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EXHIBIT 10(y)
CREDIT AGREEMENT
dated as of
April 9, 1997
among
Woolworth Corporation
The Banks Party Hereto
The Co-Agents Party Hereto
NationsBank, N.A.
as Documentation Agent
and
The Bank of New York,
as Administrative Agent, LC Agent
and Swingline Bank
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Syndicated by:
▇.▇. ▇▇▇▇▇▇ Securities Inc.,
as Arranger and Syndication Agent
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TABLE OF CONTENTS*
Page
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions.................................. 1
SECTION 1.02. Accounting Terms and
Determinations............................... 20
SECTION 1.03. Types of Borrowings.......................... 20
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend.......................... 21
SECTION 2.02. Notice of Committed Borrowing................ 21
SECTION 2.03. Money Market Borrowings...................... 22
SECTION 2.04. Notice to Banks; Funding of Loans............ 26
SECTION 2.05. Notes........................................ 27
SECTION 2.06. Maturity of Loans............................ 28
SECTION 2.07. Interest Rates............................... 28
SECTION 2.08. Method of Electing Interest Rates............ 32
SECTION 2.09. Facility Fees................................ 34
SECTION 2.10. Optional Termination or Reduction
of Commitments............................... 34
SECTION 2.11. Mandatory Termination of
Commitments.................................. 35
SECTION 2.12. Optional and Mandatory Prepayments........... 35
SECTION 2.13. General Provisions as to Payments............ 36
SECTION 2.14. Funding Losses............................... 37
SECTION 2.15. Computation of Interest and Fees............. 38
SECTION 2.16. Termination of Existing Credit
Agreement.................................... 38
SECTION 2.17. Letters of Credit............................ 38
SECTION 2.18. Swingline Loans.............................. 46
ARTICLE III
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*The Table of Contents is not a part of this Agreement.
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Page
CONDITIONS
SECTION 3.01. Effectiveness of this Agreement;
Closing......................................... 48
SECTION 3.02. Extensions of Credit............................ 49
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power................ 50
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention.............. 50
SECTION 4.03. Binding Effect............................... 51
SECTION 4.04. Financial Information........................ 51
SECTION 4.05. Litigation................................... 52
SECTION 4.06. Compliance with Laws......................... 52
SECTION 4.07. Compliance with ERISA........................ 52
SECTION 4.08. Environmental Matters........................ 52
SECTION 4.09. Taxes........................................ 53
SECTION 4.10. Subsidiaries................................. 53
SECTION 4.11. Not an Investment Company.................... 53
SECTION 4.12. Full Disclosure.............................. 53
ARTICLE V
COVENANTS
SECTION 5.01. Information.................................. 54
SECTION 5.02. Maintenance of Property; Insurance........... 57
SECTION 5.03. Conduct of Business and Maintenance
of Existence................................. 57
SECTION 5.04. Compliance with Laws......................... 58
SECTION 5.05. Inspection of Property, Books and
Records...................................... 58
SECTION 5.06. Negative Pledge.............................. 58
SECTION 5.07. Minimum Consolidated Tangible Net
Worth........................................ 59
SECTION 5.08. Leverage Ratio............................... 60
SECTION 5.09. Limitation on Debt of Subsidiaries........... 60
SECTION 5.10. Fixed Charge Coverage Ratio.................. 60
SECTION 5.11. Consolidations, Mergers and Sales
of Assets.................................... 60
SECTION 5.12. Use of Proceeds.............................. 61
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Page
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default............................ 61
SECTION 6.02. Notice of Default............................ 63
SECTION 6.03. Cash Cover................................... 64
ARTICLE VII
THE ADMINISTRATIVE AGENT, DOCUMENTATION AGENT
AND CO-AGENTS
SECTION 7.01. Appointment and Authorization................ 64
SECTION 7.02. Agents and Affiliates........................ 64
SECTION 7.03. Obligations of the Co-Agents and
Documentation Agent.......................... 65
SECTION 7.04. Obligations of Administrative
Agent........................................ 65
SECTION 7.05. Consultation with Experts.................... 65
SECTION 7.06. Liability of Agents.......................... 65
SECTION 7.07. Indemnification.............................. 66
SECTION 7.08. Credit Decision.............................. 66
SECTION 7.09. Successor Administrative Agent............... 66
SECTION 7.10. Administrative Agent's Fees.................. 67
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair......................... 67
SECTION 8.02. Illegality................................... 68
SECTION 8.03. Increased Cost and Reduced Return............ 69
SECTION 8.04. Taxes........................................ 71
SECTION 8.05. Base Rate Loans Substituted for
Affected Fixed Rate Loans.................... 74
SECTION 8.06. Substitution of Bank......................... 74
ARTICLE IX
MISCELLANEOUS
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Page
SECTION 9.01. Notices...................................... 75
SECTION 9.02. No Waivers................................... 76
SECTION 9.03. Expenses; Indemnification.................... 76
SECTION 9.04. Sharing of Set-Offs.......................... 76
SECTION 9.05. Amendments and Waivers....................... 77
SECTION 9.06. Successors and Assigns....................... 78
SECTION 9.07. No-Reliance on Margin Stock.................. 80
SECTION 9.08. Governing Law; Submission to
Jurisdiction................................. 80
SECTION 9.09. Counterparts................................. 81
SECTION 9.10. WAIVER OF JURY TRIAL......................... 81
Commitment Schedule
Pricing Schedule
Exhibit A - Form of Note
Exhibit B - Form of Swingline Note
Exhibit C - Form of Money Market Quote Request
Exhibit D - Form of Invitation for Money Market Quotes
Exhibit E - Form of Money Market Quote
Exhibit F - Form of Opinion of Special Counsel for the
Borrower
Exhibit G - Form of Opinion of General Counsel of the
Borrower
Exhibit H - Form of Opinion of Special Counsel for the
Arranger and Syndication Agent
Exhibit I - Form of Assignment and Assumption Agreement
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CREDIT AGREEMENT
AGREEMENT dated as of April 9, 1997 among WOOLWORTH CORPORATION, the
BANKS party hereto, the CO-AGENTS party hereto, NATIONSBANK, N.A., as
Documentation Agent, and THE BANK OF NEW YORK, as LC Agent, Administrative Agent
and Swingline Bank.
WHEREAS the Borrower desires to obtain a five-year revolving credit
facility in the amount of $500,000,000; and
WHEREAS the Banks party hereto are willing to provide such credit
facility on the terms and conditions set forth herein;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The following terms, as used herein, have
the following meanings:
"Absolute Rate Auction" means a solicitation of Money Market Quotes
setting forth Money Market Absolute Rates pursuant to Section 2.03.
"Adjusted CD Rate" has the meaning set forth in Section 2.07(b).
"Adjusted London Interbank Offered Rate" has the meaning set forth
in Section 2.07(c).
"Administrative Agent" means The Bank of New York, in its capacity
as administrative agent for the Banks hereunder, and its successors in such
capacity.
"Administrative Questionnaire" means, with respect to each Bank, an
administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent (with a copy to the Borrower) duly
completed by such Bank.
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"Affiliate" means, as to any Person, any Person directly or
indirectly controlling, controlled by or under common control with such Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agents" means the LC Agent, the Documentation Agent and the
Administrative Agent.
"Aggregate LC Exposure" means, at any time, the sum, without
duplication, of (i) the aggregate amount that is (or may thereafter become)
available for drawing under all Letters of Credit outstanding at such time plus
(ii) the aggregate unpaid amount of all Reimbursement Obligations outstanding at
such time.
"Annual Rent Expense" means, for purposes of calculations pursuant
to Section 5.10 as of the end of each Fiscal Year (the "Relevant Fiscal Year")
and the end of each of the first three Fiscal Quarters of the next Fiscal Year,
the total rent expense (net of sublease income) of the Borrower and its
Consolidated Subsidiaries for the Relevant Fiscal Year, calculated in the same
manner as the $693,000,000 amount shown as such total rent expense (net of
sublease income) for Fiscal Year 1995 under the heading "Leases" on page 29 of
the Borrower's 1995 Annual Report to its shareholders.
"Applicable Lending Office" means, with respect to any Bank, (i) in
the case of its Domestic Loans, its Domestic Lending Office, (ii) in the case of
its Euro-Dollar Loans, its Euro-Dollar Lending Office and (iii) in the case of
its Money Market Loans, its Money Market Lending Office.
"Arranger and Syndication Agent" means ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
in its capacity as arranger and syndication agent for the credit facility
provided hereunder.
"Assessment Rate" has the meaning set forth in Section 2.07(b).
"Asset Sale" means any sale, lease or other disposition (including
any such transaction effected by way of merger or consolidation) of any asset by
the Borrower or any of its Subsidiaries, including without limitation any
sale-leaseback transaction, whether or not involving a capital lease, and any
sale of real estate, but excluding (i) dispositions of inventory, cash, cash
equivalents and other cash management investments and obsolete, unused or
unnecessary equipment, in each case in the ordinary course of business, (ii)
dispositions of assets to the Borrower or a Subsidiary and (iii) any transaction
involving a
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disposition of one or more assets for a consideration less than $250,000.
"Assignee" has the meaning set forth in Section 9.06(c).
"Available Net Cash Proceeds" means:
(i) with respect to any Asset Sale, an amount equal to the cash
proceeds received by the Borrower or any of its Subsidiaries from or in
respect of such Asset Sale (including any cash proceeds received as income
or other proceeds of any noncash proceeds of such Asset Sale), less (x)
any expenses reasonably incurred by such Person in respect of such Asset
Sale, (y) the amount of any Debt secured by a Lien on any asset disposed
of in such Asset Sale and discharged from the proceeds thereof and (z) any
taxes actually paid or to be payable by such Person (as estimated by a
senior financial or accounting officer of the Borrower, giving effect to
the overall tax position of the Borrower and its Subsidiaries) in respect
of such Asset Sale,
(ii) with respect to any Public Debt Issuance, an amount equal to the
cash proceeds received by the Borrower or any of its Subsidiaries in
respect thereof less any expenses reasonably incurred by them in respect
thereof, and
(iii) with respect to any Equity Issuance, an amount equal to the cash
proceeds received by the Borrower or any of its Subsidiaries in respect
thereof less any expenses reasonably incurred by them in respect thereof.
"Bank" means each bank listed on the signature pages hereof, each
Assignee which becomes a Bank pursuant to Section 9.06(c), and their respective
successors. The term "Bank" does not include the Swingline Bank in its capacity
as such.
"Bank Parties" means the Banks, the Swingline Bank and the Agents.
"Base Rate" means, for any day, a rate per annum equal to the higher
of (i) the Prime Rate for such day and (ii) the sum of 1/2 of 1% plus the
Federal Funds Rate for such day.
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"Base Rate Loan" means a Committed Loan which bears interest at the
Base Rate pursuant to the applicable Notice of Committed Borrowing or Notice of
Interest Rate Election or the provisions of Article VIII.
"Borrower" means Woolworth Corporation, a New York corporation, and
its successors.
"Borrower's 1995 Form 10-K" means the Borrower's annual report on
Form 10-K for 1995, as filed with the SEC pursuant to the Exchange Act.
"Borrower's Latest 10-Q" means the Borrower's quarterly report on
Form 10-Q for the quarter ended October 26, 1996, as filed with the SEC pursuant
to the Exchange Act.
"Borrowing" has the meaning set forth in Section 1.03.
"CD Base Rate" has the meaning set forth in Section 2.07(b).
"CD Loan" means a Committed Loan which bears interest at a CD Rate
pursuant to the applicable Notice of Committed Borrowing or Notice of Interest
Rate Election.
"CD Margin" has the meaning set forth in Section 2.07(b).
"CD Rate" means a rate of interest determined pursuant to Section
2.07(b) on the basis of an Adjusted CD Rate.
"CD Reference Banks" means The Bank of New York, NationsBank and
▇▇▇▇▇▇.
"Change in Consolidated Net Working Investment" means, for any
Fiscal Quarter, the amount (which may be positive or negative) obtained by
subtracting Consolidated Net Working Investment at the beginning of such Fiscal
Quarter from Consolidated Net Working Investment at the end of such Fiscal
Quarter. For purposes of this definition, "Consolidated Net Working Investment"
means, at any time, the amount obtained by subtracting consolidated accounts
payable of the Borrower and its Consolidated Subsidiaries at such time from
consolidated merchandise inventories of the Borrower and its Consolidated
Subsidiaries at such time.
"Co-Agents" means the Banks designated as Co-Agents on the
signature pages hereof, in their respective
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capacities as Co-Agents in connection with the credit facility provided
hereunder.
"Commitment" means, with respect to each Bank, the amount set forth
opposite the name of such Bank on the Commitment Schedule (or, in the case of an
Assignee, the portion of the transferor Bank's Commitment assigned to such
Assignee pursuant to Section 9.06(c)), in each case as such amount may be
reduced from time to time pursuant to Sections 2.10 and 2.11 or changed as a
result of an assignment pursuant to Section 8.06 or 9.06(c). The term
"Commitment" does not include the Swingline Commitment.
"Commitment Schedule" means the Commitment Schedule attached hereto.
"Committed Loan" means a loan made or to be made by a Bank pursuant
to Section 2.01 or Section 2.18(f); provided that, if any such loan or loans (or
portions thereof) are combined or subdivided pursuant to a Notice of Interest
Rate Election, the term "Committed Loan" shall refer to the combined principal
amount resulting from such combination or to each of the separate principal
amounts resulting from such subdivision, as the case may be.
"Consolidated Capital Expenditures" means, for any period, the gross
additions to property, plant and equipment and other capital expenditures of the
Borrower and its Consolidated Subsidiaries for such period.
"Consolidated Debt" means at any date the Debt of the Borrower and
its Consolidated Subsidiaries, determined on a consolidated basis as of such
date.
"Consolidated Subsidiary" means at any date any Subsidiary or other
entity the accounts of which would be consolidated with those of the Borrower in
its consolidated financial statements if such statements were prepared as of
such date in accordance with generally accepted accounting principles.
"Consolidated Tangible Net Worth" means at any date the consolidated
shareholders' equity of the Borrower and its Consolidated Subsidiaries as of
such date less their consolidated goodwill as of such date.
"Continuing Director" means at any date a member of the Borrower's
board of directors who was either (i) a member of such board twelve months prior
to such date or (ii) nominated for election to such board by at least two-thirds
of the Continuing Directors then in office.
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"Credit Exposure" means, as to any Bank at any time:
(i) the amount of its Commitment (whether used or unused) at such
time; or
(ii) if the Commitments have terminated in their entirety, the sum
of (x) its Outstanding Committed Amount and (y) the aggregate outstanding
principal amount of its Money Market Loans,
all determined at such time after giving effect to any prior assignments by or
to such Bank pursuant to Section 9.06(c).
"Debt" of any Person means at any date, without duplication, (i) all
obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business, (iv) all obligations of such Person as lessee which are capitalized in
accordance with generally accepted accounting principles, (v) all non-contingent
obligations (and, for purposes of Section 5.06 and the definition of Material
Debt, all contingent obligations) of such Person to reimburse any bank or other
Person in respect of amounts paid under a letter of credit or similar
instrument, (vi) all Debt secured by a Lien on any asset of such Person, whether
or not such Debt is otherwise an obligation of such Person, and (vii) all
Guarantees by such Person of Debt of another Person (each such Guarantee to
constitute Debt in an amount equal to the maximum amount of such other Person's
Debt Guaranteed thereby); provided that the term "Debt" shall not include
amounts borrowed against the cash value of life insurance policies.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived, become an Event of Default.
"Designated Litigation" means (i) the litigation described under the
heading "Legal Proceedings" in the Borrower's 1995 Form 10-K, (ii) subsequent
developments in the foregoing litigation and (iii) any governmental
investigation or subsequent litigation relating to the events and transactions
described in the report of the special committee of the Borrower's board of
directors filed (excluding certain exhibits and the appendix) with the SEC
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pursuant to the Exchange Act as an exhibit to the Borrower's report on Form 8K
dated May 18, 1994.
"Documentation Agent" means Nationsbank, N.A., in its capacity as
documentation agent for the credit facility provided hereunder.
"Domestic Business Day" means any day except a Saturday, Sunday or
other day on which commercial banks in New York City are authorized or required
by law to close; provided that, when used in Section 2.17 with respect to any
action to be taken by or with respect to the LC Agent, the term "Domestic
Business Day" shall not include any day on which commercial banks are authorized
by law to close in the jurisdiction where the LC Office of the LC Agent is
located.
"Domestic Lending Office" means, as to each Bank, its office located
at its address set forth in its Administrative Questionnaire (or identified in
its Administrative Questionnaire as its Domestic Lending Office) or such other
office as such Bank may hereafter designate as its Domestic Lending Office by
notice to the Borrower and the Administrative Agent; provided that any Bank may
so designate separate Domestic Lending Offices for its Base Rate Loans, on the
one hand, and its CD Loans, on the other hand, in which case all references
herein to the Domestic Lending Office of such Bank shall be deemed to refer to
either or both of such offices, as the context may require.
"Domestic Loans" means CD Loans or Base Rate Loans or both.
"Domestic Reserve Percentage" has the meaning set forth in Section
2.07(b).
"EBIT" means, for any period, the sum of (i) the consolidated net
income of the Borrower and its Consolidated Subsidiaries for such period plus
(ii) to the extent deducted in determining such consolidated net income, the sum
of (A) Interest Expense, (B) income taxes, (C) the after-tax effect of any
extraordinary non-cash losses (or minus the after-tax effect of any
extraordinary non-cash gains), (D) the before-tax effect of any non-recurring
non-cash losses that are not classified as extraordinary losses (or minus the
before-tax effect of any non-recurring non-cash gains that are not classified as
extraordinary gains) and (E) any pre-tax loss (or minus any pre-tax gain) on the
sale of any ownership or leasehold interest in real property; provided that if
any extraordinary non-cash loss or non-recurring non-cash loss referred to in
clause (C) or (D) of this definition includes a provision for cash
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payments to be made in future periods, such cash payments shall be deducted in
calculating EBIT for the periods in which they are actually paid.
"Effective Date" means the date on which the Administrative Agent
shall have received the documents specified in or pursuant to Section 3.01.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, injunctions, permits, licenses and agreements relating to the
protection of the environment, to the effect of the environment on human health
or to emissions, discharges or releases of pollutants, contaminants, hazardous
or toxic substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, hazardous or toxic
substances or wastes or the clean-up or other remediation thereof.
"Equity Issuance" means any issuance of equity securities, or any
sale or other transfer of treasury stock, by the Borrower or any of its
Subsidiaries, other than equity securities issued to, or treasury stock sold or
transferred to, the Borrower or any of its Subsidiaries.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended, or any successor statute.
"ERISA Group" means the Borrower, any Subsidiary and all members of
a controlled group of corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the Borrower or any
Subsidiary, are treated as a single employer under subsection (b), (c), (m) or
(o) of Section 414 of the Internal Revenue Code.
"Euro-Dollar Business Day" means any Domestic Business Day on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"Euro-Dollar Lending Office" means, as to each Bank, its office,
branch or affiliate located at its address set forth in its Administrative
Questionnaire (or identified in its Administrative Questionnaire as its
Euro-Dollar Lending Office) or such other office, branch or affiliate of such
Bank as it may hereafter designate as its
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Euro-Dollar Lending Office by notice to the Borrower and the Administrative
Agent.
"Euro-Dollar Loan" means a Committed Loan which bears interest at a
Euro-Dollar Rate pursuant to the applicable Notice of Committed Borrowing or
Notice of Interest Rate Election.
"Euro-Dollar Margin" has the meaning set forth in Section 2.07(c).
"Euro-Dollar Rate" means a rate of interest determined pursuant to
Section 2.07(c) on the basis of an Adjusted London Interbank Offered Rate.
"Euro-Dollar Reference Banks" means the principal London offices of
The Bank of New York, NationsBank and ▇▇▇▇▇▇.
"Euro-Dollar Reserve Percentage" has the meaning set forth in
Section 2.07(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time.
"Existing Banks" means the Banks that are parties to the Existing
Credit Agreement.
"Existing Credit Agreement" means the $1,000,000,000 Three-Year
Credit Agreement dated as of May 26, 1995, as heretofore amended, among the
Borrower, the Banks party thereto and the Agents, Arranging Agents, LC Agent,
Documentation Agent, Administrative Agent and Swingline Bank referred to
therein.
"Extension of Credit" means the making of a Loan or a Swingline Loan
or the issuance or extension of a Letter of Credit.
"Facility Fee Rate" has the meaning set forth in Section 2.09.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the nearest 1/100th 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
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York on the Domestic Business Day next succeeding such day, provided that (i) if
such day is not a Domestic Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business Day, and (ii) if no
such rate is so published on such next succeeding Domestic Business Day, the
Federal Funds Rate for such day shall be the average rate quoted to The Bank of
New York on such day on such transactions as determined by the Administrative
Agent.
"Fiscal Quarter" means a fiscal quarter of the Borrower.
"Fiscal Year" means a fiscal year of the Borrower. A Fiscal Year is
identified by the calendar year which includes approximately eleven months of
such Fiscal Year (e.g., Fiscal Year 1995 refers to the Fiscal Year that ended on
January 27, 1996).
"Fixed Rate Loan" means any loan except a Loan that bears interest
at the Base Rate.
"Group of Loans" or "Group" means at any time a group of Committed
Loans consisting of (i) all Committed Loans which are Base Rate Loans at such
time, (ii) all Euro-Dollar Loans having the same Interest Period at such time or
(iii) all CD Loans having the same Interest Period at such time; provided that
if a Committed Loan of any particular Bank is converted to or made as a Base
Rate Loan pursuant to Section 8.02 or 8.05, such Loan shall be included in the
same Group or Groups of Loans from time to time as it would have been in if it
had not been so converted or made.
"Guarantee" by any Person means any obligation, contingent or
otherwise, of such Person directly or indirectly guaranteeing any Debt of any
other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt (whether arising by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, to take-or-pay, or
to maintain financial statement conditions or otherwise) or (ii) entered into
for the purpose of assuring in any other manner the obligee of such Debt of the
payment thereof or to protect such obligee against loss in respect thereof (in
whole or in part), provided that the term Guarantee shall not include
endorsements for collection or deposit, in either case in
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the ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Immaterial Subsidiaries" means at any time one or more Subsidiaries
that in the aggregate did not account for (i) more than 5% of the consolidated
revenues or consolidated net income of the Borrower and its Consolidated
Subsidiaries for the then most recent Fiscal Year for which audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries have been
delivered to the Banks or (ii) more than 5% of the consolidated assets of the
Borrower and its Consolidated Subsidiaries at the end of such Fiscal Year.
