date of such Loan or
issuance of such Letters of Credit, as the case may be, with
the same effect as though such representations and warranties
had been made on and as of such date, other than such
representations and warranties which expressly relate to an
earlier date, except that the representations and warranties
set forth in Section 6.01(d) and (e) shall be deemed to
include and take into account the Saks Acquisition and any
merger or consolidation permitted under Section 8.08 hereof,
and except that the financial statements referred to in
Section 6.01(f)(i) shall be deemed to be those financial
statements most recently delivered to the Agent and the
Lenders pursuant to Section 7.01 hereof;
(c) in the case of the issuance of a Letter of Credit,
Borrower shall have executed and delivered to the Issuing Bank
an Application and Agreement for Letter of Credit in form and
content acceptable to the Issuing Bank together with such
other instruments and documents as it may reasonably request;
(d) at the time of each such Loan, Swing Line Loan or
issuance of each Letter of Credit, as the case may be, no
Default or Event of Default shall have occurred and be
continuing and the obligations shall not have been declared to
be immediately due and payable pursuant to Section 9.01(A)(ii)
hereof;
(e) immediately after giving effect to a Swing Line
Loan, the aggregate Swing Line Outstandings shall not exceed
the Total Swing Line Commitment;
(f) immediately after issuing any Letter of Credit, the
aggregate Letter of Credit Outstandings shall not exceed the
Total Letter of Credit Commitment; and
(g) immediately after giving effect to any Loan or
Letter of Credit (i) Total Outstandings shall not exceed the
Total Revolving Credit Commitment and (ii) each Lender's
Applicable Commitment Percentage of Revolving Credit Loans
(other than Competitive Bid Loans) and Participations shall
not exceed its Revolving Credit Commitment.
ARTICLE VI
Representations and Warranties
6.01 Representations and Warranties. The Borrower
represents and warrants to the Lenders and the Agent with
respect to itself and to its Subsidiaries (which
representations and warranties shall survive the delivery of
the documents mentioned herein and the making of Loans and
issuance of Letters of Credit), that:
(a) Organization and Authority.
(i) the Borrower and each Subsidiary is a legal
entity duly organized or created and validly existing
under the laws of the jurisdiction of its incorporation
or creation;
(ii) the Borrower and each Subsidiary (1) has the
requisite power and authority to own its properties and
assets and to carry on its business as now being
conducted, and (2) is qualified to do business in each
jurisdiction in which its ownership or lease of property
or the nature of its business makes such qualification
necessary and in which failure so to qualify could
reasonably be expected to have a Material Adverse Effect;
(iii) the Borrower has the power and authority
to execute, deliver and perform this Agreement and the
Notes, and to borrow hereunder, and to execute, deliver
and perform each of the other Loan Documents to which it
is a party;
(iv) each Guarantor has the power and authority to
execute, deliver and perform the Guaranty and the other
Loan Documents to which it is a party; and
(v) each of the Loan Documents to which a Loan
Party is a party has been duly executed and delivered by
such Loan Party and is the legal, valid and binding
obligation or agreement, as the case may be, of such Loan
Party, enforceable against such Loan Party in accordance
with its terms, subject to the effect of any applicable
bankruptcy, moratorium, insolvency, reorganization or
other similar law affecting the enforceability of
creditors' rights generally and to the effect of general
principles of equity which may limit the availability of
equitable remedies (whether in a proceeding at law or in
equity);
(b) Loan Documents. The execution, delivery and
performance by a Loan Party of each of the Loan Documents to
which such Loan Party is a party:
(i) have been duly authorized by all requisite
Organizational Action (including any required shareholder
approval) of such Loan Party required for the lawful
execution, delivery and performance thereof;
(ii) do not violate any provisions of (1) applicable
law, rule or regulation, (2) any order of any court or
other agency of government binding on the Borrower or any
Guarantor, or their respective properties, or (3) the
Organizational Documents or Operating Documents of such
Loan Party;
(iii) will not be in conflict with, result in a
breach of or constitute an event of default, or an event
which, with notice or lapse of time, or both, would
constitute an event of default, under any indenture,
agreement or other instrument to which any Loan Party is
a party, or by which the properties or assets of any Loan
Party are bound; and
(iv) will not result in the creation or imposition
of any Lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of any
Loan Party except any Liens in favor of the Agent and the
Lenders created by the Loan Documents;
(c) Solvency. Each Loan Party is Solvent after giving
effect to the Saks Acquisition and the transactions
contemplated by this Agreement and the other Loan Documents;
(d) Subsidiaries and Stockholders. Borrower has no
Subsidiaries other than those Persons listed as Subsidiaries
in Schedule 6.01(d) hereto (which Schedule includes all
Subsidiaries acquired in connection with the Saks Acquisition)
and Subsidiaries after the date hereof acquired or created in
compliance with Section 7.18 (if then applicable); Schedule
6.01(d) to this Agreement states as of the date hereof (i)
with respect to all wholly owned Subsidiaries, the names and
owners thereof and (ii) with respect to all non-wholly owned
Subsidiaries, the authorized and issued capitalization of each
such Subsidiary listed thereon, the number of shares or other
equity interests of each class of capital stock or interest
issued and outstanding of each such Subsidiary and the number
and/or percentage of outstanding shares or other equity
interest (including options, warrants and other rights to
acquire any interest) of each such class of capital stock or
equity interest owned by Borrower or by any such Subsidiary;
the outstanding shares or other equity interests of each
Subsidiary have been duly authorized and validly issued and
are fully paid and nonassessable; and Borrower and each such
Subsidiary owns beneficially and of record all the shares and
other interests it is listed as owning in Schedule 6.01(d) and
all shares and other interests for each of its wholly owned
Subsidiaries, free and clear of any Lien;
(e) Ownership Interests. Borrower owns no interest in
any Person other than as permitted under Section 8.07;
(f) Financial Condition.
(i) The Borrower has heretofore furnished to each
Lender (1) the audited income statement, balance sheet,
and statements of cash flow and changes in shareholders'
equity of the Borrower and its Subsidiaries (which do not
give effect to the Saks Acquisition) for the Fiscal Year
ended January 31, 1998 (the "Borrower's Audited
Statements") and (2) the unaudited pro forma condensed
combined income statements of the Borrower and its
Subsidiaries (giving effect to the Saks Acquisition) for
the years ended February 1, 1997 and January 31, 1998 and
for the three-month period ended May 2, 1998 and the
unaudited pro forma combined balance sheet of the
Borrower and its Subsidiaries as at May 2, 1998
(collectively, the "Combined Three Month Statements").
Except as set forth therein, the Borrower's Audited
Statements present fairly, in all material respects, the
financial condition of the Borrower and its Subsidiaries
as of the Fiscal Year then ended and the results of
operations and changes in stockholders' equity for the
Fiscal Year then ended, all in conformity with Generally
Accepted Accounting Principles applied on a basis
consistent with prior periods. The Combined Three Month
Statements have been prepared by the Borrower and Saks,
based on their respective financial statements for such
periods and at such date together with available
information and certain assumptions which the Borrower
believes to be reasonable, and give pro forma effect to
the Saks Acquisition under the pooling-of-interest method
of accounting;
(ii) since the Filing Date, there has been no
material adverse change in the condition, financial or
otherwise, of the Borrower and its Subsidiaries taken as
a whole or in the businesses, properties and operations
of the Borrower and its Subsidiaries, considered as a
whole, nor have such businesses or properties, taken as
a whole, been materially adversely affected as a result
of any fire, explosion, earthquake, accident, strike,
lockout, combination of workers, flood, embargo or act of
God;
(iii) except as set forth in the financial
statements referred to in Section 6.01(f)(i) or in
Schedule 6.01(f) or Schedule 6.01(j) attached hereto, or
as permitted under Section 8.04 hereof or any other
provision of this Agreement or any other Loan Document,
neither Borrower nor any Subsidiary has incurred, other
than in the ordinary course of business, any material
indebtedness, obligations, commitments or other liability
contingent or otherwise which remain outstanding or
unsatisfied;
(g) Title to Properties. The Borrower and its
Subsidiaries have title to all their respective owned real and
personal properties, subject to no Liens of any kind, except
for (i) the Liens described in Schedule 6.01(g) attached
hereto and (ii) Liens permitted under Section 8.05 hereof;
(h) Taxes. Except as set forth in Schedule 6.01(h)
attached hereto, the Borrower and its Subsidiaries have filed
or caused to be filed all federal, state, local and foreign
tax returns which are required to be filed by them and except
for taxes and assessments being contested as permitted under
Section 7.04, have paid or caused to be paid all taxes as
shown on said returns or on any assessment received by them,
to the extent that such taxes have become due;
(i) Other Agreements. Neither the Borrower nor any
Subsidiary is
(i) a party to any judgment, order, decree or any
agreement or instrument or subject to restrictions which
could reasonably be expected to have a Material Adverse
Effect; or
(ii) in default in the performance, observance or
fulfillment of any of the obligations, covenants or
conditions contained in any agreement or instrument to
which the Borrower or any Subsidiary is a party, which
default has, or if not remedied within any applicable
grace period could reasonably be expected to have, a
Material Adverse Effect;
(j) Litigation. Except as set forth in
Schedule 6.01(j) attached hereto, there is no action, suit,
litigation, investigation or proceeding at law or in equity or
by or before any Governmental Authority pending, including
without limitation matters pertaining to labor, employment,
wages, hours, occupational safety and taxation, or, to the
knowledge of the Borrower, threatened by or against the
Borrower or any Subsidiary or affecting the Borrower or any
Subsidiary or any properties or rights of the Borrower or any
Subsidiary, an adverse ruling or determination in which could
reasonably be expected to have a Material Adverse Effect;
(k) Margin Stock. Neither the Borrower nor any agent
acting in its behalf has taken or will take any action which
might cause this Agreement or any of the documents or
instruments delivered pursuant hereto to violate any
regulation of the Board or to violate the Securities Exchange
Act of 1934, as amended, or the Securities Act of 1933, as
amended, or any state securities laws, in each case as in
effect on the date hereof;
(l) Investment Company. Neither the Borrower nor any
Subsidiary is an "investment company," or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (15 U.S.C. Section 80a-1,
et seq.). The application of the proceeds of the Loans and
repayment thereof by the Borrower and the performance by the
Borrower of the transactions contemplated by this Agreement
will not violate any provision of said Act, or any rule,
regulation or order issued by the Securities and Exchange
Commission thereunder, in each case as amended from time to
time;
(m) Patents, Etc. Except as set forth in Schedule
6.01(m) attached hereto, the Borrower and its Subsidiaries own
or have the right to use, under valid license agreements or
otherwise, all material patents, licenses, franchises,
trademarks, trademark rights, trade names, trade name rights,
trade secrets and copyrights necessary to the conduct of their
businesses as now conducted, without known conflict with any
patent, license, franchise, trademark, trade secrets and
confidential commercial or proprietary information, trade
name, copyright, rights to trade secrets or other proprietary
rights of any other Person, except to the extent the failure
to have such ownership or rights could not reasonably be
expected to have a Material Adverse Effect;
(n) No Untrue Statement. Neither this Agreement nor any
other Loan Document or certificate or document executed and
delivered by or on behalf of any Loan Party in accordance with
or pursuant to any Loan Document contains any
misrepresentation or untrue statement of material fact or
omits to state a material fact necessary, in light of the
circumstance under which it was made, in order to make any
such representation or statement contained therein not
misleading in any material respect;
(o) No Consents, Etc. Except as set forth in Schedule
6.01(o) attached hereto, neither the respective businesses or
properties of the Borrower or any Subsidiary, nor any
relationship between the Borrower or any Subsidiary and any
other Person, nor any circumstance in connection with the
execution, delivery and performance of the Loan Documents and
the transactions contemplated hereby is such as to require a
consent, approval or authorization of, or filing, registration
or qualification with, any Governmental Authority on the part
of the Borrower or any Subsidiary as a condition to the
execution, delivery and performance of, or consummation of the
transactions contemplated by, this Agreement or the other Loan
Documents or if so, such consent, approval, authorization,
filing, registration or qualification has been obtained or
effected, as the case may be;
(p) Benefit Plans.