"Indemnitee" has the meaning set forth in Section 9.03(b).
"Interest Expense" means, for any period, the consolidated interest
expense (net of interest income) of the Borrower and its Consolidated
Subsidiaries for such period, calculated in the same manner as the amounts shown
as "interest expense, net" under the heading "Interest expense" on page 16 of
the Borrower's 1995 Annual Report to its shareholders.
"Interest Period" means: (1) with respect to each Euro-Dollar Loan,
a period commencing on the date of borrowing specified in the applicable Notice
of Committed Borrowing or on the date specified in the applicable Notice of
Interest Rate Election and ending one, two, three or six months thereafter, as
the Borrower may elect in the applicable notice; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
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, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
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(2) with respect to each CD Loan, a period commencing on the date of borrowing
specified in the applicable Notice of Committed Borrowing or on the date
specified in the applicable Notice of Interest Rate Election and ending 30, 60,
90 or 180 days thereafter, as the Borrower may elect in the applicable notice;
provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(3) with respect to each Money Market LIBOR Loan, the period commencing on the
date such Loan is made and ending such whole number of months thereafter as the
Borrower may elect in accordance with Section 2.03; provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in
another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
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, subject to clause (c) below, end on the last
Euro-Dollar Business Day of a calendar month; and
(c) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
(4) with respect to each Money Market Absolute Rate Loan, the period commencing
on the date such Loan is made and ending such number of days thereafter (but not
less than 14 days) as the Borrower may elect in accordance with Section 2.03;
provided that:
(a) any Interest Period which would otherwise end on a day which is
not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day; and
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(b) any Interest Period which would otherwise end after the
Termination Date shall end on the Termination Date.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, or any successor statute.
"Investment" means any investment in any Person, whether by means of
share purchase, capital contribution, loan, time deposit or otherwise.
"Invitation for Money Market Quotes" means an Invitation for Money
Market Quotes substantially in the form of Exhibit D hereto.
"LC Agent" means The Bank of New York in its capacities as letter of
credit agent in connection with the letter of credit facility provided hereunder
and as the issuer of the letters of credit issued or to be issued hereunder, and
its successors in such capacities.
"LC Exposure" means, with respect to any Bank at any time, an amount
equal to its Pro Rata Share of the Aggregate LC Exposure at such time.
"LC Indemnitees" has the meaning set forth in Section 2.17(m).
"LC Office" means, with respect to the LC Agent, the office at which
the LC Agent books a Letter of Credit.
"Letter of Credit" means a letter of credit issued or to be issued
hereunder by the LC Agent.
"LIBOR Auction" means a solicitation of Money Market Quotes setting
forth Money Market Margins based on the London Interbank Offered Rate pursuant
to Section 2.03.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind, or any other type of
preferential arrangement that has the practical effect of creating a security
interest, in respect of such asset. For the purposes of this Agreement, the
Borrower or any Subsidiary shall be deemed to own subject to a Lien any asset
which it has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title retention
agreement relating to such asset.
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"Loan" means a Committed Loan or a Money Market Loan and "Loans"
means Committed Loans or Money Market Loans or any combination of the foregoing.
The term "Loan" does not include a Swingline Loan.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07(c).
"Material Adverse Effect" means a material adverse effect on (i) the
business, operations or condition (financial or otherwise) of the Borrower and
its Subsidiaries taken as a whole or (ii) the ability of the Borrower to
perform, or of any Bank Party to enforce, any payment obligation of the Borrower
under this Agreement, the Notes and the Swingline Note.
"Material Assets" means at any time assets that accounted for more
than 5% of the aggregate book value of the consolidated assets of the Borrower
and its Consolidated Subsidiaries at the end of the then most recent Fiscal Year
for which audited consolidated financial statements of the Borrower and its
Consolidated Subsidiaries have been delivered to the Banks.
"Material Debt" means Debt (other than the Loans, Swingline Loans
and Reimbursement Obligations) of the Borrower and/or one or more of its
Subsidiaries, arising in one or more related or unrelated transactions, in an
aggregate principal or face amount exceeding $25,000,000.
"Material Plan" means at any time a Plan (or any two or more Plans,
each of which has Unfunded Liabilities) having aggregate Unfunded Liabilities in
excess of $25,000,000.
"Money Market Absolute Rate" has the meaning set forth in Section
2.03(d).
"Money Market Absolute Rate Loan" means a loan made or to be made by
a Bank pursuant to an Absolute Rate Auction.
"Money Market Lending Office" means, as to each Bank, its Domestic
Lending Office or such other office, branch or affiliate of such Bank as it may
hereafter designate as its Money Market Lending Office by notice to the Borrower
and the Administrative Agent; provided that any Bank may from time to time by
notice to the Borrower and the Administrative Agent designate separate Money
Market Lending Offices for its Money Market LIBOR Loans, on the one hand, and
its Money Market Absolute Rate Loans, on the other hand,
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in which case all references herein to the Money Market Lending Office of such
Bank shall be deemed to refer to either or both of such offices, as the context
may require.
"Money Market LIBOR Loan" means a loan made or to be made by a Bank
pursuant to a LIBOR Auction (including such a loan bearing interest at the rate
applicable to Base Rate Loans by reason of clause (a) of Section 8.01).
"Money Market Loan" means a Money Market LIBOR Loan or a Money
Market Absolute Rate Loan.
"Money Market Margin" has the meaning set forth in Section 2.03(d).
"Money Market Quote" means an offer by a Bank to make a Money Market
Loan in accordance with Section 2.03 substantially in the form of Exhibit E
hereto.
"Money Market Quote Request" means a Money Market Quote Request
substantially in the form of Exhibit C hereto.
"▇▇▇▇▇▇" means ▇▇▇▇▇▇ Guaranty Trust Company of New York.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which any member of
the ERISA Group is then making or accruing an obligation to make contributions
or has within the preceding five plan years made contributions, including for
these purposes any Person which ceased to be a member of the ERISA Group during
such five year period.
"NationsBank" means NationsBank, N.A.
"Non-Trade LC Fee Rate" means a rate per annum determined in
accordance with the Pricing Schedule.
"Notes" means promissory notes of the Borrower, substantially in the
form of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans, and "Note" means any one of such promissory notes issued hereunder.
"Notice of Borrowing" means a Notice of Committed Borrowing or a
Notice of Money Market Borrowing.
"Notice of Committed Borrowing" has the meaning set forth in Section
2.02.
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"Notice of Interest Rate Election" has the meaning set forth in
Section 2.08.
"Notice of Money Market Borrowing" has the meaning set forth in
Section 2.03(f).
"Notice of Swingline Borrowing" has the meaning set forth in Section
2.18(b).
"Outstanding Committed Amount" means, with respect to any Bank at
any time, the sum of (i) the aggregate outstanding principal amount of its
Committed Loans, (ii) its Pro Rata Share of the aggregate outstanding principal
amount of the Swingline Loans (if any) and (iii) its LC Exposure, all determined
at such time after giving effect to any prior assignments by or to such Bank
pursuant to Section 8.06 or 9.06(c).
"Parent" means, with respect to any Bank Party, any Person
controlling such Bank Party.
"Participant" has the meaning set forth in Section 9.06(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Person" means an individual, a corporation, a partnership, a
limited liability company, an association, a trust or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan (other
than a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Internal Revenue Code and
either (i) is maintained, or contributed to, by any member of the ERISA Group
for employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person which
was at such time a member of the ERISA Group for employees of any Person which
was at such time a member of the ERISA Group.
"Pricing Schedule" means the Pricing Schedule attached hereto.
"Prime Rate" means a rate of interest per annum equal to the rate of
interest publicly announced from time
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to time in New York City by The Bank of New York as its prime commercial lending
rate, such rate to be adjusted automatically (without notice) on the effective
date of any change in such publicly announced rate.
"Pro Rata Share" means, with respect to any Bank at any time, a
fraction the numerator of which is the amount of such Bank's Commitment at such
time and the denominator of which is the Total Commitments at such time.
"Public Debt Issuance" means the issuance of any Debt by the
Borrower or any of its Subsidiaries for cash in a transaction that is required
to be registered with the SEC (or would have been required to be registered with
the SEC if such transaction had occurred within the United States).
"Reference Banks" means the CD Reference Banks or the Euro-Dollar
Reference Banks, as the context may require, and "Reference Bank" means any one
of such Reference Banks.
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Reimbursement Obligation" means any obligation of the Borrower to
reimburse the LC Agent pursuant to Section 2.17 for amounts paid by the LC Agent
in respect of drawings under Letters of Credit, including any portion of any
such obligation to which a Bank has become subrogated pursuant to paragraph (1)
of Section 2.17(j).
"Requesting Banks" means at any time one or more Banks having at
least 15% of the aggregate amount of the Commitments.
"Required Banks" means at any time Banks having at least 66 2/3% of
the aggregate amount of the Credit Exposures at such time.
"Responsible Officer" means, with respect to the Borrower, its chief
operating officer, its chief financial officer, its general counsel, its
treasurer, any assistant treasurer or any other officer whose duties include the
administration of this Agreement.
"SEC" means the Securities and Exchange Commission.
"Subsidiary" means, as to any Person, any corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a
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majority of the board of directors or other persons performing similar functions
are at the time directly or indirectly owned by such Person; unless otherwise
specified, "Subsidiary" means a Subsidiary of the Borrower.
"Swingline Bank" means The Bank of New York, in its capacity as the
Swingline Bank under the swingline facility described in Section 2.18, and its
successors in such capacity.
"Swingline Commitment" means the obligation of the Swingline Bank to
make Swingline Loans to the Borrower in an aggregate principal amount at any one
time outstanding not to exceed $50,000,000.
"Swingline Loan" means a loan made by the Swingline Bank pursuant to
Section 2.18(a).
"Swingline Loan Availability Period" means the period from and
including the Effective Date to but excluding the Swingline Maturity Date.
"Swingline Maturity Date" means the day that is 30 days before the
Termination Date.
"Swingline Note" means a promissory note of the Borrower,
substantially in the form of Exhibit B hereto, evidencing the obligation of the
Borrower to repay the Swingline Loans.
"Termination Date" means April 9, 2002, or, if such day is not a
Euro-Dollar Business Day, the next succeeding Euro-Dollar Business Day.
"Total Borrowed Funds" means at any date the sum,
without duplication, of
(i) Consolidated Debt at such date,
(ii) the present value of operating lease commitments of the
Borrower and its Consolidated Subsidiaries, and
(iii) the present value of third-party operating lease
payments under guarantees entered into after the date hereof by the
Borrower and its Consolidated Subsidiaries.
The present value referred to in clause (ii) of this definition shall be deemed
to be $2,036,000,000 (being the "present value of operating lease commitments"
of the
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Borrower and its Consolidated Subsidiaries at January 25, 1997) until the first
officer's certificate to be delivered pursuant to Section 5.01(e) is delivered,
and thereafter shall be deemed to be the amount set forth as the present value
of operating lease commitments at the end of the applicable Fiscal Year in the
officer's certificate delivered most recently pursuant to Section 5.01(e). The
present value referred to in clause (iii) of this definition shall be deemed to
be zero until the first officer's certificate to be delivered pursuant to
Section 5.01(e) is delivered, and thereafter shall be deemed to be the amount
set forth as the present value of third-party operating lease payments
guaranteed by the Borrower and its Consolidated Subsidiaries at the end of the
applicable Fiscal Year in the officer's certificate delivered most recently
pursuant to Section 5.01(e).
"Total Capitalization" means at any date the sum of (i) Total
Borrowed Funds at such date and (ii) Consolidated Tangible Net Worth at such
date.
"Total Commitments" means, at any time, the aggregate amount of the
Commitments (whether used or unused) at such time.
"Total Usage" means, at any time, the sum of (i) the aggregate
outstanding principal amount of all Loans and Swingline Loans and (ii) the
Aggregate LC Exposure, all determined at such time.
"UCP" means the Uniform Customs and Practice for Documentary Credits
(1993 Revision), International Chamber of Commerce Publication No. 500, as the
same may be revised or amended from time to time.
"Unfunded Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the value of all benefit liabilities under such
Plan, determined on a plan termination basis using the assumptions prescribed by
the PBGC for purposes of Section 4044 of ERISA, exceeds (ii) the fair market
value of all Plan assets allocable to such liabilities under Title IV of ERISA
(excluding any accrued but unpaid contributions), all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of a member of the ERISA Group to the
PBGC or any other Person under Title IV of ERISA.
"United States" means the United States of America, including the
States thereof and the District of Columbia, but excluding its territories and
possessions.
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SECTION 1.02. Accounting Terms and Determinations. Unless otherwise
specified herein, all accounting terms used herein shall be interpreted, all
accounting determinations hereunder shall be made, and all financial statements
required to be delivered hereunder shall be prepared, in accordance with
generally accepted accounting principles as in effect from time to time, applied
on a basis consistent (except for changes concurred in by the Borrower's
independent public accountants) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks; provided that if the Borrower notifies the Administrative Agent
that the Borrower wishes to amend any provision hereof to eliminate the effect
of any change in generally accepted accounting principles on the operation of
such provision (or if the Administrative Agent notifies the Borrower that the
Required Banks wish to amend any provision hereof for such purpose), then such
provision shall be applied on the basis of generally accepted accounting
principles in effect immediately before the relevant change in generally
accepted accounting principles became effective, until either such notice is
withdrawn or such provision is amended in a manner satisfactory to the Borrower
and the Required Banks.
SECTION 1.03. Types of Borrowings. The term "Borrowing" denotes the
aggregation of Loans of one or more Banks to be made to the Borrower pursuant to
Article II on the same date, all of which Loans are of the same type (subject to
Article VIII) and, except in the case of Base Rate Loans, have the same Interest
Period or initial Interest Period. Borrowings are classified for purposes of
this Agreement either by reference to the pricing of Loans comprising such
Borrowing (e.g., a "Euro-Dollar Borrowing" is a Borrowing comprised of
Euro-Dollar Loans) or by reference to the provisions of Article II under which
participation therein is determined (i.e., a "Committed Borrowing" is a
Borrowing under Section 2.01 in which all Banks participate in proportion to
their Commitments, while a "Money Market Borrowing" is a Borrowing under Section
2.03 in which the Bank participants are determined on the basis of their bids).
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ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Lend. Each Bank severally agrees, on
the terms and conditions set forth in this Agreement, to make loans to the
Borrower pursuant to this Section from time to time on and after the Effective
Date and prior to the Termination Date; provided that, immediately after each
such loan is made (and after giving effect to any substantially concurrent
application of the proceeds thereof to repay outstanding Loans and Swingline
Loans):
(i) such Bank's Outstanding Committed Amount shall not exceed its
Commitment; and
(ii) the Total Usage shall not exceed the Total Commitments.
Each Borrowing under this Section shall be in an aggregate principal amount of
$25,000,000 or any larger multiple of $1,000,000; provided that (x) any such
Borrowing may be in an aggregate amount equal to the aggregate unused amount of
the Commitments and (y) if such Borrowing is made on the Swingline Maturity
Date, such Borrowing may be in the aggregate amount of the Swingline Loans
outstanding on such date. Each such Borrowing shall be made from the several
Banks ratably in proportion to their respective Commitments. Within the
foregoing limits, the Borrower may borrow under this Section , prepay Loans to
the extent permitted by Section 2.12, and reborrow under this Section at any
time prior to the Termination Date.
SECTION 2.02. Notice of Committed Borrowing. The Borrower shall give
the Administrative Agent notice (a "Notice of Committed Borrowing") not later
than 11:00 A.M. (New York City time) on (x) the date of each Base Rate
Borrowing, (y) the second Domestic Business Day before each CD Borrowing and (z)
the third Euro-Dollar Business Day before each Euro-Dollar Borrowing,
specifying:
(a) the date of such Borrowing, which shall be a Domestic Business
Day in the case of a Domestic Borrowing or a Euro-Dollar Business Day in
the case of a Euro-Dollar Borrowing,
(b) the aggregate amount of such Borrowing,
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(c) whether the Loans comprising such Borrowing are to bear interest
initially at the Base Rate, a CD Rate or a Euro-Dollar Rate, and
(d) if such Borrowing is a CD Borrowing or Euro Dollar Borrowing,
the duration of the initial Interest Period applicable thereto, subject to
the provisions of the definition of Interest Period.
SECTION 2.03. Money Market Borrowings.
(a) The Money Market Option. In addition to Committed Borrowings
pursuant to Section 2.01, the Borrower may, as set forth in this Section,
request the Banks to make offers to make Money Market Loans to the Borrower from
time to time prior to the Termination Date. The Banks 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.
(b) Money Market Quote Request. When the Borrower wishes to request
offers to make Money Market Loans under this Section , it shall transmit to the
Administrative Agent by telex or facsimile transmission a Money Market Quote
Request so as to be received no later than 11:00 A.M. (New York City time) on
(x) the fifth Euro-Dollar Business Day prior to the date of Borrowing proposed
therein, in the case of a LIBOR Auction or (y) the Domestic Business Day next
preceding the date of Borrowing proposed therein, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Borrower and
the Administrative Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective) specifying:
(i) the proposed date of Borrowing, which shall be a Euro-Dollar
Business Day in the case of a LIBOR Auction or a Domestic Business Day in
the case of an Absolute Rate Auction,
(ii) the aggregate amount of such Borrowing, which shall be
$25,000,000 or a larger multiple of $1,000,000,
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of Interest Period, and
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(iv) whether the Money Market Quotes requested are to set forth a
Money Market Margin or a Money Market Absolute Rate.
The Borrower may request offers to make Money Market Loans for more than one
Interest Period in a single Money Market Quote Request. No Money Market Quote
Request shall be given within five Euro-Dollar Business Days (or such other
number of days as the Borrower and the Administrative Agent may agree) of any
other Money Market Quote Request.
(c) Invitation for Money Market Quotes. Promptly upon receipt of a
Money Market Quote Request, the Administrative Agent shall send to the Banks by
telex or facsimile transmission an Invitation for Money Market Quotes, which
shall constitute an invitation by the Borrower to each Bank to submit Money
Market Quotes offering to make the Money Market Loans to which such Money Market
Quote Request relates in accordance with this Section.
(d) Submission and Contents of Money Market Quotes. (i) Each Bank
may submit a Money Market Quote containing an offer or offers to make Money
Market Loans in response to any Invitation for Money Market Quotes. Each Money
Market Quote must comply with the requirements of this subsection (d) and must
be submitted to the Administrative Agent by telex or facsimile transmission at
its offices specified in or pursuant to Section 9.01 not later than (x) 2:00
P.M. (New York City time) on the fourth Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) 9:30 A.M. (New
York City time) on the proposed date of Borrowing, in the case of an Absolute
Rate Auction (or, in either case, such other time or date as the Borrower and
the Administrative Agent shall have mutually agreed and shall have notified to
the Banks not later than the date of the Money Market Quote Request for the
first LIBOR Auction or Absolute Rate Auction for which such change is to be
effective); provided that Money Market Quotes submitted by the Administrative
Agent (or any affiliate of the Administrative Agent) in the capacity of a Bank
may be submitted, and may only be submitted, if the Administrative Agent or such
affiliate notifies the Borrower of the terms of the offer or offers contained
therein not later than (x) one hour prior to the deadline for the other Banks,
in the case of a LIBOR Auction or (y) 15 minutes prior to the deadline for the
other Banks, in the case of an Absolute Rate Auction. Subject to Articles III
and VI, any Money Market Quote so made shall be irrevocable except with the
written consent of the Administrative Agent given on the instructions of the
Borrower.
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(ii) Each Money Market Quote shall be in substantially the form of
Exhibit E hereto and shall in any case specify:
(A) the proposed date of Borrowing,
(B) the principal amount of the Money Market Loan for which each
such offer is being made, which principal amount (w) may be greater than
or less than the Commitment of the quoting Bank, (x) must be $5,000,000 or
a larger multiple of $1,000,000, (y) may not exceed the principal amount
of Money Market Loans for which offers were requested and (z) may be
subject to an aggregate limitation as to the principal amount of Money
Market Loans for which offers being made by such quoting Bank may be
accepted,
(C) in the case of a LIBOR Auction, the margin above or below the
applicable London Interbank Offered Rate (the "Money Market Margin")
offered for each such Money Market Loan, expressed as a percentage
(specified to the nearest 1/10,000th of 1%) to be added to or subtracted
from such base rate,
(D) in the case of an Absolute Rate Auction, the rate of interest
per annum (specified to the nearest 1/10,000th of 1%) (the "Money Market
Absolute Rate") offered for each such Money Market Loan, and
(E) the identity of the quoting Bank.
A Money Market Quote may set forth up to five separate offers by the quoting
Bank with respect to each Interest Period specified in the related Invitation
for Money Market Quotes.
(iii) Any Money Market Quote shall be disregarded if it:
(A) is not substantially in conformity with Exhibit E hereto or does
not specify all of the information required by subsection (d)(ii);
(B) contains qualifying, conditional or similar language, except an
aggregate limitation permitted by subsection (d)(ii)(B)(z);
(C) proposes terms other than or in addition to those set forth in
the applicable Invitation for Money Market Quotes; or
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(D) arrives after the time set forth in subsection (d)(i).
(e) Notice to Borrower. The Administrative Agent shall promptly
notify the Borrower of the terms (x) of any Money Market Quote submitted by a
Bank that is in accordance with subsection (d) and (y) of any Money Market Quote
that amends, modifies or is otherwise inconsistent with a previous Money Market
Quote submitted by such Bank with respect to the same Money Market Quote
Request. Any such subsequent Money Market Quote shall be disregarded by the
Administrative Agent unless such subsequent Money Market Quote is submitted
solely to correct a manifest error in such former Money Market Quote. The
Administrative Agent's notice to the Borrower shall specify (A) the aggregate
principal amount of Money Market Loans for which offers have been received for
each Interest Period specified in the related Money Market Quote Request, (B)
the respective principal amounts and Money Market Margins or Money Market
Absolute Rates, as the case may be, so offered and (C) if applicable,
limitations on the aggregate principal amount of Money Market Loans for which
offers in any single Money Market Quote may be accepted.