(i) None of the employee benefit plans maintained
at any time by the Borrower or any Subsidiary or the
trusts created thereunder has engaged in a prohibited
transaction or violated any Foreign Benefit Law which
could subject any such employee benefit plan or trust to
a material tax or penalty on prohibited transactions
imposed under Internal Revenue Code Section 4975 or ERISA
or under any Foreign Benefit Law;
(ii) None of the employee benefit plans maintained
at any time by the Borrower or any Subsidiary which are
employee pension benefit plans and which are subject to
Title IV of ERISA or any Foreign Benefit Law or the
trusts created thereunder has been terminated so as to
result in a material liability of the Borrower under
ERISA or under any Foreign Benefit Law nor has any such
employee benefit plan of the Borrower or any Subsidiary
incurred any material liability to the Pension Benefit
Guaranty Corporation established pursuant to ERISA or any
other Person exercising similar duties and functions
under any Foreign Benefit Law, other than for required
insurance premiums which have been paid or are not yet
due and payable; neither the Borrower nor any Subsidiary
has withdrawn from or caused a partial withdrawal to
occur with respect to any Multi-employer Plan resulting
in any material assessed and unpaid withdrawal liability;
the Borrower and the Subsidiaries have made or provided
for all contributions in all material amounts to all such
employee pension benefit plans which they maintain and
which are required as of the end of the most recent
fiscal year under each such plan; neither the Borrower
nor any Subsidiary has incurred any material accumulated
funding deficiency with respect to any such plan, whether
or not waived; nor has there been any reportable event,
or other event or condition, which presents a material
risk of termination of any such employee benefit plan by
such Pension Benefit Guaranty Corporation or any other
Person exercising similar duties and functions under any
Foreign Benefit Law;
(iii) The present value of all vested accrued
benefits under the employee pension benefit plans which
are subject to Title IV of ERISA or any Foreign Benefit
Law, maintained by the Borrower or any Subsidiary, did
not, as of the most recent valuation date for each such
plan, exceed by a material amount the then current value
of the assets of such employee benefit plans allocable to
such benefits;
(iv) To the knowledge of the Borrower based on its
actual knowledge and based on information, if any, that
the Lenders may provide to the Borrower from time to
time, the consummation of the Loans and the issuance of
the Letters of Credit provided for in Article II and
Article III will not involve any prohibited transaction
under ERISA or any Foreign Benefit Law which is not
subject to a statutory or administrative exemption;
(v) To the best of the Borrower's knowledge, each
employee pension benefit plan subject to Title IV of
ERISA or any Foreign Benefit Law, maintained by the
Borrower or any Subsidiary, has been administered in
accordance with its terms in all material respects and is
in compliance in all material respects with all
applicable requirements of ERISA and other applicable
laws, regulations and rules and any applicable Foreign
Benefit Law;
(vi) There has been no material withdrawal
liability incurred and unpaid with respect to
any Multi-employer Plan to which the Borrower
or any Subsidiary is or was a contributor;
(vii) As used in this Agreement, the terms
"employee benefit plan," "employee pension benefit plan,"
"accumulated funding deficiency," "reportable event," and
"accrued benefits" shall have the respective meanings
assigned to them in ERISA, and the term "prohibited
transaction" shall have the meaning assigned to it in
Code Section 4975 and ERISA;
(viii) Neither the Borrower nor any Subsidiary
has any liability not disclosed on any of the financial
statements furnished to the Lenders pursuant to Section
7.01 hereof, contingent or otherwise, under any plan or
program or the equivalent for unfunded post-retirement
benefits, including pension, medical and death benefits,
which liability could reasonably be expected to have a
Material Adverse Effect;
(q) No Default. As of the date hereof, there does not
exist any Default or Event of Default hereunder;
(r) Environmental Matters. The Borrower and each
Subsidiary is in compliance with all applicable Environmental
Laws the failure of which to comply could reasonably be
expected to have a Material Adverse Effect and has been issued
and currently maintains all federal, state and local permits,
licenses, certificates and approvals the failure of which to
obtain or maintain could reasonably be expected to have a
Material Adverse Effect. Neither the Borrower nor any
Subsidiary has been notified of any material pending or
threatened action, suit, proceeding or investigation, and
neither the Borrower nor any Subsidiary is aware of any facts,
which (a) calls into question, or could reasonably be expected
to call into question, compliance by the Borrower or any
Subsidiary with any Environmental Laws, (b) seeks, or could
reasonably be expected to form the basis of a meritorious
proceeding, to suspend, revoke or terminate any license,
permit or approval necessary for the operation of the
Borrower's or any Subsidiary's business or facilities or for
the generation, handling, storage, treatment or disposal of
any Hazardous Materials, or (c) seeks to cause, or could
reasonably be expected to form the basis of a meritorious
proceeding to cause, any property of the Borrower or any
Subsidiary to be subject to any restrictions on ownership,
use, occupancy or transferability under any Environmental Law,
in each case which could reasonably be expected to have a
Material Adverse Effect;
(s) RICO. Neither the Borrower nor any Subsidiary is
engaged in or has engaged in any course of conduct that could
subject any of their respective properties to any Lien,
seizure or other forfeiture under any criminal law, racketeer
influenced and corrupt organizations law, civil or criminal,
or other similar laws;
(t) Compliance with Laws. The Borrower and each
Subsidiary is in compliance with all laws, rules and
regulations, and all applicable laws, rules and regulations
pertaining to labor or employment matters, including without
limitation those pertaining to wages, hours, occupational
safety and taxation and all other valid requirements of any
Governmental Authority with respect to the conduct of its
business, the noncompliance with which could reasonably be
expected to have a Material Adverse Effect.
(u) Year 2000 Compliance. The Borrower has (i)
initiated a review and assessment of all areas within its and
each of its Subsidiaries' business and operations (including
those affected by suppliers, vendors and customers) that could
reasonably be expected to be adversely affected by the "Year
2000 Problem" (that is, the risk that computer hardware and
software applications used by the Borrower or any of its
Subsidiaries (or material suppliers, vendors and customers)
may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and any date after
December 31, 1999), (ii) developed a plan and time line for
addressing the Year 2000 Problem on a timely basis, and (iii)
to date, implemented that plan in accordance with that
timetable. Based on the foregoing, the Borrower believes that
all computer hardware and software applications (including
those of its suppliers, vendors and customers) that are
material to its or any of its Subsidiaries' business and
operations are reasonably expected on a timely basis to be
able to perform properly date-sensitive functions for all
dates before and after January 1, 2000 (that is, be "Year 2000
Compliant"), except to the extent that a failure to do so
could not reasonably be expected to have a Material Adverse
Effect.
ARTICLE VII
Affirmative Covenants
Until the occurrence of the Total Facility Termination
Date, unless the Required Lenders shall otherwise consent in
writing, the Borrower will:
7.01 Financial Reports, Etc. (a) as soon as
practicable and in any event within ninety-five (95) days
after the end of each Fiscal Year of the Borrower, deliver or
cause to be delivered to the Agent and each Lender (i) the
consolidated balance sheets of the Borrower and its
Subsidiaries, in each case with the notes thereto, the related
consolidated statements of operations, cash flow, and
shareholders' equity and the respective notes thereto for such
Fiscal Year, setting forth in the case of the consolidated
statements comparative financial statements for the preceding
Fiscal Year, all prepared in accordance with Generally
Accepted Accounting Principles applied on a Consistent Basis
and containing, with respect to the consolidated financial
reports, an opinion of PriceWaterhouseCoopers LLP, or any
other "Big 5" accounting firm or other such independent
certified public accountants of recognized national standing
selected by the Borrower and approved by the Agent, which is
unqualified and devoid of any exception which is not
acceptable to the Required Lenders; and (ii) a certificate of
an Authorized Representative as to the existence or non-existence
of any Default or Event of Default, demonstrating
compliance with Sections 8.01, 8.02 and 8.03 of this Agreement
as of the end of the most recent Fiscal Year for which such
covenant compliance is demonstrated, which certificate shall
be substantially in the form attached hereto as Exhibit N and
incorporated herein by reference;
(b) as soon as practicable and in any event within fifty
(50) days after the end of each quarterly period of each
Fiscal Year (except the last reporting period of the Fiscal
Year), or if an extension has been granted by the Securities
and Exchange Commission for the filing by the Borrower of its
quarterly report on Form 10-Q, then by the earlier of the date
such Form 10-Q is actually filed and the last day of such
extended time period, but in no event later than sixty (60)
days after the end of such quarterly period for which such
Form 10-Q is to be filed, deliver to the Agent and each Lender
(i) the consolidated balance sheets of the Borrower and its
Subsidiaries, in each case as of the end of such reporting
period, the related consolidated statements of operations and
cash flow for such reporting period and for the period from
the beginning of the Fiscal Year through the end of such
reporting period, accompanied by a certificate of an
Authorized Representative to the effect that such financial
statements present fairly, in all material respects, the
financial position of the Borrower and its Subsidiaries as of
the end of such reporting period and the results of their
operations and the changes in their financial position for
such reporting period, all of such interim financial
statements being prepared on a consolidated basis in
accordance with Generally Accepted Accounting Principles
applied on a Consistent Basis, subject to normal year-end
audit adjustments, and (ii) a certificate of an Authorized
Representative as to the existence or non-existence of any
Default or Event of Default and containing computations for
such quarter comparable to that required pursuant to Section
7.01(a)(ii);
(c) together with each delivery of the financial
statements required by Section 7.01(a)(i) hereof, deliver to
the Agent and each Lender a letter from the Borrower's
accountants specified in Section 7.01(a)(i) hereof stating
that in performing the audit necessary to render an opinion on
the financial statements delivered under Section 7.01(a)(i),
they obtained no knowledge of any Default or Event of Default
by the Borrower in the fulfillment of the terms and provisions
of this Agreement insofar as they relate to financial matters
(which at the date of such statement remains uncured); and if
the accountants have obtained knowledge of such Default or
Event of Default, a statement specifying the nature and period
of existence thereof;
(d) promptly upon their becoming available to the
Borrower, the Borrower shall deliver to the Agent and each
Lender a copy of (i) all regular or special reports or
effective registration statements which Borrower or any
Subsidiary shall file with the Securities and Exchange
Commission (or any successor thereto) or any securities
exchange, and (ii) any proxy statement distributed by the
Borrower to its shareholders, bondholders or the financial
community in general;
(e) promptly, and in any event within two (2) Business
Days, after the public announcement of any change in the Debt
Rating, deliver written notice to the Agent of such new Debt
Rating and the Debt Rating Date. The Borrower shall also
provide such additional evidence of such new Debt Rating as
may be requested by the Agent, including without limitation
evidence from either or both of S&P and ▇▇▇▇▇'▇ (or such other
Alternative Rating Agency), as applicable, within ten (10)
Business Days of such request;
(f) no later than 75 calendar days following the
consummation of the Saks Acquisition, deliver to the Agent and
each Lender a copy of the Audited Restated Financial
Statements; and
(g) promptly, from time to time, deliver or cause to be
delivered to the Agent and each Lender such other information
regarding Borrower's and each Subsidiary's operations,
business affairs and financial condition as the Agent or such
Lender may reasonably request.
7.02 Maintain Properties. (i) Maintain all properties
necessary to its operations in good working order and
condition (ordinary wear and tear excepted) and make all
needed repairs, replacements and renewals as are necessary to
conduct its business in accordance with customary business
practices and (ii) preserve and protect its material patents,
copyrights, licenses, trademarks, trademark rights, trade
names, trade name rights, trade secrets and know-how necessary
or useful in the conduct of its operations.
7.03 Existence, Qualification, Etc. Do or cause to be
done all things necessary to preserve and keep in full force
and effect its existence and all material rights and
franchises, trade names, trademarks and permits, except to the
extent conveyed in connection with transactions permitted
under Sections 8.06 or 8.08 hereof, and maintain its license
or qualification to do business as a foreign corporation and
good standing in each jurisdiction in which its ownership or
lease of property or the nature of its business makes such
license or qualification necessary and in which the failure so
to qualify could reasonably be expected to have a Material
Adverse Effect.
7.04 Taxes. Pay all taxes, assessments, governmental
charges, claims for labor, supplies, rent and any other
obligation which, if unpaid, might become a Lien against any
of its properties except any of the foregoing being contested
in good faith by appropriate proceedings diligently conducted
and against which reserves sufficient under GAAP have been
established.
7.05 Insurance. (i) Maintain insurance with responsible
insurance carriers against loss or damage by fire and other
hazards as are customarily insured against by similar
businesses owning such properties similarly situated, (ii)
maintain general public liability insurance at all times with
responsible insurance carriers against liability on account of
damage to persons and property having such limits,
deductibles, exclusions and co-insurance and other provisions
providing no less coverage than insurance customarily carried
by similar businesses owning similar properties and conducting
similar operations, and (iii) maintain insurance under all
applicable workers' compensation laws (or in the alternative,
maintain required reserves if self-insured for workers'
compensation purposes).
7.06 True Books. Keep true books of record and account
in compliance with Generally Accepted Accounting Principles.
7.07 Right of Inspection. Permit any Lender or the
Agent (through their employees and other agents), at the
expense of such Lender or the Agent, as applicable, or at the
reasonable expense of the Borrower if a Default has occurred
and is continuing, to visit and inspect any of the properties
(subject to the rights of third party tenants in possession),
corporate books and financial reports of the Borrower and its
Subsidiaries, and to discuss their respective affairs,
finances and accounts with their principal officers and
independent certified public accountants, all at reasonable
times, at reasonable intervals and with reasonable prior
notice.
7.08 Observe All Laws; Licenses. Comply in all material
respects with all laws, rules and regulations and all other
valid requirements of any Governmental Authority with respect
to the conduct of its business, including without limitation
Environmental Laws, the noncompliance with which could
reasonably be expected to have a Material Adverse Effect.
Borrower shall also obtain and maintain all licenses, permits,
certifications and approvals of all applicable Governmental
Authorities as are required for the conduct of its business as
currently conducted and as contemplated by the Loan Documents
and with respect to which the failure to so obtain and
maintain could reasonably be expected to have a Material
Adverse Effect.
7.09 Covenants Extending to Subsidiaries. Cause each of
its Subsidiaries to do with respect to itself, its business
and its assets, each of the things required of the Borrower in
Sections 7.02 through 7.08, inclusive.
7.10 Officer's Knowledge of Default. Upon any
Authorized Representative of the Borrower obtaining knowledge
of any Default or Event of Default, promptly notify the Agent
of the nature thereof, the period of existence thereof, and
what action the Borrower proposes to take with respect thereto
and stating that such notice is a "notice of default."
7.11 Suits or Other Proceedings. Upon any Authorized
Representative of the Borrower obtaining knowledge of any
litigation or other proceeding being instituted against the
Borrower or any Subsidiary, or any attachment, levy, execution
or other process being instituted against any assets of the
Borrower or any Subsidiary, in an aggregate amount greater
than $10,000,000 not otherwise covered by insurance, promptly
deliver to the Agent written notice thereof stating the nature
and status of such litigation, proceeding, levy, execution or
other process.
7.12 Notice of Discharge of Hazardous Material or
Environmental Complaint. Promptly provide to the Agent true,
accurate and complete copies of any and all written notices,
complaints, orders, directives, claims, or citations received
by the Borrower or any Subsidiary relating to any of the
following, in each case which could reasonably be expected to
have a Material Adverse Effect: (a) violation or alleged
violation by the Borrower or any Subsidiary of any applicable
Environmental Laws; (b) release or threatened release by the
Borrower or any Subsidiary, or by any Person handling,
transporting or disposing of any Hazardous Material on behalf
of the Borrower or any Subsidiary, or at any facility or
property owned or leased or operated by the Borrower or any
Subsidiary, of any Hazardous Material, except where occurring
legally pursuant to a permit or license or otherwise; or (c)
liability or alleged liability of the Borrower or any
Subsidiary for the costs of cleaning up, removing, remediating
or responding to a release of Hazardous Materials.
7.13 Environmental Compliance. If the Borrower or any
Subsidiary shall receive any letter, notice, complaint,
order, directive, claim or citation from any Governmental
Authority alleging that the Borrower or any Subsidiary has
violated any applicable Environmental Law, released any
Hazardous Material, or is liable for the costs of cleaning up,
removing, remediating or responding to a release of Hazardous
Materials, in each case the violation or occurrence of which
could reasonably be expected to have a Material Adverse
Effect, the Borrower shall promptly (and in any event within
the time period permitted and to the extent required by the
applicable Environmental Law or by the applicable Governmental
Authority responsible for enforcing such Environmental Law)
remove or remedy, or cause the applicable Subsidiary to remove
or remedy, such violation or release or satisfy such
liability.
7.14 Year 2000 Notice. Notify the Agents and the
Lenders in the event the Borrower discovers or determines that
any computer application (including those of its suppliers,
vendors and customers) that is material to its or any of its
Subsidiaries' business and operations will not be Year 2000
Compliant by September 30, 1999, except to the extent that
such failure could not reasonably be expected to result in a
Material Adverse Effect.
7.15 Further Assurances. At its cost and expense, upon
request of the Agent, duly execute and deliver or cause
another Loan Party to duly execute and deliver, to the Agent
such further instruments, documents, certificates, and
agreements, and do and cause another Loan Party to do such
further acts that may be reasonably necessary or advisable in
the reasonable opinion of the Agent to carry out the
provisions and purposes of this Agreement and the other Loan
Documents.
7.16 Benefit Plans. Comply in all material respects
with all requirements of ERISA and any Foreign Benefit Law
applicable to it and furnish to the Agent as soon as possible
and in any event (i) within thirty (30) days after the
Borrower knows or has reason to know that any reportable event
or other event under any Foreign Benefit Law with respect to
any employee benefit plan maintained by the Borrower or any
Subsidiary which could give rise to termination or the
imposition of any material tax or penalty has occurred,
written statement of an Authorized Representative describing
in reasonable detail such reportable event or such other event
and any action which the Borrower or applicable Subsidiary
proposes to take with respect thereto, together with a copy of
the notice of such reportable event given to the Pension
Benefit Guaranty Corporation or to any other applicable Person
exercising similar duties and functions under any Foreign
Benefit Law or a statement that said notice will be filed with
the annual report of the United States Department of Labor
with respect to such plan if such filing has been authorized,
(ii) promptly after receipt thereof, a copy of any notice that
the Borrower or any Subsidiary may receive from the Pension
Benefit Guaranty Corporation or from any other Person
exercising similar duties and functions under any Foreign
Benefit Law relating to the intention of the Pension Benefit
Guaranty Corporation or any such Person to terminate any
employee benefit plan or plans of the Borrower or any
Subsidiary or to appoint a trustee to administer any such
plan, (iii) within 10 days after a filing with the Pension
Benefit Guaranty Corporation pursuant to Section 412(n) of the
Code or with any Person pursuant to any Foreign Benefit Law of
a notice of failure to make a required installment or other
payment with respect to a plan, a certificate of an Authorized
Representative setting forth details as to such failure and
the action that the Borrower or its affected Subsidiary, as
applicable, proposes to take with respect thereto, together
with a copy of such notice given to the Pension Benefit
Guaranty Corporation or to such Person, and (iv) promptly
after the incurrence thereof and in any event within 10 days,
notice of withdrawal by the Borrower or any Subsidiary from
any Multi-employer Plan which withdrawal could reasonably
result in a material withdrawal liability.
7.17 Continued Operations. Continue at all times to
conduct its business and engage principally in a line or lines
of business similar to the business substantially as conducted
on the Closing Date by the Borrower and its Subsidiaries
(subject to the right to dispose of assets in transactions
permitted under Section 8.06 hereof).
7.18 New Subsidiaries.
(a) Subject to subsection (c) below, not later than
forty-five (45) Business Days following the acquisition or
creation of any Material Subsidiary (other than a Foreign
Subsidiary), or upon any previously existing Person becoming
a Material Subsidiary (other than a Foreign Subsidiary), cause
to be delivered to the Agent for the benefit of the Lenders
each of the following:
(i) a Guarantor Joinder Agreement executed by such
Subsidiary, with appropriate insertions of identifying
information and such other changes to which the Agent may
consent in its discretion;
(ii) an opinion of counsel to such Subsidiary dated
as of the date of delivery of the Guarantor Joinder
Agreement provided in the foregoing clause (i) and
addressed to the Agent and the Lenders, in form and
substance substantially similar to the opinions of
counsel to the Guarantors delivered on the Closing Date
to the Lenders pursuant to Section 5.01 hereof; and
(iii) current copies of the Organizational
Documents and Operating Documents of such Subsidiary,
minutes of duly called and conducted meetings (or duly
effected consent actions) of the Board of Directors (or
other comparable group of individuals performing a
similar function), or appropriate committees thereof
(and, if required by such Organizational Documents or
Operating Documents or by applicable laws, of the
shareholders) of such Subsidiary authorizing the actions
and the execution and delivery of documents described in
clause (i) of this Section 7.18 and evidence satisfactory
to the Agent (confirmation of the receipt of which will
be provided by the Agent to the Lenders) that such
Subsidiary is Solvent as of such date and after giving
effect to the Guaranty.
(b) Subject to subsection (c) below, not later than
forty-five (45) Business Days following the acquisition or
creation of a Foreign Subsidiary which is a Material
Subsidiary, or upon any previously existing Person becoming a
Foreign Subsidiary which is a Material Subsidiary, cause to be
delivered to the Agent for the benefit of the Lenders each of
the following:
(i) a pledge agreement (the "Pledge Agreement") to
be entered into by the Borrower or Subsidiary owning any
or all of the capital stock or other ownership interest
of such Foreign Subsidiary (the "Pledgor") in form and
substance acceptable to the Agent pledging 65% of all
such capital stock or ownership interests (the "Pledged
Stock");
(ii) the certificates evidencing the Pledged Stock
together with duly executed stock powers or powers of
assignment in blank affixed thereto;
(iii) an opinion of counsel to the Pledgor dated
as of the date of delivery of the Pledge Agreement
provided in the foregoing clause (i) and addressed to the
Agent and the Lenders as to matters regarding the
enforceability of such Pledge Agreement and the status of
such Pledged Stock in form and substance acceptable to
the Agent; and
(iv) the items referred to in (a)(iii) above with
respect to the Pledgor.
(c) This Section shall be of no further force or effect
if the Guaranty has been terminated in accordance with Section
11.20 hereof.
ARTICLE VIII
Negative Covenants
Until the occurrence of the Total Facility Termination
Date, unless the Required Lenders shall otherwise consent in
writing, the Borrower will not, nor will it permit any
Subsidiary to:
8.01 Consolidated Net Worth. Permit Consolidated Net
Worth at any time to be less than (A) the amount equal to
ninety percent (90%) of the Borrower's Consolidated Net Worth
as of November 1, 1998 after completion of the Saks
Acquisition plus (B) an amount equal to one hundred percent
(100%) of the Net Proceeds of each sale of capital stock or
other equity interest (including those instruments and
securities exchangeable, convertible or exercisable into
capital stock or other equity interests at such time as such
instruments are recognizable in Consolidated Net Worth in
accordance with GAAP) in the Borrower or any Subsidiary after
November 1, 1998 plus (C) an amount equal to the sum of fifty
percent (50%) of Consolidated Net Income of the Borrower and
its Subsidiaries (without deduction for any negative
Consolidated Net Income) for each full fiscal quarter ending
after November 1, 1998.
8.02 Consolidated Fixed Charge Ratio. Permit, at the
end of any Four-Quarter Period of the Borrower, the
Consolidated Fixed Charge Ratio for such Four-Quarter Period
to be equal to or less than 1.50 to 1.00.
8.03 Consolidated Funded Total Indebtedness to
Consolidated EBITDA. Permit, at the end of any Four-Quarter
Period of the Borrower, the ratio of Consolidated Funded Total
Indebtedness to Consolidated EBITDA for such Four-Quarter
Period to be greater than 3.50 to 1.00.
8.04 Indebtedness. (a) Incur, create, assume or permit
to exist any Indebtedness, howsoever evidenced, except
(i) All Indebtedness existing as of the date hereof
(including Indebtedness of Saks and its Subsidiaries as
of the date hereof, other than Indebtedness incurred in
anticipation of the Saks Acquisition and Indebtedness
which must be repaid pursuant to Section 5.01(a)(xvi))
and set forth in Schedule 8.04 attached hereto and
incorporated herein by reference and any extension,
renewal or refinancing thereof that does not increase the
principal amount thereof from that existing immediately
prior to such extension, renewal or refinancing; and that
does not result in an interest rate which is greater than
the market rate generally available to companies
similarly situated to the Borrower for similar
transactions; provided, none of the instruments and
agreements evidencing or governing such Indebtedness
(including extensions, renewals and refinancings thereof)
shall be amended, modified or supplemented after the
Closing Date (nor shall any new or other documents be
entered into which are effective) to change any terms of
repayment, subordination with respect to the Obligations,
restrictions against incurring Liens or Indebtedness,
rights of conversion, put or exchange, mandatory
prepayment, reduction in commitment or addition of or
adverse change in any borrowing base with respect to such
Indebtedness from such terms and rights as in effect on
the Closing Date unless such amendments, modifications or
supplements (or new or other documents) would not
reasonably be expected to have an adverse effect on the
Borrower, or its creditworthiness with respect to its
Obligations;
(ii) Indebtedness owing to the Agent or any Lenders
in connection with this Agreement, any Note or other Loan
Document;
(iii) Indebtedness consisting of Rate Hedging
Obligations permitted under Section 8.13 hereof;
(iv) The endorsement of negotiable instruments for
deposit or collection or similar transactions in the
ordinary course of business;
(v) Indebtedness incurred directly by the Borrower
or any Subsidiary exclusively to finance machinery,
equipment and other fixed assets purchased after the
Closing Date and Indebtedness incurred after the Closing
Date and secured by the Borrower's or any Subsidiary's
real property (including without limitation,
Indebtedness secured in connection with any tax retention
operating leases and synthetic leases), provided that
such Indebtedness (i) is secured, if at all, solely by a
Lien permitted in accordance with Sections 8.05(iii) or
(vii) hereof, as applicable, (ii) shall not be refinanced
for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing and
(iii) does not, at the time of incurrence, in the
aggregate during any consecutive twelve month period for
the Borrower and all Subsidiaries exceed a principal
amount equal to five percent (5%) of Consolidated Net
Worth (calculated as of the most recent fiscal period
with respect to which the Agent shall have received the
Required Financial Information);
(vi) Indebtedness of any Subsidiary owing to the
Borrower or a Subsidiary and Indebtedness of the Borrower
owing to a Subsidiary;
(vii) Additional Indebtedness of the Borrower
and its Subsidiaries, including without limitation
Indebtedness related to commercial and documentary
letters of credit, standby letters of credit, or
otherwise, provided that (i) the affirmative and negative
covenants and events of default contained in the
documents evidencing such additional Indebtedness are not
materially more restrictive than those contained in the
Loan Documents, (ii) neither a Default nor Event of
Default exists at the time such additional Indebtedness
is incurred or would result from the incurrence of such
additional Indebtedness and (iii) in the event such
additional Indebtedness matures or requires any principal
payment, including pursuant to acceleration, or mandatory
prepayment or redemption, on or prior to the Total
Facility Termination Date, the aggregate amount
outstanding of such additional Indebtedness which is due
(either at maturity or as a principal payment) prior to
the Total Facility Termination Date shall not at any time
(as determined by the face amount of such Indebtedness
where applicable) exceed fifteen percent (15%) of
Consolidated Total Assets (calculated as of the most
recent fiscal period with respect to which the Agent
shall have received the Required Financial Information);
and
(viii) Any guaranty of Indebtedness of the
Borrower or any Guarantor which is permitted to be
incurred pursuant to this Section 8.04.