(f) Acceptance and Notice by Borrower. Not later than 10:30 A.M.
(New York City time) on (x) the third Euro-Dollar Business Day prior to the
proposed date of Borrowing, in the case of a LIBOR Auction or (y) the proposed
date of Borrowing, in the case of an Absolute Rate Auction (or, in either case,
such other time or date as the Borrower and the Administrative Agent shall have
mutually agreed and shall have notified to the Banks not later than the date of
the Money Market Quote Request for the first LIBOR Auction or Absolute Rate
Auction for which such change is to be effective), the Borrower shall notify the
Administrative Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection (e). In the case of acceptance, such
notice (a "Notice of Money Market Borrowing") shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part; provided that:
(i) the aggregate principal amount of each Money Market Borrowing
may not exceed the applicable amount set forth in the related Money Market
Quote Request,
(ii) the principal amount of each Money Market Borrowing must be
$25,000,000 or a larger multiple of $1,000,000,
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(iii) acceptance of offers may only be made on the basis of ascending
Money Market Margins or Money Market Absolute Rates, as the case may be,
(iv) the Borrower may not accept any offer that is described in
subsection (d)(iii) or that otherwise fails to comply with the
requirements of this Agreement, and
(v) immediately after such Money Market Borrowing is made (and after
giving effect to any substantially concurrent application of the proceeds
thereof to repay outstanding Loans and Swingline Loans), the Total Usage
shall not exceed the Total Commitments.
(g) Allocation by Administrative Agent. If offers are made by two or
more Banks with the same Money Market Margins or Money Market Absolute Rates, as
the case may be, for a greater aggregate principal amount than the amount in
respect of which such offers are accepted for the related Interest Period, the
principal amount of Money Market Loans in respect of which such offers are
accepted shall be allocated by the Administrative Agent among such Banks as
nearly as possible (in multiples of $1,000,000, as the Administrative Agent may
deem appropriate) in proportion to the aggregate principal amounts of such
offers. Determinations by the Administrative Agent of the amounts of Money
Market Loans shall be conclusive in the absence of manifest error.
SECTION 2.04. Notice to Banks; Funding of Loans.
(a) Upon receipt of a Notice of Borrowing, the Administrative Agent
shall promptly notify each Bank of the contents thereof and of such Bank's share
(if any) of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(b) Not later than 1:00 P.M. (New York City time) on the date of
each Borrowing, each Bank participating therein shall make available its share
of such Borrowing, in Federal or other funds immediately available in New York
City, to the Administrative Agent at its address referred to in Section 9.01.
Unless the Administrative Agent determines that any applicable condition
specified in Article III has not been satisfied (which determination may, in the
case of Section 3.02 (c), be based in part on information supplied by the LC
Agent on the date of such Borrowing as to the Aggregate LC Exposure on such
date), the Administrative Agent shall (i) apply the funds so received from the
Banks to repay all Swingline Loans (if any) then outstanding,
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together with interest accrued thereon and any other associated expenses, and
(ii) make the remainder of such funds available to the Borrower not later than
2:00 P.M. (New York City time) at the Administrative Agent's aforesaid address.
(c) Unless the Administrative Agent shall have received notice from
a Bank prior to the date of any Borrowing that such Bank will not make available
to the Administrative Agent such Bank's share of such Borrowing, the
Administrative Agent may assume that such Bank has made such share available to
the Administrative Agent on the date of such Borrowing in accordance with
subsection (b) of this Section 2.04 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Bank shall not have so made
such share available to the Administrative Agent, such Bank and the Borrower
severally agree to repay to the Administrative Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the date
such amount is made available to the Borrower until the date such amount is
repaid to the Administrative Agent, at (i) in the case of the Borrower, a rate
per annum equal to the higher of the Federal Funds Rate and the interest rate
applicable thereto pursuant to Section 2.07 and (ii) in the case of such Bank,
the Federal Funds Rate. If such Bank shall repay to the Administrative Agent
such corresponding amount, such amount so repaid shall constitute such Bank's
Loan included in such Borrowing for purposes of this Agreement.
SECTION 2.05. Notes. (a) The Loans of each Bank shall be evidenced
by a single Note payable to the order of such Bank for the account of its
Applicable Lending Office in an amount equal to the aggregate unpaid principal
amount of such Bank's Loans.
(b) Each Bank may, by notice to the Borrower and the Administrative
Agent, request that its Loans of a particular type be evidenced by a separate
Note in an amount equal to the aggregate unpaid principal amount of such Loans.
Each such Note shall be in substantially the form of Exhibit A hereto with
appropriate modifications to reflect the fact that it evidences solely Loans of
the relevant type. Each reference in this Agreement to the "Note" of such Bank
shall be deemed to refer to and include any or all of such Notes, as the context
may require.
(c) Upon receipt of each Bank's Note pursuant to Section 3.01(b),
the Administrative Agent shall forward such Note to such Bank. Each Bank shall
record the date and
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amount of each Loan made by it and the date and amount of each payment of
principal made by the Borrower with respect thereto, and may, if such Bank so
elects in connection with any transfer or enforcement of its Note, endorse on
the schedule forming a part thereof appropriate notations to evidence the
foregoing information with respect to each such Loan then outstanding; provided
that neither the failure by any Bank to make any such recordation or
endorsement, nor any error therein, shall affect the obligations of the Borrower
hereunder or under the Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Note and to attach to and make a part of its Note a
continuation of any such schedule as and when required.
SECTION 2.06. Maturity of Loans. (a) Each Committed Loan shall
mature, and the principal amount thereof shall be due and payable, on the
Termination Date.
(b) Each Money Market Loan included in any Money Market Borrowing
shall mature and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.07. Interest Rates. (a) Each Base Rate Loan shall bear
interest on the outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due or is converted, at a rate per annum
equal to the Base Rate for such day. Subject to Section 2.06, such interest
shall be payable for each calendar month in arrears on the last Domestic
Business Day thereof and, with respect to the principal amount of any Base Rate
Loan converted to a CD Loan or a Euro-Dollar Loan, on the date such principal
amount is so converted. Any overdue principal of or interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the sum of 2% plus the Base Rate for such day.
(b) Each CD Loan shall bear interest on the outstanding principal
amount thereof, for each day during each Interest Period applicable thereto, at
a rate per annum equal to the sum of the CD Margin for such day plus the
Adjusted CD Rate applicable to such Interest Period; provided that if any CD
Loan or any portion thereof shall, as a result of clause (2)(b) of the
definition of Interest Period, have an Interest Period of less than 30 days,
such portion shall bear interest for each day during such Interest Period at the
rate applicable to Base Rate Loans for such day. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period is
longer than 90 days, 90 days after the
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first day thereof. Any overdue principal of or interest on any CD Loan shall
bear interest, payable on demand, for each day until paid at a rate per annum
equal to the sum of 2% plus the higher of (i) the sum of the CD Margin for such
day plus the Adjusted CD Rate applicable to such Loan immediately before such
payment became due and (ii) the Base Rate for such day.
"CD Margin" means a rate per annum determined in accordance with the
Pricing Schedule.
The "Adjusted CD Rate" applicable to any Interest Period means a
rate per annum determined pursuant to the following formula:
[ CDBR ]*
ACDR = [ ---------- ] + AR
[ 1.00 - DRP ]
ACDR = Adjusted CD Rate
CDBR = CD Base Rate
DRP = Domestic Reserve Percentage
AR = Assessment Rate
----------
* The amount in brackets being rounded upward, if necessary, to the next
higher 1/100 of 1%
The "CD Base Rate" applicable to any Interest Period is the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the next higher 1/100 of 1%) of the prevailing rates
per annum bid at 10:00 A.M. (New York City time) (or as soon thereafter as
practicable) on the first day of such Interest Period by two or more New York
certificate of deposit dealers of recognized standing for the purchase at face
value from each CD Reference Bank of its certificates of deposit in an amount
comparable to the principal amount of the CD Loan of such CD Reference Bank to
which such Interest Period applies and having a maturity comparable to such
Interest Period.
"Domestic Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including without limitation any
basic, supplemental or emergency reserves) for a member bank of the Federal
Reserve System in New York
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City with deposits exceeding five billion dollars in respect of new non-personal
time deposits in dollars in New York City having a maturity comparable to the
related Interest Period and in an amount of $100,000 or more. The Adjusted CD
Rate shall be adjusted automatically on and as of the effective date of any
change in the Domestic Reserve Percentage.
"Assessment Rate" means for any day the annual assessment rate in
effect on such day which is payable by a member of the Bank Insurance Fund
classified as adequately capitalized and within supervisory subgroup "A" (or a
comparable successor assessment risk classification) within the meaning of 12
C.F.R. Section 327.4(a) (or any successor provision) to the Federal Deposit
Insurance Corporation (or any successor) for such Corporation's (or such
successor's) insuring time deposits at offices of such institution in the United
States. The Adjusted CD Rate shall be adjusted automatically on and as of the
effective date of any change in the Assessment Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding
principal amount thereof, for each day during each Interest Period applicable
thereto, at a rate per annum equal to the sum of the Euro-Dollar Margin for such
day plus the Adjusted London Interbank Offered Rate applicable to such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three months, three months
after the first day thereof.
"Euro-Dollar Margin" means a rate per annum determined in accordance
with the Pricing Schedule.
The "Adjusted London Interbank Offered Rate" applicable to any
Interest Period means a rate per annum equal to the quotient obtained (rounded
upward, if necessary, to the next higher 1/100 of 1%) by dividing (i) the
applicable London Interbank Offered Rate by (ii) 1.00 minus the Euro-Dollar
Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Interest
Period means the average (rounded upward, if necessary, to the next higher 1/16
of 1%) of the respective rates per annum at which deposits in dollars are
offered to each of the Euro-Dollar Reference Banks in the London interbank
market at approximately 11:00 A.M. (London time) two Euro-Dollar Business Days
before the first day of such Interest Period in an amount approximately equal to
the principal amount of the Euro-Dollar Loan of such Euro-Dollar
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36
Reference Bank to which such Interest Period is to apply and for a period of
time comparable to such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in New York City with deposits exceeding five billion dollars in
respect of "Eurocurrency liabilities" (or in respect of any other category of
liabilities which includes deposits by reference to which the interest rate on
Euro-Dollar Loans is determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any Bank to United
States residents). The Adjusted London Interbank Offered Rate shall be adjusted
automatically on and as of the effective date of any change in the Euro-Dollar
Reserve Percentage.
(d) Any overdue principal of or interest on any Euro-Dollar Loan
shall bear interest, payable on demand, for each day until paid at a rate per
annum equal to the higher of (i) the sum of 2% plus the Euro-Dollar Margin for
such day plus the quotient obtained (rounded upward, if necessary, to the next
higher 1/100 of 1%) by dividing (x) the average (rounded upward, if necessary,
to the next higher 1/16 of 1%) of the respective rates per annum at which one
day (or, if such amount due remains unpaid more than three Euro-Dollar Business
Days, then for such other period of time not longer than three months as the
Administrative Agent may select) deposits in dollars in an amount approximately
equal to such overdue payment due to each of the Euro-Dollar Reference Banks are
offered to such Euro-Dollar Reference Bank in the London interbank market for
the applicable period determined as provided above by (y) 1.00 minus the
Euro-Dollar Reserve Percentage (or, if the circumstances described in clause (a)
or (b) of Section 8.01 shall exist, at a rate per annum equal to the sum of 2%
plus the Base Rate for such day) and (ii) the sum of 2% plus the Euro-Dollar
Margin for such day plus the Adjusted London Interbank Offered Rate applicable
to such Loan immediately before such payment became due.
(e) Subject to Section 8.01, each Money Market LIBOR Loan shall bear
interest on the outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the London Interbank
Offered Rate for such Interest Period (determined in accordance with Section
2.07(c) as if the related Money Market LIBOR Borrowing were a Committed
▇▇▇▇-▇▇▇▇▇▇
▇▇
▇▇
Borrowing) plus (or minus) the Money Market Margin quoted by the Bank making
such Loan in accordance with Section 2.03. Each Money Market Absolute Rate Loan
shall bear interest on the outstanding principal amount thereof, for the
Interest Period applicable thereto, at a rate per annum equal to the Money
Market Absolute Rate quoted by the Bank making such Loan in accordance with
Section 2.03. Such interest shall be payable for each Interest Period on the
last day thereof and, if such Interest Period is longer than three months, at
intervals of three months after the first day thereof. Any overdue principal of
or interest on any Money Market Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the sum of 2% plus the Base
Rate for such day.
(f) The Administrative Agent shall determine each interest rate
applicable to the Loans hereunder. The Administrative Agent shall give prompt
notice to the Borrower and the participating Banks of each rate of interest so
determined, and its determination thereof shall be conclusive in the absence of
manifest error.
(g) Each Reference Bank agrees to use its best efforts to furnish
quotations to the Administrative Agent as contemplated by this Section . If any
Reference Bank does not furnish a timely quotation, the Administrative Agent
shall determine the relevant interest rate on the basis of the quotation or
quotations furnished by the remaining Reference Bank or Banks or, if none of
such quotations is available on a timely basis, the provisions of Section 8.01
shall apply.
SECTION 2.08. Method of Electing Interest Rates. (a) The Loans
included in each Committed Borrowing shall bear interest initially at the type
of rate specified by the Borrower in the applicable Notice of Committed
Borrowing. Thereafter, the Borrower may from time to time elect to change or
continue the type of interest rate borne by each Group of Loans (subject in each
case to the provisions of Article VIII), as follows:
(i) if such Loans are Base Rate Loans, the Borrower may elect to
convert such Loans to CD Loans as of any Domestic Business Day or to
Euro-Dollar Loans as of any Euro-Dollar Business Day;
(ii) if such Loans are CD Loans, the Borrower may elect to convert
such Loans to Base Rate Loans or Euro-Dollar Loans or elect to continue
such Loans as CD Loans for an additional Interest Period, in each case
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effective on the last day of the then current Interest Period applicable
to such Loans; or
(iii) if such Loans are Euro-Dollar Loans, the Borrower may elect to
convert such Loans to Base Rate Loans or CD Loans or elect to continue
such Loans as Euro-Dollar Loans for an additional Interest Period, in each
case effective on the last day of the then current Interest Period
applicable to such Loans.
Each such election shall be made by delivering a notice (a "Notice of Interest
Rate Election") to the Administrative Agent at least three Euro-Dollar Business
Days before the conversion or continuation selected in such notice is to be
effective (unless the relevant Loans are to be converted from Domestic Loans to
Domestic Loans of the other type or continued as Domestic Loans of the same type
for an additional Interest Period, in which case such notice shall be delivered
to the Administrative Agent at least three Domestic Business Days before such
conversion or continuation is to be effective). A Notice of Interest Rate
Election may, if it so specifies, apply to only a portion of the aggregate
principal amount of the relevant Group of Loans; provided that (i) such portion
is allocated ratably among the Loans comprising such Group and (ii) the portion
to which such notice applies, and the remaining portion to which it does not
apply, are each $25,000,000 or any larger multiple of $1,000,000.
(b) Each Notice of Interest Rate Election shall specify:
(i) the Group of Loans (or portion thereof) to which such notice
applies;
(ii) the date on which the conversion or continuation selected in
such notice is to be effective, which shall comply with the applicable
clause of subsection (a) above;
(iii) if the Loans comprising such Group are to be converted, the
new type of Loans and, if such new Loans are CD Loans or Euro-Dollar
Loans, the duration of the initial Interest Period applicable thereto; and
(iv) if such Loans are to be continued as CD Loans or Euro-Dollar
Loans for an additional Interest Period, the duration of such additional
Interest Period.
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Each Interest Period specified in a Notice of Interest Rate Election shall
comply with the provisions of the definition of Interest Period.
(c) Upon receipt of a Notice of Interest Rate Election from the
Borrower pursuant to subsection (a) above, the Administrative Agent shall
promptly notify each Bank of the contents thereof and such notice shall not
thereafter be revocable by the Borrower. If the Borrower fails to deliver a
timely Notice of Interest Rate Election to the Administrative Agent for any
Group of CD Loans or Euro-Dollar Loans, such Loans shall be converted into Base
Rate Loans on the last day of the then current Interest Period applicable
thereto.
SECTION 2.09. Facility Fees. The Borrower shall pay to the
Administrative Agent for the account of each Bank a facility fee, calculated for
each day at the Facility Fee Rate for such day, on the amount of such Bank's
Credit Exposure on such day. Such facility fees shall accrue for each day from
and including the Effective Date to but excluding the day on which the Credit
Exposures are reduced to zero and shall be payable quarterly in arrears on each
September 27, December 27, March 27 and June 27 and on the day on which the
Credit Exposures are reduced to zero.
"Facility Fee Rate" means a rate per annum determined daily in
accordance with the Pricing Schedule.
SECTION 2.10. Optional Termination or Reduction of Commitments.(a)
The Borrower may, without premium or penalty, upon at least three Domestic
Business Days' notice to the Administrative Agent, (i) terminate the Commitments
at any time, if no Bank has an Outstanding Committed Amount at such time or (ii)
ratably reduce the Commitments from time to time, in each case by an aggregate
amount of at least $25,000,000; provided that immediately after such reduction:
(x) no Bank's Outstanding Committed Amount shall exceed its
Commitment as so reduced; and
(y) the Total Usage shall not exceed the Total Commitments.
Upon any such termination or reduction of the Commitments, the Administrative
Agent shall promptly notify each Bank of such termination or reduction.
(b) The Borrower may, upon at least three Domestic Business Days'
notice to the Administrative Agent,
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40
terminate the Swingline Commitment at any time, if no Swingline Loans are
outstanding at such time.
(c) If the Borrower wishes to replace this Agreement with another
credit agreement at any time, the Borrower may, on the date when such other
credit agreement becomes effective, terminate the Commitments hereunder and
prepay any and all Committed Loans and Swingline Loans then outstanding
hereunder; provided that:
(i) the Borrower notifies each Bank as to the possibility of such
termination and such prepayment (if any) at least three Euro-Dollar
Business Days prior thereto;
(ii) the Borrower gives definitive notice of such termination and
such prepayment (if any) to the Administrative Agent before 10:00 A.M.
(New York City time) on the date of such termination;
(iii) all Committed Loans, Swingline Loans and Reimbursement
Obligations outstanding on the date of such termination (together with
accrued interest thereon) are paid in full on such date;
(iv) in connection with any prepayment of Committed Loans or
Swingline Loans on such date, the Borrower complies with the requirements
of subsections (a) and (b) of Section 2.12, Section 2.14 and subsection
(d) of Section 2.18 in all respects except the timing of definitive notice
of such prepayment; and
(v) no Letter of Credit issued hereunder remains outstanding after
the date of such termination unless the LC Agent shall have agreed to
allow such Letter of Credit to remain outstanding after the Commitments
(and the Banks' participations in such Letter of Credit) terminate.
SECTION 2.11. Mandatory Termination of Commitments. (a) The
Commitments shall terminate on the Termination Date and any Committed Loans then
outstanding (together with accrued interest thereon) shall be due and payable on
such date.
(b) The Swingline Commitment shall terminate on the Swingline
Maturity Date and any Swingline Loans then outstanding (together with accrued
interest thereon) shall be due and payable on such date.
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41
SECTION 2.12. Optional and Mandatory Prepayments. (a) The Borrower
may upon at least one Domestic Business Day's notice to the Administrative
Agent, prepay the Base Rate Loans (or any Money Market Borrowing bearing
interest at the Base Rate by reason of clause (a) of Section 8.01) in whole at
any time, or from time to time in part in amounts aggregating $10,000,000 or any
larger multiple of $1,000,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Base Rate Loans of
the several Banks (or the Money Market Loans included in such Money Market
Borrowing).
(b) Subject to Section 2.14, the Borrower may, upon at least two
Domestic Business Days' notice to the Administrative Agent, in the case of a
Group of CD Loans or upon at least three Euro-Dollar Business Days' notice to
the Administrative Agent, in the case of a Group of Euro-Dollar Loans, prepay
the Loans comprising such a Group, in whole at any time, or from time to time in
part in amounts aggregating $10,000,000 or any larger multiple of $1,000,000, by
paying the principal amount to be prepaid together with accrued interest thereon
to the date of prepayment. Each such optional prepayment shall be applied to
prepay ratably the Loans of the several Banks included in such Group.
(c) In connection with any substitution of Banks pursuant to Section
8.06, the Borrower may prepay the Loans of the Bank being replaced, as provided
in clause (ii) of Section 8.06.
(d) Except as provided in Section 2.12(a), the Borrower may not
prepay all or any portion of the principal amount of any Money Market Loan prior
to the maturity thereof.
(e) Upon receipt of a notice of prepayment pursuant to this Section,
the Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share (if any) of such prepayment and such notice
shall not thereafter be revocable by the Borrower.
SECTION 2.13. General Provisions as to Payments. (a) The Borrower
shall make (i) each payment of principal
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of, and interest on, the Loans and of fees hereunder, not later than 12:00 Noon
(New York City time) on the date when due, in Federal or other funds immediately
available in New York City, to the Administrative Agent at its address referred
to in Section 9.01 and (ii) each payment of Reimbursement Obligations and any
other amounts payable in connection with the Letters of Credit in accordance
with the provisions of Section 2.17. The Administrative Agent will promptly
distribute to each Bank its ratable share of each such payment received by the
Administrative Agent for the account of the Banks. Whenever any payment of
principal of, or interest on, the Domestic Loans or Swingline Loans or of fees
or of Reimbursement Obligations shall be due on a day which is not a Domestic
Business Day, the date for payment thereof shall be extended to the next
succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, any Euro-Dollar Loans or Money Market LIBOR Loan shall be due on a
day which is not a Euro-Dollar Business Day, the date for payment thereof shall
be extended to the next succeeding Euro-Dollar Business Day unless such
Euro-Dollar Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Euro-Dollar Business Day.
Whenever any payment of principal of, or interest on, any Money Market Absolute
Rate Loan shall be due on a day which is not a Euro-Dollar Business Day, the
date for payment thereof shall be extended to the next succeeding Euro-Dollar
Business Day. If the date for any payment of principal or any Reimbursement
Obligation is extended by operation of law or otherwise, interest thereon shall
be payable for such extended time.