(b) Permit at any time the amount of Indebtedness of all
Subsidiaries (excluding Securitization Subsidiaries and Saks
REMIC Subsidiaries) in the aggregate to exceed ten percent
(10%) of Consolidated Net Worth (calculated as of the most
recent fiscal period with respect to which the Agent shall
have received the Required Financial Information); provided,
prior to the Borrower's achievement of an Investment Grade
Rating and the release of the Guaranty pursuant to Section
11.20, this limitation shall only apply to Subsidiaries (other
than Securitization Subsidiaries and Saks REMIC Subsidiaries)
which are not Guarantors.
8.05 Liens. Incur, create or permit to exist any Lien
with respect to any property or assets now owned or hereafter
acquired by the Borrower or any of its Subsidiaries, other
than
(i) Liens existing as of the date hereof and as set
forth in Schedule 6.01(g) attached hereto;
(ii) Liens imposed by law for taxes, assessments or
charges of any Governmental Authority for claims not yet
due or which are being contested in good faith by
appropriate proceedings diligently conducted and with
respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with
Generally Accepted Accounting Principles;
(iii) Liens in respect of purchase money
Indebtedness in connection with the acquisition of
machinery, equipment and other fixed assets permitted to
be incurred pursuant to Section 8.04(v) hereof; provided
that (a) the original principal balance of the
Indebtedness secured by such Lien constitutes not less
than 75% and not more than 100% of the purchase price of
the property acquired and (b) such Lien extends only to
the property acquired with the proceeds of the
indebtedness so secured;
(iv) statutory Liens of landlords and Liens of
carriers, warehousemen, mechanics, materialmen and other
Liens imposed by law or created in the ordinary course of
business and in existence less than 120 days from the
date of creation thereof for amounts not yet due or which
are being contested in good faith by appropriate
proceedings diligently conducted and with respect to
which adequate reserves or other appropriate provisions
are being maintained in accordance with Generally
Accepted Accounting Principles;
(v) Liens incurred or deposits made in the ordinary
course of business (including, without limitation, surety
bonds and appeal bonds) in connection with workers'
compensation, unemployment insurance and other types of
social security benefits or to secure the performance of
tenders, bids, leases, contracts (other than for the
repayment of Indebtedness), statutory obligations and
other similar obligations or arising as a result of
progress payments under government contracts;
(vi) easements (including, without limitation,
reciprocal easement agreements and utility agreements),
rights-of-way, covenants, consents, reservations,
encroachments, variations and zoning and other
restrictions, charges or encumbrances (whether or not
recorded), which do not interfere materially with the
ordinary conduct of the business of the Borrower or any
Subsidiary and which do not materially detract from the
value of the property to which they attach or materially
impair the use thereof by the Borrower or any Subsidiary;
(vii) Liens on real property securing
Indebtedness permitted under Section 8.04(v) hereof;
(viii) Liens on specific items of inventory of
the Borrower or any Subsidiary granted to secure
reimbursement obligations incurred with respect to
documentary letters of credit issued in connection with
the purchase of such inventory; provided such liens at
all times remain unperfected and no such lien attaches to
inventory not acquired with the credit support of such
documentary letter of credit; and
(ix) Liens arising out of the refinancing,
extension, renewal or refunding of any Indebtedness
secured by any Lien permitted by this Section 8.05 to the
extent such Liens are attached to the same property
previously encumbered as collateral for such Indebtedness
or for any other previously existing Indebtedness so
refinanced, extended, renewed or refunded at such time.
8.06 Transfer of Assets. Other than as permitted in
Section 8.08 hereof, sell, lease, transfer or otherwise
dispose of any assets (including without limitation capital
stock or similar ownership interests transferred by way of
merger or other consolidation) of the Borrower or any
Subsidiary during any Fiscal Year unless the sum of (i) the
aggregate book value of such assets to be so disposed and
previously disposed during such Fiscal Year plus (ii) the book
value of the total assets of each Subsidiary party to a merger
during such Fiscal Year in which the survivor is not or does
not become a Subsidiary and which is otherwise permitted under
Section 8.08(ii) hereof plus (iii) the book value of assets
allocated or to be distributed during such Fiscal Year to a
Person other than the Borrower or a wholly owned Subsidiary in
the event of a dissolution of a Subsidiary which is not wholly
owned by the Borrower and which is otherwise permitted under
Section 8.12(iii) hereof, in the aggregate for (i), (ii) and
(iii) does not exceed fifteen percent (15%) of the book value
of the Consolidated Total Assets as at the last day of the
immediately preceding Fiscal Year; provided, however, such
determination shall be made on a noncumulative basis, with the
effect that the amount of assets not disposed of in one Fiscal
Year may not be carried forward and disposed of in a
subsequent Fiscal Year and such determination shall be made
with respect to the Audited Restated Financial Statements
until delivery of the audited financial statements pursuant to
Section 7.01(a) for Fiscal Year 1998. The foregoing
limitation shall not apply to any of the following: (a) sales
of assets in the ordinary course of business; (b) transfers of
assets among the Borrower and its Subsidiaries, including
transfers of accounts receivable to a Securitization
Subsidiary, subject to compliance with Section 7.18 hereof
after giving effect to any such transfer; and (c) sales of
assets with respect to which the Net Proceeds are applied
within 180 days of receipt thereof to make Permitted
Acquisitions or to acquire, construct or improve properties,
or capital assets, in each case, to be used in a line or lines
of business consistent with the terms of Section 7.17 hereof.
8.07 Investments; Acquisitions. Purchase, own, invest
in or otherwise acquire, directly or indirectly, any stock or
other securities of, or all or substantially all of the assets
of, or make or permit to exist any interest whatsoever in, any
other Person or otherwise make any Acquisition or permit to
exist any loans or advances to any Person, except that
Borrower and its Subsidiaries may maintain investments or
invest in:
(i) Eligible Securities;
(ii) investments existing as of the date hereof;
(iii) accounts receivable arising and trade
credit granted in the ordinary course of business and any
securities received in satisfaction or partial
satisfaction thereof in connection with accounts of
financially troubled Persons to the extent reasonably
necessary in order to prevent or limit loss;
(iv) loans and advances to and investments in
Subsidiaries which are Guarantors;
(v) loans and advances to its officers, directors
and employees for travel expenses incurred in the
ordinary course of business without limitation and for
any other business purpose in an aggregate principal
amount at any time outstanding not to exceed $25,000,000;
(vi) other investments in an aggregate amount at any
time outstanding not to exceed 5% of Consolidated Net
Worth (calculated as of the most recent fiscal period
with respect to which the Agent shall have received the
Required Financial Information);
(vii) Permitted Acquisitions and other mergers
permitted in Section 8.08 hereof; and
(viii) Securitization Subsidiaries of the
Borrower in an aggregate amount not to exceed 10% of
Consolidated Net Worth (calculated as of the most recent
fiscal period with respect to which the Agent shall have
received the Required Financial Information); provided
further, investments made in Securitization Subsidiaries
on or prior to the date hereof and the retained earnings
of Securitization Subsidiaries as of the date hereof and
subsequent thereto may be transferred between
Securitization Subsidiaries or between the Borrower and
a Securitization Subsidiary without limitation.
8.08 Merger or Consolidation. Consolidate with or merge
into any other Person, or permit any other Person to merge
into it; provided, however, subject to compliance with the
other terms and conditions of this Agreement, including
without limitation Sections 7.18 and 8.06 hereof after giving
effect to any of the following transactions, (i) any
Subsidiary of the Borrower may merge into or consolidate with
the Borrower or any other Subsidiary, (ii) any Subsidiary may
merge into another Person whereby such other Person is the
surviving corporation and (iii) in connection with any
Permitted Acquisition, any Person may merge with the Borrower
or any Subsidiary if the Borrower or such Subsidiary, as
applicable, shall be the surviving corporation.
8.09 Transactions with Affiliates. Other than
transactions permitted under Section 8.07 hereof, enter into
any transaction (or series of related transactions) after the
Closing Date, with, or for the benefit of, any Affiliate of
the Borrower or any officer or director of the Borrower or any
Subsidiary (each, an "Affiliate Transaction"), unless (i) such
Affiliate Transaction is pursuant to the reasonable
requirements of the Borrower's or such Subsidiary's business
and is for the purchase or sale of goods or receipt or
delivery of services on terms that are no less favorable to
the Borrower or the Subsidiary, as the case may be, than those
which could have been obtained in a comparable transaction at
such time from Persons who do not have such a relationship or
(ii) such Affiliate Transaction is with a wholly owned
Subsidiary (other than a Foreign Subsidiary) of the Borrower.
8.10 Benefit Plans. With respect to all employee
pension benefit plans maintained by the Borrower or any
Subsidiary:
(i) terminate any of such employee pension benefit
plans so as to incur any material liability to the
Pension Benefit Guaranty Corporation established pursuant
to ERISA or to any other Person exercising similar duties
and functions under any Foreign Benefit Law;
(ii) allow or suffer to exist any prohibited
transaction involving any of such employee pension
benefit plans or any trust created thereunder which would
subject the Borrower or a Subsidiary to a material tax or
material penalty or other material liability (a) on
prohibited transactions imposed under Internal Revenue
Code Section 4975 or ERISA or (b) under any Foreign
Benefit Law;
(iii) fail to pay to any such employee pension
benefit plan any material contribution which it is
obligated to pay under the terms of such plan;
(iv) allow or suffer to exist any material
accumulated funding deficiency, whether or not waived,
with respect to any such employee pension benefit plan;
(v) allow or suffer to exist any occurrence of a
reportable event or any other event or condition, which
presents a material risk of termination by the Pension
Benefit Guaranty Corporation, or to any other Person
exercising similar duties and functions under any Foreign
Benefit Law, of any such employee pension benefit plan
that is a Single Employer Plan, which termination could
result in any material liability (a) to the Pension
Benefit Guaranty Corporation or (b) under any Foreign
Benefit Law; or
(vi) incur any material withdrawal liability with
respect to any Multi-employer Plan.
8.11 Fiscal Year. Change its Fiscal Year.
8.12 Dissolution, etc. Wind up, liquidate or dissolve
(voluntarily or involuntarily) or commence or suffer any
proceedings seeking any such winding up, liquidation or
dissolution, except in connection with (i) the merger or
consolidation of Subsidiaries into each other or into the
Borrower permitted under Section 8.08, (ii) the dissolution of
Subsidiaries wholly owned by the Borrower or by another wholly
owned Subsidiary or (iii) the dissolution of a Subsidiary
which is not wholly owned by the Borrower so long as the
Borrower remains in compliance with Section 8.06 after giving
effect to such dissolution.
8.13 Rate Hedging Obligations. Incur any Rate Hedging
Obligations or enter into any agreements, arrangements,
devices or instruments relating to Rate Hedging Obligations,
except in connection with the management of interest rate
fluctuation risks of the Borrower and its Subsidiaries and in
no event shall any Rate Hedging Obligation be incurred for
speculative purposes.
ARTICLE IX
Events of Default and Acceleration
9.01 Events of Default. If any one or more of the
following events (herein called "Events of Default") shall
occur for any reason whatsoever (and whether such occurrence
shall be voluntary or involuntary or come about or be effected
by operation of law or pursuant to or in compliance with any
judgment, decree or order of any court or any order, rule or
regulation of any administrative or governmental body), that
is to say:
(a) if default shall be made in the due and punctual
payment of the principal of any Loan or Reimbursement
Obligation, when and as the same shall be due and payable
whether pursuant to any provision of Article II or Article III
hereof, at maturity, by acceleration or otherwise; or
(b) if default shall be made in the due and punctual
payment of any amount of interest on any Loan or of any fees
or other amounts payable to the Lenders, the Agent, the Swing
Line Lender or the Issuing Bank under the Loan Documents on
the date on which the same shall be due and payable; or
(c) if default shall be made in the performance or
observance of any covenant set forth in Sections 7.07, 7.10,
7.18 or Article VIII hereof; or
(d) if a default shall be made in the performance or
observance of, or shall occur under, any covenant, agreement
or provision contained in this Agreement or the Notes (other
than as described in clauses (a), (b) or (c) above) and such
default shall continue for thirty (30) or more days after the
earlier of receipt of notice of such default by the Authorized
Representative from the Agent or the Borrower becomes aware of
such default, or if a default shall be made in the performance
or observance of, or shall occur under, any covenant,
agreement or provision contained in any of the other Loan
Documents (beyond any applicable grace period, if any,
contained therein), or if any Loan Document ceases to be in
full force and effect (other than in accordance with its terms
in the absence of default or by reason of any action by the
Agent or any Lender), or if without the written consent of the
Agent and the Lenders, this Agreement or any other Loan
Document shall be disaffirmed or shall terminate, be
terminable or be terminated or become void or unenforceable
for any reason whatsoever (other than in accordance with its
terms in the absence of default or by reason of any action by
the Agent or any Lender); or
(e) if a default shall occur, which is not waived,
(i) in the payment of any principal, interest, premium or
other amounts with respect to any Indebtedness for Money
Borrowed (other than the Loans) or Rate Hedging Obligations of
the Borrower or of any Subsidiary which Indebtedness is in an
amount (which amount for Rate Hedging Obligations shall be
equal to the market exposure thereunder on the date of
default) not less than $20,000,000 in the aggregate
outstanding and includes without limitation any of the
Consolidated Subordinated Debt, and such default shall
continue for more than the period of grace, if any, therein
specified or (ii) in the performance, observance or
fulfillment of any term or covenant contained in any agreement
or instrument under or pursuant to which any such Indebtedness
for Money Borrowed, including without limitation any of the
Consolidated Subordinated Debt and the Senior Notes, or Rate
Hedging Obligations, may have been issued, created, assumed,
guaranteed or secured by the Borrower or any Subsidiary, and
as a result of such default the holder of any such
Indebtedness, including without limitation any of the
Consolidated Subordinated Debt and the Senior Notes, may
accelerate the maturity thereof; or
(f) if any representation, warranty or other statement
of fact by the Borrower or any Guarantor contained herein or
any other Loan Document or in any writing, certificate, report
or statement at any time furnished to the Agent or any Lender
by or on behalf of the Borrower or any Guarantor pursuant to
or in connection with this Agreement or the other Loan
Documents, or otherwise, shall be false or misleading in any
material respect when given or made; or
(g) if the Borrower or any Material Subsidiary (or any
Securitization Subsidiary or any Saks REMIC Subsidiary that
would otherwise qualify as a Material Subsidiary) shall be
unable to pay its debts generally as they become due; file a
petition to take advantage of any insolvency, reorganization,
bankruptcy, receivership or similar law, domestic or foreign;
make an assignment for the benefit of its creditors; commence
a proceeding for the appointment of a receiver, trustee,
liquidator or conservator of itself or of the whole or any
substantial part of its property; file a petition or answer
seeking reorganization or arrangement or similar relief under
the federal bankruptcy laws or any other applicable law or
statute, federal, state or foreign; or
(h) if a court of competent jurisdiction shall enter an
order, judgment or decree appointing a custodian, receiver,
trustee, liquidator or conservator of the Borrower or any
Material Subsidiary (or any Securitization Subsidiary or any
Saks REMIC Subsidiary that would otherwise qualify as a
Material Subsidiary) or of the whole or any substantial part
of its properties and such order, judgment or decree continues
unstayed and in effect for a period of sixty (60) days, or
approve a petition filed against the Borrower or any Material
Subsidiary (or any Securitization Subsidiary or any Saks REMIC
Subsidiary that would otherwise qualify as a Material
Subsidiary) seeking reorganization or arrangement or similar
relief under the federal bankruptcy laws or any other
applicable law or statute of the United States of America or
any state or foreign country, province or other political
subdivision, which petition is not dismissed within sixty (60)
days; or if, under the provisions of any other law for the
relief or aid of debtors, a court of competent jurisdiction
shall assume custody or control of the Borrower or any
Material Subsidiary (or any Securitization Subsidiary or any
Saks REMIC Subsidiary that would otherwise qualify as a
Material Subsidiary) or of the whole or any substantial part
of its properties, which control is not relinquished within
sixty (60) days; or if there is commenced against the Borrower
or any Material Subsidiary (or any Securitization Subsidiary
or any Saks REMIC Subsidiary that would otherwise qualify as
a Material Subsidiary) any proceeding or petition seeking
reorganization, arrangement or similar relief under the
federal bankruptcy laws or any other applicable law or statute
of the United States of America or any state or foreign
country, province or other political subdivision which
proceeding or petition remains undismissed for a period of
sixty (60) days; or if the Borrower or any Material Subsidiary
(or any Securitization Subsidiary or any Saks REMIC Subsidiary
that would otherwise qualify as a Material Subsidiary) takes
any action to indicate its consent to or approval of any such
proceeding or petition; or
(i) if (i) any judgment where the amount not covered by
insurance (or the amount as to which the insurer denies
liability) is in excess of $20,000,000 is rendered against the
Borrower or any Subsidiary, or (ii) there is any attachment,
injunction or execution against any of the Borrower's or any
Subsidiary's properties for any amount in excess of
$1,000,000, and such judgment, attachment, injunction or
execution remains unpaid, unstayed, undischarged, unbonded or
undismissed for a period of sixty (60) days; or
(j) if the Borrower or any Material Subsidiary (or any
Securitization Subsidiary or any Saks REMIC Subsidiary that
would otherwise qualify as a Material Subsidiary) shall, other
than as permitted under Section 8.06 hereof or in the ordinary
course of business (as determined by past practices), suspend
(other than for a period not to exceed twenty (20) days by
reason of force majeure) all or any part of its operations
material to the conduct of the business of the Borrower or
such Material Subsidiary (or any Securitization Subsidiary or
any Saks REMIC Subsidiary), taken as a whole; or
(k) if (i) the Borrower or any Subsidiary shall engage
in any prohibited transaction (as described in Section
8.10(ii) hereof), which is not subject to a statutory or
administrative exemption, involving any employee pension
benefit plan of the Borrower or any Subsidiary and thereby
incur any material tax, material penalty or other material
liability, (ii) any material accumulated funding deficiency
(as referred to in Section 8.10(iv) hereof), whether or not
waived, shall exist with respect to any Single Employer Plan,
(iii) a reportable event (as referred to in Section 8.10(v)
hereof) (other than a reportable event for which the statutory
notice requirement to the Pension Benefit Guaranty Corporation
has been waived by regulation) shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a
trustee shall be appointed to administer or to terminate, any
Single Employer Plan, which reportable event or institution or
proceedings is, in the reasonable opinion of the Required
Lenders, likely to result in the termination of such Single
Employer Plan for purposes of Title IV of ERISA, and in the
case of such a reportable event, the continuance of such
reportable event shall be unremedied for sixty (60) days after
notice of such reportable event pursuant to Section 4043(a),
(c) or (d) of ERISA is given, as the case may be, and shall
result in the incurrence of a material liability to any
Governmental Authority (iv) any Single Employer Plan shall
terminate for purposes of Title IV of ERISA, and such
termination results in a material liability of the Borrower or
any Subsidiary to such Single Employer Plan or the Pension
Benefit Guaranty Corporation, or (v) the Borrower or any
Subsidiary shall withdraw from a Multi-employer Plan for
purposes of Title IV of ERISA, and, as a result of any such
withdrawal, the Borrower or any Subsidiary shall incur a
material withdrawal liability to such Multi-employer Plan; or
(l) if there shall occur any "Event of Default" as
defined in any of the Loan Documents or as defined in the 364
Day Facility Credit Agreement; or
(m) any "person" or "group" (as such terms are used in
Sections 13(d) and 14(d) of the Securities Exchange Act of
1934, as amended (the "Exchange Act")) (except for the
▇▇▇▇▇▇▇▇'▇ Inc. 401(k) Retirement Plan) is or becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act, except that a Person will be deemed to have
"beneficial ownership" of all securities that such Person has
the right to acquire, whether such right is exercisable
immediately or only after the passage of time or the
occurrence of an event or condition), directly or indirectly,
of more than 20% of the total voting power of the then
outstanding voting capital stock of the Borrower;
then, and in any such event and at any time thereafter, if
such Event of Default or any other Event of Default shall have
not been waived,
(A) either or both of the following actions
may be taken: (i) the Agent may, and at the
direction of the Required Lenders shall, declare
any obligation of the Lenders to make further Loans
or issue Letters of Credit terminated, whereupon
the obligation of each Lender to make further Loans
or issue Letters of Credit, hereunder shall
terminate immediately, and (ii) the Agent shall at
the direction of the Required Lenders, at their
option, declare by notice to the Borrower any or
all of the Obligations to be immediately due and
payable, and the same, including all interest
accrued thereon and all other obligations of the
Borrower to the Agent and the Lenders, shall
forthwith become immediately due and payable
without presentment, demand, protest, notice or
other formality of any kind, all of which are
hereby expressly waived, anything contained herein
or in any instrument evidencing the Obligations to
the contrary notwithstanding; provided, however,
that notwithstanding the above, if (I) there shall
occur an Event of Default under clause (g) or (h)
above, then the obligation of the Lenders to make
Loans and issue Letters of Credit hereunder shall
automatically terminate and automatically any and
all of the Obligations shall be immediately due and
payable without the necessity of any action by the
Agent or the Required Lenders or notice by the
Agent or the Lenders or to the Borrower or any
other Person or (II) if the Obligations shall
immediately become due and payable pursuant to (ii)
above, then the obligation of the Lenders to make
Loans and issue Letters of Credit hereunder shall
automatically terminate without the necessity of
any action by the Agent or the Required Lenders or
notice by the Agent or the Lenders or to the
Borrower or any other Person;
(B) The Borrower shall, upon demand of the
Agent acting on the direction of the Required
Lenders, and automatically upon the occurrence of
an Event of Default under clause (g) or (h) above,
deposit cash with the Agent in an amount equal to
the amount of any outstanding Letters of Credit
remaining undrawn, unpaid or at any time that might
become payable under the Letters of Credit, as
collateral security pursuant to the LC Account
Agreement for the repayment of any future drawings
or payments under such Letters of Credit; and
(C) the Agent and the Lenders shall have all
of the rights and remedies available under the Loan
Documents or under any applicable law.
9.02 Agent to Act. In case any one or more Events of
Default shall occur and not have been waived, the Agent shall,
at the direction of the Required Lenders, proceed to protect
and enforce their rights or remedies either by suit in equity
or by action at law, or both, whether for the specific
performance of any covenant, agreement or other provision
contained herein or in any other Loan Document, or to enforce
the payment of the Obligations or any other legal or equitable
right or remedy.
9.03 Cumulative Rights. No right or remedy herein
conferred upon the Lenders or the Agent is intended to be
exclusive of any other rights or remedies contained herein or
in any other Loan Document, and every such right or remedy
shall be cumulative and shall be in addition to every other
such right or remedy contained herein and therein or now or
hereafter existing at law or in equity or by statute, or
otherwise.
9.04 No Waiver. No course of dealing between the
Borrower and any Lender or the Agent or any failure or delay
on the part of any Lender or the Agent in exercising any
rights or remedies under any Loan Document or otherwise
available to it shall operate as a waiver of any rights or
remedies and no single or partial exercise of any rights or
remedies shall operate as a waiver or preclude the exercise of
any other rights or remedies hereunder or of the same right or
remedy on a future occasion.
9.05 Allocation of Proceeds. If an Event of Default has
occurred and not been waived, and the maturity of the Notes
and Obligations has been accelerated pursuant to Article IX
hereof, all payments received by the Agent hereunder, in
respect of any principal of or interest on the Obligations or
any other amounts payable by the Borrower hereunder shall be
applied by the Agent in the following order:
(i) amounts due to the Agent, the Issuing Bank, the
Swing Line Lender and the Lenders pursuant to Sections
2.12, 3.02(f), 3.03(i), 11.06 and 11.11 hereof;
(ii) amounts due to (A) the Issuing Bank pursuant to
Sections 3.03(ii) and 3.04 hereof, and (B) to
NationsBank, NMS and the Agent pursuant to Section 2.15
hereof;
(iii) payments of interest on Revolving Credit
Loans and Reimbursement Obligations, to be applied for
the ratable benefit of the Lenders, and payments of
interest on Competitive Bid Loans and Swing Line Loans to
be applied to the applicable Competitive Bid Loan Lender
and the Swing Line Lender, respectively;
(iv) payments of principal on Revolving Credit Loans
and Reimbursement Obligations, to be applied for the
ratable benefit of the Lenders, and payments of principal
on Competitive Bid Loans and Swing Line Loans to be
applied to the applicable Competitive Bid Loan Lender and
the Swing Line Lender, respectively;
(v) payment of cash amounts to the Agent in respect
of Letter of Credit Outstandings pursuant to Section
9.01(B) hereof;
(vi) payment of Obligations owed a Lender or Lenders
pursuant to Swap Agreements on a pro rata basis according
to amounts owed;
(vii) payments of all other amounts due under
this Agreement, if any, to be applied for the ratable
benefit of the Lenders; and
(viii) any surplus remaining after application as
provided for herein, to the Borrower or otherwise as may be
required by applicable law.
ARTICLE X
The Agent
10.01. Appointment, Powers, and Immunities. Each Lender
hereby irrevocably appoints and authorizes the Agent to act as
its agent under this Agreement and the other Loan Documents
with such powers and discretion as are specifically delegated
to the Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably
incidental thereto. The Agent (which term as used in this
sentence and in Section 10.05 and the first sentence of
Section 10.06 hereof shall include its affiliates and its own
and its affiliates' officers, directors, employees, agents):
(a) shall not have any duties or responsibilities except those
expressly set forth in this Agreement and shall not be a
trustee or fiduciary for any Lender; (b) shall not be
responsible to the Lenders for any recital, statement,
representation, or warranty (whether written or oral) made in
or in connection with any Loan Document or any certificate or
other document referred to or provided for in, or received by
any of them under, any Loan Document, or for the value,
validity, effectiveness, genuineness, enforceability, or
sufficiency of any Loan Document, or any other document
referred to or provided for therein or for any failure by any
Loan Party or any other Person to perform any of its
obligations thereunder; (c) shall not be responsible for or
have any duty to ascertain, inquire into, or verify the
performance or observance of any covenants or agreements by
any Loan Party or the satisfaction of any condition or to
inspect the property (including the books and records) of any
Loan Party or any of its Subsidiaries or affiliates; (d) shall
not be required to initiate or conduct any litigation or
collection proceedings under any Loan Document; and (e) shall
not be responsible for any action taken or omitted to be taken
by it under or in connection with any Loan Document, except
for its own gross negligence or willful misconduct. The Agent
may employ agents and attorneys-in-fact and shall not be
responsible for the negligence or misconduct of any such
agents or attorneys-in-fact selected by it with reasonable
care.