(b) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to the Banks
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
the Borrower shall not have so made such payment, each Bank shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Bank
together with interest thereon, for each day from the date such amount is
distributed to such Bank until the date such Bank repays such amount to the
Administrative Agent, at the Federal Funds Rate.
SECTION 2.14. Funding Losses. If the Borrower makes any payment of
principal with respect to any Fixed Rate Loan or any such Loan is converted to a
Base Rate Loan
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(pursuant to Article II, VI or VIII or otherwise) on any day other than the last
day of an Interest Period applicable thereto, or the last day of an applicable
period fixed pursuant to Section 2.07(d), or if the Borrower fails to borrow or
prepay any Fixed Rate Loans or fails to continue any CD Loan or Euro-Dollar
Loans for an additional Interest Period or fails to convert any outstanding
Loans to CD Loans or Euro-Dollar Loans, in each case after notice of such
borrowing, prepayment, continuation or conversion has been given to any Bank in
accordance with Section 2.04(a), 2.08(c) or 2.12(e), the Borrower shall
reimburse each Bank within 15 days after demand for any resulting loss or
expense incurred by it (or by an existing or prospective Participant in the
related Loan), including (without limitation) any loss incurred in obtaining,
liquidating or employing deposits from third parties, but excluding loss of
margin for the period after any such payment or conversion or failure to borrow,
prepay, continue or convert, provided that such Bank shall have delivered to the
Borrower a certificate as to the amount of such loss or expense, which
certificate shall be conclusive in the absence of manifest error.
SECTION 2.15. Computation of Interest and Fees. Interest based on
the Prime Rate hereunder shall be computed on the basis of a year of 365 days
(or 366 days in a leap year) and paid for the actual number of days elapsed
(including the first day but excluding the last day). All other interest and
facility fees shall be computed on the basis of a year of 360 days and paid for
the actual number of days elapsed (including the first day but excluding the
last day).
SECTION 2.16. Termination of Existing Credit Agreement. On the
Effective Date the commitments of the Existing Banks under the Existing Credit
Agreement shall terminate and the Borrower shall pay in full the principal of
and accrued interest on all loans then outstanding thereunder and all facility
fees accrued thereunder to but excluding the Effective Date.
SECTION 2.17. Letters of Credit.
(a) Issuance of Letters of Credit. The LC Agent agrees, on the terms
and conditions set forth in this Agreement, to issue Letters of Credit for the
account of the Borrower from time to time during the period from and including
the Effective Date to but excluding the date that is 30 days before the
Termination Date; provided that, immediately after each such Letter of Credit is
issued:
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(i) the Aggregate LC Exposure shall not exceed $200,000,000 (of
which the aggregate amount attributable to standby Letters of Credit will
not exceed $75,000,000);
(ii) in the case of each Bank, its Outstanding Committed Amount
shall not exceed its Commitment; and
(iii) the Total Usage shall not exceed the Total Commitments.
Upon the issuance by the LC Agent of each Letter of Credit pursuant to this
subsection (a), the LC Agent shall be deemed, without further action by any
party hereto, to have sold to each Bank and each Bank shall be deemed, without
further action by any party hereto, to have purchased from the LC Agent, a
participation in such Letter of Credit, on the terms set forth in this Section ,
equal to such Bank's Pro Rata Share thereof.
(b) Expiry Dates. No Letter of Credit shall have an expiry date
later than the fifth Domestic Business Day prior to the Termination Date.
Subject to the preceding sentence:
(i) each Letter of Credit shall, when issued, have an expiry date on
or before the first anniversary of the date on which it is issued; and
(ii) the expiry date of any Letter of Credit may, at the request of
the Borrower, be extended from time to time for a period not exceeding one
year so long as the LC Agent agrees to so extend such Letter of Credit
(or, in the case of an "evergreen" Letter of Credit, its right to give a
notice to prevent the extension thereof expires) no earlier than three
months before the then existing expiry date thereof.
(c) Notice of Proposed Issuance. The Borrower shall give the LC Agent
and the Administrative Agent at least one Domestic Business Day's prior notice
specifying the date each Letter of Credit is to be issued and describing the
proposed terms of such Letter of Credit and the nature of the transactions
proposed to be supported thereby.
(d) Conditions to Issuance. The LC Agent shall not issue any Letter
of Credit unless:
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(i) such Letter of Credit shall be satisfactory in form and
reasonably satisfactory in substance to the LC Agent,
(ii) the Borrower shall have executed and delivered such other
instruments and agreements relating to such Letter of Credit as the LC
Agent shall have reasonably requested,
(iii) the LC Agent shall have determined (based on information
supplied by the Administrative Agent on the date of such issuance as to
the amounts specified in subsection (a) of this Section other than the
Aggregate LC Exposure) that the limitations specified in subsection (a) of
this Section will not be exceeded immediately after such Letter of Credit
is issued, and
(iv) the LC Agent shall not have been notified in writing by the
Borrower, the Administrative Agent or the Required Banks that any
condition specified in clause (c), (d) or (e) of Section 3.02 is not
satisfied on the date such Letter of Credit is to be issued.
(e) Notice of Proposed Extensions of Expiry Dates. The LC Agent
shall give the Administrative Agent at least one Domestic Business Day's notice
prior to extending the expiry date of any Letter of Credit (or, in the case of
an "evergreen" Letter of Credit, allowing it to be extended), specifying (i) the
date on which such extension is to be made and (ii) the date to which such
expiry date is to be so extended. The LC Agent shall not extend (or allow the
extension of) the expiry date of such Letter of Credit if it shall have been
notified by the Borrower or the Administrative Agent (at the request of the
Required Banks) that any condition specified in clause (d) or (e) of Section
3.02 is not satisfied on the date of such extension (or, in the case of an
"evergreen" Letter of Credit, the day when the LC Agent's right to give a notice
preventing such extension expires).
(f) Notice of Actual Issuances, Extensions and Amounts Available for
Drawing. Promptly upon issuing any Letter of Credit or extending the expiry date
of any Letter of Credit (or allowing the expiry date of any "evergreen" Letter
of Credit to be extended), the LC Agent will notify the Administrative Agent of
the date of such Letter of Credit, the amount thereof, the beneficiary or
beneficiaries thereof and the expiry date or extended expiry date thereof.
Within three Domestic Business Days after the end of each calendar month, the LC
Agent shall notify the Administrative Agent and each Bank of (i) the daily
average aggregate
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amount available for drawings (whether or not conditions for drawing thereunder
have been satisfied) under all Letters of Credit outstanding during such month,
(ii) the aggregate amount of letter of credit fees accrued during such month
pursuant to subsection (g) of this Section , (iii) each Bank's Pro Rata Share of
such accrued letter of credit fees and (iv) the aggregate undrawn amount of all
Letters of Credit outstanding at the end of such month.
(g) Fees. The Borrower shall pay to the LC Agent, for the account of
the Banks ratably in accordance with their respective Pro Rata Shares, a letter
of credit fee for each day (i) at the Non-Trade LC Fee Rate on the aggregate
amount available for drawings (whether or not conditions for drawing thereunder
have been satisfied) under all Letters of Credit (other than trade Letters of
Credit) outstanding on such day and (ii) at a rate per annum equal to the
Non-Trade LC Fee Rate less 0.125% on the aggregate amount available for drawings
(whether or not conditions for drawing thereunder have been satisfied) under all
trade Letters of Credit outstanding on such day. Such letter of credit fee shall
be payable quarterly in arrears on the last Domestic Business Day of each
calendar quarter and on the fifth Domestic Business Day before the Termination
Date (or any earlier date on which the Commitments shall have terminated in
their entirety and no Letters of Credit are outstanding). Promptly upon
receiving any payment of such fee, the LC Agent will distribute to each Bank its
Pro Rata Share thereof. In addition, the Borrower shall pay to the LC Agent for
its own account fronting fees and reasonable expenses in the amounts and at the
times agreed between the Borrower and the LC Agent.
(h) Drawings. Upon receipt from the beneficiary of any Letter of
Credit of a demand for payment under such Letter of Credit, the LC Agent shall
determine in accordance with the terms of such Letter of Credit whether such
demand for payment should be honored. If the LC Agent determines that any such
demand for payment should be honored, the LC Agent shall make available to such
beneficiary in accordance with the terms of such Letter of Credit the amount of
the drawing under such Letter of Credit. The LC Agent shall thereupon notify the
Borrower of the amount of such drawing paid by it.
(i) Reimbursement and Other Payments by the Borrower. (1) If any
amount is drawn under any Letter of Credit, the Borrower irrevocably and
unconditionally agrees to reimburse the LC Agent for all amounts paid by the LC
Agent upon such drawing, together with any and all reasonable charges and
expenses which the LC Agent may pay
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or incur relative to such drawing and interest on the amount drawn at the
Federal Funds Rate for each day from and including the date such amount is drawn
to but excluding the date such reimbursement payment is due and payable. Such
reimbursement payment shall be due and payable (x) at or before 1:00 P.M. (New
York City time) on the date the LC Agent notifies the Borrower of such drawing,
if such notice is given at or before 10:00 A.M. (New York City time) on such
date, or (y) at or before 10:00 A.M. (New York City time) on the first Domestic
Business Day after the date such notice is given, if such notice is given after
10:00 A.M. (New York City time) on such date; provided that no payment otherwise
required by this sentence to be made by the Borrower at or before 1:00 P.M. (New
York City time) on any day shall be overdue hereunder if arrangements for such
payment satisfactory to the LC Agent, in its reasonable discretion, shall have
been made by the Borrower at or before 1:00 P.M. (New York City time) on such
day and such payment is actually made at or before 3:00 P.M. (New York City
time) on such day.
(2) In addition, the Borrower agrees to pay to the LC Agent interest on
any and all amounts not paid by the Borrower when due hereunder with respect to
a Letter of Credit, for each day from and including the date when such amount
becomes due to but excluding the date such amount is paid in full, whether
before or after judgment, payable on demand, at a rate per annum equal to the
sum of 2% plus the Base Rate for such day.
(3) Each payment to be made by the Borrower pursuant to this subsection
(i) shall be made to the LC Agent in Federal or other funds immediately
available to it at its address referred to in Section 9.01.
(j) Payments by Banks with Respect to Letters of Credit. (1) If the
Borrower fails to reimburse the LC Agent as and when required by subsection (i)
above for all or any portion of any amount drawn under a Letter of Credit, the
LC Agent may notify each Bank of such unreimbursed amount and request that each
Bank reimburse the LC Agent for such Bank's Pro Rata Share thereof. Upon
receiving such notice from the LC Agent, each Bank shall make available to the
LC Agent, at its address referred to in Section 9.01, an amount equal to such
Bank's share of such unreimbursed amount as set forth in such notice, in Federal
or other funds immediately available to the LC Agent, by 3:00 P.M. (New York
City time) on the Domestic Business Day following such Bank's receipt of such
notice from the LC Agent, together with interest on such amount for each day
from and including the date of such drawing to but excluding the day
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such payment is due from such Bank at the Federal Funds Rate for such day. Upon
payment in full thereof, such Bank shall be subrogated to the rights of the LC
Agent against the Borrower to the extent of such Bank's Pro Rata Share of the
related Reimbursement Obligation (including interest accrued thereon). Nothing
in this subsection (j) shall affect any rights any Bank may have against the LC
Agent for any action or omission for which the LC Agent is not indemnified under
subsection (n) of this Section .
(2) If any Bank fails to pay any amount required to be paid by it
pursuant to clause (1) of this subsection (j) on the date on which such payment
is due, interest shall accrue on such Bank's obligation to make such payment,
for each day from and including the date such payment became due to but
excluding the date such Bank makes such payment, whether before or after
judgment, at a rate per annum equal to the Federal Funds Rate for such day. Any
payment made by any Bank after 3:00 P.M. (New York City time) on any Domestic
Business Day shall be deemed for purposes of the preceding sentence to have been
made on the next succeeding Domestic Business Day.
(3) If the Borrower shall reimburse the LC Agent for any drawing
with respect to which any Bank shall have made funds available to the LC Agent
in accordance with clause (1) of this subsection (j), the LC Agent shall
promptly upon receipt of such reimbursement distribute to such Bank its Pro Rata
Share thereof, including interest, to the extent received by the LC Agent.
(k) Exculpatory Provisions. The Borrower's obligations under this
Section shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against the LC Agent, any Bank, the beneficiary of
any Letter of Credit or any other Person. The Borrower assumes all risks of the
acts or omissions of any beneficiary of any Letter of Credit with respect to its
use of such Letter of Credit. None of the LC Agent, the Banks and their
respective officers, directors, employees and agents shall be responsible for,
and the obligations of each Bank to make payments to the LC Agent and of the
Borrower to reimburse the LC Agent for drawings pursuant to this Section (other
than obligations resulting solely from the gross negligence or willful
misconduct of the LC Agent) shall not be excused or affected by, among other
things, (i) the use which may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (ii) the
validity, sufficiency or genuineness of documents presented under any
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Letter of Credit or of any endorsements thereon, even if such documents should
in fact prove to be in any or all respects invalid, insufficient, fraudulent or
forged (and notwithstanding any assertion to such effect by the Borrower); (iii)
payment by the LC Agent against presentation of documents to it which do not
comply with the terms of the relevant Letter of Credit; (iv) any dispute between
or among the Borrower, any of its Subsidiaries, the beneficiary of any Letter of
Credit or any other Person or any claims or defenses whatsoever of the Borrower,
any of its Subsidiaries or any other Person against the beneficiary of any
Letter of Credit; (v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or prospects of the
Borrower and its Subsidiaries taken as a whole; (vi) any breach of this
Agreement by any party hereto (except, in the case of the LC Agent, a breach
resulting solely from its gross negligence or willful misconduct); (vii) any
other circumstance or happening whatsoever, whether or not similar to any of the
foregoing; (viii) the fact that a Default shall have occurred and be continuing;
or (ix) the fact that the Termination Date shall have passed or the Commitments
shall have terminated. The LC Agent shall not be liable for any error, omission,
interruption or delay in transmission, dispatch or delivery of any message or
advice, however transmitted, in connection with any Letter of Credit. Any action
taken or omitted by the LC Agent or any Bank under or in connection with any
Letter of Credit and the related drafts and documents, if done without willful
misconduct or gross negligence, shall be binding upon the Borrower and shall not
place the LC Agent or any Bank under any liability to the Borrower.
(l) Reliance, Etc. The LC Agent shall be entitled (but not
obligated) to rely, and shall be fully protected in relying, on the
representation and warranty by the Borrower set forth in the last sentence of
Section 3.02 to establish whether the conditions specified in clauses (c), (d)
and (e) of Section 3.02 are met in connection with any issuance or extension of
a Letter of Credit, unless the LC Agent shall have been notified to the contrary
by the Administrative Agent or the Required Banks (in which event the LC Agent
shall be fully protected in relying on such notice). The rights and obligations
of the LC Agent under each Letter of Credit issued by it shall be governed by
the provisions thereof and the provisions of the UCP and/or the Uniform
Commercial Code referred to therein or otherwise applicable thereto.
(m) Indemnification by the Borrower. The Borrower agrees to
indemnify and hold harmless each Bank and
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the LC Agent (collectively, the "LC Indemnitees") from and against any and all
claims and damages, losses, liabilities, costs or expenses (including, without
limitation, the reasonable fees and disbursements of counsel) which any such LC
Indemnitee may reasonably incur (or which may be claimed against any such LC
Indemnitee by any Person whatsoever) by reason of or in connection with the
execution and delivery or transfer of or payment or failure to pay under any
Letter of Credit or any actual or proposed use of any Letter of Credit,
including any claims, damages, losses, liabilities, costs or expenses which the
LC Agent may incur by reason of or in connection with the failure of any Bank to
fulfill or comply with its obligations to the LC Agent hereunder; provided that
the Borrower shall not be required to indemnify the LC Agent for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (i) the willful misconduct or gross negligence of the LC Agent
in determining whether a request presented under any Letter of Credit issued by
it complied with the terms of such Letter of Credit or (ii) the LC Agent's
failure to pay under any Letter of Credit issued by it after the presentation to
it of a request strictly complying with the terms and conditions of such Letter
of Credit (unless such payment is enjoined or otherwise prevented by order of a
court or other governmental authority). Nothing in this subsection (m) is
intended to change the obligations of the Borrower under any other provision of
this Section .
(n) Indemnification by the Banks. The Banks shall, ratably in
accordance with their respective Pro Rata Shares, indemnify the LC Agent, its
affiliates and their respective directors, officers, agents and employees (to
the extent not reimbursed by the Borrower) against any cost, expense (including
fees and disbursements of counsel), claim, demand, action, loss or liability
(except such as result from the LC Agent's gross negligence or willful
misconduct or the LC Agent's failure to pay, unless such payment is enjoined or
otherwise prevented by order of a court or other governmental authority, under
any Letter of Credit issued by it after the presentation to it of a request
strictly complying with the terms and conditions of such Letter of Credit) that
any such indemnitee may suffer or incur in connection with this Agreement or any
action taken or omitted by such indemnitee under this Agreement.
(o) Dual Capacities. In its capacity as a Bank, the LC Agent shall
have the same rights and obligations under this Section as any other Bank.
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SECTION 2.18. Swingline Loans. (a) Swingline Commitment. The
Swingline Bank agrees, on the terms and conditions set forth in this Agreement,
to make loans to the Borrower pursuant to this Section from time to time during
the Swingline Loan Availability Period; provided that immediately after each
such loan is made (and after giving effect to any substantially concurrent
application of the proceeds thereof to repay outstanding Loans):
(i) the aggregate outstanding principal amount of the Swingline
Loans shall not exceed the Swingline Commitment,
(ii) in the case of each Bank, its Outstanding Committed Amount
shall not exceed its Commitment, and
(iii) the Total Usage shall not exceed the Total Commitments.
Each loan under this Section shall (x) be in a principal amount not less than
$500,000 and shall be in a multiple of $100,000 and (y) bear interest on the
outstanding principal amount thereof for each day from the date such loan is
made until it becomes due at such rate or rates per annum (which shall in no
event be greater than the Base Rate for such day), and be payable on such dates,
as shall be agreed upon from time to time by the Borrower and the Swingline
Bank. Within the foregoing limits, the Borrower may borrow under this Section ,
repay Swingline Loans and reborrow under this Section at any time during the
Swingline Loan Availability Period. If the Swingline Bank and the Borrower are
unable, for any reason, to agree on the interest rate or interest payment date
or dates applicable to any Swingline Loan, the Swingline Bank shall not be
obligated to make, and the Borrower shall not be obligated to borrow, such
Swingline Loan. The Swingline Loans shall be evidenced by the Swingline Note.
(b) Notice of Swingline Borrowing. The Borrower shall give the
Swingline Bank notice (a "Notice of Swingline Borrowing") not later than 2:00
P.M. (New York City time) on the date of each borrowing of a Swingline Loan,
specifying (i) the date of such borrowing, which shall be a Domestic Business
Day, and (ii) the amount of such Swingline Loan.
(c) Funding of Swingline Loans. Not later than 3:00 P.M. (New York
City time) on the date of each borrowing of a Swingline Loan, the Swingline Bank
shall, unless the Swingline Bank determines that any applicable condition
specified in Article III (which determination may, in the case of Section
3.02(c), be based in part on information
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supplied by the LC Agent on the date of such borrowing as to the Aggregate LC
Exposure on such date and on information supplied by the Administrative Agent as
to the aggregate outstanding principal amount of the Loans on such date) has not
been satisfied, make available the amount of such Swingline Loan, in Federal or
other funds immediately available in New York City, to the Borrower at the
Swingline Bank's address referred to in Section 9.01.
(d) Optional Prepayment of Swingline Loans. The Borrower may prepay
the Swingline Loans in whole at any time, or from time to time in part in a
principal amount of at least $500,000, by giving notice of such prepayment to
the Swingline Bank not later than 2:00 P.M. (New York City time) on the date of
prepayment and paying the principal amount to be prepaid (together with (i)
interest accrued thereon to the date of prepayment and (ii) the loss or expense
(if any) resulting from such prepayment which is incurred by the Swingline Bank
(or by an existing or prospective participant in the Swingline Loans) and
documented by the Swingline Bank) to the Swingline Bank at its address referred
to in Section 9.01, in Federal or other funds immediately available in New York
City, not later than 3:00 P.M. on the date of prepayment.
(e) Mandatory Prepayment of Swingline Loans. On the date of each
Borrowing pursuant to Section 2.01 or 2.03, the Borrower shall prepay all
Swingline Loans then outstanding, together with (i) interest accrued thereon to
the date of prepayment and (ii) the loss or expense (if any) resulting from such
prepayment which is incurred by the Swingline Bank (or by an existing or
prospective participant in the Swingline Loans) and documented by the Swingline
Bank.
(f) Refunding Unpaid Swingline Loans. The Swingline Bank may at any
time, by notice to the Banks (including the Swingline Bank, in its capacity as a
Bank), require each Bank to pay to the Swingline Bank an amount equal to such
Bank's Pro Rata Share of the aggregate unpaid principal amount of the Swingline
Loans then outstanding. Such notice shall specify the date on which such
payments are to be made, which shall be the first Domestic Business Day after
such notice is given. Not later than 12:00 Noon (New York City time) on the date
so specified, each Bank shall pay the amount so notified to it to the Swingline
Bank at its address referred to in Section 9.01, in Federal or other funds
immediately available in New York City. The amount so paid by each Bank shall
constitute a Base Rate Loan to the Borrower; provided that, if the Banks are
prevented from making such Loans to the Borrower by the
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provisions of the United States Bankruptcy Code or otherwise, the amount so paid
by each Bank shall constitute a purchase by it of a participation in the unpaid
principal amount of the Swingline Loans (and interest accruing thereon after the
date of such payment). Each Bank's obligation to make such payment to the
Swingline Bank under this subsection (f) shall be absolute and unconditional and
shall not be affected by any circumstance, including, without limitation, (i)
any set-off, counterclaim, recoupment, defense or other right which such Bank or
any other Person may have against the Swingline Bank or the Borrower, (ii) the
occurrence or continuance of a Default or the termination of the Commitments,
(iii) any adverse change in the condition (financial or otherwise) of the
Borrower or any other Person, (iv) any breach of this Agreement by the Borrower
or any other Bank or (v) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing; provided that no Bank shall be
obligated to make any payment to the Swingline Bank under this subsection (f)
with respect to a Swingline Loan made by the Swingline Bank at a time when the
Swingline Bank has determined that a Default had occurred and was continuing.