10.02. Reliance by Agent. The Agent shall be entitled
to rely upon any certification, notice, instrument, writing,
or other communication (including, without limitation, any
thereof by telephone or telecopy) believed by it to be genuine
and correct and to have been signed, sent or made by or on
behalf of the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel for any Loan
Party), independent accountants, and other experts selected by
the Agent. The Agent may deem and treat the payee of any Note
as the holder thereof for all purposes hereof unless and until
the Agent receives and accepts an Assignment and Acceptance
executed in accordance with Section 11.01 hereof. As to any
matters not expressly provided for by this Agreement, the
Agent shall not be required to exercise any discretion or take
any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required
Lenders, and such instructions shall be binding on all of the
Lenders; provided, however, that the Agent shall not be
required to take any action that exposes the Agent to personal
liability or that is contrary to any Loan Document or
applicable law or unless it shall first be indemnified to its
satisfaction by the Lenders against any and all liability and
expense which may be incurred by it by reason of taking any
such action.
10.03. Defaults. The Agent shall not be deemed to have
knowledge or notice of the occurrence of a Default or Event of
Default unless the Agent has received written notice from a
Lender or the Borrower specifying such Default or Event of
Default and stating that such notice is a "Notice of Default".
In the event that the Agent receives such a notice of the
occurrence of a Default or Event of Default, the Agent shall
give prompt notice thereof to the Lenders. The Agent shall
(subject to Section 10.02 hereof) take such action with
respect to such Default or Event of Default as shall
reasonably be directed by the Required Lenders, provided that,
unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take
such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable
in the best interest of the Lenders.
10.04. Rights as Lender. With respect to its Revolving
Credit Commitment and the Loans made by it and the Letters of
Credit issued by it as the Issuing Bank, NationsBank (and any
successor acting as Agent) in its capacity as a Lender
hereunder shall have the same rights and powers hereunder as
any other Lender and may exercise the same as though it were
not acting as the Agent, and the term "Lender" or "Lenders"
shall, unless the context otherwise indicates, include the
Agent in its individual capacity. NationsBank (and any
successor acting as Agent) and its affiliates may (without
having to account therefor to any Lender) accept deposits
from, lend money to, make investments in, provide services to,
and generally engage in any kind of lending, trust, or other
business with any Loan Party or any of its Subsidiaries or
affiliates as if it were not acting as Agent, and NationsBank
(and any successor acting as Agent) and its affiliates may
accept fees and other consideration from any Loan Party or any
of its Subsidiaries or affiliates for services in connection
with this Agreement or otherwise without having to account for
the same to the Lenders.
10.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed under Section 11.11
hereof, but without limiting the obligations of the Borrower
under such Section) ratably in accordance with their
respective Applicable Commitment Percentages, for any and all
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys' fees),
or disbursements of any kind and nature whatsoever that may be
imposed on, incurred by or asserted against the Agent
(including by any Lender) in any way relating to or arising
out of any Loan Document or the transactions contemplated
thereby or any action taken or omitted by the Agent under any
Loan Document provided that no Lender shall be liable for any
of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Person to be
indemnified. Without limitation of the foregoing, each Lender
agrees to reimburse the Agent promptly upon demand for its
ratable share of any costs or expenses payable by the Borrower
under Section 11.11, to the extent that the Agent is not
promptly reimbursed for such costs and expenses by the
Borrower. The agreements contained in this Section 10.05
shall survive payment in full of the Loans, the Obligations
and all other amounts payable under this Agreement.
10.06. Non-Reliance on Agent and Other Lenders. Each
Lender agrees that it has, independently and without reliance
on the Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own
credit analysis of the Loan Parties and their Subsidiaries and
decision to enter into this Agreement and that it will,
independently and without reliance upon the Agent or any other
Lender, and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under
the Loan Documents. Except for notices, reports, and other
documents and information expressly required to be furnished
to the Lenders by the Agent hereunder, the Agent shall not
have any duty or responsibility to provide any Lender with any
credit or other information concerning the affairs, financial
condition, or business of any Loan Party or any of its
Subsidiaries or affiliates that may come into the possession
of the Agent or any of its affiliates.
10.07. Resignation of Agent. The Agent may resign at
any time by giving notice thereof to the Lenders and the
Borrower. Upon any such resignation, the Required Lenders
shall have the right to appoint a successor Agent. If no
successor Agent shall have been so appointed by the Required
Lenders and shall have accepted such appointment within thirty
(30) days after the retiring Agent's giving of notice of
resignation, then the retiring Agent may, on behalf of the
Lenders, appoint a successor Agent which shall be a commercial
bank organized under the laws of the United States of America
having combined capital and surplus of at least $100,000,000.
Upon the acceptance of any appointment as Agent hereunder by
a successor, such successor shall thereupon succeed to and
become vested with all the rights, powers, discretion,
privileges, and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation hereunder
as Agent, the provisions of this Article X shall continue in
effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Agent.
ARTICLE XI
Miscellaneous
11.01 Assignments and Participations.
(a) Each Lender may assign to one or more Eligible
Assignees all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a
portion of its Loans, its Notes, and its Revolving Credit
Commitment); provided, however, that
(i) each such assignment shall be to an Eligible
Assignee;
(ii) each such assignment by a Lender shall (A) be
of an equal percentage of all of its rights and obligations
under both the Revolving Credit Facility and the 364 Day
Facility, (B) be of a constant, and not varying, percentage of
all of its rights and obligations under this Agreement and its
Notes and under the 364 Day Facility Credit Agreement and the
promissory notes issued thereunder and (C) result in the
assigning Lender having an equivalent Applicable Commitment
Percentage under both the Revolving Credit Facility and the
364 Day Facility and the assignee Lender having an equivalent
Applicable Commitment Percentage under both the Revolving
Credit Facility and the 364 Day Facility; and
(iii) except in the case of an assignment to
another Lender or an assignment of all of a Lender's rights
and obligations under this Agreement and under the 364 Day
Facility Credit Agreement, any partial assignment of a
Lender's Revolving Credit Commitment and its 364 Day Facility
Commitment shall be in an aggregate amount at least equal to
$10,000,000 or an integral multiple of $5,000,000 in excess
thereof;
(iv) except in the case of an assignment of all of
a Lender's rights and obligations under this Agreement, no
Lender shall make any assignment that would result in the sum
of its Revolving Credit Commitment and its 364 Day Facility
Commitment being less than $15,000,000;
(v) in the event a Lender assigns all of its
Revolving Credit Commitment, such assignment must include all
of its Competitive Bid Loans; and
(vi) the parties to such assignment shall execute
and deliver to the Agent for its acceptance an Assignment and
Acceptance, together with any Note subject to such assignment
and a processing fee of $3,500.
Upon execution, delivery, and acceptance of such Assignment
and Acceptance, the assignee thereunder shall be a party
hereto and, to the extent of such assignment, have the
obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment,
relinquish its rights and be released from its obligations
under this Agreement; provided, the assigning Lender shall be
entitled to reimbursement from the Borrower with respect to
amounts payable pursuant to Sections 4.01, 4.05, 4.06, 11.06
and 11.11 in connection with events prior to such assignment;
provided further, to the extent the Borrower makes any such
payments to the assigning Lender, the Borrower shall not be
required to also pay the assignee such amounts. Upon the
consummation of any assignment pursuant to this Section, the
assignor, the Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to the
assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America or
a state thereof, it shall deliver to the Borrower and the
Agent certification as to exemption from deduction or
withholding of Taxes in accordance with Section 4.06.
(b) The Agent shall maintain at its Principal Office a
copy of each Assignment and Acceptance delivered to and
accepted by it and a register for the recordation of the names
and addresses of the Lenders and the Revolving Credit
Commitment of, and principal amount of the Loans owing to,
each Lender from time to time (the "Register"). The entries
in the Register shall be conclusive and binding for all
purposes, absent manifest error, and the Borrower, the Agent
and the Lenders may treat each Person whose name is recorded
in the Register as a Lender hereunder for all purposes of this
Agreement. The Register shall be available for inspection by
the Borrower or any Lender at any reasonable time and from
time to time upon reasonable prior notice.
(c) Upon its receipt of an Assignment and Acceptance
executed by the parties thereto, together with any Note
subject to such assignment and payment of the processing fee,
the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit B
hereto, (i) accept such Assignment and Acceptance, (ii) record
the information contained therein in the Register and (iii)
give prompt notice thereof to the parties thereto.
(d) Each Lender may sell participations to one or more
Persons in a portion of its rights, obligations or rights and
obligations under this Agreement (including all or a portion
of its Commitment or its Loans); provided, however, that (i)
such Lender s obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible
to the other parties hereto for the performance of such
obligations, (iii) the participant shall be entitled to the
benefit of the yield protection provisions contained in
Article IV and the right of setoff contained in Section 11.04,
and (iv) the Borrower shall continue to deal solely and
directly with such Lender in connection with such Lender s
rights and obligations under this Agreement, and such Lender
shall retain the sole right to enforce the obligations of the
Borrower relating to its Loans and its Notes and to approve
any amendment, modification, or waiver of any provision of
this Agreement (other than amendments, modifications, or
waivers decreasing the amount of principal of or the rate at
which interest is payable on such Loans or Notes, extending
any scheduled principal payment date or date fixed for the
payment of interest on such Loans or Notes, or extending its
Revolving Credit Commitment).
(e) Notwithstanding any other provision set forth in
this Agreement, any Lender may at any time assign and pledge
all or any portion of its Loans and its Note to any Federal
Reserve Bank as collateral security pursuant to Regulation A
and any Operating Circular issued by such Federal Reserve
Bank. No such assignment shall release the assigning Lender
from its obligations hereunder.
(f) Any Lender may furnish any information concerning
the Borrower or any of its Subsidiaries in the possession of
such Lender from time to time to assignees and participants
(including prospective assignees and participants), subject,
however, to the provisions of Section 11.03 hereof.
(g) The Borrower may not assign any rights, powers,
duties or obligations under this Agreement or the other Loan
Documents without the prior written consent of all the
Lenders.
11.02 Notices. All notices shall be in writing, except
as to telephonic notices expressly permitted or required
herein, and written notices shall be delivered by hand
delivery, telefacsimile, overnight courier or certified or
registered mail. Any notice shall be conclusively deemed to
have been received by any party hereto and be effective on the
day on which delivered to such party (against (except as to
telephonic or telefacsimile notice) receipt therefor) at the
address set forth below or such other address as such party
shall specify to the other parties in writing:
(a) if to the Borrower:
Saks Incorporated
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Treasurer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ & Bird LLP
One Atlantic Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Agent or to NationsBank in its capacity as
the initial Issuing Bank:
NationsBank, N.A.
Independence Center, 15th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇, Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
NationsBank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telefacsimile: ▇▇▇-▇▇▇-▇▇▇▇
(c) if to the Lenders:
At the addresses set forth on the signature
pages hereof and on the signature page of each
Assignment and Acceptance.
11.03 Confidentiality. The Agent and each Lender
(each, a "Lending Party") agrees to keep confidential any
information furnished or made available to it by the Borrower
pursuant to this Agreement and that is marked confidential;
provided that nothing herein shall prevent any Lending Party
from disclosing such information (a) to any other Lending
Party or any affiliate of any Lending Party, or any officer,
director, employee, agent or advisor of any Lending Party or
any affiliate of any Lending Party, (b) to any other Person if
reasonably incidental to the administration of the credit
facility provided herein, (c) as required by any law, rule, or
regulation, (d) upon the order of any court or administrative
agency, (e) upon the request or demand of any regulatory
agency or authority, (f) that is or becomes available to the
public or that is or becomes available to any Lending Party
other than as a result of a disclosure by any Lending Party
prohibited by this Agreement, (g) in connection with any
litigation to which such Lending Party or any of its
affiliates may be a party, (h) to the extent necessary in
connection with the exercise of any remedy under this
Agreement or any other Loan Document, and (i) subject to
provisions substantially similar to those contained in this
Section, to any actual or proposed participant or assignee.
11.04 Right of Setoff; Adjustments.
(a) Upon the occurrence and during the continuance of
any Event of Default, each Lender (and each of its affiliates)
is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional
or final) at any time held and other indebtedness at any time
owing by such Lender (or any of its affiliates) to or for the
credit or the account of the Borrower against any and all of
the Obligations of the Borrower now or hereafter existing,
irrespective of whether such Lender shall have made any demand
under this Agreement or any of its Notes. Each Lender agrees
promptly to notify the Borrower after any such setoff and
application made by such Lender; provided, however, that the
failure to give such notice shall not affect the validity of
such setoff and application. The rights of each Lender under
this Section are in addition to other rights and remedies
(including, without limitation, other rights of setoff) that
such Lender may have.
(b) If any Lender (a "benefitted Lender") shall at any
time receive any payment of all or part of the Loans (other
than Competitive Bid Loans) owing to it, or interest thereon,
or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by setoff, or otherwise), in a
greater proportion than any such payment to or collateral
received by any other Lender, if any, in respect of such other
Lender's Loans (other than Competitive Bid Loans) owing to it,
or interest thereon, such benefitted Lender shall purchase for
cash from the other Lenders a participating interest in such
portion of each such other Lender's Loans (other than
Competitive Bid Loans) owing to it, or shall provide such
other Lenders with the benefits of any such collateral, or the
proceeds thereof, as shall be necessary to cause such
benefitted Lender to share the excess payment or benefits of
such collateral or proceeds ratably with each of the Lenders;
provided, however, that if all or any portion of such excess
payment or benefits is thereafter recovered from such
benefitted Lender, such purchase shall be rescinded, and the
purchase price and benefits returned, to the extent of such
recovery, but without interest. The Borrower agrees that any
Lender so purchasing a participation from a Lender pursuant to
this Section 11.04 may, to the fullest extent permitted by
law, exercise all of its rights of payment (including the
right of setoff) with respect to such participation as fully
as if such Person were the direct creditor of the Borrower in
the amount of such participation.
11.05 Survival. All covenants, agreements,
representations and warranties made herein shall survive the
making by the Lenders of the Loans and the expiration of the
Letters of Credit and the execution and delivery to the
Lenders of this Agreement and the Notes and shall continue in
full force and effect until the occurrence of the Total
Facility Termination Date. Whenever in this Agreement, any of
the parties hereto is referred to, such reference shall be
deemed to include the successors and permitted assigns of such
party and all covenants, provisions and agreements by or on
behalf of the Borrower which are contained in this Agreement,
the Notes and the other Loan Documents shall inure to the
benefit of the successors and permitted assigns of the Lenders
or any of them.
11.06 Expenses. The Borrower agrees to pay on demand
all reasonable costs and expenses of the Agent in connection
with the preparation, execution, delivery, administration,
modification, waiver and amendment of this Agreement, the
other Loan Documents, and the other documents to be delivered
hereunder, including, without limitation, the reasonable fees
and expenses of counsel for the Agent with respect thereto and
with respect to advising the Agent as to its rights and
responsibilities under the Loan Documents. The Borrower
further agrees to pay on demand all reasonable costs and
expenses of the Agent and of each of the Lenders, if any
(including, without limitation, reasonable attorneys' fees
actually incurred and expenses and the cost of internal
counsel), in connection with the enforcement, workout or
preservation of any rights under this Agreement and other Loan
Documents (whether through negotiations, legal proceedings, or
otherwise) and the other documents to be delivered hereunder.
11.07 Amendments and Waivers. Any provision of this
Agreement or any other Loan Document may be amended or waived
if, but only if, such amendment or waiver is in writing and is
signed by the Borrower and the Required Lenders (and, if
Article X or the rights or duties of the Agent are affected
thereby, by the Agent); provided that no such amendment or
waiver shall, unless signed by all the Lenders, (i) increase
the Revolving Credit Commitments of the Lenders, (ii) reduce
the principal of, or rate of interest on, any Loan (other than
a Swing Line Loan or a Competitive Bid Loan, which shall
require only the written consent or approval by the Swing Line
Lender or applicable Lender for such Competitive Bid Loan,
respectively) or any fees or other amounts payable hereunder,
including without limitation accrued interest, (iii) postpone
any date fixed for the payment of any scheduled installment of
principal of or interest on any Loan or any fees or other
amounts payable hereunder or for termination of any Revolving
Credit Commitment, (iv) change the percentage of the Revolving
Credit Commitments or of the unpaid principal amount of the
Notes, or the number of Lenders, or the amount of Credit
Exposure, which shall be required for the Lenders or any of
them to take any action under this Section or any other
provision of this Agreement, (v) release any Guarantor or (vi)
amend or delete any provision of this Section 11.07.
11.08 Counterparts. This Agreement may be executed in
any number of counterparts, each of which when so executed and
delivered shall be deemed an original, and it shall not be
necessary in making proof of this Agreement to produce or
account for more than one such fully-executed counterpart.
11.09 Termination. At such date (the "Total Facility
Termination Date") as (a) all of the Revolving Credit
Commitments have been terminated, (b) none of the Lenders is
obligated any longer under this Agreement to make any Loans,
(c) the Issuing Bank is no longer obligated under this
Agreement to issue any Letters of Credit, (d) the Swing Line
Lender is no longer obligated under this Agreement to make
Swing Line Loans, (e) no Letters of Credit remain issued and
outstanding and (f) all Obligations (other than liabilities of
the Borrower to any Lender under a Swap Agreement and
obligations which survive as provided in the following two
sentences) have been paid and satisfied in full, this
Agreement shall terminate. Notwithstanding the foregoing, the
termination of this Agreement shall not affect any rights of
the Borrower, the Lenders or the Agent or any obligation of
the Borrower, the Lenders or the Agent, arising prior to the
effective date of such termination, and all representations,
warranties, covenants, waivers and agreements contained herein
shall continue until this Agreement is so terminated, unless
continuing thereafter as otherwise provided herein. Without
limitation of the foregoing, the provisions of Sections 4.05,
4.06, 10.05, 11.06 and 11.11 shall survive the occurrence of
the Total Facility Termination Date and the termination of
this Agreement and the Loan Documents. Notwithstanding the
foregoing, if after receipt of any payment pursuant to the
Loan Documents of all or any part of the Obligations, any
Lender is for any reason compelled to surrender such payment
to any Person because such payment is determined to be void or
voidable as a preference, impermissible setoff, a diversion of
trust funds or for any other reason, this Agreement shall
continue in full force and the Borrower shall be liable to,
and shall indemnify and hold such Lender harmless for, the
amount of such payment surrendered until such Lender shall
have been finally and irrevocably paid in full. The
provisions of the foregoing sentence shall be and remain
effective notwithstanding any contrary action which may have
been taken by the Lenders in reliance upon such payment, and
any such contrary action so taken shall be without prejudice
to the Lenders' rights under this Agreement and shall be
deemed to have been conditioned upon such payment having
become final and irrevocable.
11.10 Governing Law. All documents executed pursuant to
the transactions contemplated herein, including, without
limitation, this Agreement and each of the Loan Documents
shall be deemed to be contracts made under, and for all
purposes shall be construed in accordance with, the internal
laws and judicial decisions of the State of Georgia. The
Borrower hereby submits to the jurisdiction and venue of the
state and federal courts of Georgia for the purposes of
resolving disputes hereunder or for the purposes of
collection.
11.11 Indemnification. (a) The Borrower agrees to
indemnify and hold harmless the Agent and each Lender and each
of their affiliates and their respective officers, directors,
employees, agents, and advisors (each, an "Indemnified Party")
from and against any and all claims, damages, losses,
liabilities, costs, and expenses (including, without
limitation, assessment and cleanup costs and reasonable
attorneys', consultants or other expert fees, expenses and
disbursements ) that are incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or
in connection with or relating to or by reason of (including,
without limitation, in connection with any investigation,
litigation, or proceeding or preparation of defense in
connection therewith) the Loan Documents, any of the
transactions contemplated herein, the actual or proposed use
of the Letters of Credit or proceeds of the Loans, the
violation of any Environmental Law by the Borrower or any
Subsidiary or with respect to any property owned, operated or
leased by the Borrower or any Subsidiary or the handling,
storage, transportation, treatment, emission, release,
discharge or disposal of any Hazardous Material by, on behalf
or in respect of the Borrower or any Subsidiary or on or with
respect to property owned or leased or operated by the
Borrower or any Subsidiary, except to the extent (i) such
claim, damage, loss, liability, cost, or expense is found in
a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's
gross negligence or willful misconduct or (ii) relating to
actions or proceedings brought by an Indemnified Party against
another Indemnified Party not arising from any action or
inaction by the Borrower or any Subsidiary or (iii) resulting
from any claim brought by the Borrower against any Lender for
failure to fund under the Revolving Credit Facility (including
the failure to fund a Competitive Bid Loan after the
Borrower's acceptance of such Lender's Competitive Bid Quote
in accordance with Section 2.03 hereof) in accordance with
this Agreement in which the Borrower is the prevailing party.
In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 11.11
applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by the
Borrower, its directors, shareholders or creditors or an
Indemnified Party or any other Person or any Indemnified Party
is otherwise a party thereto and whether or not the
transactions contemplated hereby are consummated. If and to
the extent that the foregoing undertaking may be unenforceable
for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment and satisfaction of each of the
indemnified liabilities which is permissible under applicable
law. The Borrower further agrees not to assert any claim
against the Agent, any Lender, any of their affiliates, or any
of their respective directors, officers, employees, attorneys,
agents, and advisers, on any theory of liability for special,
indirect, consequential, or punitive damages arising out of or
otherwise relating to the Loan Documents, any of the
transactions contemplated herein or the actual or proposed use
of the proceeds of the Loans. Without prejudice to the
survival of any other agreement of the Borrower hereunder, the
agreements and obligations of the Borrower contained in this
Section 11.11 shall survive the occurrence of the Total
Facility Termination Date.
(b) If a claim is to be made by a party entitled to
indemnification under this Section 11.11 against the Borrower,
the Indemnified Party shall give written notice to the
Borrower promptly after the Indemnified Party receives actual
notice of any claim, action, suit, loss, cost, liability,
damage or expense incurred or instituted for which the
indemnification is sought. If requested by Borrower in
writing, and so long as no Default or Event of Default shall
have occurred and be continuing, such Indemnified Party shall
contest at the expense of the Borrower the validity,
applicability and/or amount of such suit, action, or cause of
action to the extent such contest may be conducted in good
faith on legally supportable grounds. If any lawsuit or
enforcement action is filed against any Indemnified Party,
written notice thereof shall be given to the Borrower as soon
as practicable (and in any event within 20 days after the
service of the citation or summons). Notwithstanding the
foregoing, the failure so to notify the Borrower as provided
in this Section will relieve the Borrower from liability
hereunder only if and to the extent that such failure results
in the forfeiture by the Borrower of any substantive rights or
defenses. The Indemnified Party shall control the defense and
investigation of such lawsuit or action and to employ and
engage counsel of its own choice to handle and defend the
same, at the Borrower's cost, risk and expense; provided,
however, that the Borrower may, at its own cost participate in
the investigation, trial and defense of such lawsuit or action
and any appeal arising therefrom. If the Borrower has
acknowledged to the Indemnified Party its obligation to
indemnify hereunder, the Indemnified Party, so long as no
Default or Event of Default shall have occurred and be
continuing, shall not settle such lawsuit or enforcement
action without the prior written consent of the Borrower and,
if the Borrower has not so acknowledged its obligation, the
Indemnified Party shall not settle such lawsuit or enforcement
action without giving twenty (20) days' prior written notice
of such settlement and its terms to the Borrower.
11.12 Headings and References. The headings of the
Articles and Sections of this Agreement are inserted for
convenience of reference only and are not intended to be a
part of, or to affect the meaning or interpretation of this
Agreement. Words such as "hereof", "hereunder", "herein" and
words of similar import shall refer to this Agreement in its
entirety and not to any particular Section or provisions
hereof, unless so expressly specified. As used herein, the
singular shall include the plural, and the masculine shall
include the feminine or a neutral gender, and vice versa,
whenever the context requires.
11.13 Severability. If any provision of this Agreement
or the other Loan Documents shall be determined to be illegal
or invalid as to one or more of the parties hereto, then such
provision shall remain in effect with respect to all parties,
if any, as to whom such provision is neither illegal nor
invalid, and in any event all other provisions hereof shall
remain effective and binding on the parties hereto.
11.14 Entire Agreement. This Agreement, together with
the other Loan Documents, constitutes the entire agreement
between the parties with respect to the subject matter hereof
and supersedes all previous proposals, negotiations,
representations, commitments and other communications between
or among the parties, both oral and written, with respect
thereto.
11.15 Agreement Controls. In the event that any term of
any of the Loan Documents other than this Agreement conflicts
with any term of this Agreement, the terms and provisions of
this Agreement shall control.
11.16 Usury Savings Clause. Notwithstanding any other
provision herein, the aggregate interest rate charged under
any of the Notes, including all charges or fees in connection
therewith deemed in the nature of interest under Georgia law,
shall not exceed the Highest Lawful Rate (as such term is
defined below). If the rate of interest (determined without
regard to the preceding sentence) under this Agreement at any
time exceeds the Highest Lawful Rate (as defined below), the
outstanding amount of the Loans made hereunder shall bear
interest at the Highest Lawful Rate until the total amount of
interest due hereunder equals the amount of interest which
would have been due hereunder if the stated rates of interest
set forth in this Agreement had at all times been in effect.
In addition, if and when the Loans made hereunder are repaid
in full the total interest due hereunder (taking into account
the increase provided for above) is less than the total amount
of interest which would have been due hereunder if the stated
rates of interest set forth in this Agreement had at all times
been in effect, then to the extent permitted by law, the
Borrower shall pay to the Agent an amount equal to the
difference between the amount of interest paid and the amount
of interest which would have been paid if the Highest Lawful
Rate had at all times been in effect. Notwithstanding the
foregoing, it is the intention of the Lenders and the Borrower
to conform strictly to any applicable usury laws.
Accordingly, if any Lender contracts for, charges, or receives
any consideration which constitutes interest in excess of the
Highest Lawful Rate, then any such excess shall be canceled
automatically and, if previously paid, shall at such Lender's
option be applied to the outstanding amount of the Loans made
hereunder or be refunded to the Borrower. As used in this
paragraph, the term "Highest Lawful Rate" means the maximum
lawful interest rate, if any, that at any time or from time to
time may be contracted for, charged, or received under the
laws applicable to suc Lender which are presently in effect
or, to the extent allowed by law, under such applicable laws
which may hereafter be in effect and which allow a higher
maximum non-usurious interest rate than applicable laws now
allow.
11.17 Reserved.
11.18 Waiver of Jury Trial. EXCEPT AS PROHIBITED BY
LAW, EACH PARTY HERETO HEREBY WAIVES ANY RIGHT IT MAY HAVE TO
A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR
INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OF THE LOAN DOCUMENTS.