ARTICLE III
CONDITIONS
SECTION 3.01. Effectiveness of this Agreement; Closing. This
Agreement shall become effective, and the closing hereunder shall occur, when
the Administrative Agent shall have received the following:
(a) a counterpart hereof signed by each party listed on the
signature pages hereof or facsimile or other written confirmation
satisfactory to the Administrative Agent that each such party has signed a
counterpart hereof;
(b) a duly executed Note for the account of each Bank complying with
the provisions of Section 2.05 and a duly executed Swingline Note for the
account of the Swingline Bank, each dated the Effective Date;
(c) an opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special
counsel for the Borrower, substantially in the form of Exhibit F hereto,
dated the Effective Date and covering such additional matters relating to
the transactions contemplated hereby as the Required Banks may reasonably
request;
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(d) an opinion of ▇▇▇▇ ▇. ▇▇▇▇▇▇, General Counsel of the Borrower,
substantially in the form of Exhibit G hereto, dated the Effective Date
and covering such additional matters relating to the transactions
contemplated hereby as the Required Banks may reasonably request;
(e) an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, special counsel for the
Arranger and Syndication Agent, substantially in the form of Exhibit H
hereto, dated the Effective Date and covering such additional matters
relating to the transactions contemplated hereby as the Required Banks may
reasonably request;
(f) evidence satisfactory to the Administrative Agent that the
commitments of the Existing Banks under the Existing Credit Agreement have
terminated and the Borrower has paid (or made arrangements satisfactory to
the Administrative Agent for the payment of) all amounts required to be
paid by the Borrower on the Effective Date pursuant to Section 2.16; and
(g) all documents that the Administrative Agent may reasonably
request relating to the existence of the Borrower, the corporate authority
for and the validity of this Agreement, the Notes and the Swingline Note,
and any other matters relevant hereto, all in form and substance
satisfactory to the Administrative Agent.
The Administrative Agent shall promptly notify the Borrower and the Banks of the
Effective Date, and such notice shall be conclusive and binding on all parties
hereto.
SECTION 3.02. Extensions of Credit. The obligation (i) of any Bank
to make a Loan on the occasion of any Borrowing (other than a Loan pursuant to
Section 2.18(f)), (ii) of the Swingline Bank to make any Swingline Loan and
(iii) of the LC Agent to issue or extend (or allow the extension of) the expiry
date of any Letter of Credit are each subject to the satisfaction of the
following conditions:
(a) the fact that the Effective Date shall have occurred on or prior
to May 1, 1997;
(b) receipt (i) by the Administrative Agent of a Notice of Borrowing
as required by Section 2.02 or 2.03, (ii) by the Swingline Bank of a
Notice of Swingline Borrowing as required by Section 2.18(b) or (iii) by
the LC Agent of a notice of proposed issuance
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or extension as required by Section 2.17(c) or (e), as the case may be;
(c) the fact that, immediately after such Extension of Credit, the
applicable limitations in Section 2.01, 2.03(f), 2.17(a) or 2.18(a), as
the case may be, shall not be exceeded;
(d) the fact that, immediately before and after such Extension of
Credit, no Default shall have occurred and be continuing; and
(e) the fact that each of the representations and warranties of the
Borrower contained in this Agreement shall be true on and as of the date
of such Extension of Credit.
Each Extension of Credit hereunder shall be deemed to be a representation and
warranty by the Borrower on the date of such Extension of Credit as to the facts
specified in clauses (c), (d) and (e) of this Section .
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The Borrower is a
corporation duly incorporated, validly existing and in good standing under the
laws of the State of New York, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted, except where failures to possess such
licenses, authorizations, consents and approvals could not, in the aggregate,
reasonably be expected to result in a Material Adverse Effect.
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention. The execution, delivery and performance by the Borrower of this
Agreement, the Notes and the Swingline Note are within the Borrower's corporate
powers, have been duly authorized by all necessary corporate action, require no
action by or in respect of, or filing with, any governmental body, agency or
official and do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or by-laws
of the Borrower or of any
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agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or any of its Subsidiaries or result in the creation or imposition
of any Lien on any asset of the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement constitutes a valid and
binding agreement of the Borrower and each of the Notes and the Swingline Note,
when executed and delivered in accordance with this Agreement, will constitute a
valid and binding obligation of the Borrower, in each case enforceable in
accordance with its terms.
SECTION 4.04. Financial Information.
(a) The consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of January 27, 1996 and the related consolidated
statements of operations, cash flows and changes in shareholders' equity for the
Fiscal Year then ended, reported on by KPMG Peat Marwick LLP and set forth in
the Borrower's 1995 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with generally accepted accounting
principles, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such Fiscal Year.
(b) The unaudited consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of October 26, 1996 and the related unaudited
consolidated statements of operations, cash flows and changes in shareholders'
equity for the nine months then ended, set forth in the Borrower's Latest Form
10-Q, a copy of which has been delivered to each of the Banks, fairly present,
on a basis consistent with the financial statements referred to in subsection
(a) of this Section, the consolidated financial position of the Borrower and its
Consolidated Subsidiaries as of such date and their consolidated results of
operations and cash flows for such nine-month period (subject to normal year-end
adjustments).
(c) Since October 26, 1996 there has been no material adverse change
in the business, financial position, results of operations or prospects of the
Borrower and its Consolidated Subsidiaries, considered as a whole.
(d) At January 25, 1997 the present value of operating lease
commitments, calculated on the basis provided for in Section 5.01(e), was
$2,036,000,000.
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SECTION 4.05. Litigation. Except for the Designated Litigation,
there is no action, suit or proceeding pending against, or to the knowledge of
the Borrower threatened against or affecting, the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental body, agency or
official which could reasonably be expected to result in a Material Adverse
Effect.
SECTION 4.06. Compliance with Laws. The Borrower and its
Subsidiaries are in compliance in all material respects with all applicable
laws, ordinances, rules, regulations and binding requirements of governmental
authorities, except where (i) the necessity of compliance therewith is being
contested in good faith by appropriate proceedings or (ii) failure to comply
therewith could not, in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
SECTION 4.07. Compliance with ERISA. Each member of the ERISA Group
has fulfilled its obligations under the minimum funding standards of ERISA and
the Internal Revenue Code with respect to each Plan and is in compliance in all
material respects with the presently applicable provisions of ERISA and the
Internal Revenue Code with respect to each Plan. No member of the ERISA Group
has (i) sought a waiver of the minimum funding standard under Section 412 of the
Internal Revenue Code in respect of any Plan, (ii) failed to make any
contribution or payment to any Plan or Multiemployer Plan or made any amendment
to any Plan, which has resulted or will result in the imposition of a Lien under
Section 412(n) of the Internal Revenue Code or in the incurrence of a
requirement under Section 401(a)(29) of the Internal Revenue Code to post a bond
or other security in order to retain the tax-qualified status of such Plan or
(iii) incurred any liability under Title IV of ERISA other than a liability to
the PBGC for premiums under Section 4007 of ERISA.
SECTION 4.08. Environmental Matters. To the knowledge of the
Borrower, (i) the Borrower and its Subsidiaries are in material compliance with
all applicable Environmental Laws, (ii) there are no claims, demands or
investigations against the Borrower or any of its Subsidiaries by any
governmental authority or other person or entity that may reasonably be expected
to result in material liability for the clean up of materials that have been
released into the environment and (iii) there are no conditions that are
reasonably likely to result in such claims, demands or investigations against
the Borrower or any of its Subsidiaries, except for failures to comply and
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liabilities which, in the aggregate, are unlikely to result in a Material
Adverse Effect.
SECTION 4.09. Taxes. The Borrower and its Subsidiaries have filed
all United States Federal income tax returns and all other material tax returns
which are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any material assessment received by the Borrower or
any Subsidiary, except taxes and assessments which are not yet delinquent or are
being contested in good faith by appropriate proceedings. The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in respect of
taxes or other governmental charges are, in the opinion of the Borrower,
adequate.
SECTION 4.10. Subsidiaries. Each of the Borrower's corporate
Subsidiaries is a corporation duly incorporated, validly existing and in good
standing under the laws of its jurisdiction of incorporation, and has all
corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted,
except where failures to possess such licenses, authorizations, consents and
approvals could not, in the aggregate, reasonably be expected to result in a
Material Adverse Effect.
SECTION 4.11. Not an Investment Company. The Borrower is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
SECTION 4.12. Full Disclosure. All information (taken as a whole)
heretofore furnished in writing by the Borrower to any Bank for purposes of or
in connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished in writing by the Borrower to any Bank
will be, true in all material respects on the date as of which such information
is stated or certified. Any projections and pro forma financial information
contained in any such writing will be based upon good faith estimates and
assumptions believed by the Borrower to be reasonable at the time made, it being
recognized by the Banks that such projections as to future events are not to be
viewed as facts and that actual results during the period or periods covered by
any such projections may differ from the projected results. The Borrower has
disclosed to the Banks in writing any and all facts which could reasonably be
expected to result in a Material Adverse Effect (to the extent the Borrower can
now reasonably foresee, utilizing reasonable assumptions and the
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information now actually known to the Borrower's Responsible Officers).
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any Credit
Exposure hereunder, the Swingline Commitment remains in effect or any amount
payable under the Swingline
Note remains unpaid:
SECTION 5.01. Information. The Borrower will deliver to each of the
Banks:
(a) as soon as available and in any event within 90 days after the
end of each Fiscal Year, a consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of operations, cash flows and changes in
shareholders' equity for such Fiscal Year, setting forth in each case in
comparative form the figures as of the end of and for the previous Fiscal
Year, all reported on (without any qualification that would not be
acceptable to the SEC for purposes of filings under the Exchange Act) by
KPMG Peat Marwick LLP or other independent public accountants of
nationally recognized standing;
(b) as soon as available and in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year, a
consolidated condensed balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Fiscal Quarter, the related
consolidated condensed statement of operations for such Fiscal Quarter and
the related consolidated condensed statements of operations, cash flows
and retained earnings for the portion of the Fiscal Year ended at the end
of such Fiscal Quarter, setting forth in comparative form (i) in the case
of such statement of operations, the figures for the corresponding Fiscal
Quarter of the previous Fiscal Year and (ii) in the case of such
statements of operations, cash flows and retained earnings, the figures
for the corresponding portion of the previous Fiscal Year, all certified
(subject to normal year-end adjustments) as to fairness of presentation,
generally accepted accounting principles and consistency by the chief
financial
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officer or the chief accounting officer of the Borrower;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a certificate of the
Borrower's chief financial officer or chief accounting officer (i) setting
forth in reasonable detail the calculations required to establish whether
the Borrower was in compliance with the requirements of Sections 5.06 to
5.10, inclusive, on the date of such financial statements and (ii) stating
whether any Default exists on the date of such certificate and, if any
Default then exists, setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of financial
statements referred to in clause (a) above, a statement of the firm of
independent public accountants which reported on such statements (i)
whether anything has come to their attention to cause them to believe that
any Default existed on the date of such statements and (ii) confirming the
calculations set forth in the officer's certificate delivered
simultaneously therewith pursuant to clause (c) above;
(e) as soon as practicable and in any event within 90 days after the
end of each Fiscal Year, a certificate of the Borrower's chief financial
officer setting forth:
(i) the total rent expense (net of sublease income) of the
Borrower and its Consolidated Subsidiaries for such Fiscal Year;
(ii) the present value, at the end of such Fiscal Year, of the
operating lease commitments of the Borrower and its Consolidated
Subsidiaries; and
(iii) the present value, at the end of such Fiscal Year, of
any third-party operating lease payments under guarantees entered
into after the date hereof by the Borrower and its Consolidated
Subsidiaries;
and certifying that the amounts set forth have been calculated on the same
basis as the comparable amounts shown on page 29 of the Borrower's 1995
Annual Report to its shareholders (treating the guaranteed amounts
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set forth pursuant to clause (iii) as if they were direct obligations of
the Borrower and its Consolidated Subsidiaries);
(f) within five Domestic Business Days after any Responsible Officer
obtains knowledge of any Default, if such Default is then continuing, a
certificate of the Borrower's chief financial officer or chief accounting
officer setting forth the details thereof and the action which the
Borrower is taking or proposes to take with respect thereto;
(g) promptly upon the mailing thereof to the shareholders of the
Borrower generally, copies of all financial statements, reports and proxy
statements so mailed;
(h) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, 10-Q
and 8-K (or their equivalents) which the Borrower shall have filed with
the SEC;
(i) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" defined in
PBGC Regulations Sections 2615.11(a), .12(a), .14(a), .16(a), .17(a),
.21(a), .22(a) or .23(a) with respect to any Plan, or, with respect to any
Plan, gives or is required to give notice to the PBGC under Section
4043(b)(3) of ERISA or would be required to give notice under such Section
but for the provisions of Section 4043(b)(2) of ERISA or knows that the
plan administrator of any Plan has given or is required to give notice of
any such reportable event, a copy of the notice of such reportable event
given or required to be given to the PBGC, or that would be required to be
given but for the provisions of Section 4043(b)(2); (ii) receives notice
of complete or partial withdrawal liability under Title IV of ERISA or
notice that any Multiemployer Plan is in reorganization, is insolvent or
has been terminated, a copy of such notice; (iii) receives notice from the
PBGC under Title IV of ERISA of an intent to terminate, impose liability
(other than for premiums under Section 4007 of ERISA) in respect of, or
appoint a trustee to administer, any Plan, a copy of such notice; (iv)
applies for a waiver of the minimum funding standard under Section 412 of
the Internal Revenue Code, a copy of such application; (v) gives notice of
intent to terminate any Plan under Section 4041(c) of ERISA, a
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copy of such notice and other information filed with the PBGC; (vi) gives
notice of withdrawal from any Plan pursuant to Section 4063 of ERISA, a
copy of such notice; or (vii) fails to make any payment or contribution to
any Plan or Multiemployer Plan or makes any amendment to any Plan or which
has resulted or will result in the imposition of a Lien under Section
412(n) of the Internal Revenue Code or the incurrence of a requirement
under Section 401(a)(29) of the Internal Revenue Code to post a bond or
other security in order to retain the tax-qualified status of such Plan, a
certificate of the Borrower's chief financial officer or chief accounting
officer setting forth details as to such occurrence and action, if any,
which the Borrower or applicable member of the ERISA Group has taken or
proposes to take; and
(j) from time to time such additional information regarding the
financial position or business of the Borrower and its Subsidiaries as the
Administrative Agent, at the request of any Bank, may reasonably request.
SECTION 5.02. Maintenance of Property; Insurance. (a) The Borrower
will keep, and will cause each Subsidiary to keep, all material properties
useful and necessary in its business in good working order and condition,
ordinary wear and tear excepted.
(b) The Borrower will, and will cause each of its Subsidiaries to,
maintain (either in the name of the Borrower or in such Subsidiary's own name)
with financially sound and responsible insurance companies, insurance on all
their respective properties in at least such amounts and against at least such
risks (and with such risk retention) as are usually insured against in the same
general area by companies of established repute engaged in the same or a similar
business; provided that such risks may be covered by self-insurance programs
consistent with past practice. The Borrower will furnish to the Banks, upon
request from the Administrative Agent, information presented in reasonable
detail as to the insurance so carried.
SECTION 5.03. Conduct of Business and Maintenance of Existence. The
Borrower will continue, and will cause each Subsidiary to continue, to engage in
business of the same general type as now conducted by the Borrower and its
Subsidiaries, and will preserve, renew and keep in full force and effect, and
will cause each Subsidiary to preserve, renew and keep in full force and effect
their respective existence and their respective rights, privileges and
franchises necessary or desirable in the normal conduct of business, except
where failures to possess such rights, privileges
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and franchises could not, in the aggregate, reasonably be expected to result in
a Material Adverse Effect; provided that nothing in this Section shall prohibit
(i) the merger of a Subsidiary into the Borrower or the merger or consolidation
of a Subsidiary with or into another Person if the corporation surviving such
consolidation or merger is a Subsidiary and if, in each case, after giving
effect thereto, no Default shall have occurred and be continuing or (ii) the
termination of the existence of any Subsidiary if the Borrower in good faith
determines that such termination is in the best interest of the Borrower and is
not materially disadvantageous to the Banks.
SECTION 5.04. Compliance with Laws. The Borrower will comply, and
cause each Subsidiary to comply, in all material respects with all applicable
laws, ordinances, rules, regulations, and binding requirements of governmental
authorities (including, without limitation, Environmental Laws and ERISA and the
rules and regulations thereunder), except where (i) the necessity of compliance
therewith is being contested in good faith by appropriate proceedings or (ii)
failures to comply therewith could not, in the aggregate, reasonably be expected
to result in a Material Adverse Effect.
SECTION 5.05. Inspection of Property, Books and Records. The
Borrower will keep, and will cause each Subsidiary (except for Subsidiaries that
constitute Immaterial Subsidiaries) to keep, proper books of record and account
in which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities; and will permit, and
will cause each Subsidiary (except for Subsidiaries that constitute Immaterial
Subsidiaries) to permit, representatives of any Bank at such Bank's expense,
upon reasonable prior notice, to visit and inspect any of their respective
properties, to examine and make abstracts from any of their respective books and
records and to discuss their respective affairs, finances and accounts with
their respective officers, employees and independent public accountants, all at
such reasonable times and as often as may reasonably be desired.
SECTION 5.06. Negative Pledge. Neither the Borrower nor any
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Debt
outstanding on the date of this Agreement
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in an aggregate principal or face amount not exceeding $100,000,000;
(b) any Lien on any asset (or improvement thereon) securing Debt
incurred or assumed solely for the purpose of financing all or any part of
the cost of acquiring such asset (or improvement thereon), provided that
such Lien attaches to such asset (or improvement thereon) concurrently
with or within 90 days after the acquisition thereof;
(c) any Lien existing on any asset of any corporation at the time
such corporation becomes a Subsidiary and not created in contemplation of
such event;
(d) any Lien on any asset of any corporation existing at the time
such corporation is merged or consolidated with or into the Borrower or a
Subsidiary and not created in contemplation of such event;
(e) any Lien existing on any asset prior to the acquisition (whether
by purchase, merger or otherwise) thereof by the Borrower or a Subsidiary
and not created in contemplation of such acquisition;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Debt secured by any Lien permitted by any of the
foregoing clauses of this Section , provided that such Debt is not
increased and is not secured by any additional assets;
(g) Liens on life insurance policies securing amounts borrowed
against the cash value of such policies;
(h) Liens arising in the ordinary course of its business which (i)
do not secure Debt, (ii) do not secure any single obligation or series of
related obligations in an amount exceeding $100,000,000 and (iii) do not
in the aggregate materially detract from the value of its assets or
materially impair the use thereof in the operation of its business; and
(i) Liens not otherwise permitted by the foregoing clauses of this
Section securing Debt in an aggregate principal or face amount at any date
not to exceed 15% of Consolidated Tangible Net Worth.
SECTION 5.07. Minimum Consolidated Tangible Net Worth. Consolidated
Tangible Net Worth will at no time be
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less than the sum of (i) $1,000,000,000 plus (ii) for each Fiscal Quarter ended
at or prior to such time (but after January 25, 1997), 50% of the consolidated
net income of the Borrower and its Consolidated Subsidiaries for such Fiscal
Quarter (if greater than zero).
SECTION 5.08. Leverage Ratio. Total Borrowed Funds will not (i)
exceed 75% of Total Capitalization at any time from the Effective Date through
the end of Fiscal Year 1997 or (ii) exceed 70% of Total Capitalization at any
time thereafter.
SECTION 5.09. Limitation on Debt of Subsidiaries. The total Debt of
all Consolidated Subsidiaries (excluding Debt owed to the Borrower or to another
Consolidated Subsidiary) will not at any time exceed $300,000,000.
SECTION 5.10. Fixed Charge Coverage Ratio. At the end of each Fiscal
Quarter listed below, the ratio of
(i) the sum of EBIT plus 1/3 of Annual Rent Expense, in each case
for the four consecutive Fiscal Quarters then ended, to
(ii) the sum of Interest Expense plus 1/3 of Annual Rent Expense, in
each case for the same four consecutive Fiscal Quarters,
will not be less than the ratio set forth below with respect to such Fiscal
Quarter:
Fiscal Quarter Ratio
-------------- -----
Each Fiscal Quarter
of Fiscal Year 1997 1.50 to 1
Each Fiscal Quarter of
Fiscal Year 1998 1.75 to 1
Each subsequent Fiscal Quarter 2.00 to 1
SECTION 5.11. Consolidations, Mergers and Sales of Assets. The
Borrower will not consolidate or merge with or into any other Person; provided
that the Borrower may merge with another Person if (A) the Borrower is the
corporation surviving such merger and (B) immediately after giving effect to
such merger no Default shall have occurred and be continuing. The Borrower and
its Subsidiaries will not sell, lease or otherwise transfer, directly or
indirectly, all or substantially all of the assets of the Borrower and its
Subsidiaries, taken as a whole, to any
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other Person; provided that the foregoing limitation shall not apply to sales of
inventory or sales and other dispositions of surplus assets, in each case in the
ordinary course of business.
SECTION 5.12. Use of Proceeds. The Letters of Credit and the
proceeds of the Loans and Swingline Loans made under this Agreement will be used
by the Borrower for its general corporate purposes.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of the following
events ("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail (i) to pay any principal of any Loan,
Swingline Loan or Reimbursement Obligation when due or (ii) to pay any
interest on any Loan, Swingline Loan or Reimbursement Obligation, any fees
or any other amount payable hereunder within two Domestic Business Days
after the due date thereof;
(b) the Borrower shall fail to observe or perform any covenant
contained in Sections 5.06 to 5.12, inclusive;
(c) the Borrower shall fail to observe or perform any covenant or
agreement contained in this Agreement (other than those covered by clause
(a) or (b) above) for 30 days after written notice thereof has been given
to the Borrower by the Administrative Agent at the request of any
Requesting Banks;
(d) any representation, warranty, certification or statement made
(or deemed made) by the Borrower in this Agreement or in any certificate,
financial statement or other document delivered pursuant to this Agreement
shall prove to have been incorrect in any material respect when made (or
deemed made);
(e) the Borrower and/or any of its Subsidiaries shall fail to pay,
when due or within any applicable grace period, an amount or amounts
aggregating more than $25,000,000 payable in respect of their Debt;
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(f) any event or condition shall occur which results in the
acceleration of the maturity of any Material Debt or enables the holder of
such Debt or any Person acting on such holder's behalf to accelerate the
maturity thereof;
(g) any of the Borrower or one or more Subsidiaries (unless such
Subsidiaries are Immaterial Subsidiaries) shall commence a voluntary case
or other proceeding seeking liquidation, reorganization or other relief
with respect to itself or its debts under any bankruptcy, insolvency or
other similar law now or hereafter in effect or seeking the appointment of
a trustee, receiver, liquidator, custodian or other similar official of it
or any Material Assets, or shall consent to any such relief or to the
appointment of any such official or to any such official taking possession
of Material Assets, or shall make a general assignment for the benefit of
creditors, or shall state that it is unable to pay its debts generally as
they become due, or shall take any corporate action to authorize any of
the foregoing;
(h) an involuntary case or other proceeding shall be commenced
against the Borrower or one or more Subsidiaries (unless such Subsidiaries
constitute Immaterial Subsidiaries), in each case seeking liquidation,
reorganization or other relief with respect to it or its debts under any
bankruptcy, insolvency or other similar law now or hereafter in effect or
seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any Material Assets, and such involuntary
case or other proceeding shall remain undismissed and unstayed for a
period of 60 days; or an order for relief shall be entered against the
Borrower or any Subsidiary under the federal bankruptcy laws as now or
hereafter in effect;
(i) any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $10,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan (except for any termination under Section
4041(b) of ERISA) shall be filed under Title IV of ERISA by any member of
the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of, or to cause a trustee to be appointed to
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administer, any Material Plan; or a condition shall exist by reason of
which the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause one or more members of the ERISA Group to incur a
current payment obligation in excess of $25,000,000;
(j) a judgment or order for the payment of money in excess of
$10,000,000 shall be rendered against the Borrower or any Subsidiary and
such judgment or order shall continue unsatisfied and unstayed for a
period of 10 days; or
(k) any person or group of persons (within the meaning of Section 13
or 14 of the Exchange Act) shall have acquired beneficial ownership
(within the meaning of Rule 13d-3 promulgated by the SEC under said Act)
of 20% or more of the outstanding shares of common stock of the Borrower;
or Continuing Directors shall cease to constitute a majority of the board
of directors of the Borrower;
then, and in every such event, the Administrative Agent shall (i) if requested
by Banks having more than 50% in aggregate amount of the Commitments, by notice
to the Borrower terminate the Commitments and the Swingline Commitment and they
shall thereupon terminate, and (ii) if requested by Banks holding more than 50%
in aggregate principal amount of the Loans, by notice to the Borrower declare
the Loans and Swingline Loans (together with accrued interest thereon) to be,
and the Loans and Swingline Loans (together with accrued interest thereon) shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that if any Event of Default specified in clause (g) or (h)
above occurs with respect to the Borrower, then without any notice to the
Borrower or any other act by the Administrative Agent or the Banks, the
Commitments and the Swingline Commitment shall thereupon terminate and the Loans
and Swingline Loans (together with accrued interest thereon) shall become
immediately due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby waived by the Borrower.
SECTION 6.02. Notice of Default. The Administrative Agent shall give
notice to the Borrower under Section 6.01(c) promptly upon being requested to do
so by
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any Requesting Banks and shall thereupon notify all the Banks thereof.
SECTION 6.03. Cash Cover. The Borrower agrees, in addition to the
provisions of Section 6.01, that upon the occurrence and during the continuance
of any Event of Default, it shall, if requested by the LC Agent upon the
instruction of the Required Banks, pay to the LC Agent an amount in immediately
available funds (which funds shall be held as collateral pursuant to
arrangements satisfactory to the LC Agent) equal to the aggregate amount
available for drawing under all Letters of Credit then outstanding at such time,
provided that, upon the occurrence of any Event of Default specified in clause
(g) or (h) of Section 6.01 with respect to the Borrower, the Borrower shall pay
such amount forthwith without any notice or demand or any other act by the LC
Agent or the Banks.
ARTICLE VII
THE ADMINISTRATIVE AGENT, DOCUMENTATION AGENT
AND CO-AGENTS
SECTION 7.01. Appointment and Authorization. Each Bank irrevocably
appoints and authorizes the Administrative Agent to take such action as agent on
its behalf and to exercise such powers under this Agreement and the Notes as are
delegated to the Administrative Agent by the terms hereof or thereof, together
with all such powers as are reasonably incidental thereto.
SECTION 7.02. Agents and Affiliates. Each Bank acting as an Agent,
Co-Agent or Swingline Bank in connection with this Agreement or the credit
facility provided hereby shall have the same rights and powers under this
Agreement as any other Bank and may exercise or refrain from exercising the same
as though it were not so acting. Each Bank so acting, and each of their
respective affiliates, may accept deposits from, lend money to, and generally
engage in any kind of business with, the Borrower or any Subsidiary or affiliate
of the Borrower as if it were not so acting.
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SECTION 7.03. Obligations of the Co-Agents and Documentation Agent.
The Co-Agents and Documentation Agent, in their capacities as such, shall have
no duties, obligations or liabilities of any kind hereunder.
SECTION 7.04. Obligations of Administrative Agent. The obligations
of the Administrative Agent hereunder are only those expressly set forth herein.
Without limiting the generality of the foregoing, the Administrative Agent shall
not be required to take any action with respect to any Default, except as
expressly provided in Article VI.
SECTION 7.05. Consultation with Experts. The Administrative Agent
and LC Agent may consult with legal counsel (who may be counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants or experts.
SECTION 7.06. Liability of Agents. None of the Documentation Agent,
the Administrative Agent, their respective affiliates or their respective
directors, officers, agents or employees shall be liable for any action taken or
not taken in connection herewith (i) with the consent or at the request of the
Required Banks or (ii) in the absence of its own gross negligence or willful
misconduct. None of the Documentation Agent, the Administrative Agent, their
respective affiliates or their respective directors, officers, agents or
employees shall be responsible for or have any duty to ascertain, inquire into
or verify (i) any statement, warranty or representation made in connection with
this Agreement or any Extension of Credit; (ii) the performance or observance of
any of the covenants or agreements of the Borrower; (iii) the satisfaction of
any condition specified in Article III except, in the case of the Administrative
Agent, receipt of items required to be delivered to it; or (iv) the validity,
effectiveness or genuineness of this Agreement, the Notes, the Swingline Note or
any other instrument or writing furnished in connection herewith. The LC Agent
shall not incur any liability by acting in reliance upon information supplied by
the Administrative Agent as to the Total Usage at any time (including Loans to
be made pursuant to Notices of Borrowing theretofore received by the
Administrative Agent). The Administrative Agent shall not incur any liability by
acting in reliance upon (i) information supplied to it by the LC Agent as to the
Aggregate LC Exposure at any time or (ii) any notice, consent, certificate,
statement, or other writing (which may be a
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bank wire, telex, facsimile transmission or similar writing) believed by it to
be genuine or to be signed by the proper party or parties.
SECTION 7.07. Indemnification. The Banks shall, ratably in
accordance with their respective Credit Exposures, indemnify the Administrative
Agent and its affiliates, directors, officers, agents and employees (to the
extent not reimbursed by the Borrower) against any cost, expense (including
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct) that such indemnitees may suffer or incur in connection with this
Agreement or any action taken or omitted by such indemnitees hereunder.
SECTION 7.08. Credit Decision. Each Bank acknowledges that it has,
independently and without reliance upon the Arranger and Syndication Agent or
any other Bank Party, and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Bank also acknowledges that it will, independently and without
reliance upon the Arranger and Syndication Agent or any other Bank Party, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking any
action under this Agreement.
SECTION 7.09. Successor Administrative Agent. The Administrative
Agent may resign at any time by giving notice thereof to the Banks and the
Borrower, such resignation to be effective when a successor Administrative Agent
is appointed pursuant to this Section and accepts such appointment. Upon
receiving any such notice of resignation, the Required Banks shall have the
right to appoint a successor Administrative Agent, subject to the approval of
the Borrower (unless an Event of Default shall have occurred and be continuing
at the time of such appointment, in which case the Borrower's approval will not
be required). If no successor Administrative Agent shall have been so appointed
by the Required Banks, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the other Banks, appoint a
successor Administrative Agent, which shall be a commercial bank organized or
licensed under the laws of the United States of America or of any State thereof
and having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of its appointment as the Administrative Agent hereunder by a
successor Administrative
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Agent, such successor Administrative Agent shall thereupon succeed to and become
vested with all the rights and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder, the provisions of this Article shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Administrative
Agent.
SECTION 7.10. Administrative Agent's Fees. The Borrower shall pay to
the Administrative Agent for its account, fees in the amounts and at the times
previously agreed upon between the Borrower and the Administrative Agent.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period for any CD Loan,
Euro-Dollar Loan or Money Market LIBOR Loan:
(a) the Administrative Agent is advised by the Reference Banks that
deposits in dollars (in the applicable amounts) are not being offered to
the Reference Banks in the relevant market for such Interest Period, or
(b) in the case of CD Loans or Euro-Dollar Loans, Banks having 50%
or more of the aggregate principal amount of the affected Loans advise the
Administrative Agent that the Adjusted CD Rate or the Adjusted London
Interbank Offered Rate, as the case may be, as determined by the
Administrative Agent will not adequately and fairly reflect the cost to
such Banks of funding their CD Loans or Euro-Dollar Loans, as the case may
be, for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, (i) the
obligations of the Banks to make CD Loans or Euro-Dollar Loans, or to continue
such Loans for an additional Interest Period, as the case may be, or to convert
outstanding Loans into CD Loans or ▇▇▇▇-▇▇▇▇▇▇
▇▇
▇▇
Loans, as the case may be, shall be suspended and (ii) each outstanding CD Loan
or Euro-Dollar Loan, as the case may be, shall be converted into a Base Rate
Loan on the last day of the then current Interest Period applicable thereto.
Unless the Borrower notifies the Administrative Agent at least two Domestic
Business Days before the date of any affected Borrowing for which a Notice of
Borrowing has previously been given that it elects not to borrow on such date,
(i) if such affected Borrowing is a CD Borrowing or Euro-Dollar Borrowing, such
Borrowing shall instead be made as a Base Rate Borrowing and (ii) if such
affected Borrowing is a Money Market LIBOR Borrowing, the Money Market LIBOR
Loans comprising such Borrowing shall bear interest for each day from and
including the first day to but excluding the last day of the Interest Period
applicable thereto at the Base Rate for such day.
SECTION 8.02. Illegality. If, on or after the date of this
Agreement, 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 Bank (or its Euro-Dollar Lending Office) with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency, shall make it unlawful or impossible for any
Bank (or its Euro-Dollar Lending Office) to make, maintain or fund its
Euro-Dollar Loans and such Bank shall so notify the Administrative Agent, the
Administrative Agent shall forthwith give notice thereof to the other Banks and
the Borrower, whereupon until such Bank notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans, to continue
Euro-Dollar Loans for an additional Interest Period or to convert outstanding
Loans into Euro-Dollar Loans, shall be suspended. Before giving any notice to
the Administrative Agent pursuant to this Section , such Bank shall designate a
different Euro-Dollar Lending Office if such designation will avoid the need for
giving such notice and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. If such notice is given, each Euro-Dollar Loan of
such Bank then outstanding shall be converted to a Base Rate Loan either (a) on
the last day of the then current Interest Period applicable to such Euro-Dollar
Loan if such Bank may lawfully continue to maintain and fund such Loan to such
day or (b) immediately if such Bank shall determine that it may not lawfully
continue to maintain and fund such Loan to such day.
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SECTION 8.03. Increased Cost and Reduced Return. (a) If on or after
(x) the date hereof, in the case of any Committed Loan or Swingline Loan or
Letter of Credit or any obligation to make Committed Loans or Swingline Loans or
participate in Letters of Credit or (y) the date of the related Money Market
Quote, in the case of any Money Market Loan, 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 Bank (or its Applicable Lending
Office) or the Swingline Bank with any request or directive (whether or not
having the force of law) of any such authority, central bank or comparable
agency, shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System, but excluding (i) with respect to any CD Loan any such
requirement included in an applicable Domestic Reserve Percentage and (ii) with
respect to any Euro-Dollar Loan any such requirement included in an applicable
Euro-Dollar Reserve Percentage), special deposit, insurance assessment
(excluding, with respect to any CD Loan, any such requirement reflected in an
applicable Assessment Rate) or similar requirement against assets of, deposits
with or for the account of, or credit extended by, any Bank (or its Applicable
Lending Office) or the Swingline Bank or shall impose on any Bank (or its
Applicable Lending Office) or the Swingline Bank or on the United States market
for certificates of deposit or the London interbank market any other condition
affecting its Fixed Rate Loans, its Note, its Swingline Loans, its Swingline
Note, its obligation to make Fixed Rate Loans or Swingline Loans or its
obligation to participate in any Letter of Credit and the result of any of the
foregoing is to increase the cost to such Bank (or its Applicable Lending
Office) of making or maintaining any Fixed Rate Loan, or participating in any
Letter of Credit or increase the cost to the Swingline Bank of making or
maintaining any Swingline Loan or to reduce the amount of any sum received or
receivable by such Bank (or its Applicable Lending Office) or the Swingline Bank
under this Agreement or under its Note or Swingline Note with respect thereto,
by an amount deemed by such Bank or the Swingline Bank to be material, then,
within 15 days after receiving a request by such Bank or the Swingline Bank for
compensation under this subsection, accompanied by a certificate complying with
subsection (e) of this Section (with a copy to the Administrative Agent), the
Borrower shall, subject to subsection (f) of this Section , pay to such Bank or
the
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Swingline Bank such additional amount or amounts as will compensate such Bank or
the Swingline Bank for such increased cost or reduction.
(b) If, on or 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 the LC Agent with any
request or directive (whether or not having the force of law) made on or after
the date of this Agreement by any such authority, central bank or comparable
agency, shall impose, modify or deem applicable any reserve (including, without
limitation, any such requirement imposed by the Board of Governors of the
Federal Reserve System), special deposit, insurance assessment or similar
requirement against any Letter of Credit issued by the LC Agent or shall impose
on the LC Agent any other condition affecting its Letters of Credit or its
obligation to issue Letters of Credit and the result of any of the foregoing is
to increase the cost to the LC Agent of issuing any Letter of Credit or to
reduce the amount of any sum received or receivable by the LC Agent under this
Agreement with respect thereto, by an amount deemed by the LC Agent to be
material, then, within 15 days after demand by the LC Agent (with a copy to the
Administrative Agent), the Borrower shall pay to the LC Agent such additional
amount or amounts as will compensate the LC Agent for such increased cost or
reduction.
(c) If any Bank, the Swingline Bank or the LC Agent shall have
determined that, after the date hereof, the adoption of any applicable law, rule
or regulation regarding capital adequacy, or any change in any such 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 any request or directive regarding
capital adequacy (whether or not having the force of law) of any such authority,
central bank or comparable agency, has or would have the effect of reducing the
rate of return on capital of such Bank, the Swingline Bank or the LC Agent, as
the case may be (or its Parent), as a consequence of its obligations hereunder
to a level below that which such Bank, the Swingline Bank or the LC Agent, as
the case may be (or its Parent), could have achieved but for such adoption,
change, request or directive (taking into consideration its policies with
respect to capital adequacy) by an amount deemed by it to be material, then from
time to time, within 15 days after receiving a request by such Bank,
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the Swingline Bank or the LC Agent, as the case may be, for compensation under
this subsection, accompanied by a certificate complying with subsection (e) of
this Section (with a copy to the Administrative Agent), the Borrower shall,
subject to subsection (f) of this Section , pay to such Bank, the Swingline Bank
or the LC Agent, as the case may be, such additional amount or amounts as will
compensate it (or its Parent) for such reduction.
(d) Each Bank, the Swingline Bank and the LC Agent will promptly
notify the Borrower and the Administrative Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle it to
compensation pursuant to this Section and will designate a different Applicable
Lending Office or LC Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in its judgment, be
otherwise disadvantageous to it. If a Bank, the Swingline Bank or the LC Agent
fails to notify the Borrower of any such event within 180 days after such event
occurs, it shall not be entitled to compensation under this Section for any
effect of such event arising more than 180 days before it does notify the
Borrower thereof.
(e) Each request by a Bank, the Swingline Bank or the LC Agent for
compensation under this Section shall be accompanied by a certificate, signed by
one of its authorized employees, setting forth in reasonable detail (i) the
basis for claiming such compensation, (ii) the additional amount or amounts to
be paid to it hereunder and (iii) the method of calculating such amount or
amounts, which certificate shall be conclusive in the absence of manifest error.
In determining such amount, such Bank, the Swingline Bank or the LC Agent may
use any reasonable averaging and attribution methods.
(f) Notwithstanding any other provision of this Section, none of the
Banks, the Swingline Bank and the LC Agent shall be entitled to compensation
under subsection (a), (b) or (c) of this Section if it is not then its general
practice to demand compensation in similar circumstances under comparable
provisions of other credit agreements.
SECTION 8.04. Taxes. (a) For purposes of this Section 8.04, the
following terms have the following meanings:
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings with respect to any payment by the
Borrower pursuant to this
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Agreement or under any Note or the Swingline Note, and all liabilities with
respect thereto, excluding (i) in the case of each Bank Party, taxes imposed on
or measured by its income, and franchise or similar taxes imposed on it, by a
jurisdiction under the laws of which it is organized or qualified to do business
(but only if the taxes are imposed solely because such Bank Party is qualified
to do business in such jurisdiction without regard to any Loan) or in which its
principal executive office is located or in which its Applicable Lending Office
or LC Office is located and (ii) in the case of each Bank, any United States
withholding tax imposed on such payments other than such withholding tax imposed
as a result of a change in treaty, law or regulation occurring after a Bank
first becomes subject to this Agreement.
"Other Taxes" means any present or future stamp, documentary or
mortgage recording taxes and any other excise or property taxes, or similar
charges or levies, which arise from any payment made pursuant to this Agreement
or under any Note or the Swingline Note or from the execution, delivery or
enforcement of, or otherwise with respect to, this Agreement, any Note or the
Swingline Note.
(b) Any and all payments by the Borrower to or for the account of
any Bank Party hereunder or under any Note or the Swingline Note shall be made
without deduction for any Taxes or Other Taxes; provided that, if the Borrower
shall be required by law to deduct any Taxes or Other Taxes from any such
payments, (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 8.04) such Bank Party 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
Administrative Agent, at its address referred to in Section 9.01, the original
or a certified copy of a receipt evidencing payment thereof.
(c) The Borrower agrees to indemnify each Bank Party for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed or asserted by any jurisdiction on amounts payable under
this Section 8.04) paid by such Bank Party and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto,
provided that Borrower shall not indemnify any Bank Party for any penalties or
interest on any Taxes or Other Taxes accrued
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during the period between the 15th day after such Bank Party has received a
notice from the jurisdiction asserting such Taxes or Other Taxes and such later
day on which such Bank Party has informed the Borrower of the receipt of such
notice. This indemnification shall be paid within 15 days after such Bank Party
makes demand therefor.
(d) Each Bank Party 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 Bank Party listed on the signature pages
hereof and on or prior to the date on which it becomes a Bank Party in the case
of each other Bank Party, and from time to time thereafter if requested in
writing by the Borrower (but only so long as such Bank Party remains lawfully
able to do so), shall provide the Borrower with Internal Revenue Service Form
1001 or 4224, as appropriate, or any successor form prescribed by the Internal
Revenue Service, certifying that such Bank Party is entitled to benefits under
an income tax treaty to which the United States is a party which exempts such
Bank Party from United States withholding tax or reduces the rate of withholding
tax on payments of interest for the account of such Bank Party 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.
(e) For any period with respect to which a Bank Party has failed to
provide the Borrower with the appropriate form as required by Section 8.04(d)
(unless such failure is due to a change in treaty, law or regulation occurring
subsequent to the date on which such form originally was required to be
provided), such Bank Party shall not be entitled to indemnification under
Section 8.04(b) or (c) with respect to Taxes (including penalties, interest and
expenses) imposed by the United States; provided that if a Bank Party, which is
otherwise exempt from or subject to a reduced rate of withholding tax, becomes
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Bank Party shall reasonably request
to assist such Bank Party to recover such Taxes.
(f) If the Borrower is required to pay additional amounts to or for
the account of any Bank Party pursuant to this Section 8.04, then such Bank
Party will change the jurisdiction of its Applicable Lending Office or LC Office
if, in the judgment of such Bank Party, such change (i) will eliminate or reduce
any such additional payment which may thereafter accrue and (ii) is not
otherwise disadvantageous to such Bank Party.
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(g) If a Bank Party receives a notice from a taxing authority
asserting any Taxes or Other Taxes for which the Borrower is required to
indemnify such Bank Party under Section 8.04(c), it shall furnish to the
Borrower a copy of such notice no later than 90 days after the receipt thereof.
If such Bank Party has failed to furnish a copy of such notice to the Borrower
within such 90-day period as required by this Section 8.04(g), the Borrower
shall not be required to indemnify such Bank Party for any such Taxes or Other
Taxes (including penalties, interest and expenses thereon) arising between the
90th day after such Bank Party has received such notice and the day on which
such Bank Party has furnished to the Borrower a copy of such notice.
SECTION 8.05. Base Rate Loans Substituted for Affected Fixed Rate
Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03 or 8.04 with respect to its CD Loans or
Euro-Dollar Loans and, in either case, the Borrower shall, by at least five
Euro-Dollar Business Days' prior notice to such Bank through the Administrative
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer exist, all Loans which would otherwise be made by such Bank as (or
continued as or converted into) CD Loans or Euro-Dollar Loans, as the case may
be, shall instead be Base Rate Loans (on which interest and principal shall be
payable contemporaneously with the related CD Loans or Euro-Dollar Loans of the
other Banks). If such Bank notifies the Borrower that the circumstances giving
rise to such notice no longer apply, the principal amount of each such Base Rate
Loan shall be converted into a CD Loan or Euro-Dollar Loan, as the case may be,
on the first day of the next succeeding Interest Period applicable to the
related CD Loans or Euro-Dollar Loans of the other Banks.
SECTION 8.06. Substitution of Bank. If (i) the obligation of any
Bank to make Euro-Dollar Loans has been suspended pursuant to Section 8.02 or
(ii) any Bank has demanded compensation under Section 8.03 or 8.04, the Borrower
shall have the right, with the assistance of the Administrative Agent, to seek a
mutually satisfactory substitute bank or banks (which may be one or more of the
Banks) to replace such Bank. Any substitution under this Section 8.06 may be
accomplished, at the Borrower's option, either (i) by the replaced Bank
assigning its rights and obligations hereunder to the replacement bank or banks
pursuant to Section 9.06(c) at a mutually agreeable price or
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(ii) by the Borrower prepaying all outstanding Loans from the replaced Bank and
terminating its Commitment on a date specified in a notice delivered to the
Administrative Agent and the replaced Bank at least three Euro-Dollar Business
Days before the date so specified (and compensating such Bank for any resulting
funding losses as provided in Section 2.14) and concurrently the replacement
bank or banks assuming a Commitment in an amount equal to the Commitment being
terminated and making Loans in the same aggregate amount and having the same
maturity date or dates, respectively, as the Committed Loans being prepaid, all
pursuant to documents reasonably satisfactory to the Administrative Agent (and
in the case of any document to be signed by the replaced Bank, reasonably
satisfactory to such Bank). No such substitution shall relieve the Borrower of
its obligation to compensate and/or indemnify the replaced Bank as required by
Sections 8.03 and 8.04 with respect to the period before it is replaced and to
pay all accrued interest, accrued fees and other amounts owing to the replaced
Bank hereunder.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including bank wire,
telex, facsimile transmission or similar writing) and shall be given to such
party: (x) in the case of the Borrower, the LC Agent, the Swingline Bank or the
Administrative Agent, at its address, facsimile number or telex number set forth
on the signature pages hereof, (y) in the case of any Bank, at its address,
facsimile number or telex number set forth in its Administrative Questionnaire
or (z) in the case of any party, such other address, facsimile number or telex
number as such party may hereafter specify for such purpose by notice to the
Administrative Agent and the Borrower. Each such notice, request or other
communication shall be effective (i) if given by telex, when such telex is
transmitted to the telex number specified in this Section and the appropriate
answerback is received, (ii) if given by facsimile transmission, when
transmitted to the facsimile number specified in this Section and confirmation
of receipt is received, (iii) if given by mail, three Domestic Business Days
after such communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid, or (iv) if given by any other means, when
delivered at the address specified in this Section; provided that notices to the
Administrative Agent under Article II or Article VIII and
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notices to the LC Agent or the Swingline Bank under Article II shall not be
effective until received.
SECTION 9.02. No Waivers. No failure or delay by any Bank Party in
exercising any right, power or privilege hereunder or under any Note or the
Swingline Note shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
SECTION 9.03. Expenses; Indemnification. (a) The Borrower shall pay
(i) all reasonable out-of-pocket expenses of the Arranger and Syndication Agent,
including reasonable fees and disbursements of special counsel for the Arranger
and Syndication Agent, in connection with the negotiation and preparation of
this Agreement, (ii) all reasonable out-of-pocket expenses of the Arranger and
Syndication Agent and the Administrative Agent, including reasonable fees and
disbursements of special counsel for the Arranger and Syndication Agent, in
connection with the administration of this Agreement, any waiver or consent
hereunder or any amendment hereof or any Default or alleged Default hereunder
and (iii) if an Event of Default occurs, all out-of-pocket expenses incurred by
the Arranger and Syndication Agent and each Bank Party including (without
duplication) the fees and disbursements of special counsel and the allocated
cost of internal counsel, in connection with any collection, bankruptcy,
insolvency and other enforcement proceedings resulting therefrom.
(b) The Borrower agrees to indemnify each Bank Party, their
respective affiliates and the respective directors, officers, agents and
employees of the foregoing (each an "Indemnitee") and hold each Indemnitee
harmless from and against any and all liabilities, losses, damages, costs and
expenses of any kind, including, without limitation, the reasonable fees and
disbursements of counsel, which may be incurred by such Indemnitee in connection
with any investigative, administrative or judicial proceeding (whether or not
such Indemnitee shall be designated a party thereto) brought or threatened
relating to or arising out of this Agreement or any actual or proposed use of
proceeds of Loans hereunder; provided that no Indemnitee shall have the right to
be indemnified hereunder for such Indemnitee's own gross negligence or willful
misconduct as determined by a court of competent jurisdiction.
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SECTION 9.04. Sharing of Set-Offs. (a) Each Bank agrees that if it
shall, by exercising any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and interest that
has become due with respect to the Loans held by it which is greater than the
proportion received by any other Bank in respect of the aggregate amount of
principal and interest that has become due with respect to the Loans held by
such other Bank, the Bank receiving such proportionately greater payment shall
purchase such participations in the Loans held by the other Banks, and such
other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Loans held by the Banks shall be
shared by the Banks pro rata.
(b) Each Bank further agrees that if it shall, by exercising any
right of set-off or counterclaim or otherwise, receive payment of a proportion
of the aggregate amount of the principal of and interest on the Reimbursement
Obligations held by it or for its account which is greater than the proportion
received in respect of the aggregate amount of the principal of and interest on
the Reimbursement Obligations held by or for the account of any other Bank, the
Bank receiving such proportionately greater payment shall purchase such
participations in the aggregate amount of the principal of and interest on the
Reimbursement Obligations held by or for the account of the other Banks, and
such other adjustments shall be made, as may be required so that all such
payments of the aggregate amount of the principal of and interest on the
Reimbursement Obligations held by or for the account of the Banks shall be
shared by them pro rata.
(c) Nothing in this Section shall impair the right of any Bank to
exercise any right of set-off or counterclaim it may have and to apply the
amount subject to such exercise to the payment of indebtedness of the Borrower
other than its indebtedness hereunder.
(d) The Borrower agrees, to the fullest extent it may effectively do
so under applicable law, that any holder of a participation in a Loan or LC
Reimbursement Obligation, whether or not acquired pursuant to the foregoing
arrangements, may exercise rights of set-off or counterclaim and other rights
with respect to such participation as fully as if such holder of a participation
were a direct creditor of the Borrower in the amount of such participation.
SECTION 9.05. Amendments and Waivers. Any provision of this
Agreement, the Notes or the Swingline Note may be amended or waived if, but only
if, such amendment or
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waiver is in writing and is signed by the Borrower and the Required Banks (and,
if the rights or duties of the Administrative Agent, the LC Agent or the
Swingline Bank are affected thereby, by the Administrative Agent, the LC Agent
or the Swingline Bank, as the case may be); provided that no such amendment or
waiver shall, unless signed by all the Banks, (i) increase or decrease the
Commitment of any Bank (except for a ratable decrease in the Commitments of all
Banks) or subject any Bank to any additional obligation, (ii) reduce the
principal of or rate of interest on any Loan or Swingline Loan or any fees
hereunder, (iii) postpone the date fixed for any payment of principal of or
interest on any Loan or Swingline Loan or any fees hereunder or for the
termination of any Commitment, (iv) reduce the principal of or rate of interest
on any Reimbursement Obligation, (v) postpone the date fixed for payment by the
Borrower of any Reimbursement Obligation or extend the expiry date of any Letter
of Credit to a date later than the fifth Domestic Business Day prior to the
Termination Date, (vi) unless signed by the Swingline Bank, increase the
Swingline Commitment, postpone the date fixed for termination of the Swingline
Commitment or otherwise affect any of its rights and obligations, or (vii)
change the percentage of the Commitments or of the aggregate unpaid principal
amount of the Loans, or the number of Banks, which shall be required for the
Banks or any of them to take any action under this Section or any other
provision of this Agreement.
SECTION 9.06. Successors and Assigns. (a) The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that the Borrower may not
assign or otherwise transfer any of its rights under this Agreement without the
prior written consent of each Bank, the LC Agent and the Swingline Bank.
(b) Any Bank may at any time grant to one or more banks or other
institutions (each a "Participant") participating interests in its Commitment or
any or all of its Loans or all or any part of its LC Exposure. If any Bank
grants a participating interest to a Participant, whether or not upon notice to
the Borrower and the Administrative Agent, such Bank shall remain responsible
for the performance of its obligations hereunder, such Bank shall remain the
holder of its Loans, and the Borrower and the Administrative Agent shall
continue to deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. Any agreement pursuant to
which any Bank may grant such a participating interest shall provide that such
Bank shall retain the sole right and responsibility to enforce the obligations
of the
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Borrower hereunder including, without limitation, the right to approve any
amendment, modification or waiver of any provision of this Agreement; provided
that such participation agreement may provide that such Bank will not agree to
any modification, amendment or waiver of this Agreement described in clause (i),
(ii), (iii), (iv) or (v) of Section 9.05 without the consent of the Participant.
The Borrower agrees that each Participant shall, to the extent provided in its
participation agreement, be entitled to the benefits of Article VIII with
respect to its participating interest. An assignment or other transfer which is
not permitted by subsection (c) or (d) below shall be given effect for purposes
of this Agreement only to the extent of a participating interest granted in
accordance with this subsection (b).
(c) Any Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time assign to one or more banks or other
institutions (each an "Assignee") all, or a proportionate part (equivalent to an
initial Commitment of not less than $10,000,000) of all, of its rights and
obligations under this Agreement and the Notes, and such Assignee shall assume
such rights and obligations, pursuant to an Assignment and Assumption Agreement
in substantially the form of Exhibit I hereto executed by such Assignee and such
transferor Bank, with (and subject to) the subscribed consents of the Borrower,
the LC Agent, the Swingline Bank and the Administrative Agent (which consents
shall not be unreasonably withheld); provided that (i) such consents shall not
be required if the Assignee is an affiliate of such transferor Bank or was a
Bank immediately prior to such assignment; (ii) such assignment may, but need
not, include rights of the transferor Bank in respect of outstanding Money
Market Loans and (iii) the $10,000,000 minimum amount specified above for a
partial assignment of the transferor Bank's rights and obligations shall not
apply if the Assignee was a Bank immediately prior to such assignment. Upon
execution and delivery of such instrument and payment by such Assignee to such
transferor Bank of an amount equal to the purchase price agreed between such
transferor Bank and such Assignee, such Assignee shall be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank with a
Commitment as set forth in such instrument of assumption, and the transferor
Bank shall be released from its obligations hereunder (and its Commitment shall
be reduced) to a corresponding extent, and no further consent or action by any
party shall be required. Upon the consummation of any assignment pursuant to
this subsection (c), the transferor Bank, the Administrative Agent and the
Borrower shall make appropriate arrangements so that, if required, a
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new Note is issued to the Assignee. In connection with any such assignment, the
transferor Bank shall pay to the Administrative Agent an administrative fee for
processing such assignment in the amount of $2,500; provided that the Borrower
shall pay such administrative fee if such assignment is required by the Borrower
pursuant to Section 8.06. 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 Administrative Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 8.04.
(d) Any Bank may at any time assign all or any portion of its rights
under this Agreement and its Note to a Federal Reserve Bank. No such assignment
shall release the transferor Bank from its obligations hereunder.
(e) No Assignee, Participant or other transferee of any Bank's
rights shall be entitled to receive any greater payment under Section 8.03 or
8.04 than such Bank would have been entitled to receive with respect to the
rights transferred, unless such transfer is made with the Borrower's prior
written consent or by reason of the provisions of Section 8.02, 8.03 or 8.04
requiring such Bank to designate a different Applicable Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
SECTION 9.07. No-Reliance on Margin Stock. Each of the Banks
represents to the Administrative Agent and each of the other Banks that it in
good faith is not relying upon any "margin stock" (as defined in Regulation U)
as collateral in the extension or maintenance of the credit provided for in this
Agreement.
SECTION 9.08. Governing Law; Submission to Jurisdiction. (a) Each
Letter of Credit and Section 2.17 shall be subject to the UCP, and, to the
extent not inconsistent therewith, the laws of the State of New York.
(b) SUBJECT TO CLAUSE (a) OF THIS SECTION, THIS AGREEMENT, EACH NOTE
AND THE SWINGLINE NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
(c) The Borrower hereby submits to the nonexclusive jurisdiction of
the United States District Court for the Southern District of New York and of
any New York State court sitting in New York City for purposes of all legal
proceedings arising out of or relating to this
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Agreement, the Notes, the Swingline Note or the transactions contemplated hereby
or thereby. The Borrower irrevocably waives, to the fullest extent permitted by
law, any objection which it may now or hereafter have to the laying of the venue
of any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
SECTION 9.09. Counterparts. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument.
SECTION 9.10. WAIVER OF JURY TRIAL. EACH PARTY HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES, THE SWINGLINE NOTE OR
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first above written.
WOOLWORTH CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President &
Treasurer
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
NATIONSBANK, N.A.
as Documentation Agent and a Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
82
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
as Co-Agent and a Bank
By /s/ J. ▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
Name: J. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Authorized Signatory
BANK OF TOKYO-MITSUBISHI TRUST
COMPANY
as Co-Agent and a Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
TORONTO DOMINION (NEW YORK),INC.
as Co-Agent and a Bank
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA ILLINOIS
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
COMMERZBANK AG, NEW YORK AND/OR
GRAND CAYMAN BRANCHES
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Treasurer
83
89
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
DEUTSCHE BANK AG, NEW YORK AND/OR
CAYMAN ISLAND BRANCH
By /s/ ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇
Title: Director
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇.
Title: Director
KEYBANK NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK, N.A.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
84
90
THE BANK OF NEW YORK
as Administrative Agent, LC Agent
and Swingline Bank
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇. ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Assistant Treasurer
Facsimile number: ▇▇▇-▇▇▇-▇▇▇▇
85
91
COMMITMENT SCHEDULE
Bank Commitment
---- ----------
▇▇▇▇▇▇ Guaranty Trust Company
of New York $ 75,000,000
NationsBank, N.A. $ 64,500,000
The Bank of New York $ 64,500,000
The Bank of Nova Scotia $ 47,000,000
Bank of Tokyo-Mitsubishi Trust Company $ 47,000,000
Toronto Dominion (New York), Inc. $ 47,000,000
Bank of America Illinois $ 30,000,000
Commerzbank AG, New York and/or Grand
Cayman Branches $ 25,000,000
Credit Lyonnais New York Branch $ 25,000,000
Deutsche Bank AG, New York and/or Cayman
Island Branch $ 25,000,000
KeyBank National Association $ 25,000,000
▇▇▇▇▇ Fargo Bank, N.A. $ 25,000,000
------------
Total $500,000,000
92
PRICING SCHEDULE
The "Euro-Dollar Margin", "Non-Trade LC Fee Rate", "CD Margin" and
"Facility Fee Rate" for any day are the respective percentages per annum set
forth below in the applicable row under the column corresponding to the Pricing
Level that applies on such day:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Level I II III IV V VI
Euro-Dollar
Margin and
Non-Trade LC
Fee Rate
If Utiliza- .1700 .2000 .2500 .3000 .4375 .8200
tion is
50% or less
If Utiliza- .1700 .2500 .3250 .3750 .5125 .8950
tion exceeds
50%
CD Margin
If Utiliza- .2950 .3250 .3750 .4250 .5625 .9450
tion is
50% or less
If Utiliza- .2950 .3750 .4500 .5000 .6375 1.0200
tion exceeds
50%
Facility Fee .0800 .1000 .1250 .1500 .1875 .3000
Rate
For purposes of this Schedule, the following terms have the
following meanings:
"Level I Pricing" applies on any day on which (i) the Borrower's
commercial paper is rated A2 or higher by S&P and P2 or higher by Moody's and
(ii) the Borrower's long-term debt is rated A- or higher by S&P and A3 or higher
by Moody's.
93
"Level II Pricing" applies on any day on which (i) the Borrower's
commercial paper is rated A2 or higher by S&P and P2 or higher by Moody's and
(ii) the Borrower's long-term debt is rated BBB+ or higher by S&P and Baa1 or
higher by Moody's.
"Level III Pricing" applies on any day on which (i) the Borrower's
commercial paper is rated A2 or higher by S&P and P2 or higher by Moody's and
(ii) the Borrower's long-term debt is rated BBB or higher by S&P and Baa2 or
higher by Moody's.
"Level IV Pricing" applies on any day on which (i) the Borrower's
commercial paper is rated A3 or higher by S&P and P3 or higher by Moody's and
(ii) the Borrower's long-term debt is rated BBB- or higher by S&P and Baa3 or
higher by Moody's.
"Level V Pricing" applies on any day on which (i) the Borrower's
commercial paper is rated A3 or higher by S&P and P3 or higher by Moody's and
(ii) the Borrower's long-term debt is rated BB+ or higher by S&P and Ba1 or
higher by Moody's.
"Level VI Pricing" applies on any day if no other Pricing Level
applies on such day.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Pricing Level" refers to the determination of which of Level I
Pricing, Level II Pricing, Level III Pricing, Level IV Pricing, Level V Pricing
or Level VI Pricing applies on any day.
"S&P" means Standard & Poor's Ratings Services, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc.
"Utilization" means at any date the percentage equivalent of a
fraction (i) the numerator of which is the Total Usage at such date, after
giving effect to any borrowing or repayment on such date, and (ii) the
denominator of which is the Total Commitments at such date, after giving effect
to any reduction of the Commitments on such date. For purposes of this Schedule,
if for any reason any Bank has any Credit Exposure after the Commitments
terminate, the Utilization on and after the date of such termination shall be
deemed to exceed 50%.
2
94
The credit ratings to be utilized for purposes of this Schedule are
those assigned to the unsecured commercial paper of the Borrower without
third-party credit enhancement or to the senior unsecured long-term debt
securities of the Borrower without third-party credit enhancement, as the case
may be. Any rating assigned to any other commercial paper or debt security of
the Borrower shall be disregarded. The rating in effect at any date is that in
effect at the close of business on such date.
3
95
EXHIBIT A
NOTE
New York, New York
, 19
For value received, Woolworth Corporation, a New York corporation
(the "Borrower"), promises to pay to the order of _____________ (the "Bank"),
for the account of its Applicable Lending Office, the unpaid principal amount of
each Loan made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below on the maturity date thereof provided for in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal amount
of each such Loan on the dates and at the rate or rates provided for in the
Credit Agreement. All such payments of principal and interest shall be made in
lawful money of the United States in Federal or other immediately available
funds at the office of The Bank of New York, One ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Loans made by the Bank, the respective types thereof and all
repayments of the principal thereof shall be recorded by the Bank and, if the
Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Loan then outstanding may be endorsed by the Bank on the schedule attached
hereto, or on a continuation of such schedule attached to and made a part
hereof; provided that neither the failure of the Bank to make any such
recordation or endorsement, nor any error therein, shall affect the obligations
of the Borrower hereunder or under the Credit Agreement.
This note is one of the Notes referred to in the Credit Agreement
dated as of April 9, 1997 among the Borrower, the Banks, Co-Agents,
Documentation Agent, LC
96
Agent and Swingline Bank party thereto and The Bank of New York, as
Administrative Agent (as the same may be amended from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof. THIS NOTE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
WOOLWORTH CORPORATION
By________________________
Title:
2
97
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
------------------------------------------------------------------
Amount of
Amount of Principal Notation
Date Loan Repaid Made By
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3
98
EXHIBIT B
SWINGLINE NOTE
New York, New York
, 199
For value received, WOOLWORTH CORPORATION, a New York corporation
(the "Borrower"), promises to pay to the order of THE BANK OF NEW YORK (the
"Swingline Bank") the unpaid principal amount of each Swingline Loan made by the
Swingline Bank to the Borrower pursuant to the Credit Agreement referred to
below on the maturity date provided for in the Credit Agreement. The Borrower
promises to pay interest on the unpaid principal amount of each such Swingline
Loan on the dates and at the rate or rates provided for in the Credit Agreement.
All such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
The Bank of New York, One ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
All Swingline Loans made by the Swingline Bank and all repayments of
the principal thereof shall be recorded by the Swingline Bank and, if the
Swingline Bank so elects in connection with any transfer or enforcement hereof,
appropriate notations to evidence the foregoing information with respect to each
such Swingline Loan then outstanding may be endorsed by the Swingline Bank on
the schedule attached hereto, or on a continuation of such schedule attached to
and made a part hereof; provided that neither the failure of the Swingline Bank
to make any such recordation or endorsement, nor any error therein, shall affect
the obligations of the Borrower hereunder or under the Credit Agreement.
This note is the Swingline Note referred to in the Credit Agreement
dated as of April 9, 1997 among the Borrower, the Banks, Co-Agents,
Documentation Agent, LC Agent and Swingline Bank party thereto and The Bank of
New York, as Administrative Agent (as the same may be amended from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement are used herein
with the same
99
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment hereof and the acceleration of the maturity hereof. THIS NOTE SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
WOOLWORTH CORPORATION
By________________________
Title:
2
100
EXHIBIT C
Form of Money Market Quote Request
[Date]
To: The Bank of New York
(the "Administrative Agent")
From: Woolworth Corporation
Re: Credit Agreement dated as of April 9, 1997 (as amended from time to
time, the "Credit Agreement") among the Borrower, the Banks,
Co-Agents, Documentation Agent, LC Agent and Swingline Bank party
thereto and The Bank of New York, as Administrative Agent
We hereby give notice pursuant to Section 2.03 of the Credit
Agreement that we request Money Market Quotes for the following proposed Money
Market Borrowing(s):
Date of Borrowing:
--------------------
Principal Amount* Interest Period**
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
--------
*Amount must be $25,000,000 or a larger multiple of $1,000,000.
**Not less than one month (LIBOR Auction) or not less than 14 days
(Absolute Rate Auction), subject to the provisions of the definition of Interest
Period.
101
Terms used herein have the meanings assigned to them in the Credit
Agreement.
WOOLWORTH CORPORATION
By________________________
Title:
2
102
EXHIBIT D
Form of Invitation for Money Market Quotes
To: [Name of Bank]
Re: Invitation for Money Market Quotes to
Woolworth Corporation (the "Borrower")
Pursuant to Section 2.03 of the Credit Agreement dated as of April
9, 1997 among the Borrower, the Banks, Co-Agents, Documentation Agent, LC Agent
and Swingline Bank and Documentation Agent party thereto and The Bank of New
York, as Administrative Agent (as amended from time to time, the "Credit
Agreement"), we are pleased on behalf of the Borrower to invite you to submit
Money Market Quotes to the Borrower for the following proposed Money Market
Borrowing(s):
Date of Borrowing:
--------------------
Principal Amount Interest Period
---------------- ---------------
$
Such Money Market Quotes should offer a Money Market [Margin]
[Absolute Rate]. [The applicable base rate is the London Interbank Offered
Rate.]
Please respond to this invitation by no later than [2:00 P.M.] [9:30
A.M.] (New York City time) on [date].
103
Terms used herein have the meanings assigned to them in the Credit
Agreement.
THE BANK OF NEW YORK
By______________________
Authorized Officer
2
104
EXHIBIT E
Form of Money Market Quote
To: The Bank of New York,
as Administrative Agent
Re: Money Market Quote to Woolworth
Corporation (the "Borrower")
In response to your invitation on behalf of the Borrower dated
_____________, 199[ ], we hereby make the following Money Market Quote on the
following terms:
1. Quoting Bank: ________________________________
2. Person to contact at Quoting Bank:
___________________________
3. Date of Borrowing: ____________________*
4. We hereby offer to make Money Market Loan(s) in the following principal
amounts, for the following Interest Periods and at the following rates:
Principal Interest Money Market
Amount** Period*** [Margin****] [Absolute Rate*****]
--------- --------- ---------------------------------
$
$
[Provided, that the aggregate principal amount of Money Market Loans for
which the above offers may be accepted shall not exceed$____________.]**
----------
* As specified in the related Invitation.
** Principal amount bid for each Interest Period may not exceed principal amount
requested. Specify aggregate limitation if the sum of the individual offers
exceeds the amount the Bank is willing to lend. Bids must be made for $5,000,000
or a larger multiple of $1,000,000.
(notes continued on following page)
105
We understand and agree that the offer(s) set forth above, subject
to the satisfaction of the applicable conditions set forth in the Credit
Agreement dated as of April 9, 1997 among the Borrower, the Banks, Co-Agents,
Documentation Agents, LC Agent and Swingline Bank party thereto and The Bank of
New York, as Administrative Agent (as amended from time to time, the "Credit
Agreement"), irrevocably obligates us to make the Money Market Loan(s) for which
any offer(s) are accepted, in whole or in part.
Terms used herein have the meanings assigned to them in the Credit
Agreement.
Very truly yours,
[NAME OF BANK]
Dated:_______________ By:__________________________
Authorized Officer
----------
*** Not less than one month or not less than 14 days, as specified in the
related Invitation. No more than five bids are permitted for each Interest
Period.
**** Margin over or under the London Interbank Offered Rate determined for the
applicable Interest Period. Specify percentage (to the nearest 1/10,000 of 1%)
and specify whether "PLUS" or "MINUS".
***** Specify rate of interest per annum (to the nearest 1/10,000th of 1%).
2
106
EXHIBIT F
OPINION OF SPECIAL
COUNSEL FOR THE BORROWER
[Effective Date]
The Bank of New York,
as Administrative Agent
and Swingline Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
The banks party to the Credit Agreement referred to below, as listed on Schedule
I hereto (the "Banks")
Ladies and Gentlemen:
We have acted as special counsel to Woolworth Corporation, a New
York corporation (the "Borrower"), in connection with the preparation, execution
and delivery of, the Credit Agreement, dated as of April 9, 1997 (the "Credit
Agreement") among the Borrower, the Banks, Co-Agents, Documentation Agent, LC
Agent and Swingline Bank party thereto and The Bank of New York, as
Administrative Agent. This opinion is being delivered pursuant to Section
3.01(c) of the Credit Agreement. Capitalized terms used and not otherwise
defined herein shall have the meanings herein as ascribed thereto in the Credit
Agreement.
In our examination we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of
all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts material to this
opinion which we did not independently establish or verify, we have relied upon
statements and representations of the Borrower and its officers and other
representatives and of public officials, including the facts set forth in the
Borrower's Certificate described below.
107
In rendering the opinions set forth herein, we have examined and
relied on originals or copies of the following:
(a) the Credit Agreement;
(b) the Notes and Swingline Note delivered to you on the date
hereof;
(c) the certificate of the Borrower executed by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
dated the date hereof, a copy of which is attached as Exhibit A hereto
(the "Borrower's Certificate");
(d) certified copies of the Certificate of Incorporation and By-laws
of the Borrower;
(e) a certified copy of certain resolutions of the Board of
Directors of the Borrower adopted on March 12, 1997; and
(f) such other documents as we have deemed necessary or appropriate
as a basis for the opinions set forth below.
The Credit Agreement, the Notes and the Swingline Note shall hereinafter be
referred to collectively as the "Transaction Documents."
Members of our firm are admitted to the bar of the State of New
York. We express no opinion as to the laws of any jurisdiction other than (i)
the laws of the State of New York, and (ii) the federal laws of the United
States of America to the extent specifically referred to herein.
Based on the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, we are of the
opinion that:
1. The Borrower has been duly incorporated and is validly existing
and in good standing under the laws of the State of New York.
2. The Borrower has the corporate power and authority to (i) carry
on its business as described in the Borrower's 1995 Form 10-K and (ii) execute,
deliver and perform all of its obligations under each of the Transaction
Documents and to borrow and to incur reimbursement obligations with respect to
letters of credit issued thereunder. The execution and delivery of each of the
Transaction Documents and the consummation by the Borrower
2
108
of the transactions contemplated thereby have been duly authorized by all
requisite corporate action on the part of the Borrower. Each of the Transaction
Documents has been duly executed and delivered by the Borrower.
3. Each of the Transaction Documents constitutes a valid and binding
obligation of the Borrower enforceable against the Borrower in accordance with
its terms, subject to the following qualifications:
(a) enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and by general principles of equity
(regardless of whether enforcement is sought in equity or at law);
(b) we express no opinion as to the enforceability of any
rights to contribution or indemnification provided for in the Transaction
Documents which are violative of the public policy underlying any law,
rule or regulation (including any federal or state securities law, rule or
regulation); and
(c) we express no opinion as to Section 9.04 of the Credit
Agreement to the extent it authorizes or permits any party to any
Transaction Document or any purchaser of a participation interest for any
such party to set off or apply any deposit, property or indebtedness with
respect to any participation interest.
4. The execution and delivery by the Borrower of each of the
Transaction Documents and the performance by the Borrower of its obligations
under each of the Transaction Documents, each in accordance with its terms, do
not conflict with the Certificate of Incorporation or By-laws of the Borrower.
5. Neither the execution, delivery or performance by the Borrower of
the Transaction Documents nor the compliance by the Borrower with the terms and
provisions thereof will contravene any provision of any Applicable Law (as
hereinafter defined). "Applicable Laws" shall mean those laws, rules and
regulations of the State of New York and of the United States of America
(including, without limitation, Regulations G, U and X of the Federal Reserve
Board) which, in our experience, are normally applicable to transactions of the
type contemplated by the Transaction Documents.
3
109
6. No Governmental Approval (as hereinafter defined), which has not
been obtained or taken and is not in full force and effect, is required to
authorize or is required in connection with the execution, delivery or
performance of any of the Transaction Documents by the Borrower. "Governmental
Approval" means any consent, approval, license, authorization or validation of,
or filing, recording or registration with, any Governmental Authority (as
hereinafter defined) pursuant to Applicable Laws. "Governmental Authority" means
any New York or federal legislative, judicial, administrative or regulatory
body.
7. Neither the execution, delivery or performance by the Borrower of
its obligations under the Transaction Documents nor compliance by the Borrower
with the terms thereof will contravene any Applicable Order (as hereinafter
defined) against the Borrower. "Applicable Orders" means those orders, judgments
or decrees of Governmental Authorities identified in paragraph 2 of the
Borrower's Certificate.
8. The Borrower is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
In rendering the foregoing opinions, we have assumed, with your
consent, that:
(a) the execution, delivery and performance of any of the Borrower's
obligations under the Transaction Documents does not and will not conflict with,
contravene, violate or constitute a default under (i) to your knowledge, any
lease, indenture, instrument or other agreement to which the Borrower or its
property is subject, (ii) any rule, law or regulation to which the Borrower is
subject (other than Applicable Laws as to which we express our opinion in
paragraph 5 herein) or (iii) any judicial or administrative order or decree of
any governmental authority (other than Applicable Orders as to which we express
our opinion in paragraph 7 herein); and
(b) no authorization, consent or other approval of, notice to or
filing with any court, governmental authority or regulatory body (other than
Governmental Approvals as to which we express our opinion in paragraph 6 herein)
is required to authorize or is required in connection with the execution,
delivery or performance by the Borrower of the Transaction Documents or the
transactions contemplated thereby.
4
110
We understand that you are separately receiving an opinion, dated as
of the date hereof, with respect to the foregoing from ▇▇▇▇ ▇. ▇▇▇▇▇▇ (the
"General Counsel Opinion") and we are advised that such opinion contains
qualifications. Our opinions herein stated are based on the assumptions
specified above and we express no opinion as to the effect on the opinions
herein stated of the qualifications contained in the General Counsel Opinion.
Our opinions are also subject to the following assumptions and
qualifications:
(a) we have assumed each of the Transaction Documents constitutes
the legal, valid and binding obligation of each party to such Transaction
Document (other than the Borrower) enforceable against such party (other than
the Borrower) in accordance with its terms; and
(b) we express no opinion as to the effect on the opinion expressed
herein of (i) the compliance or non-compliance of any party (other than the
Borrower) to the Transaction Documents with any state, federal or other laws or
regulations applicable to it or (ii) the legal or regulatory status or the
nature of the business of any party (other than the Borrower) to the Transaction
Documents.
In rendering the opinions herein stated, we have taken into account
the fact that you have asked the Borrower to make, and the Borrower has made,
the representation set forth in Section 4.02 of the Credit Agreement.
This opinion is being furnished only to you and is solely for your
benefit and is not to be relied upon by any other Person or for any other
purpose without our prior written consent, provided, however, that any Assignee
that becomes a Bank pursuant to Section 9.06(c) of the Credit Agreement may rely
on this opinion as if it were addressed to such Assignee and delivered on the
date hereof.
Very truly yours,
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111
Schedule I
to SASM&F Opinion
Lenders
1. ▇▇▇▇▇▇ Guaranty Trust Company of New York
2. NationsBank, N.A.
3. The Bank of New York
4. The Bank of Nova Scotia
5. Bank of Tokyo-Mitsubishi Trust Company
6. Toronto Dominion (New York), Inc.
7. Bank of America Illinois
8. Commerzbank AG, New York and/or Grand Cayman
Branches
9. Credit Lyonnais New York Branch
10. Deutsche Bank AG, New York and/or Cayman Island
Branch
11. KeyBank National Association
12. ▇▇▇▇▇ Fargo Bank, N.A.
112
Exhibit G
[Form of Opinion of Borrower's General Counsel]
[Woolworth letterhead]
April 9, 1997
The Bank of New York,
as Administrative Agent
and Swingline Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
and
The banks party to the
Credit Agreement referred to
below, as listed on Schedule I
hereto (the "Banks")
Ladies and Gentlemen:
I am General Counsel of Woolworth Corporation, a New York
corporation (the "Borrower"), and have acted as such in connection with the
preparation, execution and delivery of, the Credit Agreement, dated as of April
9, 1997 (the "Credit Agreement"), among the Borrower, the Banks, Co-Agents,
Documentation Agent, LC Agent and Swingline Bank party thereto and The Bank of
New York, as Administrative Agent. This opinion is being delivered pursuant to
Section 3.01(d) of the Credit Agreement. Capitalized terms used and not
otherwise defined herein shall have the same meanings herein as ascribed thereto
in the Credit Agreement.
In my examination I have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to me as originals, the conformity to original documents of all
documents submitted to me as certified or photostatic copies, and the
authenticity of the originals of such copies. As to any facts material to this
opinion which I
113
did not independently establish or verify, I have relied upon statements and
representations of the Borrower and its officers and other representatives and
of public officials.
In rendering the opinions set forth herein, I, or a lawyer acting
under my general supervision, have examined and relied on originals or copies of
the following:
(a) the Credit Agreement;
(b) the Notes and the Swingline Note delivered to you on the date
hereof;
(c) certified copies of the Certificate of Incorporation and By-laws
of the Borrower;
(d) a copy of certain resolutions of the Board of Directors of the
Borrower adopted on March 12, 1997; and
(e) such other documents as I have deemed necessary or appropriate
as a basis for the opinions set forth below.
The Credit Agreement, the Notes and the Swingline Note shall
hereinafter be referred to collectively as the "Transaction Documents."
I am a member of the bar of the State of New York and I do not
express any opinion herein concerning any law other than the laws of the State
of New York.
Based upon the foregoing and subject to the limitations,
qualifications, exceptions and assumptions set forth herein, I am of the opinion
that:
1. Each of the Transaction Documents has been duly executed and
delivered by the Borrower.
2. The execution and delivery by the Borrower of each of the
Transaction Documents and the performance by the Borrower of its obligations
under each of the Transaction Documents, each in accordance with its terms, do
not (i) constitute a violation of or a default under any Applicable Contracts
(as hereinafter defined) or (ii) cause the creation of any security interest or
lien upon any of the property of the Borrower pursuant to any Applicable
Contracts. I do not express any opinion, however, as to whether the execution,
delivery or performance by the Borrower of the Transaction Documents will
constitute a violation of or a default under any covenant, restriction or
provision with respect to financial ratios or tests or any
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114
aspect of the financial condition or results of operations of the Borrower as
set forth in the Transaction Documents or otherwise. "Applicable Contracts" mean
those agreements or instruments which are material to the business or financial
condition of the Borrower.
3. Except for the Designated Litigation, there is no action, suit or
proceeding pending against, or to the best of my knowledge threatened against or
affecting, the Borrower or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official which could reasonably
be expected to result in a Material Adverse Effect.
This opinion is being furnished only to you and is solely for your
benefit and is not to be relied upon by any other Person or for any other
purpose without my prior written consent, provided, however, that any Assignee
that becomes a Bank pursuant to Section 9.06(c) of the Credit Agreement may rely
on this opinion as if it were addressed to such Assignee and delivered on the
date hereof.
Very truly yours,
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115
Schedule I
to Woolworth Opinion
Lenders
1. ▇▇▇▇▇▇ Guaranty Trust Company of New York
2. NationsBank, N.A.
3. The Bank of New York
4. The Bank of Nova Scotia
5. Bank of Tokyo-Mitsubishi Trust Company
6. Toronto Dominion (New York), Inc.
7. Bank of America Illinois
8. Commerzbank AG, New York and/or Grand Cayman
Branches
9. Credit Lyonnais New York Branch
10. Deutsche Bank AG, New York and/or Cayman Island
Branch
11. KeyBank National Association
12. ▇▇▇▇▇ Fargo Bank, N.A.
▇▇▇
▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, SPECIAL COUNSEL
FOR THE ARRANGER AND SYNDICATION AGENT
To the Banks, the Swingline Bank and the
Administrative Agent Referred to Below
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
as Administrative Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of April 9, 1997 among Woolworth Corporation, a New
York corporation (the "Borrower"), the Banks (the "Banks"), Co-Agents,
Documentation Agent, LC Agent and Swingline Bank party thereto and The Bank of
New York, as Administrative Agent, and have acted as special counsel for the
Arranger and Syndication Agent for the purpose of rendering this opinion
pursuant to Section 3.01(e) of the Credit Agreement. Terms defined in the Credit
Agreement are used herein as therein defined.
We have examined originals or copies, certified or otherwise
identified to our satisfaction, of such documents, corporate records,
certificates of public officials and other instruments and have conducted such
other investigations of fact and law as we have deemed necessary or advisable
for purposes of this opinion.
Upon the basis of the foregoing, we are of the opinion that:
1. The execution, delivery and performance by the Borrower of the
Credit Agreement, the Notes and the Swingline Note are within the Borrower's
corporate powers
117
and have been duly authorized by all necessary corporate action.
2. The Credit Agreement constitutes a valid and binding agreement of
the Borrower and each Note and the Swingline Note delivered to you today
constitutes a valid and binding obligation of the Borrower, in each case
enforceable in accordance with its terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity.
We are members of the Bar of the State of New York and the foregoing
opinion is limited to the laws of the State of New York and the federal laws of
the United States of America. In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any jurisdiction (except the
State of New York) in which any Bank is located which limits the rate of
interest that such Bank may charge or collect.
This opinion is rendered solely to you in connection with the above
matter. This opinion may not be relied upon by you for any other purpose or
relied upon by any other person without our prior written consent; provided that
any Assignee that becomes a Bank pursuant to Section 9.06(c) of the Credit
Agreement may rely on this opinion as if it were addressed to such Assignee and
delivered on the date hereof.
Very truly yours,
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118
EXHIBIT I
ASSIGNMENT AND ASSUMPTION AGREEMENT
AGREEMENT dated as of _________, 19__ among [ASSIGNOR] (the
"Assignor") and [ASSIGNEE] (the "Assignee").
W I T N E S S E T H
WHEREAS, this Assignment and Assumption Agreement (the "Agreement")
relates to the Credit Agreement dated as of April 9, 1997 among Woolworth
Corporation, the Banks, Co-Agents, Documentation Agent, LC Agent and Swingline
Bank party thereto and The Bank of New York, as Administrative Agent (as amended
from time to time, the "Credit Agreement");
WHEREAS, as provided under the Credit Agreement, the Assignor has a
Commitment to make Committed Loans to the Borrower and participate in Letters of
Credit issued for the account of the Borrower in an aggregate amount at any time
outstanding not to exceed $__________;
WHEREAS, Committed Loans made to the Borrower by the Assignor under
the Credit Agreement in the aggregate principal amount of $__________ are
outstanding at the date hereof; and*
WHEREAS, the Assignor proposes to assign to the Assignee all of the
rights of the Assignor under the Credit Agreement in respect of a portion of its
Commitment thereunder in an amount equal to $__________ (the "Assigned Amount"),
together with a corresponding portion of its outstanding Committed Loans and LC
Exposure, and the Assignee proposes to accept assignment of such rights and
assume the corresponding obligations from the Assignor on such terms;
--------
*This clause (and certain other provisions herein) should be modified to
reflect the assignment of Money Market Loans if such Loans are being assigned.
119
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
SECTION 1. Definitions. All capitalized terms not otherwise defined
herein have the respective meanings set forth in the Credit Agreement.
SECTION 2. Assignment. The Assignor hereby assigns and sells to the
Assignee all of the rights of the Assignor under the Credit Agreement to the
extent of the Assigned Amount, and the Assignee hereby accepts such assignment
and purchases such rights from the Assignor and assumes all of the obligations
of the Assignor under the Credit Agreement to the extent of the Assigned Amount,
including the purchase from the Assignor of the corresponding portion of the
principal amount of the Committed Loans made by, and the LC Exposure of, the
Assignor outstanding at the date hereof. Upon the execution and delivery hereof
by the Assignor, the Assignee, the Borrower and the Administrative Agent and the
payment of the amounts specified in Section 3 hereof required to be paid on the
date hereof (i) the Assignee shall, as of the date hereof, succeed to the rights
and be obligated to perform the obligations of a Bank under the Credit Agreement
with a Commitment in an amount equal to the Assigned Amount, and (ii) the
Commitment of the Assignor shall, as of the date hereof, be reduced by a like
amount and the Assignor released from its obligations under the Credit Agreement
to the extent such obligations have been assumed by the Assignee. The assignment
provided for herein shall be without recourse to the Assignor.
SECTION 3. Payments. (a) As consideration for the assignment and
sale contemplated in Section 2 hereof, the Assignee shall pay to the Assignor on
the date hereof in Federal funds the amount heretofore agreed between them.* It
is understood that facility fees accrued to the date hereof in respect of the
Assigned Amount are for the account of the Assignor and such fees accruing from
and including the date hereof are for the account of the Assignee. Each of the
Assignor and the Assignee hereby agrees that if it receives any amount under the
Credit Agreement which is for the account of the other party hereto, it shall
receive the same for the account of such other party to the extent of such
--------
*Amount should combine principal together with accrued interest and
breakage compensation, if any, to be paid by the Assignee.
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120
other party's interest therein and shall promptly pay the same to such other
party.
(b) The Assignor shall pay the $2500 administrative fee to be paid
by it to the Administrative Agent pursuant to Section 9.06(c) of the Credit
Agreement.*
SECTION 4. Consent of the Borrower and the Administrative Agent.
This Agreement is conditioned upon the consent of the Borrower, the LC Agent,
the Swingline Bank and the Administrative Agent pursuant to Section 9.06(c) of
the Credit Agreement. The execution of this Agreement by the Borrower, the LC
Agent, the Swingline Bank and the Administrative Agent is evidence of this
consent. Pursuant to said Section 9.06(c) the Borrower is obligated to execute
and deliver a Note payable to the order of the Assignee, if required, to reflect
the assignment provided for herein.
SECTION 5. Non-Reliance on Assignor. The Assignor makes no
representation or warranty in connection with, and shall have no responsibility
with respect to, the solvency, financial condition, or statements of the
Borrower, or the validity and enforceability of the obligations of the Borrower
in respect of the Credit Agreement or any Note. The Assignee acknowledges that
it has, independently and without reliance on the Assignor, and based on such
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and will continue to be
responsible for making its own independent appraisal of the business, affairs
and financial condition of the Borrower.
SECTION 6. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 7. Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
--------
*Section 3(b) should be deleted if the assignment is required by the
Borrower pursuant to Section 8.06 of the Credit Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
[ASSIGNOR]
By_________________________
Title:
[ASSIGNEE]
By__________________________
Title:
Consented and agreed to:
WOOLWORTH CORPORATION
By__________________________
Title:
THE BANK OF NEW YORK,
as Administrative Agent, LC Agent
and Swingline Bank
By__________________________
Title:
4