11.19 Removal of Lenders. If (a) a Lender requests
compensation pursuant to Sections 4.01(a) or (b) or Section
4.06 and the Required Lenders are not also doing the same, (b)
the obligation of a Lender to make Eurodollar Loans or to
Continue, or to Convert Base Rate Loans into, Eurodollar Loans
shall be suspended pursuant to Section 4.01(a) or Section 4.03
but the obligation of the Required Lenders shall not have been
suspended under such Sections, or (c) any Lender refuses or
otherwise fails to consent to any waiver, amendment or other
modification of any Loan Document which (i) requires the
unanimous written consent of all Lenders under Section 11.07
and (ii) has been approved in writing by the Required Lenders,
then, so long as there does not then exist any Default or
Event of Default, the Borrower may either (A) demand that such
Lender (the "Affected Lender"), and upon such demand the
Affected Lender shall promptly, assign its Revolving Credit
Commitment and its 364 Day Facility Commitment and all of its
Loans and 364 Day Facility Loans to another Eligible Assignee
identified by the Borrower and willing to become a Lender
hereunder and under the 364 Day Facility Credit Agreement
subject to and in accordance with the provisions of Section
11.01(a) for a purchase price equal to the aggregate principal
balance of Loans and 364 Day Facility Loans then owing to the
Affected Lender plus any accrued but unpaid interest thereon,
accrued but unpaid fees owing to the Affected Lender and any
amounts owing the Affected Lender under Section 4.05 hereunder
and Section 4.05 under the 364 Day Facility Credit Agreement,
or (B) pay to the Affected Lender the aggregate principal
balance of Loans and 364 Day Facility Loans then owing to the
Affected Lender plus any accrued but unpaid interest thereon,
accrued but unpaid fees owing to the Affected Lender, any
amounts owing the Affected Lender under Section 4.05 hereunder
and Section 4.05 under the 364 Day Facility Credit Agreement
and any other amounts agreed by the Borrower to be owing to
the Affected Lender, whereupon the Affected Lender shall no
longer be a party hereto or the 364 Day Facility Credit
Agreement or have any rights or obligations hereunder or
thereunder or under any of the other Loan Documents (including
such documents as defined in the 364 Day Facility Credit
Agreement) and the Total Revolving Credit Commitment shall
immediately and permanently be reduced by an amount equal to
the amount of the Affected Lender's Revolving Credit
Commitment and the Total Revolving Credit Commitment (as
defined in the 364 Day Facility Credit Agreement) shall
immediately and permanently be reduced by an amount equal to
the amount of the Affected Lender's 364 Day Facility
Commitment. Each of the Agent and the Affected Lender shall
reasonably cooperate in effectuating the replacement of an
Affected Lender under this Section 11.19, but at no time shall
the Agent or the Affected Lender be obligated in any way
whatsoever to initiate any such replacement. The exercise by
the Borrower of its rights under this Section 11.19 shall be
at the Borrower's sole cost and expense.
11.20 Guaranty Terminations. Upon the satisfaction of
each of the following conditions, the Guaranty shall upon
delivery to the Agent of the written request of the Borrower
automatically terminate and be of no further force or effect
and each Guarantor thereunder shall be automatically,
unconditionally and fully released and discharged from all of
its obligations and liabilities under or in respect thereof
without any action by the Borrower, any Subsidiary, the Agent
(other than its written approval of the release terms as
contemplated in condition (b) below) or any Lender: (a) the
achievement of an Investment Grade Rating by the Borrower and
(b) each Subsidiary of the Borrower shall be released
(simultaneously with, or prior to, the effectiveness of this
Section 11.20) on terms reasonably satisfactory to the Agent
from its guaranty obligations of any other Indebtedness for
Money Borrowed of the Borrower (other than such guarantees
which together with all other Subsidiary Indebtedness (after
giving effect to the termination of the Guaranty) in the
aggregate do not exceed the maximum amount of Subsidiary
Indebtedness then permitted under Section 8.04(b) hereof). In
addition, any Pledge Agreement delivered pursuant to Section
7.18 shall automatically terminate and be of no further force
or effect simultaneously with the termination of the Guaranty.
The Agent shall promptly deliver to the Borrower any stock
certificates and stock powers delivered to the Agent in
connection with any such Pledge Agreement.
[Signatures on following pages.]
IN WITNESS WHEREOF, the parties hereto have caused this
instrument to be made, executed and delivered by their duly
authorized officers as of the day and year first above
written.
SAKS INCORPORATED
By:
Title:
ATTEST:
_________________________
_________________________
NATIONSBANK, N.A., as
Administrative Agent for the
Lenders
By:
Title: _________ Vice President
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK, as Co-Syndication
Agent and as a Lender
By:
Name:
Title:
Lending Office:
▇▇▇▇▇▇ Guaranty Trust Company
of New York
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
▇▇▇▇▇▇ Guaranty Trust Company of
New York
New York, New York
ABA# ▇▇▇-▇▇▇-▇▇▇
For Credit to: Loan Department
A/C: ▇▇▇-▇▇-▇▇▇
Attention:Corporate Processing
- Mod 02
Reference: ▇▇▇▇▇▇▇▇'▇, Inc.
THE CHASE MANHATTAN BANK,
as Co-Syndication Agent and as
a Lender
By:
Name:
Title:
By:
Name:
Title:
Lending Office:
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
ABA No.: 021-000021
Attention: ▇▇▇▇ ▇▇▇▇▇, Loan
Services Dept.
Reference:
CITIBANK, N.A.,
as Documentation Agent and as a
Lender
By:
Name:
Title:
By:
Name:
Title:
Lending Office:
Citicorp Securities
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - ▇▇/▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Assistant Vice President -
Banker
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA No.: ▇▇▇▇▇▇▇▇▇
Account No.: 4063-2387
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Reference: Saks Incorporated
NATIONSBANK, N.A.
By:
Name:
Title: _______ Vice President
Lending Office:
NationsBank, N.A.
Independence Center, 15th Floor
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇,
Agency Services
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
NationsBank, N.A.
ABA# ▇▇▇▇▇▇▇▇▇
Reference: Saks Incorporated
Account No.: 136621-▇▇▇▇▇▇▇
Attention: CCS/Agency Services
NATIONAL CITY BANK, KENTUCKY
By:
Name:
Title: Vice President
Lending Office:
National City Bank, Kentucky
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇,
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
National City Bank Kentucky
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA# ▇▇▇-▇▇▇-▇▇▇
Reference: Saks Incorporated
Account No.: 5737553042
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇,
Commercial Loan Operations
SOUTHTRUST BANK, NATIONAL
ASSOCIATION
By:
Name:
Title:
Lending Office:
SouthTrust Bank, N.A.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
Assistant Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
SouthTrust Bank, N.A.
▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 131009
Reference: Saks Incorporated
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(ext. 5446)
FIRST TENNESSEE BANK NATIONAL
ASSOCIATION
By:
Name:
Title: Senior Vice President
Lending Office:
First Tennessee Bank National
Association
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Mr. ▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
First Tennessee Bank National
Association
Memphis, Tennessee
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 114174 6870
Reference: ▇▇▇▇▇▇▇▇'▇, Inc
Saks, Incorporated.
Attention: Ms. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ext. ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
By:
Name:
Title:
Lending Office:
The Bank of Nova Scotia
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Relationship
Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The Bank of Nova Scotia
New York Agency
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA# ▇▇▇▇▇▇▇▇▇
For Further Credit to:
The Bank of Nova Scotia -
Atlanta Agency
Account No.: ▇▇▇▇▇▇▇
Attention:Atlanta/Houston Loan
Operations
Reference: Saks Incorporated
HIBERNIA NATIONAL BANK
By:
Name:
Title: Vice President
Lending Office:
Hibernia National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇, Vice
President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Hibernia National Bank
New Orleans, Louisiana
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 0520-36615
Reference: ▇▇▇▇▇▇▇▇'▇ Inc.
Attention: National Accounts
FIRST AMERICAN NATIONAL BANK
By:
Name:
Title:
Lending Office:
First American National Bank
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Senior Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
First American National Bank
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 1002295498
Reference: Saks Incorporated
Attention: Frenisa Joy
NORWEST BANK IOWA, NATIONAL
ASSOCIATION
By:
Name:
Title: Vice President
Lending Office:
Norwest Bank Iowa, National
Association
M.S. 4019
▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇, Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Norwest Bank Iowa, N.A.
Des Moines, Iowa
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 970656
Reference: ▇▇▇▇▇▇▇▇'▇, Inc./
Saks Incorporated
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇ or
▇▇▇▇▇ ▇▇▇▇▇
THE FIRST NATIONAL BANK OF
CHICAGO
By:
Name:
Title:
Lending Office:
The First National Bank of
Chicago
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
The First National Bank of
Chicago
Chicago, Illinois
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 7521-7653
DCS Incoming
Clearing Account
Reference: Saks Incorporated
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
CREDIT LYONNAIS ATLANTA AGENCY
By:
Name:
Title: Vice President
Credit Lyonnais Atlanta Agency
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇., ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
ABA#▇▇▇▇-▇▇▇▇-▇
Account No.:01-24173.0001.00
Credit: Credit Lyonnais
Atlanta Agency
Reference: Saks Incorporated
Attention: Loan Servicing
THE BANK OF NEW YORK
By:
Name:
Title:
Lending Office:
The Bank of New York
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile:(▇▇▇)▇▇▇-▇▇▇▇/1483
Wire Transfer Instructions:
Base Rate Loans: The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇: ▇▇▇▇▇▇▇▇▇
Commercial Loan Servicing
Department
GLA No.: 111556
Reference: Saks Incorporated
ie: principal, interest, fees
EuroDollar Loans: The Bank of New York
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇: ▇▇▇▇▇▇▇▇▇
Eurodollar/Cayman Funding Area
GLA No.: 111556
Reference: Saks Incorporated
ie: principal, interest
U.S. BANK NATIONAL ASSOCIATION
By:
Name:
Title:
Lending Office:
U.S. Bank National Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, Mail
Stop MPFP0510
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
U.S. National Bank Association
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA #: ▇▇▇▇▇▇▇▇▇
Attention: Commercial Loan
Service Center
Account No.: 30000472160600
Reference: for ▇▇▇▇▇▇▇▇'▇,
Inc.
A/C No.: 1735056807
UNION BANK OF CALIFORNIA, N.A.
By:
Name:
Title:
Lending Office:
Union Bank of California, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Union Bank of California, N.A.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
ABA No.: ▇▇▇▇-▇▇▇▇-▇
Account No.: 070196431
Attention: Commercial Loan
Operations
Reference: Saks Incorporated
WACHOVIA BANK, N.A.
By:
Name:
Title:
Lending Office:
Wachovia Bank, N.A.
MCGA 3940
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Wachovia Bank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇-▇▇▇-▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Reference: Saks Inc.
ABN AMRO BANK NV
By:
Name:
Title:
Lending Office:
ABN AMRO Bank N.V.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Credit
Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ABN AMRO Bank N.V.
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Wire Transfer Instructions:
ABN AMRO Bank N.V.
New York, New York
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 650-001-1789-41
Attention: Chicago CPU
Ref: Proffitts/Saks, Inc.
BANKBOSTON, N.A.
By:
Name:
Title:
Lending Office:
BankBoston, N.A.
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Retail & Apparel Division
Mail Stop 01-09-05
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Attention: ▇▇. ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇
Vice President
Telephone:(▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
BankBoston, N.A.
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ABA# 011 000 390
Attention: Commercial Loan
Services
Admin. 57
Reference: Saks Incorporated
FIFTH THIRD BANK
By:
Name:
Title:
Lending Office:
Fifth Third Bank
38 Fountain Square Plaza
Maildrop 109054
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Attention: ▇▇▇▇ ▇. ▇▇▇▇,
Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Fifth Third Bank
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ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Reference: Saks Incorporated
BANK OF MONTREAL
By:
Name:
Title:
Lending Office:
Bank of Montreal
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
▇▇▇▇▇▇ Trust & Savings Bank
Chicago, Illinois
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: ▇▇▇-▇▇▇-▇
Attention: Client Services
Reference: Saks Incorporated
MELLON BANK, N.A.
By:
Name:
Title:
Lending Office:
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▇ ▇▇▇▇▇▇ ▇▇▇▇ Center
Room 4525
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Mellon Bank, N.A.
Pittsburgh, Pennsylvania
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 990873800
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Reference: Saks Incorporated
FIRST UNION NATIONAL BANK
By:
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title:
By:
Name:
Title:
Lending Office:
First Union National Bank
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Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Wire Transfer Instructions:
First Union National Bank
Jacksonville, Florida
ABA No.: ▇▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Reference:Saks Incorporated
(▇▇▇▇▇▇▇▇'▇, Inc.)
Account Name: Commercial Loans
Account No.: GL145916 2008
STAR BANK, N.A.
By:
Name:
Title:
Lending Office:
Star Bank, N.A.
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Star Bank, N.A.
ABA# ▇▇▇-▇▇▇-▇▇▇
Account No.: 990-189 3
Reference: Saks Incorporated
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Loan
Operations
AMSOUTH BANK
By:
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President
Lending Office:
AmSouth Bank
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
AmSouth Bank
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 001102450400100
Reference: Saks Incorporated
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
MERCANTILE BANK NATIONAL
ASSOCIATION
By:
Name:
Title:
Lending Office:
Mercantile Bank
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Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telefacsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Wire Transfer Instructions:
Mercantile Bank
St. Louis, Missouri
ABA# ▇▇▇▇▇▇▇▇▇
Account No.: 140117-939
Attention: Commercial Loan
Operations
Reference: