Exhibit 10.28
[5-Year Agreement] EXECUTION COPY
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CREDIT AGREEMENT
Dated as of March 22, 2000
among
ALBERTSON'S, INC.,
BANK OF AMERICA, N.A.
as Administrative Agent,
WACHOVIA BANK, N.A.
as Syndication Agent,
BANK ONE, NA,
as Documentation Agent,
FIRST UNION NATIONAL BANK,
UNION BANK OF CALIFORNIA, N.A.,
U.S. BANK NATIONAL ASSOCIATION, and
WELLS FARGO BANK, N.A.,
as Senior Managing Agents,
FIRST SECURITY BANK, N.A. and
THE NORTHERN TRUST COMPANY,
as Managing Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
Banc of America Securities LLC,
Sole Lead Arranger
and Sole Book Manager
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TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS 1
1.01 Certain Defined Terms...............................................1
1.02 Other Interpretive Provisions......................................14
1.03 Accounting Principles..............................................15
ARTICLE II THE CREDITS........................................................16
2.01 Amounts and Terms of Commitments...................................16
2.02 Loan Accounts......................................................16
2.03 Procedure for Committed Borrowing..................................16
2.04 Conversion and Continuation Elections for Committed Borrowings.....17
2.05 Bid Borrowings.....................................................19
2.06 Procedure for Bid Borrowings.......................................19
2.07 Swingline Loans....................................................22
2.08 Voluntary Termination or Reduction of Commitments..................24
2.09 Optional Prepayments...............................................25
2.10 Repayment..........................................................25
2.11 Interest...........................................................26
2.12 Fees...............................................................27
2.13 Computation of Fees and Interest...................................27
2.14 Payments by the Company............................................28
2.15 Payments by the Banks to the Agent.................................28
2.16 Sharing of Payments, Etc...........................................29
2.17 Revolving Termination Date Extensions..............................30
2.18 Optional Increase in Commitments...................................30
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY............................32
3.01 Taxes..............................................................32
3.02 Illegality.........................................................34
3.03 Increased Costs and Reduction of Return............................34
3.04 Funding Losses.....................................................35
3.05 Inability to Determine Rates.......................................36
3.06 Certificates of Banks and Designated Bidders.......................37
3.07 Base Rate Committed Loans Substituted for Affected Offshore Rate
Committed Loans....................................................37
3.08 Reserves on Offshore Rate Committed Loans..........................37
3.09 Substitution of Banks..............................................37
3.10 Survival...........................................................38
ARTICLE IV CONDITIONS PRECEDENT...............................................38
4.01 Conditions of Initial Loans........................................38
4.02 Conditions to All Borrowings.......................................40
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ARTICLE V REPRESENTATIONS AND WARRANTIES......................................40
5.01 Corporate Existence and Power......................................40
5.02 Subsidiaries.......................................................41
5.03 Corporate and Governmental Authorization; No Contravention.........41
5.04 Binding Effect.....................................................41
5.05 Litigation.........................................................41
5.06 ERISA Compliance...................................................41
5.07 Use of Proceeds; Margin Regulations................................41
5.08 Title to Properties; Liens.........................................41
5.09 Taxes..............................................................41
5.10 Financial Information..............................................42
5.11 Environmental Matters..............................................42
5.12 Regulated Entities.................................................42
5.13 Insurance..........................................................42
5.14 Full Disclosure....................................................43
5.15 Year 2000..........................................................43
ARTICLE VI AFFIRMATIVE COVENANTS..............................................43
6.01 Information........................................................43
6.02 Conduct of Business and Maintenance of Existence...................45
6.03 Maintenance of Property............................................45
6.04 Insurance..........................................................45
6.05 Payment of Obligations.............................................45
6.06 Compliance with Laws...............................................45
6.07 Inspection of Property, Books and Records..........................45
6.08 Use of Proceeds....................................................46
6.09 Further Assurances.................................................46
ARTICLE VII NEGATIVE COVENANTS................................................46
7.01 Limitation on Liens................................................46
7.02 Disposition of Assets..............................................47
7.03 Limitation on Subsidiary Indebtedness and Swap Contracts...........48
7.04 Use of Proceeds....................................................48
7.05 Minimum Consolidated Tangible Net Worth............................49
ARTICLE VIII EVENTS OF DEFAULT................................................49
8.01 Event of Default...................................................49
8.02 Remedies...........................................................51
8.03 Rights Not Exclusive...............................................51
ARTICLE IX THE AGENT 51
9.01 Appointment and Authorization; "Agent."............................51
9.02 Delegation of Duties...............................................52
9.03 Liability of Agent.................................................52
9.04 Reliance by Agent..................................................52
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9.05 Notice of Default..................................................53
9.06 Credit Decision....................................................53
9.07 Indemnification of Agent...........................................53
9.08 Agent in Individual Capacity.......................................54
9.09 Successor Agent....................................................54
9.10 Withholding Tax....................................................54
9.11 Co-Agents..........................................................56
ARTICLE X MISCELLANEOUS.......................................................56
10.01 Amendments and Waivers.............................................56
10.02 Notices............................................................57
10.03 No Waiver; Cumulative Remedies.....................................57
10.04 Costs and Expenses.................................................57
10.05 Company Indemnification............................................58
10.06 Payments Set Aside.................................................58
10.07 Binding Effect; Successors and Assigns.............................58
10.08 Assignments, Participations, Etc...................................59
10.09 Designated Bidders.................................................60
10.10 Confidentiality....................................................61
10.11 Set-off............................................................61
10.12 Notification of Addresses, Lending Offices, Etc....................62
10.13 Counterparts.......................................................62
10.14 Severability.......................................................62
10.15 No Third Parties Benefited.........................................62
10.16 Governing Law and Jurisdiction.....................................62
10.17 Waiver of Jury Trial...............................................63
10.18 Entire Agreement...................................................63
ANNEXES
Annex I Pricing Grid
SCHEDULES
Schedule 2.01 Commitments and Pro Rata Shares
Schedule 10.02 Payment Offices; Addresses for Notices; Lending
Offices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Counsel to the Company
Exhibit E Form of Assignment and Acceptance
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Exhibit F Form of Invitation for Competitive Bids
Exhibit G Form of Competitive Bid Request
Exhibit H Form of Competitive Bid
Exhibit I Form of Committed Loan Note
Exhibit J Form of Bid Loan Note
Exhibit K Form of Designation Agreement
Exhibit L Form of Commitment Increase Agreement
Exhibit M Form of New Bank Agreement
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of March 22, 2000, among
Albertson's, Inc., a Delaware corporation (the "Company"), the several financial
institutions from time to time party to this Agreement (individually, a "Bank"
and, collectively, the "Banks"), Bank One, NA, as documentation agent (the
"Documentation Agent"), Wachovia Bank, N.A., as syndication agent (in such
capacity, the "Syndication Agent"), First Security Bank, N.A. and The Northern
Trust Company, as managing agents (in such capacity, the "Managing Agents"),
First Union National Bank, Union Bank Of California, N.A., U.S. Bank National
Association and Wells Fargo Bank, N.A., as senior managing agents (in such
capacity, the "Senior Managing Agents"), and Bank of America, N.A., as Swingline
Bank and as administrative agent for itself, the Designated Bidders and the
Banks (in such capacity, the "Agent").
WHEREAS, the Banks have agreed to make available to the Company a
revolving credit and bid loan facility with a swingline subfacility, upon the
terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I.........
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following meanings
when used herein (including in the recitals hereof):
"Absolute Rate" has the meaning specified in subsection
2.06(c).
"Absolute Rate Auction" means a solicitation of Competitive
Bids setting forth Absolute Rates pursuant to Section 2.06.
"Absolute Rate Bid Loan" means a Bid Loan that bears interest
at a rate determined with reference to the Absolute Rate.
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, membership interests, by contract, or
otherwise.
"Agent" means BofA in its capacity as administrative agent for
the Banks and the Designated Bidders hereunder, and any successor agent
arising under Section 9.09.
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"Agent-Related Persons" means BofA and any successor agent
arising under Section 9.09, together with their respective Affiliates
(including, in the case of BofA, the Lead Arranger), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agent's Payment Office" means the address for payments set
forth on Schedule 10.02 or such other address as the Agent may from
time to time specify.
"Aggregate Commitment" means the combined Commitments of the
Banks.
"Agreement" means this Credit Agreement.
"Applicable Fee Amount" means with respect to the fees payable
hereunder, the amount set forth opposite the indicated Indebtedness
Rating or Facility Usage Percentage, as the case may be, below the
headings "Facility Fee" and "Utilization Fee" in the pricing grid set
forth on Annex I in accordance with the parameters for calculations of
such amount also set forth on Annex I.
"Applicable Margin" means, with respect to Base Rate Committed
Loans and Offshore Rate Committed Loans, the amount set forth opposite
the indicated Indebtedness Rating below the heading "Base Rate Spread"
or "Offshore Rate Spread" in the pricing grid set forth on Annex I in
accordance with the parameters for calculations of such amounts also
set forth on Annex I.
"Assignee" has the meaning specified in subsection 10.08(a).
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel.
"Bank" has the meaning specified in the introductory clause
hereto. References to the "Banks" shall include the Swingline Bank in
its capacity as such unless the context otherwise clearly requires. For
purposes of clarification only, to the extent that the Swingline Bank
may have any rights or obligations in addition to those of the Banks
due to its status as Swingline Bank, its status as such will be
specifically referenced.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C.ss.101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest
in effect for such day as publicly announced from time to time by BofA
as its "prime rate." The "prime rate" is a rate set by BofA based upon
various factors including BofA's costs and desired return, general
economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such
announced rate. Any change in the prime rate announced by BofA shall
take effect at the opening of business on the day specified in the
public announcement of such change.
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"Base Rate Committed Loan" means a Committed Loan that bears
interest based on the Base Rate.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or
Multiemployer Plan and which is maintained or otherwise contributed to
by any member of the ERISA Group.
"Bid Borrowing" means a borrowing of Loans under Article II
consisting of one or more Bid Loans made to the Company on the same day
by the Bid Loan Banks and Designated Bidders participating in such
borrowing.
"Bid Loan" means an Absolute Rate Bid Loan by a Bid Loan Bank
or a Designated Bidder to the Company under Section 2.05.
"Bid Loan Bank" means each Bank party hereto.
"Bid Loan Note" has the meaning specified in Section 2.02.
"BofA" means Bank of America, N.A., a national banking
association.
"Borrowing" means (i) a Committed Borrowing or a Bid Borrowing
and (ii) a borrowing hereunder consisting of a Swingline Loan (or
Swingline Loans) made to the Company on the same day by the Swingline
Bank, and, other than in the case of Base Rate Committed Loans, having
the same Interest Period.
"Borrowing Date" means any date on which a Committed Borrowing
occurs under Section 2.03 or a Bid Borrowing occurs under Section 2.06.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco
are authorized or required by law to close and, if the applicable
Business Day relates to any Offshore Rate Committed Loan, means such a
day on which dealings are carried on in the applicable offshore Dollar
interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Change of Control" means 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 40% or more of the
outstanding shares of common stock of the Company; or, during any
period of twelve consecutive calendar months, individuals who were
directors of the Company on the first day of such period shall cease to
constitute a majority of the board of directors of the Company.
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"Closing Date" means the date occurring on or before March 29,
2000 on which all conditions precedent set forth in Section 4.01 are
satisfied or waived by all Banks (or, in the case of subsection
4.01(e), waived by the Person entitled to receive such payment).
"Co-Agents" means each of the Syndication Agent, Documentation
Agent, Senior Managing Agents and Managing Agents, in its respective
capacity as a syndication agent, documentation agent, senior managing
agents or managing agent hereunder.
"Code" means the Internal Revenue Code of 1986.
"Commitment" as to each Bank, has the meaning specified in
Section 2.01.
"Committed Borrowing" means a borrowing of Loans under Article
II consisting of Committed Loans of the same Type made on the same day
by the Banks ratably according to their respective Pro Rata Shares and,
in the case of Offshore Rate Committed Loans, having the same Interest
Periods.
"Committed Loan" means a Loan made by a Bank to the Company
under Section 2.01 or a Swingline Loan made by the Swingline Bank under
Section 2.07.
"Committed Loan Note" has the meaning specified in Section
2.02.
"Company's 1998 Form 10-K" means the Company's Annual Report
on Form 10-K for the fiscal year ended January 28,1999, as filed with
the SEC pursuant to the Exchange Act.
"Competitive Bid" means an offer by a Bid Loan Bank or a
Designated Bidder to make a Bid Loan in accordance with subsection
2.06(c).
"Competitive Bid Request" has the meaning specified in
subsection 2.06(a).
"Compliance Certificate" means a certificate substantially in
the form of Exhibit C.
"Consolidated Subsidiary" means at any date any Subsidiary or
other Person the accounts of which would be consolidated with those of
the Company in its consolidated financial statements as of such date.
"Consolidated Tangible Net Worth" means at any date (a) the
consolidated stockholders' equity of the Company and its Consolidated
Subsidiaries as reflected on the Company's consolidated balance sheet,
plus their consolidated deferred investment tax credits as reflected on
the Company's consolidated balance sheet, minus (b) their consolidated
Intangible Assets, all determined as of such date. For purposes of this
definition, "Intangible Assets" means the amount (to the extent
reflected in determining such consolidated stockholders' equity) of (i)
all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern business made
within twelve months after the acquisition of such business) subsequent
to January 28, 1999 in the book value of any asset owned by the Company
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or a Consolidated Subsidiary, (ii) all investments in unconsolidated
Subsidiaries and all equity investments in Persons which are not
Subsidiaries and (iii) all unamortized debt discount and expense,
unamortized deferred charges (except deferred income taxes), goodwill,
patents, trademarks, service marks, trade names, copyrights,
organization or developmental expenses and other intangible items
(except leasehold improvements and liquor licenses).
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Company (a) converts Committed Loans of one Type to
another Type, or (b) continues as Committed Loans of the same Type, but
with a new Interest Period, Committed Loans having Interest Periods
expiring on such date.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"Designated Bidder" means an Affiliate of a Bid Loan Bank that
is a Person described in clause (c)(i) or (ii) of the definition of
"Eligible Assignee" and that has become a party hereto pursuant to
Section 10.09.
"Designation Agreement" means a Designation Agreement entered
into by a Bank and a Designated Bidder and accepted by the Agent, in
substantially the form of Exhibit K.
"Documentation Agent" means Bank One, NA in its capacity as
documentation agent hereunder.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $250,000,000; (b) a commercial
bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development (the "OECD"),
or a political subdivision of any such country, and having a combined
capital and surplus of at least $250,000,000, provided that such bank
is acting through a branch or agency located in the United States; and
(c) a Person that is primarily engaged in the business of commercial
lending and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (iii) a Person of which a
Bank is a Subsidiary.
"Environmental Laws" means all federal, state, local or
foreign laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative orders, directed
duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authorities, in each case relating to
the environment or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial,
toxic or hazardous substances or wastes into the environment including
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,
Page 5
petroleum or petroleum products, chemicals or industrial, toxic or
hazardous substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA Group" means the Company 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
Company, are treated as a single employer under Section 414 of the
Code.
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Excluded Taxes" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholding or
similar charges and all liabilities with respect thereto, other than
those taxes included in the definition of Taxes.
"Existing Credit Facilities" means (i) the Credit Agreement
dated as of March 30, 1999, among the Company, BofA as agent, and the
other financial institutions party thereto, and (ii) the Credit
Agreement dated as of October 5, 1994, among the Company, BofA as
co-agent, Morgan Guaranty Trust Company of New York as agent, and the
other financial institutions party thereto.
"Facility Period" means the period from the Closing Date to
the Revolving Termination Date, or, if earlier, the date of termination
of the Aggregate Commitment in its entirety and the repayment of all
Loans outstanding hereunder.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York with respect to the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is
not so published with respect to any such preceding Business Day, the
rate for such day will be the arithmetic mean as determined by the
Agent of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that day by each of
three leading brokers of Federal funds transactions in New York City
selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.12(a).
"Foundation Stock Agreement" means the agreement dated May 21,
1997, between the Company and the J.A.and Kathryn Albertson Foundation,
Inc. and any successor agreement.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
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"GAAP" means generally accepted accounting principles as in
effect from time to time.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, with respect to any obligation (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person (i) to purchase, repurchase or otherwise
acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such
primary obligation, or to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency
or any balance sheet item, level of income or financial condition of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect
thereof. The amount of any Guaranty Obligation shall be deemed equal to
the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof.
"Increased Commitment Date" has the meaning specified in
subsection 2.18(b).
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations evidenced by
notes, bonds, debentures or similar instruments, (c) all obligations
issued, undertaken or assumed as the deferred purchase price of
property or services, (d) all obligations with respect to capital
leases (but not obligations with respect to operating leases), (e) all
obligations of such Person to purchase securities or other property
which arise out of or in connection with the sale of the same or
substantially similar securities or property, (f) all non-contingent
obligations (and, for purposes of Section 7.01 and the definition of
Material Indebtedness all contingent obligations) of such Person to
reimburse any bank or other Person in respect of amounts paid under any
Surety Instrument, (g) all indebtedness of others of the type referred
to in clauses (a) through (f) secured by a Lien on any asset of such
Person, whether or not such indebtedness is assumed by such Person, (h)
all Guaranty Obligations of such Person in respect of indebtedness of
others of the type referred to in clauses (a) through (f), and (i) all
preferred stock of such Person redeemable at the option of the holder
during the Facility Period. Insurance reserves, tax reserves and
interest thereon, salaries payable, taxes payable, dividends payable,
trade accounts payable arising in the ordinary course of business,
deferred investment tax credits, deferred compensation, deferred rents
payable under non-capital leases, benefits payable, unearned income and
other similar liabilities shall not constitute "Indebtedness."
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"Indebtedness Rating" has the meaning set forth in Annex I.
"Indemnified Liabilities" has the meaning specified in Section
10.05.
"Indemnified Person" has the meaning specified in Section
10.05.
"Independent Auditor" has the meaning specified in subsection
6.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a)
any case, action or proceeding with respect to such Person before any
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for creditors,
or other similar arrangement in respect of its creditors generally or
any substantial portion of its creditors, in either case undertaken
under U.S. Federal, state or foreign law, including the Bankruptcy
Code.
"Interest Payment Date" means, (i) as to any Loan other than a
Base Rate Committed Loan, the last day of each Interest Period
applicable to such Loan, (ii) as to any Base Rate Committed Loan which
is not a Swingline Loan, or any Bid Loan, the last day of each calendar
quarter and the Revolving Termination Date and (iii) as to any Base
Rate Committed Loan which is a Swingline Loan, the Business Day on
which the principal of such Swingline Loan is repaid or as otherwise
provided in Section 2.07(e); provided, however, that (a) if any
Interest Period for an Offshore Rate Committed Loan exceeds three
months, the date that falls three months after the beginning of such
Interest Period and after each Interest Payment Date thereafter is also
an Interest Payment Date, and (b) as to any Bid Loan, such other
intervening date prior to the maturity thereof as may be specified by
the Company and agreed to by the applicable Bid Loan Bank or Designated
Bidder in the applicable Competitive Bid shall also be Interest Payment
Dates.
"Interest Period" means, (a) as to any Offshore Rate Committed
Loan, the period commencing on the Borrowing Date of such Loan, or on
the Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Committed Loan, and ending on the date
one, two, three or six months thereafter as selected by the Company in
its Notice of Borrowing, Notice of Conversion/Continuation or
Competitive Bid Request, as the case may be; and (b) as to any Absolute
Rate Bid Loan, a period of not less than 7 days and not more than 183
days as selected by the Company in the applicable Competitive Bid
Request;
provided that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless, in the case of
an Offshore Rate Committed Loan, the result of such extension
would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the
preceding Business Day;
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(ii) any Interest Period pertaining to an Offshore
Rate Committed Loan that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such
Interest Period) shall end on the last Business Day of the
calendar month at the end of such Interest Period; and
(iii)no Interest Period for any Loan shall extend
beyond the Revolving Termination Date.
"Invitation for Competitive Bids" means an Invitation for
Competitive Bids, substantially in the form of Exhibit F.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Lead Arranger" means Banc of America Securities LLC, a
Delaware limited liability company, in its capacity as Sole Lead
Arranger and Sole Book Manager.
"Lending Office" means, (i) as to any Bank, the office or
offices of such Bank specified as its "Lending Office" or "Domestic
Lending Office" or "Offshore Lending Office", as the case may be, on
Schedule 10.02; (ii), as to any Designated Bidder, the office or
offices of such Designated Bidder specified as its "Lending Office" in
its Designation Agreement; and (iii) such other office or offices as
such Bank or Designated Bidder may from time to time notify to the
Company and the Agent.
"Lien" means with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, the Company 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.
"Loan" means an extension of credit by a Bank or a Designated
Bidder to the Company in the form of a Revolving Loan or a Swingline
Loan under Article II, and may be a Committed Loan or a Bid Loan.
"Loan Documents" means this Agreement, the Notes, any
Commitment Increase Agreement (as defined in Section 2.18), any New
Bank Agreement (as defined in Section 2.18), the Fee Letter and all
other documents delivered to the Agent or any Bank or Designated Bidder
in connection herewith.
"Majority Banks" means at any time Banks then having more than
50% of the Aggregate Commitment or, if the Commitments have been
terminated, Banks then holding more than 50% of the then aggregate
unpaid principal amount of the Credit Exposure. As used in this
definition, the "Credit Exposure" of any Bank means (i) with respect to
any outstanding Revolving Loans or Term Loans, the aggregate
outstanding principal amount of the Loans made by such Bank, and (ii)
with respect to any outstanding Swingline Loans, the participating
interest therein equal to such Bank's Pro Rata Share thereof. For
Page 9
purposes of this definition, each Bank shall be deemed to hold all
outstanding Bid Loans of such Bank's Designated Bidders.
"Managing Agents" means each of First Security Bank, N.A. and
The Northern Trust Company in its capacity as a managing agent
hereunder.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"Markus-Stiftung Stock Agreement" means the agreement dated
February 15, 1980, among the Company, Theo Albrecht Stiftung (now known
as Markus-Stiftung) and Theo Albrecht, as amended by the First
Amendment thereto dated as of April 11, 1984, the Second Amendment
thereto dated as of September 25, 1989 and the Third Amendment thereto
dated as of December 5, 1994 and any successor agreement.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
assets, liabilities or financial condition of the Company and its
Consolidated Subsidiaries taken as a whole; (b) a material impairment
of the ability of the Company to perform under any Loan Document and to
avoid any Event of Default; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against the
Company of any Loan Document.
"Material Indebtedness" means Indebtedness (other than the
Loans) of the Company and/or one or more of its Subsidiaries, arising
in one or more related or unrelated transactions, in an aggregate
outstanding principal amount exceeding $30,000,000.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $30,000,000.
"Minimum Amount" means (i) in respect of any Committed
Borrowing, conversion or continuation of Committed Loans, (a) in the
case of Base Rate Committed Loans (other than Swingline Loans), an
aggregate minimum amount of $5,000,000 or any integral multiple of
$1,000,000 in excess thereof, (b) in the case of Swingline Loans, an
aggregate minimum amount of $500,000 or any integral multiple of
$100,000 in excess thereof, and (c) in the case of Offshore Rate
Committed Loans, an aggregate minimum amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof, and (ii) in the case
of any reduction of the Commitments under Section 2.08, or optional
prepayment of Committed Loans under Section 2.09, $5,000,000 or any
multiple of $1,000,000 in excess thereof.
"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.
Page 10
"Non-Continuing Bank" means, at any time, each Bank the
Revolving Termination Date of which has not been extended pursuant to
Section 2.17.
"Notes" means the Committed Loan Notes and the Bid Loan Notes.
"Notice of Borrowing" means a notice in substantially the form
of Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document,
owing by the Company to any Bank, any Designated Bidder, the Swingline
Bank, the Agent, or any Indemnified Person, whether direct or indirect
(including those acquired by assignment), absolute or contingent, due
or to become due, now existing or hereafter arising.
"Offshore Rate" means, for any Interest Period, with respect
to Offshore Rate Committed Loans comprising part of the same Borrowing:
(i) the rate of interest per annum determined by the Agent to
be the rate of interest per annum (rounded upwards to the nearest
1/100th of 1%) appearing on Dow Jones Page 3750 (as defined below) for
deposits in Dollars having a maturity comparable to such Interest
Period, at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period, subject to clause
(ii) below; or
(ii) if for any reason the rate is not available as provided
in the preceding clause (i) of this definition, the "Offshore Rate"
instead means the rate of interest per annum determined by the Agent to
be the arithmetic mean (rounded upward to the nearest 1/100th of 1%) of
the rates of interest per annum notified to the Agent by each Reference
Bank as the rate of interest at which deposits in Dollars in the
approximate amount of the Offshore Rate Committed Loan to be made,
continued or converted by such Reference Bank, and having a maturity
comparable to such Interest Period, would be offered to major banks in
the London interbank market or other applicable interbank market at
their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period. As used in this
definition, "Dow Jones Page 3750" means the display designated as
"3750" on the Dow Jones Market Service (formerly known as the Telerate
Service) or any replacement page thereof.
"Offshore Rate Committed Loan" means any Committed Loan that
bears interest based on the Offshore Rate.
"Other Taxes" means any present or future stamp or documentary
taxes or any other excise taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect
to, this Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection
10.08(d).
Page 11
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or
any other entity of whatever nature.
"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
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.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Bank's Commitment divided by the
Aggregate Commitment (or, if all Commitments have been terminated, the
aggregate principal amount of such Bank's Loans divided by the
aggregate principal amount of the Loans then held by all Banks). The
initial Pro Rata Share of each Bank is set forth opposite such Bank's
name in Schedule 2.01 under the heading "Pro Rata Share."
"Reference Bank" means each of BofA, Wachovia Bank, N.A. and
Bank One, NA.
"Replacement Bank" has the meaning specified in Section 3.09.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"Responsible Officer" means, as to any Person, the chief
executive officer, the chief financial officer, or the treasurer or the
president of such Person, or any other officer having substantially the
same authority and responsibility; or, with respect to compliance with
financial covenants, the chief financial officer or the treasurer of
such Person, or any other officer having substantially the same
authority and responsibility.
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Termination Date" means the earlier to occur of:
(a) March 22, 2005 as the same may be extended from
time to time pursuant to Section 2.17; and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
Page 12
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Senior Managing Agents" means each of First Union National
Bank, Union Bank Of California, N.A., U.S.Bank National Association and
Wells Fargo Bank, N.A in its capacity as a senior managing agent
hereunder.
"Subsidiary" of a Person means any corporation or other
business entity of which more than 50% of the voting stock, membership
interests or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
"Surety Instruments" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap or option, bond, note or bill option, interest rate
option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any option
to enter into any of the foregoing) or any combination of the
foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced
in clause (a) the amount(s) determined as the mark-to-market value(s)
for such Swap Contracts, as determined by the Company based upon one or
more mid- market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include any Bank).
"Swingline Bank" means BofA, in its capacity as maker of
Swingline Loans hereunder. Specific reference to the Swingline Bank
shall exclude the Swingline Bank in its capacity as a Bank hereunder.
"Swingline Commitment" has the meaning specified in subsection
2.07(a).
"Swingline Loan" has the meaning specified in subsection
2.07(a).
"Swingline Loan Borrowing" means a Borrowing consisting of one
or more Swingline Loans.
Page 13
"Syndication Agent" means Wachovia Bank, N.A., in its capacity
as syndication agent hereunder.
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Bank and the Agent, respectively, (a) income or franchise
taxes imposed on or measured by its net income, (i) by the United
States, (ii) by the jurisdiction under the laws of which such recipient
is organized or in which its principal office is located, (iii) by any
jurisdiction solely as a result of such Bank's activities in or contact
with such jurisdiction unrelated to the transactions contemplated by
this Agreement, or (iv) by the jurisdiction in which in the Lending
Office of the recipient is located, and (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which any recipient is located.
"364-Day Credit Agreement" means the Credit Agreement dated as
of the date hereof, among the Company, BofA as agent, and the other
financial institutions party thereto, providing for a 364 day revolving
credit facility.
"Type" means, as to any Committed Loan, its nature as an
Offshore Rate Committed Loan or a Base Rate Committed Loan.
"Unfunded Liability" means with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all
benefits under such Plan exceeds (ii) the fair market value of all Plan
assets allocable to such benefits (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" and "U.S." each means the United States of
America.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership
interests of which (except directors' qualifying shares) are at the
time directly or indirectly owned by the Company.
1.02 Other Interpretive Provisions(a) . (a) The meanings of defined terms
are equally applicable to the singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
Page 14
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding", and the word
"through" means "to and including."
(iv) The term "property" includes any kind of property or asset,
real, personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i) references to
agreements(including this Agreement) and other contractual instruments
shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters.
All such limitations, tests and measurements are cumulative and shall each
be performed in accordance with their terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among the Agent, the Company and the other parties, have been
reviewed by counsel to the Agent, the Company and such other parties, and
are the products of all parties. Accordingly, they shall not be construed
against the Banks or the Agent merely because of the Agent's or Banks'
involvement in their preparation.
1.03 Accounting Principles. (a) Unless the context otherwise clearly
requires, all accounting terms not expressly defined herein shall be construed,
and all financial computations required under this Agreement shall be made, in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Company's Independent Auditor) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks, except that accounting terms used in
Sections 7.01, 7.03 and 7.05 shall be interpreted, and all accounting
determinations and calculations required to establish whether the Company is or
was in compliance with the requirements of said Sections shall be prepared in
accordance with generally accepted accounting principles as in effect on the
date hereof, applied on a basis consistent with the audited consolidated
financial statements of the Company and its Consolidated Subsidiaries referred
to in Section 5.10(a).
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
Page 15
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments. Each Bank severally agrees, on the
terms and conditions set forth herein, to make loans to the Company (each such
loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth opposite such
Bank's name on Schedule 2.01 under the heading "Commitment" (such amount as the
same may be reduced under Section 2.08 or reduced or increased as a result of
one or more assignments under Section 10.08, such Bank's "Commitment");
provided, however, that, after giving effect to any Committed Borrowing of
Revolving Loans, the aggregate principal amount of all outstanding Committed
Loans plus the aggregate principal amount of all outstanding Bid Loans, shall
not at any time exceed the Aggregate Commitment. Within the limits of each
Bank's Commitment, and subject to the other terms and conditions hereof, the
Company may borrow under this Section 2.01, prepay under Section 2.09 and
reborrow under this Section 2.01.
2.02 Loan Accounts. (a) The Loans made by each Bank or Designated Bidder
shall be evidenced by one or more loan accounts or records maintained by such
Bank or Designated Bidder in the ordinary course of business. The loan accounts
or records maintained by the Agent and each Bank or Designated Bidder shall be
conclusive absent manifest error of the amount of the Loans made by the Banks
and Designated Bidders to the Company and the interest and payments thereon. Any
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of the Company hereunder to pay any amount owing
with respect to the Loans.
(b) The Committed Loans made by such Bank shall be evidenced by one or
more notes of the Company, substantially in the form of Exhibit I, with
appropriate insertions (the "Committed Loan Notes"), and upon the request
of any Bank or Designated Bidder made through the Agent, the Bid Loans made
by such Bank or Designated Bidder shall be evidenced by one or more notes
of the Company, substantially in the form of Exhibit J, with appropriate
insertions (the "Bid Loan Notes"), instead of or in addition to loan
accounts. Each such Bank or Designated Bidder shall endorse on the
schedules annexed to its Note(s) the date and amount of each Loan made by
it, the maturity (in the case of any Bid Loan)and the amount of each
payment of principal made by the Company with respect thereto. Each such
Bank and Designated Bidder is irrevocably authorized by the Company to
endorse its Note(s) and each Bank's or Designated Bidder's record shall be
conclusive absent manifest error; provided, however, that the failure of a
Bank or Designated Bidder to make, or an error in making, a notation
thereon with respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any such Note to such Bank or
Designated Bidder.
2.03 Procedure for Committed Borrowing. (a) Each Committed Borrowing shall
be made upon the Company's irrevocable written notice delivered to the Agent in
the form of a Notice of Borrowing (which notice must be received by the Agent
prior to 11:00 a.m. (San Francisco time) (i) at least three Business Days
Page 16
prior to the requested Borrowing Date, in the case of Offshore Rate Committed
Loans, and (ii) on the requested Borrowing Date, in the case of Base Rate
Committed Loans, specifying:
(A) the amount of the Committed Borrowing, which shall be in a
Minimum Amount;
(B) the requested Borrowing Date, which shall be a Business Day;
(C) the Type of Loans comprising the Committed Borrowing; and
(D) the duration of the Interest Period applicable to such
Committed Loans included in such notice (subject to the provisions of
the definition of "Interest Period" herein). If the Notice of
Borrowing fails to specify the duration of the Interest Period for any
Committed Borrowing comprised of Offshore Rate Committed Loans, such
Interest Period shall be three months.
(b) The Agent will promptly notify each Bank of its receipt of any
Notice of Borrowing and of the amount of such Bank's Pro Rata Share of that
Committed Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each
Committed Borrowing available to the Agent for the account of the Company
at the Agent's Payment Office by 1:00 p.m. San Francisco time) on the
Borrowing Date requested by the Company in funds immediately available to
the Agent. The proceeds of each such Committed Borrowing will then be made
available to the Company by the Agent at such office by crediting the
account of the Company on the books of BofA with the aggregate of the
amounts made available to the Agent by the Banks and in like funds as
received by the Agent, or if requested by the Company, by wire transfer in
accordance with written instructions provided to the Agent by the Company
of such funds as received by the Agent, unless on the date of the Committed
Borrowing all or any portion of the proceeds thereof shall then be required
to be applied to the repayment of any outstanding Loans, in which case such
proceeds or portion thereof shall be applied to the payment of such Loans.
(d) After giving effect to any Committed Borrowing, unless the Agent shall
otherwise consent, there may not be more than fifteen different Interest
Periods in effect in respect of all Committed Loans then outstanding.
2.04 Conversion and Continuation Elections for Committed Borrowings(a). (a)
The Company may, upon irrevocable written notice to the Agent in accordance with
subsection 2.04(b):
(i) elect, as of any Business Day, in the case of Base Rate
Committed Loans (other than Swingline Loans), or as of the last day of
the applicable Interest Period in the case of any other Type of
Committed Loans, to convert into Committed Loans of any other Type any
such Committed Loans (or any part thereof in a Minimum Amount); or
Page 17
(ii) elect, as of the last day of the applicable Interest Period,
to continue any Offshore Rate Committed Loans having Interest Periods
expiring on such day (or any part thereof in a Minimum Amount);
provided, that if at any time the aggregate amount of Offshore Rate Committed
Loans in respect of any Committed Borrowing is reduced, by payment, prepayment,
or conversion of part thereof to be less than $5,000,000, such Offshore Rate
Committed Loans shall automatically convert into Base Rate Committed Loans, and
on and after such date the right of the Company to continue such Committed Loans
as, and convert such Committed Loans into, Offshore Rate Committed Loans shall
terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation to be
received by the Agent not later than 11:00 a.m. (San Francisco time) (i) at
least three Business Days in advance of the Conversion/ Continuation Date, if
the Committed Loans are to be converted into or continued as Offshore Rate
Committed Loans, and (ii) on the Conversion/Continuation Date, if the Committed
Loans are to be converted into Base Rate Committed Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Committed Loans to be converted or
continued;
(C) the Type of Committed Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base Rate
Committed Loans, the duration of the requested Interest Period
(subject to the provisions of the definition of "Interest Period"
herein).
(c) If upon the expiration of any Interest Period applicable to Offshore
Rate Committed Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Committed Loans, or if any Default
or Event of Default then exists, the Company shall be deemed to have elected to
convert such Offshore Rate Committed Loans into Base Rate Committed Loans
effective as of the expiration date of such Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a Notice of
Conversion/Continuation, or, if no timely notice is provided by the Company, the
Agent will promptly notify each Bank of the details of any automatic conversion.
All conversions and continuations shall be made ratably according to the
respective outstanding principal amounts of the Committed Loans held by each
Bank with respect to which the notice was given.
(e) Unless the Majority Banks otherwise consent, during the existence of a
Default or Event of Default, the Company may not elect to have a Committed Loan
converted into or continued as an Offshore Rate Committed Loan.
Page 18
(f) After giving effect to any conversion or continuation of Committed
Loans, unless the Agent shall otherwise consent, there may not be more than
fifteen different Interest Periods in effect in respect of all Committed Loans
and Bid Loans together then outstanding.
2.05 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.03, each Bid Loan Bank severally agrees that the Company may, as set
forth in Section 2.06, from time to time request the Bid Loan Banks prior to the
Revolving Termination Date to submit offers to make Bid Loans to the Company;
provided, however, that the Bid Loan Banks may, but shall have no obligation to,
submit such offers and the Company may, but shall have no obligation to, accept
any such offers, and any Bid Loan Bank may designate Designated Bidders to make
such offers from time to time and, if such offers are accepted by the Company,
to make such Bid Loans; and provided, further, that at no time shall (a) the
outstanding aggregate principal amount of all Bid Loans made by all Bid Loan
Banks and Designated Bidders, plus the outstanding aggregate principal amount of
all Committed Loans made by all Banks, exceed the Aggregate Commitment; or (b)
unless the Agent shall otherwise consent, the number of Interest Periods for Bid
Loans then outstanding, plus the number of Interest Periods for Committed Loans
then outstanding, exceed fifteen.
2.06 Procedure for Bid Borrowings(a) . (a) When the Company wishes to
request the Bid Loan Banks to submit offers to make Bid Loans hereunder, it
shall transmit to the Agent by telephone call followed promptly by facsimile
transmission a notice in substantially the form of Exhibit G (a "Competitive Bid
Request") so as to be received no later than 8:00 a.m. (San Francisco time) one
Business Day prior to the date of a proposed Bid Borrowing, specifying:
(i) the date of such Bid Borrowing, which shall be a Business
Day;
(ii) the aggregate amount of such Bid Borrowing, which shall be a
minimum amount of $5,000,000 or in integral multiples of $1,000,000 in
excess thereof; and
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of "Interest Period"
herein.
Subject to subsection 2.06(c), the Company may not request Competitive Bids for
more than three Interest Periods in a single Competitive Bid Request and may not
request Competitive Bids more than once in any period of five Business Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will promptly send
to the Bid Loan Banks and Designated Bidders by facsimile transmission an
Invitation for Competitive Bids, which shall constitute an invitation by the
Company to each Bid Loan Bank and Designated Bidder to submit Competitive Bids
offering to make the Bid Loans to which such Competitive Bid Request relates in
accordance with this Section 2.06.
(c) (i) Each Bid Loan Bank and Designated Bidder may at its discretion
submit a Competitive Bid containing an offer or offers to make Bid Loans in
response to any Invitation for Competitive Bids. Each Competitive Bid shall
comply with the requirements of this subsection 2.06(c) and shall be submitted
Page 19
to the Agent by facsimile transmission at the Agent's office for notices set
forth on Schedule 10.02 not later than 7:30 a.m. (San Francisco time) on the
proposed Borrowing Date; provided that Competitive Bids submitted by the Agent
(or any Affiliate of the Agent) in the capacity of a Bid Loan Bank or Designated
Bidder may be submitted, and may only be submitted, if the Agent or such
Affiliate notifies the Company of the terms of the offer or offers contained
therein not later than 7:15 a.m. (San Francisco time) on the proposed Borrowing
Date.
(ii) Each Competitive Bid shall be in substantially the form of
Exhibit H, specifying therein:
(A) the proposed Borrowing Date;
(B) the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (1) may be
equal to, greater than or less than the Commitment of the quoting
Bid Loan Bank or the quoting Designated Bidder's affiliated Bid
Loan Bank, (2) shall be $5,000,000 or in integral multiples of
$1,000,000 in excess thereof, and (3) may not exceed the
principal amount of Bid Loans for which Competitive Bids were
requested;
(C) the rate of interest per annum expressed in multiples of
1/1000th of one basis point (the "Absolute Rate") offered for
each such Bid Loan and the Interest Period applicable thereto;
and
(D) the identity of the quoting Bid Loan Bank or Designated
Bidder.
A Competitive Bid may contain up to three separate offers by the quoting Bid
Loan Bank or Designated Bidder with respect to each Interest Period specified in
the related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit H or
does not specify all of the information required by subsection
(c)(ii) of this Section;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set
forth in the applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in subsection (c)(i).
(iv) Notwithstanding anything to the contrary contained in this
subsection 2.06(c), a Competitive Bid by BofA may contain, and will
not be disregarded if it does contain, a restriction on the use of
proceeds thereof.
Page 20
(d) Promptly on receipt and not later than 8:00 a.m. (San Francisco time)
on the proposed Borrowing Date, the Agent will notify the Company of the terms
(i) of any Competitive Bid submitted by a Bid Loan Bank or Designated Bidder
that is in accordance with subsection 2.06(c), and (ii) of any Competitive Bid
that amends, modifies or is otherwise inconsistent with a previous Competitive
Bid submitted by such Bid Loan Bank or Designated Bidder with respect to the
same Competitive Bid Request. Any such subsequent Competitive Bid shall be
disregarded by the Agent unless such subsequent Competitive Bid is submitted
solely to correct a manifest error in such former Competitive Bid and only if
received within the times set forth in subsection 2.06(c). The Agent's notice to
the Company shall specify (1) the aggregate principal amount of Bid Loans for
which offers have been received for each Interest Period specified in the
related Competitive Bid Request; and (2) the respective principal amounts and
Absolute Rates so offered. Subject only to the provisions of Sections 3.02, 3.05
and 4.02 hereof and the provisions of this subsection (d), any Competitive Bid
shall be irrevocable except with the written consent of the Agent given on the
written instructions of the Company.
(e) Not later than 8:30 a.m. (San Francisco time) on the proposed Borrowing
Date, in the case of an Absolute Rate Auction, the Company shall notify the
Agent of its acceptance or non-acceptance of the offers so notified to it
pursuant to subsection 2.06(d). The Company shall be under no obligation to
accept any offer and may choose to reject all offers. In the case of acceptance,
such notice shall specify the aggregate principal amount of offers for each
Interest Period that is accepted. The Company may accept any Competitive Bid in
whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may not
exceed the applicable amount set forth in the related Competitive Bid
Request;
(ii) the principal amount of each Bid Borrowing shall be
$5,000,000 or in any integral multiple of $1,000,000 in excess
thereof;
(iii) acceptance of offers may only be made on the basis of
ascending Absolute Rates within each Interest Period; and
(iv) the Company may not accept any offer that is described in
subsection 2.06(c)(iii) or that otherwise fails to comply with the
requirements of this Agreement.
(f) If offers are made by two or more Bid Loan Banks or Designated Bidders
with the same Absolute Rates 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 Bid Loans in respect of which such offers are
accepted shall be allocated by the Agent among such Bid Loan Banks or Designated
Bidders as nearly as possible (in such multiples, not less than $1,000,000, as
the Agent may deem appropriate) in proportion to the aggregate principal amounts
of such offers. Determination by the Agent of the amounts of Bid Loans shall be
conclusive in the absence of manifest error.
Page 21
(g) (i) The Agent will promptly notify each Bid Loan Bank or Designated
Bidder having submitted a Competitive Bid if its offer has been accepted and, if
its offer has been accepted, of the amount of the Bid Loan or Bid Loans to be
made by it on the Borrowing Date.
(ii) Each Bid Loan Bank or Designated Bidder which has received notice
pursuant to subsection 2.06(g)(i) that its Competitive Bid has been
accepted shall make the amounts of such Bid Loans available to the Agent
for the account of the Company at the Agent's Payment Office, by 11:00 a.m.
(San Francisco time), on such Borrowing Date, in funds immediately
available to the Agent for the account of the Company at the Agent's
Payment Office. The proceeds of such Bid Loans will in each case then be
made available to the Company by the Agent at such office by crediting the
account of the Company on the books of BofA with the aggregate of the
amounts made available to the Agent by the Bid Loan Banks and in like funds
as received by the Agent.
(iii) Promptly following each Bid Borrowing, the Agent will notify
each Bank and Designated Bidder of the ranges of bids submitted and the
highest and lowest Bids accepted for each Interest Period requested by the
Company and the aggregate amount borrowed pursuant to such Bid Borrowing.
(iv) From time to time, the Company and the Bid Loan Banks and
Designated Bidders shall furnish such information to the Agent as the Agent
may request relating to the making of Bid Loans, including the amounts,
interest rates, dates of borrowings and maturities thereof, for purposes of
the allocation of amounts received from the Company for payment of all
amounts owing hereunder.
(h) Nothing in this Section 2.06 shall be construed as a right of first
offer in favor of the Bid Loan Banks or Designated Bidders or otherwise to limit
the ability of the Company to request and accept credit facilities from any
Person (including any of the Bid Loan Banks or Designated Bidders), provided
that no Default or Event of Default would otherwise arise or exist as a result
of the Company executing, delivering or performing under such credit facilities.
2.07 Swingline Loans(a) . (a) Subject to the terms and conditions hereof,
the Swingline Bank agrees to make a portion of the Aggregate Commitment
available to the Company by making swingline loans (individually, a "Swingline
Loan", and, collectively, the "Swingline Loans") to the Company on any Business
Day during the period from the Closing Date to the Revolving Termination Date in
accordance with the procedures set forth in this Section 2.07 in an aggregate
principal amount at any one time outstanding not to exceed Twenty-Five Million
Dollars ($25,000,000), notwithstanding the fact that such Swingline Loans, when
aggregated with any other Loans made by or participated in by the Swingline
Bank, may exceed the Swingline Bank's Commitment (the amount of such commitment
of the Swingline Bank to make Swingline Loans to the Company pursuant to this
subsection 2.07(a), as the same shall be reduced pursuant to subsection 2.08(b)
or as a result of any assignment pursuant to Section 10.08, the Swingline Bank's
"Swingline Commitment"); provided, that at no time shall (i) the sum of the
Page 22
aggregate principal amount of all outstanding Swingline Loans plus the aggregate
principal amount of all outstanding Revolving Loans plus the aggregate principal
amount of all Bid Loans exceed the Aggregate Commitment, or (ii) the aggregate
principal amount of outstanding Swingline Loans exceed the Swingline Commitment.
Additionally, no more than three Swingline Loans may be outstanding at any one
time, and all Swingline Loans shall at all times be Base Rate Committed Loans or
accrue interest at such other rate as may be agreed to by the Swingline Bank and
the Company. Within the foregoing limits, and subject to the other terms and
conditions hereof, the Company may borrow under this subsection 2.07(a), prepay
pursuant to Section 2.09 and reborrow pursuant to this subsection 2.07(a).
(b) The Company shall provide the Agent irrevocable written notice
(including notice by a telephone call confirmed immediately via facsimile) in
the form of a Notice of Borrowing of any Swingline Loan requested hereunder
(which notice must be received by the Agent prior to 1:00 p.m. (San Francisco
time) on the requested Borrowing Date) specifying (i) the amount to be borrowed,
which shall be in a Minimum Amount (unless otherwise agreed by the Swingline
Bank), and (ii) the requested Borrowing Date, which shall be a Business Day.
Unless the Swingline Bank has received notice prior to 1:00 p.m. (San Francisco
time) on such Borrowing Date from the Agent (including at the request of any
Bank) (A) directing the Swingline Bank not to make the requested Swingline Loan
as a result of the limitations set forth in the proviso set forth in the first
sentence of subsection 2.07(a); or (B) that one or more conditions specified in
Article IV are not then satisfied; then, subject to the terms and conditions
hereof, the Swingline Bank will, not later than 3:00 p.m. (San Francisco time)
on the Borrowing Date specified in such Notice of Borrowing, make the amount of
its Swingline Loan available to the Company by crediting the account of the
Company on the books of BofA or if requested by the Company, by wire transfer in
accordance with written instructions provided to the Agent by the Company. The
Agent will notify the Banks on a quarterly basis if any Swingline Loan
Borrowings occurred during such quarter.
(c) The Company shall repay to the Swingline Bank in full on the Revolving
Termination Date the aggregate principal amount of the Swingline Loans
outstanding on the Revolving Termination Date.
(d) For one Business Day during each successive 30 Business Day period the
aggregate principal amount of Swingline Loans shall be $0 (a "Clean-Up Day").
The Company shall prepay the outstanding principal amount of the Swingline Loans
in whole to the extent required so that a Clean-Up Day may occur in each such 30
Business Day period as provided in this subsection 2.07(d) (which Swingline
Loans may not be reborrowed until such Clean-Up Day has ended); provided that
the foregoing may be from the proceeds of Revolving Loans hereunder.
(e) If:(i) any Swingline Loans shall remain outstanding at 5:00 p.m. (San
Francisco time) on the Business Day immediately prior to a Clean-Up Day and by
such time on such Business Day the Agent shall have received neither:
(A) a Notice of Borrowing delivered pursuant to Section 2.03
requesting that Revolving Loans be made pursuant to subsection 2.01 on
the Clean-Up Day in an amount at least equal to the aggregate
principal amount of such Swingline Loans; nor
Page 23
(B) any other notice indicating the Company's intent to repay
such Swingline Loans with funds obtained from other sources; or
(ii) any Swingline Loans shall remain outstanding during the existence of a
Default or Event of Default and the Swingline Bank shall in its sole discretion
notify the Agent that the Swingline Bank desires that such Swingline Loans be
converted into Revolving Loans;
then the Agent shall be deemed to have received a Notice of Borrowing from the
Company pursuant to Section 2.03 requesting that Base Rate Committed Loans be
made pursuant to subsection 2.01 on such Clean-Up Day (in the case of the
circumstances described in clause (i) above) or on the first Business Day
subsequent to the date of such notice from the Swingline Bank (in the case of
the circumstances described in clause (ii) above) in an amount equal to the
aggregate amount of such Swingline Loans, and the procedures set forth in
subsections 2.03(b) and 2.03(c) shall be followed in making such Base Rate
Committed Loans; provided that such Base Rate Committed Loans shall be made
notwithstanding the Company's failure to comply with Section 4.02; and provided,
further, that if a Borrowing of Revolving Loans becomes legally impracticable
and if so required by the Swingline Bank at the time such Revolving Loans are
required to be made by the Banks in accordance with this subsection 2.07(e),
each Bank agrees that in lieu of making Revolving Loans as described in this
subsection 2.07(e), such Bank shall purchase a participation from the Swingline
Bank in the applicable Swingline Loans in an amount equal to such Bank's Pro
Rata Share of such Swingline Loans, and the procedures set forth in subsections
2.03(b) and 2.03(c) shall be followed in connection with the purchases of such
participations. Upon such purchases of participations the prepayment
requirements of subsection 2.07(d) shall be deemed waived with respect to such
Swingline Loans. If any Swingline Loan shall remain outstanding in lieu of a
Borrowing of Revolving Loans as provided above, interest on such Swingline Loan
shall be due and payable on demand, and 1% per annum shall be added to the
interest rate applicable to such Swingline Loan. The proceeds of such Base Rate
Committed Loans, or participations purchased, shall be applied to repay such
Swingline Loans. A copy of each notice given by the Agent to the Banks pursuant
to this subsection 2.07(e) with respect to the making of Revolving Loans, or the
purchases of participations, shall be promptly delivered by the Agent to the
Company. Each Bank's obligation in accordance with this Agreement to make the
Revolving Loans, or purchase the participations, as contemplated by this
subsection 2.07(e), shall be absolute and unconditional and shall not be
affected by any circumstance, including (1) any set-off, counterclaim,
recoupment, defense or other right which such Bank may have against the
Swingline Bank, the Company or any other Person for any reason whatsoever; (2)
the occurrence or continuance of a Default, an Event of Default or a Material
Adverse Effect; or (3) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing.
2.08 Voluntary Termination or Reduction of Commitments. (a) (a) The Company
may, upon not less than three Business Days' prior notice to the Agent,
terminate the Commitments, or permanently reduce the Commitments, provided that
the aggregate amount of any partial reduction is in a Minimum Amount; unless,
after giving effect thereto and to any prepayments of any Loans made on the
Page 24
effective date thereof, the then outstanding principal amount of the Loans would
exceed the amount of the Aggregate Commitment. A notice of termination of the
Commitments delivered by the Company may state that such notice is conditioned
upon the effectiveness of other credit facilities, in which case such notice may
be revoked by the Company by notice to the Agent on or prior to the specified
date if such condition is not satisfied. Once reduced in accordance with this
Section 2.08, the Commitments may not be increased. Any reduction of the
Commitments shall be applied to each Bank according to its Pro Rata Share. If
and to the extent specified by the Company in the notice to the Agent, some or
all of the reduction in the Aggregate Commitment shall be applied to reduce the
Swingline Commitment. All accrued commitment fees to, but not including, the
effective date of any reduction or termination of the Commitments, shall be paid
on the effective date of such reduction or termination.
(b) At no time shall the Swingline Commitment exceed the Aggregate
Commitment, and any reduction of the Commitments which reduces the Aggregate
Commitment below the then-current amount of the Swingline Commitment shall
result in an automatic corresponding reduction of the Swingline Commitment to
the amount of the Aggregate Commitment, as so reduced, without any action on the
part of the Swingline Bank. At no time shall the Swingline Commitment exceed the
Commitment of the Swingline Bank, and any reduction of the Commitments which
reduces the Commitment of the Swingline Bank below the then-current amount of
the Swingline Commitment shall result in an automatic corresponding reduction of
the Swingline Commitment to the amount of the Commitment of the Swingline Bank,
as so reduced, without any action on the part of the Swingline Bank.
2.09 Optional Prepayments(a) . (a) Committed Loans. Subject to Section
3.04, the Company may, at any time or from time to time, upon notice to the
Agent, ratably prepay Committed Loans in whole or in part, in Minimum Amounts,
or, with respect to Swingline Loans, in other amounts with the consent of the
Swingline Bank. The Company shall deliver a notice of prepayment in accordance
with Section 10.02 to be received by the Agent not later than 10:00 a.m. (San
Francisco time) (i) at least three Business Days in advance of the prepayment
date if the Loans to be prepaid are Offshore Rate Committed Loans and (ii) at
least one Business Day in advance of the prepayment date if the Loans to be
prepaid are Base Rate Committed Loans. Such notice shall not thereafter be
revocable by the Company and the Agent will promptly notify the Swingline Bank
thereof (in the case of any prepayment of Swingline Loans) and each Bank thereof
and of such Bank's Pro Rata Share of such prepayment if any. Such notice of
prepayment shall specify the date and amount of such prepayment and the Type(s)
of Loans to be prepaid and whether such prepayment is of Base Rate Committed
Loans, Offshore Rate Committed Loans or Swingline Loans (or any combination
thereof). If such notice is given by the Company, the Company shall make such
prepayment and the payment amount specified in such notice shall be due and
payable on the date specified therein, together with accrued interest to each
such date on the amount of Offshore Rate Committed Loans prepaid and any amounts
required pursuant to Section 3.04.
(b) Bid Loans. Bid Loans may not be voluntarily prepaid.
2.10 Repayment.
Page 25
(a) The Committed Loans. The Company shall repay to the Agent for the
account of the Banks on the Revolving Termination Date the aggregate principal
amount of Committed Loans outstanding on such date.
(b) The Bid Loans. The Company shall repay to the Agent for the account of
each Bid Loan Bank or Designated Bidder, as the case may be, that makes any Bid
Loan the principal amount of such Bid Loan on the last day of the relevant
Interest Period for such Bid Loan.
2.11 Interest(a) . (a) (i) Each Committed Loan (other than a Swingline
Loan) shall bear interest on the outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum equal to the Offshore Rate or the
Base Rate, as the case may be (and subject to the Company's right to convert to
other Types of Loans under Section 2.04), plus the Applicable Margin. (ii) Each
Bid Loan shall bear interest on the outstanding principal amount thereof from
the relevant Borrowing Date at a rate per annum equal to the Absolute Rate.
(iii) Each Swingline Loan shall bear interest on the outstanding principal
amount thereof from the applicable Borrowing Date at a rate per annum equal to
the Base Rate plus the Applicable Margin, or at such other rate as may be agreed
to by the Swingline Bank.
(b) Interest on each Loan shall be paid in arrears on each Interest Payment
Date. Interest shall also be paid on the date of any prepayment of Committed
Loans under Section 2.09 for the portion of the Loans so prepaid and upon
payment (including prepayment) in full thereof.
(c) Notwithstanding subsection (a) of this Section, if any amount of
principal of or interest on any Loan, or any other amount payable hereunder or
under any other Loan Document is not paid in full when due (whether at stated
maturity, by acceleration, demand or otherwise), the Company agrees to pay
interest on such unpaid principal or other amount, from the date such amount
becomes due until the date such amount is paid in full, and after as well as
before any entry of judgment thereon to the extent permitted by law, payable on
demand, at a rate per annum which is determined by adding 1% per annum to the
Applicable Margin then in effect for such Loans and, in the case of Obligations
not subject to an Applicable Margin, at a rate per annum equal to the Base Rate,
plus the Applicable Margin then in effect for Base Rate Committed Loans, plus 1%
per annum.
(d) Anything herein to the contrary notwithstanding, the obligations of the
Company to any Bank or Designated Bidder hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Bank or Designated Bidder
would be contrary to the provisions of any law applicable to such Bank or
Designated Bidder limiting the highest rate of interest that may be lawfully
contracted for, charged or received by such Bank or Designated Bidder, and in
such event the Company shall pay such Bank or Designated Bidder interest at the
highest rate permitted by applicable law.
Page 26
2.12 Fees(a)... (a) Arrangement and Agency Fees. The Company shall pay fees
as required by the letter agreement (the "Fee Letter") between the Company and
the Lead Arranger and Agent dated February 29, 2000.
(b) Competitive Bid Fee. The Company shall pay to the Agent, for the
Agent's own account, a competitive bid fee in the amount set forth in the Fee
Letter, each time the Company requests the Bid Loan Banks to submit offers to
make Bid Loans.
(c) Facility Fee. The Company shall pay to the Agent for the account of
each Bank a facility fee on such Bank's Commitment, regardless of usage,
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter at a rate per annum equal to the Applicable Fee Amount. Such
facility fee shall accrue from the Closing Date to the Revolving Termination
Date and shall be due and payable quarterly in arrears on the last Business Day
of each quarter following the Closing Date through the Revolving Termination
Date, with the final payment to be made on the Revolving Termination Date;
provided that, in connection with any reduction or termination of Commitments
under Section 2.08, the accrued facility fee calculated for the period ending on
such date shall also be paid on the date of such reduction or termination, with
the following quarterly payment being calculated on the basis of the period from
such reduction or termination date to such quarterly payment date. The facility
fee provided in this subsection shall accrue at all times after the
above-mentioned commencement date, including at any time during which one or
more conditions in Article IV are not met.
(d) Utilization Fee. The Company shall pay to the Agent for the account of
each Bank a utilization fee on the outstanding Loans (including Swingline Loans
and Bid Loans) at any time that the aggregate outstanding Loans exceed the
levels of the Aggregate Commitment determined in accordance with Annex I, at a
rate per annum equal to the Applicable Fee Amount. Such utilization fee shall be
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter, shall accrue from the Closing Date to the Revolving
Termination Date and shall be payable in arrears on the last Business Day of
each quarter commencing on the last Business Day of the fiscal quarter following
the Closing Date through the Revolving Termination Date, with the final payment
to be made on the Revolving Termination Date. The utilization fee, if
applicable, will be added to the Applicable Margin.
2.13 Computation of Fees and Interest(a). (a) All computations of interest
hereunder when the Base Rate is determined by BofA's "prime rate" shall be made
on the basis of a year of 365 or 366 days, as the case may be, and actual days
elapsed. All other computations of fees and interest shall be made on the basis
of a 360-day year and actual days elapsed (which results in more interest being
paid than if computed on the basis of a 365-day year). Interest and fees shall
accrue during each period during which interest or such fees are computed from
the first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent shall be conclusive
and binding on the Company, the Banks and the Designated Bidders in the absence
of manifest error.
(c) The Agent will, at the request of the Company or any Bank or Designated
Bidder, deliver to the Company or such Bank or Designated Bidder, as the case
may be, a statement showing the quotations used by the Agent in determining any
interest rate.
Page 27
(d) If any Reference Bank's Commitment terminates (other than on
termination of all the Commitments), or for any reason whatsoever any Reference
Bank ceases to be a Bank hereunder, that Reference Bank shall thereupon cease to
be a Reference Bank, and the Offshore Rate shall be determined on the basis of
the rates as notified by the remaining Reference Banks; provided that if, as a
result, there shall only be one Reference Bank remaining, the Agent (after
consultation with the Banks and with the consent of the Company (which shall not
be unreasonably withheld)) shall, by notice to the Company and the Banks,
designate another Bank as a Reference Bank so that there shall at all times be
at least two Reference Banks.
(e) Each Reference Bank shall use its best efforts to furnish quotations of
rates to the Agent as contemplated hereby. If any of the Reference Banks fails
to supply such rates to the Agent upon its request, the rate of interest shall
be determined on the basis of the quotations of the remaining Reference Bank(s).
2.14 Payments by the Company(a) . (a) Except as otherwise expressly
provided herein, all payments by the Company shall be made to the Agent for the
account of the Banks and Designated Bidders at the Agent's Payment Office, and
shall be made from an account of the Company maintained within the United
States, in Dollars, and in immediately available funds, no later than 12:00 noon
(San Francisco time) on the date specified herein. The Agent will promptly
distribute to each Bank (or Designated Bidder) its Pro Rata Share (or other
applicable share as expressly provided herein) of such payment in like funds as
received. Any payment received by the Agent later than 12:00 noon (San Francisco
time) shall be deemed to have been received on the following Business Day and
any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business Day,
such payment shall be made on the following Business Day, and such extension of
time shall in such case be included in the computation of interest or fees, as
the case may be.
(c) Unless the Agent receives notice from the Company prior to the date on
which any payment is due to the Banks or Designated Bidders that the Company
will not make such payment in full as and when required, the Agent may assume
that the Company has made such payment in full to the Agent on such date in
immediately available funds and the Agent may (but shall not be so required), in
reliance upon such assumption, distribute to each Bank or Designated Bidder on
such due date an amount equal to the amount then due such Bank or Designated
Bidder. If and to the extent the Company has not made such payment in full to
the Agent, each Bank or Designated Bidder shall repay to the Agent on demand
such amount distributed to such Bank or Designated Bidder, together with
interest thereon at the Federal Funds Rate for each day from the date such
amount is distributed to such Bank or Designated Bidder until the date repaid.
2.15 Payments by the Banks to the Agent(a) . (a) Unless the Agent receives
notice from a Bank or Designated Bidder, as the case may be, on or prior to the
Closing Date or, with respect to any Borrowing after the Closing Date, on the
date of such Borrowing, that such Bank or Designated Bidder will not make
available as and when required hereunder to the Agent for the account of the
Company the amount of that Bank's or Designated Bidder's Loan, the Agent may
Page 28
assume that such Bank or Designated Bidder has made such amount available to the
Agent in immediately available funds on the Borrowing Date and the Agent may
(but shall not be so required), in reliance upon such assumption, make available
to the Company on such date a corresponding amount. If and to the extent any
Bank or Designated Bidder shall not have made its full amount available to the
Agent in immediately available funds and the Agent in such circumstances has
made available to the Company such amount, that Bank or Designated Bidder shall
on the Business Day following such Borrowing Date make such amount available to
the Agent, together with interest at the Federal Funds Rate for each day during
such period. A notice of the Agent submitted to any Bank or Designated Bidder
with respect to amounts owing under this subsection (a) shall be conclusive,
absent manifest error. If such amount is so made available, such payment to the
Agent shall constitute such Bank's or Designated Bidder's Loan on the Borrowing
Date for all purposes of this Agreement. If such amount is not made available to
the Agent on the Business Day following the Borrowing Date, the Agent will
notify the Company of such failure to fund and, upon demand by the Agent, the
Company shall pay such amount to the Agent for the Agent's account, together
with interest thereon for each day elapsed since the date of such Borrowing, at
a rate per annum equal to the interest rate applicable at the time to the Loans
comprising such Borrowing.
(b) The failure of any Bank or Designated Bidder to make any Loan on any
Borrowing Date shall not relieve any other Bank or Designated Bidder of any
obligation hereunder to make a Loan on such Borrowing Date, but no Bank or
Designated Bidder shall be responsible for the failure of any other Bank or
Designated Bidder to make the Loan to be made by such other Bank or Designated
Bidder on any Borrowing Date.
2.16 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank or Designated Bidder shall obtain on account of the
Loans made by it any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise) in excess of its Pro Rata Share
(or other share contemplated hereunder) of (i) payments in respect of the
Committed Loans obtained by all the Banks, or (ii) payments in respect of Bid
Loans having the same Borrowing Date, Interest Payment Date and maturity date,
such Bank or Designated Bidder shall immediately (a) notify the Agent of such
fact, and (b) purchase from the other Banks and, if applicable, Designated
Bidders, such participations in the Committed Loans or Bid Loans, as applicable,
made by them as shall be necessary to cause such purchasing Bank or Designated
Bidder to share the excess payment pro rata with each of them; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Bank or Designated Bidder, such purchase shall to
that extent be rescinded and each other Bank or Designated Bidder shall repay to
the purchasing Bank or Designated Bidder the purchase price paid therefor,
together with an amount equal to such paying Bank's or Designated Bidder's
ratable share (according to the proportion of (i) the amount of such paying
Bank's or Designated Bidder's required repayment to (ii) the total amount so
recovered from the purchasing Bank or Designated Bidder) of any interest or
other amount paid or payable by the purchasing Bank or Designated Bidder in
respect of the total amount so recovered. The Company agrees that any Bank or
Designated Bidder so purchasing a participation from another Bank or Designated
Bidder may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off, but subject to Section 10.11) with
respect to such participation as fully as if such Bank or Designated Bidder were
the direct creditor of the Company in the amount of such participation. The
Agent will keep records (which shall be conclusive and binding in the absence of
Page 29
manifest error) of participations purchased under this Section 2.16 and will in
each case notify the Banks and, if applicable, Designated Bidders, following any
such purchases or repayments.
2.17 Revolving Termination Date Extensions. (a) (a) Not less than 30 days
and not more than 60 days prior to the Revolving Termination Date then in
effect, the Company may make a written request to the Agent, who shall forward a
copy of each such request to each of the Banks, that the Revolving Termination
Date then in effect be extended to the date which occurs one year after the
Revolving Termination Date then in effect. Each request by the Company pursuant
to the immediately preceding sentence shall specify a date (the "Requested
Extension Effective Date"), which shall be not earlier than 20 days after the
giving of the respective notice and not later than 15 days prior to the
Revolving Termination Date then in effect, as the date by which the Banks should
respond to the requested extension request and which would be the date of the
effectiveness of the change to the Revolving Termination Date. Each request
pursuant to the first sentence of this Section 2.17 shall also be accompanied by
a certificate of an officer of the Company stating that no Default or Event of
Default has occurred and is continuing. Each Bank, acting in its sole discretion
and with no obligation to grant any extension pursuant to this Section 2.17,
shall, by written notice to the Company and the Agent, such notice to be given
on or prior to the Requested Extension Effective Date, advise the Company and
the Agent whether or not such Bank agrees to such extension, provided that any
Bank which fails to so notify the Company and the Agent as provided above shall
be deemed to have elected not to grant such extension. If less than all the
Banks shall agree to such extension, the extension contemplated in this Section
may nonetheless occur with respect to the consenting Banks, provided that any
such extension shall be conditioned upon an agreement to such extension by Banks
with at least 75% of the Aggregate Commitment. The Agent shall notify the
Company and each of the Banks as to which Banks have agreed to such extension
and as to the new Revolving Termination Date as a result thereof, or that such
extension shall not occur, as the case may be.
(b) In the event that the Revolving Termination Date is extended by some
but not all of the Banks, on the existing Revolving Termination Date for any
Bank not extending (each a "Non-Continuing Bank"), the Company shall repay all
Revolving Loans of such Non-Continuing Bank, together with all accrued and
unpaid interest thereon, and all fees and other amounts owing to such
Non-Continuing Bank, and upon such payment each such Non-Continuing Bank shall
cease to constitute a Bank hereunder, except with respect to the indemnification
provisions under this Agreement, which shall survive as to such Non-Continuing
Bank.
2.18 Optional Increase in Commitments(a). (a) Effective as of the Closing
Date, or at any time thereafter prior to the Revolving Termination Date but no
more than once per month, if no Default or Event of Default has occurred and is
continuing both before and after giving effect to an increase, the Company shall
have the option to increase the Aggregate Commitment by (i) increasing the
Commitment of one or more Banks already party to this Agreement (each such Bank
increasing its Commitment, an "Increasing Bank"), in each case pursuant to a
Commitment Increase Agreement, in substantially the form of Exhibit L (a
"Commitment Increase Agreement") and/or (ii) adding one or more lending
institutions not a party hereto (each such new bank, a "New Bank") as a party to
this Agreement, in each case pursuant to a New Bank Agreement, in substantially
the form of Exhibit M (a "New Bank Agreement"). The effectiveness of any such
increase is subject to the satisfaction of the following conditions:
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(A) that any request for increase of the Commitment of an
Increasing Bank be made through the Agent (it being understood
that an Increasing Bank may accept or reject any increase request
in its sole and absolute discretion);
(B) that the Company shall provide prior written notice of
any proposed increase (whether involving an Increasing Bank or a
New Bank) to the Agent, at least 15 Business Days (or such
shorter period as the Agent may agree to in the given instance)
prior to the effectiveness of such increase, who shall promptly
notify the Banks;
(C) in the case of a Commitment increase by an Increasing
Bank, that the Company and such Increasing Bank shall have
entered into a Commitment Increase Agreement, and such Commitment
Increase Agreement shall have been delivered to the Agent;
(D) in the case of an accession hereto by a New Bank, that
the Company and such New Bank shall have entered into a New Bank
Agreement, and such New Bank Agreement shall have been delivered
to the Agent;
(E) that the Swingline Bank and the Agent shall have
acknowledged and accepted the Commitment Increase Agreement or
New Bank Agreement, as the case may be (such acknowledgment and
acceptance not to be unreasonably withheld);
(F) that each New Bank shall be an Eligible Assignee;
(G) that the Aggregate Commitment, following such increase,
shall not exceed $1,250,000,000;
(H) that any fees payable to any Increasing Bank or New Bank
in connection with such increase shall have been paid; and
(I) that any other amounts then due hereunder in connection
therewith, including any amounts payable under Section 3.04 as a
result of any assignments of Offshore Rate Committed Loans under
subsection 2.18(b) on a day other than the last day of an
Interest Period, shall have been paid.
(b) Upon the effectiveness of any Commitment Increase Agreement, the
Commitment of the Increasing Bank party thereto shall be increased in the amount
set forth in the Commitment Increase Agreement, and upon the effectiveness of
any New Bank Agreement, the New Bank party thereto shall be and become a party
hereto and shall constitute a Bank hereunder with the rights and obligations of
a Bank under the Loan Documents (each such date of effectiveness, an "Increased
Commitment Date"). Effective on each Increased Commitment Date, the amount of
Loans then outstanding and held by each Bank shall be adjusted to reflect any
such changes in such Bank's Pro Rata Share, subject to Section 3.04. Each Bank
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having Loans then outstanding and whose Pro Rata Share has been decreased as a
result of the increase in the Aggregate Commitment shall be deemed to have
assigned, without recourse, to any Increasing Banks increasing their Commitments
and New Banks, such portion of such Loans as shall be necessary to effectuate
such adjustment. Each Increasing Bank and New Bank shall (A) be deemed to have
assumed such portion of such Loans and (B) fund on the Increased Commitment Date
such assumed amounts to the Agent for the account of the assigning Banks in
accordance with the provisions hereof.
(c) The Agent shall promptly notify the Banks of the Agent's receipt of
notice of any proposed Commitment increase under clause (B) of subsection
2.18(a). Additionally, promptly following the Increased Commitment Date for a
Commitment increase the Agent shall cause Schedule 2.01 to be modified to
accurately reflect the Commitments and Pro Rata Shares of the Banks, whereupon
such amended Schedule 2.01 shall be substituted for the pre-existing Schedule
2.01, be deemed a part of this Agreement without any further action or consent
of any party and be promptly distributed to each Bank and the Company by the
Agent. Within five Business Days of any Increased Commitment Date (whether as to
an Increasing Bank or a New Bank), the Company shall execute and deliver to the
Agent (i) a replacement Committed Loan Note in favor of each Increasing Bank,
evidencing the increased Commitment of such Increasing Bank, and (ii) a new
Committed Loan Note in favor of each New Bank, in the principal amount of such
New Bank's Commitment. Additionally, the Agent shall promptly notify each
Increasing Bank and New Bank of the amount of its funding obligations under
subsection 2.18(b).
(d) Any fees paid by the Company for any such increase shall not be
required to be ratable and shall be paid only to Increasing Banks, or New Banks,
as the case may be, as shall be separately agreed from time to time by the
Company and any such Increasing Bank or New Bank.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes(a).. (a) Unless otherwise required by applicable law, any and
all payments by the Company to each Bank, each Designated Bidder, or the Agent
under this Agreement and any other Loan Document shall be made free and clear
of, and without deduction or withholding for, any Taxes.
(b) If the Company shall be required by law to deduct or withhold any
United States federal Taxes from or in respect of any sum payable hereunder to
any Bank, any Designated Bidder or the Agent, and subject to Section 9.10, then:
(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section),
such Bank, such Designated Bidder or the Agent, as the
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case may be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings; and
(iii) the Company shall pay the full amount deducted or withheld to
the relevant taxing authority in accordance with applicable law
(c) In addition, the Company shall pay any Other Taxes.
(d) The Company agrees to indemnify and hold harmless each Bank, each
Designated Bidder and the Agent for the full amount of Other Taxes, and, subject
to Section 9.10, Taxes referred to in Subsection 3.01(b). Without limiting the
generality of the foregoing, if the Company fails to pay any Other Taxes or any
such Taxes when due to the appropriate taxing authority or fails to remit to the
Banks and the Agent the required documentary evidence referred to in Subsection
3.01(c) and the Company received from the Agent or the affected Bank prior
notice of its obligation to make the payment of Other Taxes or such Taxes, the
Company agrees to indemnify and hold harmless each Bank and the Agent for any
incremental taxes, interest or penalties that may become payable by any Bank or
the Agent as a result of any such failure. Payment pursuant to this
indemnification shall be made within 30 days after the date such Bank or the
Agent makes written demand therefor setting forth in reasonable detail the basis
of the Company's obligation to indemnify such Bank or the Agent pursuant to this
Section 3.01.
(e) Within 60 days after the date of any payment of any Taxes or Other
Taxes pursuant to Subsections 3.01(a), (b) or (c), the Company shall furnish to
each Bank, each Designated Bidder and the Agent, at its address referred to in
Section 10.02, documentary evidence reasonably satisfactory to each Bank, each
Designated Bidder and the Agent of payment thereof, but only to the extent such
documentary evidence is furnished to the Company by the relevant taxing
authority.
(f) If the Company is required to pay any additional amount to the Agent,
any Designated Bidder or any Bank or any taxing authority for the account of the
Agent, any Designated Bidder or any Bank pursuant to this Section 3.01, the
Company shall have the right, upon notice to such Bank or such Designated
Bidder, to (i) prepay, on a non-pro rata basis, the principal amount or any
portion thereof held by such Bank or such Designated Bidder plus all interest,
fees, and other amounts owing to such Bank or such Designated Bidder as of the
date of such prepayment (including any amounts owing under Section 3.04), or
(ii) require such Bank or such Designated Bidder to use reasonable efforts to
designate a different Lending Office for funding or booking its Loan (or any
Loan participation) hereunder or to assign its rights and obligations hereunder
to another of its offices, branches or Affiliates, if, in the sole judgment of
such Bank, such designation or assignment (A) would eliminate or reduce amounts
payable pursuant to Subsection 3.01(b) in the future and (B) would not subject
such Bank or such Designated Bidder to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Bank or such Designated Bidder.
With respect to the foregoing clause (ii) the Company hereby agrees to pay all
reasonable costs and expenses incurred by any Bank or any Designated Bidder in
connection with any such designation or assignment.
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(g) Each Bank and each Designated Bidder agrees that it will (i) take all
reasonable actions requested in writing by the Company that are without material
cost or risk to such Bank to maintain all exemptions, if any, available to it
from withholding taxes (whether available by treaty or existing administrative
waiver), and (ii) to the extent reasonable and without material cost or risk to
it, otherwise cooperate with the Company to minimize any amounts payable by the
Company under this Section 3.01.
(h) Each non-United States Bank and each non-United States Designated
Bidder represents and warrants to the Agent and the Company as of the date
hereof that under applicable law and treaties such Bank or such Designated
Bidder is entitled to claim the benefit of complete exemption from imposition of
United States withholding tax or that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States.
3.02 Illegality(a) . (a) If any Bank determines that the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office to make
Offshore Rate Committed Loans, then, on notice thereof by such Bank to the
Company through the Agent, any obligation of that Bank to make Offshore Rate
Committed Loans or convert Base Rate Committed Loans into Offshore Rate
Committed Loans shall be suspended until such Bank notifies the Agent and the
Company that the circumstances giving rise to such determination no longer
exist.
(b) If a Bank determines that it is unlawful for such Bank to maintain any
Offshore Rate Committed Loan, the Company shall, upon its receipt of notice of
such fact and demand from such Bank (with a copy to the Agent), prepay in full
such Offshore Rate Committed Loans of that Bank then outstanding, together with
interest accrued thereon and amounts required under Section 3.04, either on the
last day of the Interest Period thereof, if such Bank may lawfully continue to
maintain such Offshore Rate Committed Loans to such day, or immediately, if such
Bank may not lawfully continue to maintain such Offshore Rate Committed Loan. If
the Company is required so to prepay any Offshore Rate Committed Loan, then
concurrently with such prepayment, the Company shall borrow from the affected
Bank, in the amount of such repayment, a Base Rate Committed Loan.
(c) If the obligation of any Bank to make or maintain Offshore Rate
Committed Loans has been so terminated or suspended, the Company may elect, by
giving notice to such Bank through the Agent that all Loans which would
otherwise be made by such Bank as Offshore Rate Committed Loans shall be instead
Base Rate Committed Loans.
(d) Before giving any notice to the Agent under this Section 3.02, the
affected Bank shall designate a different Lending Office with respect to its
Offshore Rate Committed Loans if such designation will avoid the need for giving
such notice or making such demand and will not, in the judgment of such Bank, be
illegal or otherwise disadvantageous to such Bank.
3.03 Increased Costs and Reduction of Return(a) . (a) If any Bank
determines that, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation (other than any such introduction or
Page 34
change in respect of any law or regulation relating to Taxes or Excluded Taxes
which shall be governed solely by Section 3.01) or (ii) the compliance by such
Bank with any guideline or request from any central bank or other Governmental
Authority (whether or not having the force of law), there shall be any increase
in the cost to such Bank of agreeing to make or making, funding or maintaining
any Offshore Rate Committed Loans, by an amount deemed by such Bank to be
material, then the Company shall be liable for, and shall from time to time,
within 15 days after demand by such Bank (with a copy of such demand to be sent
to the Agent), pay to the Agent for the account of such Bank, additional amounts
as are sufficient to compensate such Bank for such increased costs.
(b) If any Bank or Designated Bidder shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by such Bank or Designated Bidder (or its Lending Office) or any
corporation controlling such Bank or Designated Bidder with any Capital Adequacy
Regulation, affects or would affect the amount of capital required or expected
to be maintained by such Bank or Designated Bidder or any corporation
controlling such Bank or Designated Bidder and (taking into consideration such
Bank's, such Designated Bidder's or such corporation's policies with respect to
capital adequacy and such Bank's or Designated Bidder's desired return on
capital) determines that the amount of such capital is increased as a
consequence of its Commitment, Loans, credits or obligations under this
Agreement, by an amount deemed by such Bank or such Designated Bidder to be
material, then, within 15 days after demand by such Bank or Designated Bidder to
the Company through the Agent, the Company shall pay to such Bank or Designated
Bidder, as the case may be, from time to time as specified by such Bank or
Designated Bidder, such additional amounts as are sufficient to compensate such
Bank or Designated Bidder for such increase.
(c) Each Bank and each Designated Bidder will promptly notify the Company
and the Agent of any event of which it has knowledge, occurring after the date
hereof, which will entitle such Bank or such Designated Bidder to compensation
pursuant to this Section and will designate a different Lending Office if such
designation will avoid the need for, or reduce the amount of, such compensation
and will not, in the sole judgment of such Bank or such Designated Bidder, be
otherwise disadvantageous to such Bank or such Designated Bidder.
Notwithstanding the foregoing subsections (a) and (b) of this Section 3.03, the
Company shall only be obligated to compensate any Bank or any Designated Bidder
for any amount arising or accruing during (i) any time or period commencing not
more than 30 days prior to the date on which such Bank or such Designated Bidder
notifies the Agent and the Company that it proposes to demand such compensation
and identifies to the Agent and the Company the statute, regulation or other
basis upon which the claimed compensation is or will be based and (ii) any time
or period during which, because of the retroactive application of such statute,
regulation or other such basis, such Bank or such Designated Bidder did not know
that such amount would arise or accrue.
3.04 Funding Losses. The Company shall reimburse each Bank and each
Designated Bidder, and hold each Bank and each Designated Bidder harmless from,
any loss or expense which such Bank or such Designated Bidder may sustain or
incur as a consequence of:
Page 35
(a) the failure of the Company to make on a timely basis any payment of
principal of any Offshore Rate Committed Loan;
(b) the failure of the Company to borrow, continue or convert a Committed
Loan after the Company has given (or is deemed to have given) a Notice of
Borrowing or a Notice of Conversion/Continuation;
(c) the failure of the Company to make any prepayment of any Committed Loan
in accordance with any notice delivered under Section 2.09;
(d) the prepayment (including pursuant to Section 2.09 or 3.02(b)) or other
payment (including after acceleration thereof) of any Offshore Rate Committed
Loan or Absolute Rate Bid Loan on a day that is not the last day of the relevant
Interest Period; or
(e) the conversion under Section 2.04 of any Offshore Rate Committed Loan
to a Base Rate Committed Loan on a day that is not the last day of the relevant
Interest Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Committed Loans or from
fees payable to terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by the Company to the Banks and the
Designated Bidders under this Section and under subsection 3.03(a), each
Offshore Rate Committed Loan made by a Bank or Designated Bidder (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the London interbank offered rate used in
determining the Offshore Rate for such Offshore Rate Committed Loan by a
matching deposit or other borrowing in the interbank eurodollar market for a
comparable amount and for a comparable period, whether or not such Offshore Rate
Committed Loan is in fact so funded.
3.05 Inability to Determine Rates. If on or prior to the first day of any
Interest Period:
(a) the 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) the Majority Banks advise the Agent that the Offshore Rate, as
determined by the Agent, will not adequately and fairly reflect the cost to such
Banks of funding their Offshore Rate Committed Loans for such Interest Period,
the Agent will promptly so notify the Company and each Bank. Thereafter, the
obligation of the Banks to make or maintain Offshore Rate Committed Loans,
hereunder shall be suspended until the Agent upon the instruction of the
Majority Banks revokes such notice in writing. Upon receipt of such notice, the
Company may revoke any Notice of Borrowing or Notice of Conversion/Continuation
then submitted by it. If the Company does not revoke such Notice as to any such
proposed Committed Loans, the Banks shall make, convert or continue any such
Committed Loans, as proposed by the Company, in the amount specified in the
applicable Notice submitted by the Company, but such Committed Loans shall be
made, converted or continued as Base Rate Committed Loans instead of Offshore
Rate Committed Loans.
Page 36
3.06 Certificates of Banks and Designated Bidders. Any Bank or Designated
Bidder claiming reimbursement or compensation under this Article III shall
deliver to the Company (with a copy to the Agent) a certificate setting forth in
reasonable detail the amount payable to such Bank or such Designated Bidder
hereunder and such certificate shall be conclusive and binding on the Company in
the absence of manifest error. In determining any amount due under this Article
III, a Bank or Designated Bidder may use any reasonable averaging and
attribution methods.
3.07 Base Rate Committed Loans Substituted for Affected Offshore Rate
Committed Loans. If (i) the obligation of any Bank to make Offshore Rate
Committed Loans has been suspended pursuant to Section 3.02 or (ii) any Bank has
demanded compensation under Section 3.03(a) and the Company shall, by at least
five Business Days' prior notice to such Bank through the Agent, have elected
that the provisions of this Section shall apply to such Bank, then, unless and
until such Bank notifies the Company that the circumstances giving rise to such
suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as Offshore Rate
Committed Loans, shall be made instead as Base Rate Committed Loans (on which
interest and principal shall be payable contemporaneously with the related
Offshore Rate Committed Loans of the other Banks); and
(b) after each of its Offshore Rate Committed Loans has been repaid, all
payments of principal which would otherwise be applied to repay such Offshore
Rate Committed Loans shall be applied to repay its Base Rate Committed Loans
instead.
3.08 Reserves on Offshore Rate Committed Loans. The Company shall pay to
each Bank, as long as such Bank shall be required under regulations of the FRB
to maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional costs on the unpaid principal amount of each Offshore
Rate Committed Loan equal to the actual costs of such reserves allocated to such
Offshore Rate Committed Loan by the Bank (as determined by the Bank in good
faith, which determination shall be conclusive), payable on each date on which
interest is payable on such Committed Loan, provided the Company shall have
received at least 15 days' prior written notice (with a copy to the Agent) of
such additional interest from the Bank. If a Bank fails to give notice 15 days
prior to the relevant Interest Payment Date, such additional interest shall be
payable 15 days from receipt of such notice.
3.09 Substitution of Banks. Upon the receipt by the Company from any Bank
(an "Affected Bank") of a claim for compensation under Section 3.03, upon notice
to the Agent from any Bank that it shall not consent to a request by the Company
for an extension of the Revolving Termination Date pursuant to subsection
2.17(a), or if the Company is required to pay any additional amount to the Agent
or any Bank pursuant to Section 3.01, the Company may: (i) request one or more
of the other Banks to acquire and assume all or part of such Affected Bank's
Loans and Commitment; or (ii) designate a replacement commercial bank (which
shall be an Eligible Assignee) satisfactory to the Company to acquire and assume
all or a ratable part of such Affected Bank's Loans and Commitment (a
"Replacement Bank"); provided, however, that the Company shall be liable for the
payment upon demand of all costs and other amounts arising under Section 3.04
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that result from the acquisition of any Affected Bank's Loan and/or Commitment
(or any portion thereof) by a Bank or Replacement Bank, as the case may be, on a
date other than the last day of the applicable Interest Period with respect to
any Offshore Rate Committed Loan then outstanding. Any such designation of a
Replacement Bank under clause (i) shall be effected in accordance with, and
subject to the terms and conditions of, the assignment provisions contained in
Section 10.08, and shall in any event be subject to the prior written consent of
the Agent and the Swingline Bank (which consents shall not be unreasonably
withheld).
3.10 Survival. The agreements and obligations of the Company in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of each Bank and the
Swingline Bank to make its initial Committed Loan hereunder, and the obligation
of each Bid Loan Bank and Designated Bidder to receive through the Agent the
initial Competitive Bid Request, is subject to the condition that the Agent
shall have received on or before the Closing Date all of the following, in form
and substance satisfactory to the Agent and each Bank, and in sufficient copies
for each Bank:
(a) Credit Agreement and Notes. This Agreement executed by each party
hereto, and the Committed Loan Notes executed by the Company;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of the
Company authorizing the transactions contemplated hereby, certified as
of the Closing Date by the Secretary or an Assistant Secretary of the
Company; and
(ii) A certificate of the Secretary or Assistant Secretary of the
Company, dated the Closing Date, certifying the names, titles and true
signatures of the officers of the Company authorized to execute,
deliver and perform, as applicable, this Agreement, and all other Loan
Documents to be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the following documents:
(i) the articles or certificate of incorporation and the bylaws
of the Company as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of the Company as of the Closing
Date; and
Page 38
(ii) good standing certificates for the Company from the
Secretary of State (or similar, applicable Governmental Authority) of
its state of incorporation and the state of its principal offices;
(d) Legal Opinions.
(i) an opinion of Thomas R. Saldin, Executive Vice-President and
General Counsel to the Company, dated as of the Closing Date and
addressed to the Agent and the Banks, substantially in the form of
Exhibit D; and
(ii) a favorable opinion of Brobeck, Phleger & Harrison LLP,
special counsel to the Agent, dated as of the Closing Date.
(e) Payment of Fees. Evidence of payment by the Company of all accrued and
unpaid fees, costs and expenses to the extent then due and payable on the
Closing Date, together with Attorney Costs of BofA and the Lead Arranger to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute BofA's reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude final settling of accounts between
the Company and BofA), including any such costs, fees and expenses arising under
or referenced in Sections 2.12 and 10.04;
(f) Certificate. A certificate signed by a Responsible Officer, dated as of
the Closing Date, stating that:
(i) the representations and warranties contained in Article V are
true and correct on and as of such date, as though made on and as of
such date;
(ii) no Default or Event of Default exists or would result from
the initial Borrowing; and
(iii) there has occurred since January 28, 1999 (or since the
date of any Form 10-Q or other public disclosure document filed by the
Company with the SEC prior to the Closing Date, to the extent any such
event or circumstance is disclosed in such document), no event or
circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect;
(g) Existing Credit Facilities. Evidence satisfactory to the Agent that the
commitments to extend credit under the Existing Credit Facilities have been
terminated and that all principal, interest, charges and fees due thereunder
have been paid or that arrangements reasonably satisfactory to the Agent for the
payment thereof have been made by the Company (the Company and each Bank party
hereto that is a lender under the Existing Credit Facilities acknowledging that
such commitments shall be terminated simultaneously with the closing hereunder);
(h) Documents and Actions Relating to the 364-Day Credit Agreement. A
certificate of a Responsible Officer of the Company certifying that all
conditions precedent to the closing of the 364-Day Credit Agreement shall have
Page 39
been satisfied in accordance with the terms and conditions thereof (other than
any conditions relating to the closing of the transactions contemplated by this
Agreement); and
(i) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Bank may reasonably request.
4.02 Conditions to All Borrowings. The obligation of each Bank and the
Swingline Bank to make any Committed Loan to be made by it, and the obligation
of any Bid Loan Bank or Designated Bidder to make any Bid Loan as to which the
Company has accepted the relevant Competitive Bid (including its initial Loan),
is subject to the satisfaction of the following conditions precedent on the
relevant Borrowing Date:
(a) Notice of Borrowing. As to any Committed Loan, the Agent shall have
received a Notice of Borrowing;
(b) Continuation of Representations and Warranties. The representations and
warranties in Article V shall be true and correct on and as of such Borrowing
Date with the same effect as if made on and as of such Borrowing Date (except to
the extent such representations and warranties expressly refer to an earlier
date, in which case they shall be true and correct as of such earlier date; and
except that this subsection (b) shall be deemed instead to refer to the last day
of the most recent quarter and year for which financial statements have then
been delivered, and to the most recent Form 10-K filed by the Company with the
SEC, in respect of the representations and warranties made in Section 5.10(a));
(c) No Material Adverse Effect. There has occurred since January 28, 1999
(or since the date of any Form 10-Q or other public disclosure document filed by
the Company with the SEC prior to the Closing Date, to the extent any such event
or circumstance is disclosed in such document), no event or circumstance that
has resulted or could reasonably be expected to result in a Material Adverse
Effect; and
(d) No Existing Default. No Default or Event of Default shall exist or
shall result from such Borrowing.
Each Notice of Borrowing and Competitive Bid Request submitted by the Company
hereunder shall constitute a representation and warranty by the Company
hereunder, as of the date of each such notice or request and as of each
Borrowing Date, that the conditions in this Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence and Power. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of Delaware,
and has all corporate powers and all material governmental licenses,
Page 40
authorizations, consents and approvals required to carry on its business as now
conducted.
5.02 Subsidiaries. Each of the Company'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.
5.03 Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Company of the Loan Documents are
within the Company'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 Authority 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 Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or result
in the creation or imposition of any Lien on any asset of the Company or any of
its Subsidiaries.
5.04 Binding Effect. This Agreement and each other Loan Document to which
the Company is a party constitutes a valid and binding agreement of the Company,
and each Note, when executed and delivered in accordance with this Agreement,
will constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with their respective terms.
5.05 Litigation. Except as disclosed in the Company's 1998 Form 10-K, there
is no action, suit or proceeding pending against, or to the knowledge of the
Company threatened against or affecting, the Company or any of its Subsidiaries
before any court or arbitrator or any Governmental Authority in which there is a
reasonable possibility of an adverse decision which could have a Material
Adverse Effect.
5.06 ERISA Compliance. Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan.
5.07 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to
be used solely for the purposes set forth in and permitted by Section 6.08 and
Section 7.04.
5.08 Title to Properties; Liens. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. The property of the Company and
its Subsidiaries is subject to no Liens, other than Liens permitted under
Section 7.01.
5.09 Taxes. The Company 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 assessment received by the Company or any Subsidiary, other than
any such taxes being contested in good faith and for which appropriate reserves
Page 41
have been established on the books and records of the Company in accordance with
GAAP. The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Company, adequate.
5.10 Financial Information(a) . (a) The consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of January 28, 1999 and the related
consolidated statements of earnings, cash flows and stockholders' equity for the
fiscal year then ended, reported on by Deloitte & Touche and set forth or as
incorporated by reference in the Company's 1998 Form 10-K, a copy of which has
been delivered to each of the Banks, fairly present, in conformity with GAAP,
the consolidated financial position of the Company 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 Company and its
Consolidated Subsidiaries as of October 29, 1999 and the related unaudited
consolidated statements of earnings and cash flows for the thirty-nine weeks
then ended, set forth in the Company's quarterly report for the third quarter
ended October 29, 1999 filed with the SEC on Form 10-Q, a copy of which has been
delivered to each of the Banks, fairly present, in conformity with GAAP applied
on a basis consistent with the financial statements referred to in Subsection
5.10(a), the consolidated financial position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such thirty-nine week period (subject to normal year-end
adjustments).
(c) Since January 28, 1999 (or since the date of any Form 10-Q or other
public disclosure document filed by the Company with the SEC prior to the
Closing Date, to the extent any such event or circumstance is disclosed in such
document), there has been no Material Adverse Effect.
5.11 Environmental Matters. In the ordinary course of its business, the
Company considers the effect of Environmental Laws on the business, operations
and properties of the Company and its Subsidiaries as such business, operations
and properties exist at the time. On this basis, the Company has reasonably
concluded that Environmental Laws at the time in effect are unlikely to have a
Material Adverse Effect.
5.12 Regulated Entities. The Company is not an "Investment Company" within
the meaning of the Investment Company Act of 1940. The Company is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness.
5.13 Insurance. The properties of the Company and its Consolidated
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Company, in such amounts, with such deductibles
(and with such risk retention) and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the Company or such Subsidiary operates.
Page 42
5.14 Full Disclosure. All information heretofore furnished by the Company
to the Agent or any Bank for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all such information hereafter
furnished by the Company to the Agent or any Bank will be, true and accurate in
all material respects on the date as of which such information is stated or
certified.
5.15 Year 2000. The Company has (a) completed a review and assessment of
critical areas within its and each of its Subsidiaries' business and operations
(including those affected by customers and vendors) that could be adversely
affected by the "Year 2000 Problem" (that is, the risk that computer
applications and devices containing imbedded computer chips used by the Company
or any of its Subsidiaries (or their respective customers and vendors) may be
unable to recognize and perform properly date-sensitive functions involving
certain dates prior to and after December 31, 1999), (b) developed a plan and
timeline for addressing the Year 2000 Problem on a timely basis, and (c)
substantially completed implementation of that plan in accordance with that
timetable. The Year 2000 Problem has not resulted in, and the Company reasonably
believes that the Year 2000 Problem will not result in, a Material Adverse
Effect.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Majority Banks
waive compliance in writing:
6.01 Information. The Company will deliver to each of the Banks:
(a) as soon as available and in any event within 120 days after the end of
each fiscal year of the Company, a consolidated balance sheet of the Company and
its Consolidated Subsidiaries as of the end of such fiscal year and the related
consolidated statements of earnings, cash flows and stockholders' equity for
such fiscal year, setting forth in each case in comparative form the figures for
the previous fiscal year, all reported on in a manner acceptable to the SEC by
Deloitte & Touche or other independent public accountants of nationally
recognized standing (the "Independent Auditor"). Such report shall not be
qualified as to (i) going concern or (ii) any limitation in the scope of the
audit;
(b) as soon as available and in any event within 60 days after the end of
each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
of the end of such quarter and the related consolidated statements of earnings
for such quarter and for the portion of the Company's fiscal year ended at the
end of such quarter and the related consolidated statement of cash flows for the
portion of the Company's fiscal year ended at the end of such quarter, setting
forth in comparative form the corresponding statements for the corresponding
portions of the Company's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, GAAP and consistency by
the chief financial officer or the chief accounting officer of the Company;
Page 43
(c) simultaneously with the delivery of each set of financial statements
referred to in clauses (a) and (b) above, a Compliance Certificate of the chief
financial officer or the chief accounting officer of the Company;
(d) simultaneously with the delivery of each set of financial statements
referred to in subsection (a), a statement of the Independent Auditor 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 Compliance Certificate
delivered simultaneously therewith pursuant to subsection (c);
(e) forthwith upon the occurrence of any Default, a certificate of the
chief financial officer or the chief accounting officer of the Company setting
forth the details thereof and the action which the Company is taking or proposes
to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the Company
generally, copies of all financial statements, reports and proxy statements so
mailed and not previously delivered to each Bank pursuant to this Section 6.01;
(g) 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, l0-Q and 8-K (or their equivalents)
which the Company shall have filed with the SEC and not previously delivered to
each Bank pursuant to this Section 6.01;
(h) if and when any member of the ERISA Group (i) gives or is required to
give notice to the PBGC of any "reportable event" (as defined in Section 4043 of
ERISA) with respect to any Plan which might constitute grounds for a termination
of such Plan under Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such reportable event, a
copy of the notice of such reportable event given or required to be given to the
PBGC; (ii) receives notice of complete or partial withdrawal liability under
Title IV of ERISA, or notice that any Multiemployer Plan is in reorganization,
is insolvent or has been terminated, a copy of such notice; (iii) receives
notice from the PBGC under Title IV of ERISA of an intent to terminate, impose
liability (other than for premiums under Section 4007 of ERISA) in respect of,
or appoint a trustee to administer any Plan, a copy of such notice; (iv) applies
for a waiver of the minimum funding standard under Section 412 of the Code, a
copy of such application; (v) gives notice of intent to terminate any Plan under
Section 4041(c) of ERISA, a copy of such notice and other information filed with
the PBGC; (vi) gives notice of withdrawal from any Plan pursuant to Section 4063
of ERISA, a copy of such notice; or (vii) fails to make any payment or
contribution to any Plan or Multiemployer Plan or in respect of any Benefit
Arrangement or makes any amendment to any Plan or Benefit Arrangement which has
resulted or could result in the imposition of a Lien or the posting of a bond or
other security, a certificate of the chief financial officer or the chief
accounting officer of the Company setting forth details as to such occurrence
and action, if any, which the Company or applicable member of the ERISA Group is
required or proposes to take; and
(i) from time to time such additional information regarding the
consolidated financial position of the Company as the Agent, at the request
of any Bank, may reasonably request.
Page 44
As to any information contained in materials furnished pursuant to subsection
6.01(g), the Company shall not be separately required to furnish such
information under subsection (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Company to furnish the information and
materials described in subsection (a) and (b) above at the times specified
therein.
6.02 Conduct of Business and Maintenance of Existence. The Company will
continue, and will cause each Subsidiary to continue, to engage in business of
the same general type as now conducted by the Company 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
corporate existence and their respective rights, privileges and franchises
necessary or desirable in the normal conduct of business; provided that the
Company may (a) discontinue operations or dispose of property in the normal
conduct of its business and (b) cause the dissolution of Subsidiaries or the
merger of a Subsidiary into the Company or into another Subsidiary as it may
from time to time reasonably deem necessary or desirable in the conduct of its
business.
6.03 Maintenance of Property. The Company will keep, and will cause each
Subsidiary to keep, all property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted; provided that the
Company and each of its Subsidiaries may discontinue operations and dispose of
property in the normal conduct of its business.
6.04 Insurance. The Company will maintain, and will cause each Subsidiary
to maintain with financially sound and reputable insurance companies, insurance
on all their real and personal property in at least such amounts and against at
least such risks (and with such risk retention) as are usually insured against
by companies of established repute engaged in the same or similar business as
the Company or such Subsidiary, and the Company will promptly furnish to the
Banks such information as to insurance carried as may be reasonably requested in
writing by the Agent.
6.05 Payment of Obligations. The Company will pay and discharge, and will
cause each Subsidiary to pay and discharge, at or before maturity, all their
respective material obligations and liabilities, including tax liabilities,
except where the same may be contested in good faith by appropriate proceedings,
and will maintain, and will cause each Subsidiary to maintain, in accordance
with GAAP, appropriate reserves for the accrual of any of the same.
6.06 Compliance with Laws. The Company will comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of Governmental Authorities
(including Environmental Laws and ERISA), except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings and
non-compliance during the period of such contest could not reasonably be
expected to have a Material Adverse Effect.
6.07 Inspection of Property, Books and Records. The Company will keep, and
will cause each Subsidiary 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. Upon the occurrence and during the
Page 45
continuance of a Default, the Company will permit, and will cause each
Subsidiary to permit, representatives of any Bank at such Bank's expense, to
examine any of their respective books and records (except as they relate to the
Company's trade secrets or other proprietary information of the Company other
than any information required to be delivered to the Banks by the Company under
Section 6.01) and to discuss their respective 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.
6.08 Use of Proceeds. The proceeds of the Loans made under this Agreement
will be used by the Company for commercial paper back-up liquidity and other
lawful corporate purposes.
6.09 Further Assurances. Promptly upon request by the Agent or the Majority
Banks, the Company shall do, execute, acknowledge, and deliver, any and all such
further acts, certificates, assurances and other instruments the Agent or such
Banks, as the case may be, may reasonably require from time to time in order to
carry out more effectively the purposes of this Agreement or any other Loan
Document.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Majority Banks
waive compliance in writing:
7.01 Limitation on Liens. Neither the Company nor any Consolidated
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 Indebtedness
outstanding on the date of this Agreement in an aggregate principal amount not
exceeding $500,000,000;
(b) any Lien existing on any specific tangible asset or assets of any
Person at the time such Person becomes a Consolidated Subsidiary and not created
in contemplation of such event, subject to subsection 7.01(e);
(c) any Lien on any asset securing Indebtedness incurred or assumed for the
purpose of financing all or any part of the cost of acquiring such asset,
provided that (i) in the case of land acquired for the purpose of constructing
new business or operating facilities thereon, (A) such Lien attaches to such
land within 24 months after the acquisition thereof and (B) construction of such
new business or operating facilities thereon is substantially complete within 24
months after the acquisition of such land and (ii) in the case of any asset
other than an asset of the type described in the preceding clause (i), such Lien
attaches to such asset concurrently with or within 180 days after the
acquisition thereof;
Page 46
(d) any Lien on any specific tangible asset or assets of any Person
existing at the time such Person is merged or consolidated with or into the
Company or a Consolidated Subsidiary and not created in contemplation of such
event, subject to subsection 7.01(e);
(e) any Lien existing on any specific tangible asset or assets prior to the
acquisition thereof by the Company or a Consolidated Subsidiary and not created
in contemplation of such acquisition; provided that in the case of any Lien
permitted under this subsection (e) or under subsections (b) and (d), any such
Lien does not by its terms cover any such tangible assets after the time the
Company directly or indirectly acquires such assets which were not covered
immediately prior thereto, and any such Lien does not by its terms secure any
Indebtedness other than Indebtedness existing immediately prior to the time of
acquisition of such assets;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Indebtedness is not
increased and is not secured by any additional assets; (g) Liens arising in the
ordinary course of its business which (i) do not secure Indebtedness and (ii) 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;
(h) Liens arising from the Company's or a Subsidiary's pledging of
equipment, not otherwise permitted by the foregoing clauses of this Section,
securing Indebtedness in an aggregate principal amount at any time outstanding
not to exceed $500,000,000; and
(i) Liens on real property; provided that the aggregate value of real
property owned by the Company (not including for purposes of this proviso any
real property acquired or held by the Company subject to the interest of a
lessor under a capital lease relating to such real property), as determined on a
lower of cost or Fair Market Value basis (as defined below), exceeds the
aggregate principal amount of Indebtedness secured by Liens on such real
property in an amount not less than $250,000,000.
For the purposes of Section 7.01, "Fair Market Value" means with
respect to any real property of the Company or any Subsidiary at any date the
open market cash purchase price that an informed and willing purchaser would pay
for such real property in an arm's-length transaction to a willing and informed
owner under no compulsion to sell, all as determined (i) if no Default has
occurred and is continuing, at the option of the Majority Banks either (A) in
good faith by the Board of Directors of the Company or (B) by an appraisal
conducted by an independent appraiser satisfactory to the Agent and the Company,
the cost of such appraisal to be shared equally by the Company and the Banks,
and (ii) if a Default has occurred and is continuing, by an appraisal conducted
by an independent appraiser satisfactory to the Agent and the Company, the cost
of such appraisal to be borne solely by the Company.
7.02 Disposition of Assets. The Company will not (i) consolidate or merge
with or into any other Person or (ii) directly or indirectly sell, lease or
otherwise transfer all or any substantial part of the assets of the Company and
its Consolidated Subsidiaries, considered as a whole, to any other Person;
Page 47
provided that the Company may merge with another Person if (A) the Company is
the Person surviving such merger and (B) immediately after giving effect to such
merger, no Default shall have occurred and be continuing.
7.03 Limitation on Subsidiary Indebtedness and Swap Contracts. The Company
shall not permit any Subsidiary to create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness or Swap Contracts except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) endorsements for collection or deposit in the ordinary course of
business;
(c) Swap Contracts outstanding as of the Closing Date or entered into
thereafter in the ordinary course of business;
(d) Surety Instruments in the ordinary course of business;
(e) Indebtedness existing on the Closing Date in an amount not to exceed
$3,200,000,000;
(f) Indebtedness secured by Liens permitted by subsections 7.01(b), (c),
(d), (e) and (i);
(g) capital leases entered into by any Subsidiary after the Closing Date to
finance the acquisition of equipment;
(h) Indebtedness of Wholly-Owned Consolidated Subsidiaries of the Company
to the Company or to other Wholly-Owned Consolidated Subsidiaries of the
Company; and
(i) additional Indebtedness incurred after the Closing Date not exceeding
$500,000,000 in aggregate principal amount at any time outstanding.
7.04 Use of Proceeds.
(a) The Company shall not, and shall not suffer or permit any Subsidiary
to, use any portion of the Loan proceeds, directly or indirectly, (i) to
purchase or carry Margin Stock, (ii) to repay or otherwise refinance
Indebtedness of the Company or others incurred to purchase or carry Margin
Stock, (iii) to extend credit for the purpose of purchasing or carrying any
Margin Stock or (iv) for any other purpose which violates Regulations T, U or X
of the FRB.
(b) The Company shall not, directly or indirectly, use any portion of the
Loan proceeds to purchase during the underwriting period, or for thirty days
thereafter, Ineligible Securities underwritten by the Arranger. The Arranger is
a wholly-owned subsidiary of BankAmerica Corporation and a registered
broker-dealer which is permitted to underwrite and deal in certain Ineligible
Securities; and "Ineligible Securities" means securities which may not be
underwritten or dealt in by member banks of the Federal Reserve System under
Section 16 of the Banking Act of 1933 (12 U.S.C. ss. 24, Seventh).
Page 48
7.05 Minimum Consolidated Tangible Net Worth. The Company shall not permit
its Consolidated Tangible Net Worth at any time to be less than $2,100,000,000;
provided that upon (a) the purchase from time to time of common stock of the
Company by the Company from one or more of the J.A. and Kathryn Albertson
Foundation, Inc., or donees pursuant to the terms of the Foundation Stock
Agreement, or (b) the purchase from time to time of common stock of the Company
by the Company from Theo Albrecht or from Markus-Stiftung pursuant to the terms
of the Markus-Stiftung Stock Agreement, Consolidated Tangible Net Worth shall be
increased, for purposes of subsequent calculations hereunder, by an amount (the
"CTNW Adjustment") equal to the excess (if any) of (i) the amount by which the
purchase price of such common stock reduces Consolidated Tangible Net Worth over
(ii) the amount by which Consolidated Tangible Net Worth has been increased
through the sale of common stock subsequent to the date of such purchase,
excluding the effect of the exercise of employee stock options, all as
determined in accordance with GAAP.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. The Company fails to make, (i) when and as required to be
made herein, payments of any amount of principal of any Loan, or (ii) within
five Business Days after the same becomes due, payment of any interest, fee or
any other amount payable hereunder or under any other Loan Document; or
(b) Representation or Warranty. Any representation, warranty, certification
or statement made by the Company 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 on or as of the date made
(or deemed made); or
(c) Specific Defaults. The Company shall fail to observe or perform any
covenant contained in Sections 7.01 through 7.05, inclusive; or
(d) Other Defaults. The Company shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered by
clause (a), (b) or (c) above) for 15 Business Days after the earlier of (i) the
date upon which the chief financial officer, chief accounting officer or other
senior officer of the Company knew or reasonably should have known of such
failure or (ii) notice thereof has been given to the Company by the Agent at the
request of any Bank; or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make any
payment in respect of any Material Indebtedness (other than in respect of Swap
Contracts), when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) and such failure continues after the
applicable grace or notice period, if any, specified in the relevant document on
the date of such failure; or (B) fails to perform or observe any other condition
or covenant, or any other event shall occur or condition exist, under any
agreement or instrument relating to any Material Indebtedness, and such failure
Page 49
continues after the applicable grace or notice period, if any, specified in the
relevant document on the date of such failure if the effect of such failure,
event or condition is to cause, or to permit the holder or holders of such
Material Indebtedness or beneficiary or beneficiaries of such Material
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such Material Indebtedness to be declared
to be due and payable, or to be prepaid prior to its stated maturity, or to
become payable, or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (1) any event of default under such Swap
Contract as to which the Company or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (2) any Termination Event (as so defined) as
to which the Company or any Subsidiary is an Affected Party (as so defined),
and, in either event, the Swap Termination Value owed by the Company or such
Subsidiary as a result thereof is greater than $30,000,000; or
(f) Insolvency; Voluntary Proceedings. The Company or any Subsidiary (i)
ceases or fails to be solvent, or generally fails to pay, or admits in writing
its inability to pay, its debts as they become due, subject to applicable grace
periods, if any, whether at stated maturity or otherwise; (ii) voluntarily
ceases to conduct its business in the ordinary course; (iii) consents to or
commences a voluntary Insolvency Proceeding with respect to itself, or (iv)
takes any corporate action to authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) An involuntary Insolvency Proceeding shall
be commenced or filed against the Company or any Subsidiary, or any writ,
judgment, warrant of attachment, execution or similar process, is issued or
levied against a substantial part of the Company's or any Subsidiary's
properties, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within 60 days after commencement, filing or
levy; (ii) the Company or any Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Company or any Subsidiary acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $30,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to terminate a
Material Plan shall be filed under Title IV 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 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 $30,000,000; or
Page 50
(i) Monetary Judgments. A judgment or order for the payment of money in
excess of $30,000,000 shall be rendered against the Company or any Subsidiary
and such judgment or order shall continue unsatisfied and unstayed for a period
of 30 days; or
(j) Change of Control. There occurs any Change of Control.
8.02 Remedies. If any Event of Default occurs, then, and in every such
event, the Agent shall (i) if requested or consented to by the Majority Banks,
by notice to the Company terminate the Commitments and they shall thereupon
terminate, (ii) if requested or consented to by the Majority Banks, by notice to
the Company declare the Loans (together with accrued interest thereon and all
other amounts owing under the Loan Documents) to be, and the Loans (and such
interest and other amounts) 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 Company and (iii) if requested or consented to by the
Majority Banks, exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or applicable
law; provided that in the case of any of the Events of Default specified in
subsections (f) or (g) (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), without any notice to the
Company or any other act by the Agent or the Banks, the Commitments shall
thereupon terminate and the Loans (together with accrued interest thereon and
all other amounts owing under the Loan Documents) shall become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Company.
8.03 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization; "Agent." Each Bank hereby irrevocably
(subject to Section 9.09) appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with reference
to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
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Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
9.02 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of the Company or any other party to
any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates.
9.04 Reliance by Agent(a) . (a) The Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to the Company), independent accountants and other experts selected by the
Agent. The Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Majority Banks as it deems appropriate
and, if it so requests, it shall first be indemnified to its satisfaction by the
Banks against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in all
cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Loan Document in accordance with a request or consent of
the Majority Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions specified in
Section 4.01, each Bank that has executed this Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter either sent (or made available) by the Agent to such Bank for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Bank.
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9.05 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Banks, unless the Agent shall have received
written notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". The Agent will notify the Banks of its receipt of any such
notice. The Agent shall take such action with respect to such Default or Event
of Default as may be requested by the Banks in accordance with Article VIII;
provided, however, that unless and until the Agent has received any such
request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Banks.
9.06 Credit Decision. Each Bank acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it, and that no act by the
Agent hereinafter taken, including any review of the affairs of the Company and
its Subsidiaries, shall be deemed to constitute any representation or warranty
by any Agent-Related Person to any Bank. Each Bank represents to the Agent that
it has, independently and without reliance upon any Agent-Related Person and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Company and
its Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Company hereunder. Each Bank also
represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company or any Subsidiary which may come into the
possession of any of the Agent-Related Persons.
9.07 Indemnification of Agent. Whether or not the transactions contemplated
hereby are consummated, the Banks shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), in accordance with the Banks'
Pro Rata Shares, from and against any and all Indemnified Liabilities; provided,
however, that no Bank shall be liable for the payment to the Agent-Related
Persons of any portion of such Indemnified Liabilities resulting from such
Person's gross negligence or willful misconduct. Without limitation of the
foregoing, each Bank shall reimburse the Agent upon demand for its ratable share
of any costs or out-of-pocket expenses (including Attorney Costs) incurred by
the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that the Agent
is not reimbursed for such expenses by or on behalf of the Company. The
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undertaking in this Section shall survive the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
9.08 Agent in Individual Capacity. BofA and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with the Company and its
Subsidiaries and Affiliates as though BofA were not the Agent hereunder and
without notice to or consent of the Banks. The Banks acknowledge that, pursuant
to such activities, BofA or its Affiliates may receive information regarding the
Company or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Company or such Subsidiary) and
acknowledge that the Agent shall be under no obligation to provide such
information to them. With respect to its Loans, BofA shall have the same rights
and powers under this Agreement as any other Bank and may exercise the same as
though it were not the Agent, and the terms "Bank" and "Banks" include BofA in
its individual capacity.
9.09 Successor Agent. The Agent may, and at the request of the Majority
Banks shall, resign as Agent upon 30 days' notice to the Banks. If the Agent
resigns under this Agreement, the Majority Banks shall appoint from among the
Banks a successor agent for the Banks which successor agent shall be approved by
the Company (such approval not to be unreasonably withheld). If no successor
agent is appointed prior to the effective date of the resignation of the Agent,
the Agent may appoint, after consulting with the Banks and the Company, a
successor agent from among the Banks. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and duties as Agent
shall be terminated. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement. If no successor agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Banks shall perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Banks appoint a successor
agent as provided for above. Notwithstanding the foregoing, however, BofA may
not be removed as the Agent at the request of the Majority Banks unless BofA
shall also simultaneously be replaced as "Swingline Bank" hereunder pursuant to
documentation in form and substance reasonably satisfactory to BofA.
9.10 Withholding Tax. (a) (a) Each Bank organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement, and on the Assignment and Acceptance
Date pursuant to which it becomes a party to this Agreement in the case of each
other Bank, and from time to time thereafter if requested in writing by the
Company or the Agent (but only so long thereafter as such Bank remains lawfully
able to do so), provide the Agent and the Company with (i) an accurate,
complete, and duly executed Internal Revenue Service form W-8BEN or W-8ECI, as
appropriate, or any successor or substitute form prescribed or permitted by the
Internal Revenue Service, certifying that such Bank is entitled to claim the
benefit of complete exemption from imposition of United States withholding tax
under an income tax treaty to which the United States is a party in respect of
payments made under this Agreement or certifying that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
Page 54
or business in the United States and (ii) in the event that, by virtue of a
change in law or regulations, such forms are no longer valid evidence of a
Person's exemption from withholding which is reasonably satisfactory to the
Company, other appropriate evidence supporting such Person's exemption from
withholding as the Company may reasonably request.
(b) For any period with respect to which a Bank or an Assignee has failed
to provide the Company with the appropriate form described in Subsection 9.10(a)
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required under Subsection 9.10(a)), such Bank or Assignee shall not be
entitled to indemnification under Section 3.01(b) or (d) with respect to Taxes
imposed by the United States.
(c) If any Bank claims exemption from, or reduction of, withholding tax
under a United States tax treaty by providing IRS Form W-8BEN and such Bank
sells, assigns, grants a participation in, or otherwise transfers all or part of
the Obligations of the Company owing to such Bank, such Bank agrees to notify
the Company and Agent of the percentage amount in which it is no longer the
beneficial owner of Obligations of the Company owing to such Bank. To the extent
of such percentage amount, the Agent will treat such Bank's IRS Form W-8BEN as
no longer valid.
(d) If any Bank claiming exemption from United States withholding tax by
filing IRS Form W-8ECI with the Agent sells, assigns, grants a participation in,
or otherwise transfers all or part of the Obligations of the Company owing to
such Bank, such Bank agrees to undertake sole responsibility for complying with
the withholding tax requirements imposed by Sections 1441 and 1442 of the Code.
(e) If any Bank is entitled to a reduction in the applicable withholding
tax, the Agent may withhold from any interest payment to such Bank an amount
equivalent to the applicable withholding tax after taking into account such
reduction. However, if the forms or other documentation required by subsection
(a) of this Section are not delivered to the Company and Agent, then the Company
or Agent may withhold from any interest payment to such Bank not providing such
forms or other documentation an amount equivalent to the applicable withholding
tax imposed by Sections 1441 and 1442 of the Code, without reduction.
(f) If the IRS or any other Governmental Authority of the United States or
other jurisdiction asserts a claim that the Agent did not properly withhold tax
from amounts paid to or for the account of any Bank (because the appropriate
form was not delivered or was not properly executed, or because such Bank failed
to notify the Agent of a change in circumstances which rendered the exemption
from, or reduction of, withholding tax ineffective, or for any other reason)
such Bank shall indemnify the Company or the Agent, as the case may be, fully
for all amounts paid, directly or indirectly, by the Company or the Agent, as
the case may be, as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to the
Company or the Agent, as the case may be, under this Section, together with all
costs and expenses (including Attorney Costs). The obligation of the Banks under
this subsection shall survive the payment of all Obligations and the resignation
or replacement of the Agent.
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9.11 Co-Agents. None of the Banks identified on the facing page or
signature pages of this Agreement as a "Documentation Agent," "Syndication
Agent," "Senior Managing Agent" or "Managing Agent" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Banks as such. Without limiting the foregoing, none of
the Banks so identified shall have or be deemed to have any fiduciary
relationship with any Bank. Each Bank acknowledges that it has not relied, and
will not rely, on any of the Banks so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Majority Banks
(or by the Agent at the written request of the Majority Banks) and the Company
and acknowledged by the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Banks and the Company and acknowledged
by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank or the Swingline
Commitment of the Swingline Bank (or reinstate any Commitment terminated
pursuant to Section 8.02);
(b) postpone or delay any date fixed by this Agreement or any other Loan
Document for any payment of principal, interest, fees or other amounts due to
the Banks (or any of them) hereunder or under any other Loan Document (including
the date of any mandatory prepayment hereunder);
(c) reduce the principal of, or the rate of interest specified herein on
any Loan, or (subject to clause (ii) below) any fees or other amounts payable
hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which is required for the Banks or any of them to
take any action hereunder; or
(e) amend this Section 10.01, subsection 2.04(e), Section 2.17, Section
2.18, the definition of "Majority Banks" herein, or any provision herein
providing for consent or other action by all Banks or some specified amount of
Banks;
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document, (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Swingline Bank in addition to the
Page 56
Majority Banks or all the Banks, as the case may be, increase the Swingline
Commitment or otherwise affect the rights or duties of the Swingline Bank under
this Agreement, and (iii) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed by the parties thereto.
10.02 Notices(a) . (a) All notices, requests, consents, approvals, waivers
and other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission) and mailed, faxed or
delivered, to the address or facsimile number specified for notices on Schedule
10.02; or, as directed to the Company or the Agent, to such other address as
shall be designated by such party in a written notice to the other parties, and
as directed to any other party, at such other address as shall be designated by
such party in a written notice to the Company and the Agent.
(b) All such notices, requests and communications shall, when transmitted
by overnight delivery, or faxed, be effective when delivered for overnight
(next-day) delivery, or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited
into the mails, or if delivered, upon delivery; except that notices pursuant to
Article II or IX to the Agent shall not be effective until actually received by
the Agent; and notices pursuant to Article II to the Swingline Bank shall not be
effective until actually received by the Swingline Bank at the address specified
for such Person on Schedule 10.02.
(c) Any agreement of the Agent and the Banks herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Company. The Agent and the Banks shall be entitled to rely on the
authority of any Person purporting to be a Person authorized by the Company to
give such notice and the Agent and the Banks shall not have any liability to the
Company or other Person on account of any action taken or not taken by the Agent
or the Banks in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay the Loans shall not be affected in any way or
to any extent by any failure by the Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt by the Agent
and the Banks of a confirmation which is at variance with the terms understood
by the Agent and the Banks to be contained in the telephonic or facsimile
notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent, any Designated Bidder or any Bank, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are consummated,
pay or reimburse BofA (including in its capacity as Agent) within five Business
Days after demand (subject to subsection 4.01(e)) for all reasonable costs and
expenses incurred by BofA (including in its capacity as Agent) and the Lead
Arranger in connection with (i) the development, preparation, delivery and
execution of, and any amendment, supplement, waiver or modification to (in each
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case, whether or not consummated), this Agreement, any Loan Document and any
other documents prepared in connection herewith or therewith and (ii) the
consummation of the transactions contemplated hereby and thereby, including
reasonable Attorney Costs incurred by BofA (including in its capacity as Agent)
with respect thereto; and
(b) pay or reimburse the Agent, the Lead Arranger, each Designated Bidder
and each Bank within five Business Days after demand (subject to subsection
4.01(e)) for all costs and expenses (including Attorney Costs) incurred by them
in connection with the enforcement, attempted enforcement, or preservation of
any rights or remedies under this Agreement or any other Loan Document during
the existence of an Event of Default or after acceleration of the Loans
(including in connection with any "workout" or restructuring regarding the
Loans, and including in any Insolvency Proceeding or appellate proceeding).
10.05 Company Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Company shall indemnify, defend and hold the
Agent-Related Persons, and each Bank, each Designated Bidder and each of its
respective officers, directors, employees, counsel, agents and attorneys-in-fact
(each an "Indemnified Person") harmless from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, charges, expenses and disbursements (including Attorney Costs) of any
kind or nature whatsoever which may at any time (including at any time following
repayment of the Loans and the termination, resignation or replacement of the
Agent or replacement of any Bank) be imposed on, incurred by or asserted against
any such Person in any way relating to or arising out of this Agreement, the
other Loan Documents or any document contemplated by or referred to therein, or
the transactions contemplated hereby, or any action taken or omitted by any such
Indemnified Person under or in connection with any of the foregoing, including
with respect to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or arising out of this
Agreement or the Loans or the use of the proceeds thereof, whether or not any
Indemnified Person is a party thereto (all the foregoing, collectively, the
"Indemnified Liabilities"); provided that the Company shall have no obligation
hereunder to any Indemnified Person with respect to Indemnified Liabilities to
the extent resulting from the gross negligence or willful misconduct of such
Indemnified Person. The agreements in this Section and in Section 10.04 shall
survive payment of all other Obligations.
10.06 Payments Set Aside. To the extent that the Company makes a payment to
the Agent, any Designated Bidder or any Bank or the Agent, any Designated Bidder
or any Bank exercises its right of set-off, and such payment or the proceeds of
such set-off or any part thereof are subsequently invalidated, declared to be
fraudulent or preferential, set aside or required (including pursuant to any
settlement entered into by the Agent, such Designated Bidder or such Bank in its
discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such set-off had not occurred, and (b) each Bank
and each Designated Bidder severally agrees to pay to the Agent upon demand its
pro rata share of any amount so recovered from or repaid by the Agent.
10.07 Binding Effect; Successors and Assigns. This Agreement shall become
effective when it shall have been executed by the Company, the Agent and the
Banks and thereafter shall be binding upon and inure to the benefit of the
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parties hereto and their respective successors and assigns, except that the
Company may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Agent and each Bank.
10.08 Assignments, Participations, Etc(a). (a) Any Bank may, with the
written consent of the Company, the Swingline Bank and the Agent (which in each
case shall not be unreasonably withheld), at any time assign and delegate to one
or more Eligible Assignees (each an "Assignee") all, or any ratable part of all,
of the Loans, the Commitment and the other rights and obligations of such Bank
hereunder; provided, however, that (i) no written consent of the Company shall
be required during the existence of a Default or an Event of Default; (ii) no
written consent of the Company or the Agent or the Swingline Bank shall be
required in connection with any assignment and delegation by a Bank to an
Eligible Assignee that is a United States Affiliate of such Bank or another
Bank; and (iii) except in connection with an assignment of all of a Bank's
rights and obligations with respect to its Commitment and Loans, any such
assignment (A) to an Eligible Assignee that is a Bank or an Affiliate of a Bank
hereunder shall be equal to or greater than $5,000,000 or (B) to an Eligible
Assignee that is not a Bank or an Affiliate of a Bank hereunder shall be equal
to or greater than $10,000,000; and (iv) each such partial assignment shall be
of a ratable part of the Loans, the Commitment and the other interests, rights
and obligations hereunder of such assigning Bank; and provided further, however,
that the Company, the Swingline Bank and the Agent may continue to deal solely
and directly with such Bank in connection with the interest so assigned to an
Assignee until (A) such Bank and its Assignee shall have delivered to the
Company and the Agent an Assignment and Acceptance Agreement substantially in
the form of Exhibit E (an "Assignment and Acceptance") together with any Note or
Notes subject to such assignment; (B) a written notice of such assignment,
together with payment instructions, addresses and related information with
respect to the Assignee, in substantially the form of the Notice of Assignment
and Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall
have been given to the Company and the Agent by such Bank and the Assignee; and
(C) the assignor Bank or Assignee shall have paid to the Agent a processing fee
in the amount of $3,500; and (D) the Agent, the Swingline Bank and the Company
each shall have provided any required consent to such assignment in accordance
with this Section. In connection with any assignment by BofA, its Swingline
Commitment may be assigned in whole (and not part) and only in connection with
an assignment transaction involving an assignment of all of its Commitment and
Loans, and the Assignment and Acceptance may be appropriately modified to
include an assignment and delegation of its Swingline Commitment and any
outstanding Swingline Loans.
(b) From and after the date that the Agent notifies the assignor Bank that
the Agent has received (and, if required, provided its consent with respect
thereto and, if necessary, received any other consents required under this
Section 10.08) an executed Assignment and Acceptance and payment of the
above-referenced processing fee (such date referred to herein as the "Assignment
and Acceptance Date", (i) the Assignee thereunder shall be a party hereto and,
to the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, shall have the rights and
obligations of a Bank under the Loan Documents, (ii) this Agreement shall be
deemed to be amended to the extent, but only to the extent, necessary to reflect
the addition of the Assignee and the resulting adjustment of the Commitments
arising therefrom, and (iii) the assignor Bank shall, to the extent that rights
and obligations hereunder and under the other Loan Documents have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights and be
Page 59
released from its obligations under the Loan Documents; provided, however, that
the assignor Bank shall not relinquish its rights under Article III or under
Sections 10.04 and 10.05 (and any equivalent provisions of the other Loan
Documents) to the extent such rights relate to the time prior to the effective
date of the Assignment and Acceptance. The Commitment allocated to each Assignee
shall reduce the Commitment of the assigning Bank pro tanto.
(c) Within five Business Days after the Company's receipt of notice from
the Agent that it has received (and, if necessary, consented to) an executed
Assignment and Acceptance and payment of the processing fee (and provided that
the Company and the Swingline Bank consent to such assignment in accordance with
subsection 10.08(a)), the Company shall execute and deliver to the Agent any new
Notes requested by such Assignee evidencing such Assignee's assigned Loans and
Commitment and, if the assignor Bank has retained a portion of its Loans and its
Commitment, replacement Notes as requested by the assignor Bank evidencing the
Loans and Commitment retained by the assignor Bank (such Notes to be in exchange
for, but not in payment of, the Notes held by such Bank, if any).
(d) Any Bank or Designated Bidder may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company (a
"Participant") participating interests in any Loans, the Commitment of that Bank
and the other interests of that Bank or Designated Bidder (the "Originator")
hereunder and under the other Loan Documents; provided, however, that (i) the
Originator's obligations under this Agreement shall remain unchanged, (ii) the
Originator shall remain solely responsible for the performance of such
obligations, (iii) the Company and the Agent shall continue to deal solely and
directly with the Originator in connection with the Originator's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no Bank
shall transfer or grant any participating interest under which the Participant
has rights to approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Banks as
described in the first proviso to Section 10.01. In the case of any such
participation, the Participant shall not have any rights under this Agreement,
or any of the other Loan Documents, and all amounts payable by the Company
hereunder shall be determined as if such Originator had not sold such
participation; except that, if amounts outstanding under this Agreement are due
and unpaid, or shall have been declared or shall have become due and payable
upon the occurrence of an Event of Default, each Participant shall be deemed to
have the right of set-off in respect of its participating interest in amounts
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank or Designated Bidder
(as the case may be) under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Bank or
Designated Bidder may at any time create a security interest in, or pledge, all
or any portion of its rights under and interest in this Agreement and any Note
held by it (other than in respect of Swingline Loans) in favor of any Federal
Reserve Bank in accordance with Regulation A of the FRB or U.S. Treasury
Regulation 31 CFR ss.203.14, and such Federal Reserve Bank may enforce such
pledge or security interest in any manner permitted under applicable law.
10.09 Designated Bidders. Any Bid Loan Bank may designate one Designated
Bidder to have a right to offer and make Bid Loans pursuant to Section 2.06;
provided, however, that (i) no such Bid Loan Bank may make more than one such
Page 60
designation, (ii) each such Bid Loan Bank making any such designation shall
retain the right to make Bid Loans, and (iii) the parties to each such
designation shall execute and deliver to the Agent a Designation Agreement. Upon
its receipt of an appropriately completed Designation Agreement executed by a
designating Bid Loan Bank and a designee representing that it is a Designated
Bidder, the Agent will accept such Designation Agreement and give prompt notice
thereof to the Company, whereupon such designation of such Designated Bidder
shall become effective and such Designated Bidder shall become a party to this
Agreement as a "Designated Bidder."
10.10 Confidentiality. Each Bank and each Designated Bidder agrees to take
and to cause its Affiliates to take normal and reasonable precautions and
exercise due care to maintain the confidentiality of all information identified
as "confidential" or "secret" by the Company and provided to it by the Company
or any Subsidiary, or by the Agent on the Company's or such Subsidiary's behalf,
under this Agreement or any other Loan Document, and neither it nor any of its
Affiliates shall use any such information other than in connection with or in
enforcement of this Agreement and the other Loan Documents or in connection with
other business now or hereafter existing or contemplated with the Company or any
Subsidiary; except to the extent such information (i) was or becomes generally
available to the public other than as a result of disclosure by such Bank or
Designated Bidder, or (ii) was or becomes available on a non-confidential basis
from a source other than the Company, provided that such source is not bound by
a confidentiality agreement with the Company known to such Bank or Designated
Bidder; provided, however, that any Bank or Designated Bidder may disclose such
information (A) at the request or pursuant to any requirement of any
Governmental Authority to which such Bank or Designated Bidder is subject or in
connection with an examination of such Bank or Designated Bidder by any such
authority; (B) pursuant to subpoena or other court process; (C) when required to
do so in accordance with the provisions of any applicable Requirement of Law;
(D) to the extent required in connection with any litigation or proceeding to
which the Agent, any Bank, Designated Bidder or their respective Affiliates may
be party; (E) to the extent required in connection with the exercise of any
remedy hereunder or under any other Loan Document; (F) to such Bank's or
Designated Bidder's independent auditors, legal counsel and other professional
advisors; (G) to any Participant or Assignee, actual or potential, provided that
such Person agrees in writing to keep such information confidential to the same
extent required of the Banks hereunder; (H) as to any Bank or Designated Bidder
or its Affiliate, as expressly permitted under the terms of any other document
or agreement regarding confidentiality to which the Company or any Subsidiary is
party or is deemed party with such Bank or Designated Bidder or such Affiliate;
and (I) to its Affiliates.
10.11 Set-off. In addition to any rights and remedies of the Banks provided
by law, if an Event of Default exists or the Loans have been accelerated, each
Bank and Designated Bidder is authorized at any time and from time to time,
without prior notice to the Company, any such notice being waived by the Company
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held by, and other indebtedness at any time owing by, such Bank or Designated
Bidder to or for the credit or the account of the Company against any and all
Obligations owing to such Bank or Designated Bidder, now or hereafter existing.
Each Bank and Designated Bidder agrees promptly to notify the Company and the
Agent after any such set-off and application made by such Bank or Designated
Bidder; provided, however, that the failure to give such notice shall not affect
Page 61
the validity of such set-off and application. Any Bank having outstanding both
Committed Loans and Bid Loans at any time a right of set-off is exercised by
such Bank and applying such setoff to the Loans shall apply the proceeds of such
set-off first to such Bank's Committed Loans, until its Committed Loans are
reduced to zero, and thereafter to its Bid Loans.
10.12 Notification of Addresses, Lending Offices, Etc. Each Bank and each
Designated Bidder shall notify the Agent in writing of any changes in the
address to which notices to such Bank or Designated Bidder should be directed,
of addresses of any Lending Office, of payment instructions in respect of all
payments to be made to it hereunder and of such other administrative information
as the Agent shall reasonably request.
10.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.14 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.15 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Company, the Banks, the
Designated Bidders, the Agent, the Agent-Related Persons, the Indemnified
Persons and their permitted successors and assigns, and no other Person shall be
a direct or indirect legal beneficiary of, or have any direct or indirect cause
of action or claim in connection with, this Agreement or any of the other Loan
Documents.
10.16 Governing Law and Jurisdiction(a) . (a) THIS AGREEMENT AND THE NOTES
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK; PROVIDED THAT THE COMPANY, THE AGENT AND THE BANKS SHALL RETAIN ALL
RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF
THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT, THE DESIGNATED
BIDDERS AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO
THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT,
THE DESIGNATED BIDDERS AND THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING
ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY ACTION OR
PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT
RELATED HERETO. THE COMPANY, THE AGENT, THE DESIGNATED BIDDERS AND THE BANKS
EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH
MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
Page 62
10.17 Waiver of Jury Trial. THE COMPANY, THE BANKS, THE DESIGNATED BIDDERS AND
THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE
OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES
AGAINST ANY OTHER PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY,
THE BANKS, THE DESIGNATED BIDDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM
OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT
LIMITING THE FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO
A TRIAL BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO CHALLENGE
THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS OR
ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT
AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT AND THE
OTHER LOAN DOCUMENTS.
10.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Banks, the Designated Bidders, the Swingline Bank and the Agent, and
supersedes all prior or contemporaneous agreements and understandings of such
Persons, oral or written, relating to the subject matter hereof and thereof.
(remainder of page intentionally left blank)
Page 63
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in San Francisco, California by their proper and
duly authorized officers as of the day and year first above written.
ALBERTSON'S, INC.
By:
Title:
BANK OF AMERICA, N.A., as Agent
By:
Title:
BANK OF AMERICA, N.A., as Swingline Bank and as
a Bank
By:
Title:
BANK ONE, NA, as Documentation Agent and as a
Bank
By:
Title:
Page 64
WACHOVIA BANK, N.A., as Syndication Agent and as
a Bank
By:
Title:
BANCA DI ROMA, SAN FRANCISCO BRANCH
By:
Title:
THE BANK OF NEW YORK
By:
Title:
BANK OF OKLAHOMA, N.A.
By:
Title:
FIRSTAR BANK, NATIONAL ASSOCIATION
By:
Title:
Page 65
FIRST UNION NATIONAL BANK
By:
Title:
FIRST SECURITY BANK, N.A.
By:
Title:
HUNTINGTON NATIONAL BANK
By:
Title:
INTERNATIONAL BANK OF COMMERCE
By:
Title:
KEYBANK NATIONAL ASSOCIATION
By:
Title:
Page 66
THE NORTHERN TRUST COMPANY
By:
Title:
SOUTHTRUST BANK, N.A.
By:
Title:
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
Title:
UMB BANK, N.A.
By:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
Title:
Page 67
U.S. BANK NATIONAL ASSOCIATION
By:
Title:
WELLS FARGO BANK, N.A.
By:
Title:
MERRILL LYNCH BANK USA
By:
Title:
Page 68
ANNEX I
PRICING GRID
Applicable Margin and Applicable Fee Amount (Facility Fee): The Facility Fee and
the Applicable Margin for Offshore Rate Committed Loans and Base Rate Committed
Loans shall be, at any time, the rate per annum set forth in the tables below.
"Indebtedness Rating" means the long term unsecured senior, non-credit enhanced
debt rating of the Company by Standard & Poor's Ratings Group or Moody's
Investors Service Inc. (in the case of a split rating, the higher rating will
apply, unless the split results in a difference of more than one rating, in
which case the rating one rating below the highest rating will apply). Any
change in the Applicable Margin or Applicable Fee Amount for the Facility Fee
shall become effective five Business Days after any public announcement of
Indebtedness Rating requiring such a change.
Indebtedness Offshore
Rating Facility Fee Rate Spread Base Rate Spread
------ ------------ ----------- ----------------
- ------------------------------ ---------------------- ------------------------- -----------------------------
- ------------------------------ ---------------------- ------------------------- -----------------------------
=> A or A2 8.0 bps 17.0 bps 0 bps
- ------------------------------ ---------------------- ------------------------- -----------------------------
- ------------------------------ ---------------------- ------------------------- -----------------------------
=> A- or A3 9.0 bps 21.0 bps 0 bps
- ------------------------------ ---------------------- ------------------------- -----------------------------
- ------------------------------ ---------------------- ------------------------- -----------------------------
=> BBB+ or Baa1 10.0 bps 25.0 bps 0 bps
- ------------------------------ ---------------------- ------------------------- -----------------------------
- ------------------------------ ---------------------- ------------------------- -----------------------------
< BBB+ or Baa1 12.5 bps 32.5 bps 0 bps
- ------------------------------ ---------------------- ------------------------- -----------------------------
Applicable Fee Amount (Utilization Fee): The Utilization Fee applicable to Loans
shall be, at any time, the rate per annum set forth in the table below,
determined in accordance with usage:
- --------------------------------------------------------------------------------
-------------------------- -----------------------
Facility
Usage % Utilization Fee
-------------------------- -----------------------
-------------------------- -----------------------
50% 10.0 bps
-------------------------- -----------------------
If usage shall equal or exceed the applicable percentage specified above, the
utilization fee corresponding to such percentage shall apply with respect to all
outstanding Loans.
Annex 1-1.
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
PRO RATA
BANK COMMITMENT SHARE
---- ------------ -------------
BANK OF AMERICA, N.A. $135,000,000 14.594594595%*
WACHOVIA BANK, N.A. $125,000,000 13.513513514%*
BANK ONE, NA $125,000,000 13.513513514%*
WELLS FARGO BANK, N.A. $75,000,000 8.108108108%*
U.S. BANK NATIONAL ASSOCIATION $75,000,000 8.108108108%*
FIRST UNION NATIONAL BANK $75,000,000 8.108108108%*
UNION BANK OF CALIFORNIA, N.A. $75,000,000 8.108108108%*
THE NORTHERN TRUST COMPANY $42,500,000 4.594594595%*
FIRST SECURITY BANK, N.A. $42,500,000 4.594594595%*
SUNTRUST BANK $25,000,000 2.702702703%*
KEYBANK NATIONAL ASSOCIATION $25,000,000 2.702702703%*
THE HUNTINGTON NATIONAL BANK $25,000,000 2.702702703%*
THE BANK OF NEW YORK $12,500,000 1.351351351%*
INTERNATIONAL BANK OF COMMERCE $12,500,000 1.351351351%*
UMB BANK, N.A. $12,500,000 1.351351351%*
SOUTHTRUST BANK, N.A. $12,500,000 1.351351351%*
BANCA DI ROMA, SAN FRANCISCO BRANCH $12,500,000 1.351351351%*
FIRSTAR BANK, NATIONAL ASSOCIATION $12,500,000 1.351351351%*
BANK OF OKLAHOMA, N.A. $5,000,000 0.540540541%*
TOTAL $925,000,000.00 100%
* [9 DECIMAL PTS.]
S-2.01-1.
SCHEDULE 10.02
PAYMENT OFFICES; ADDRESSES FOR NOTICES; LENDING OFFICES
COMPANY
Address for Notices:
Albertson's, Inc.
250 Park Center Blvd.
Box 20
Boise, Idaho 83726
Attention: Finance Department
Telephone: (208) 395-6534
Facsimile: (208) 395-6631
BANK OF AMERICA, N.A.
as Agent
Notices for Borrowing, Conversions/Continuations, and Payments:
Bank of America, N.A.
Mail Code: CA4-706-05-09
Agency Services #5596
1850 Gateway Boulevard, 5th Floor
Concord, California 94520
Attention: Tosha Clements
Telephone: (925) 675-8409
Facsimile: (925) 969-2805
Other Notices:
Bank of America, N.A.
Retail Industry Group #33751
Mail Code: CA5-705-41-89
555 California Street, 41st Floor
San Francisco, California 94104
Attention: James P. Johnson
Telephone: (415) 622-6177
Facsimile: (415) 622-4585
S-10.02-1.
Agent's Payment Office:
Bank of America, N.A.
Attention: Agency Services #5596
Reference: Albertson's, Inc.
For credit to Acct. No. 3750836479
ABA No. 111000012
BANK OF AMERICA, N.A.
as Swingline Bank and as a Bank
Domestic and Offshore Lending Office:
(Borrowing Notices, Notices of Conversion/Continuation and Payments)
Bank of America, N.A.
Mail Code: CA4-706-05-09
1850 Gateway Boulevard, 4th Floor
Concord, California 94520
Attention: Tosha Clements
Telephone: (925) 675-8409
Facsimile: (925) 969-2805
All other Notices:
Bank of America, N.A.
Retail Industry Group # 33751
Mail Code: CA5-705-41-89
555 California Street, 41st Floor
San Francisco, California 94104
Attention: James P. Johnson
Telephone: (415) 622-6177
Facsimile: (415) 622-4585
WACHOVIA BANK, N.A.
as Syndication Agent and as a Bank
Domestic and Offshore Lending Office:
Wachovia Bank, N.A.
191 Peachtree Street NE
MC-GA 370
Atlanta, Georgia 30303
Attention: Bill Allen
Telephone: (404) 332-5271
Facsimile: (404) 332-4320
S-10.02-2.
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
Wachovia Bank, N.A.
191 Peachtree Street NE
MC-GA 370
Atlanta, Georgia 30303
Attention: John A. Whitner
Telephone: (404) 332-6738
Facsimile: (404) 332-6898
BANK ONE, NA
as Documentation Agent and as a Bank
Domestic and Offshore Lending Office:
Bank One, NA
One Bank One Plaza
IL1-0088, 14th Floor
Chicago, Illinois 60670
Attention: Karen Hannusch
Telephone: (312) 732-9868
Facsimile: (312) 732-2715
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Bank One, NA
One Bank One Plaza
IL1-0086, 14th Floor
Chicago, Illinois 60670
Attention: Eva Drinis
Telephone: (312) 732-5037
Facsimile: (312) 336-4380
WELLS FARGO BANK, N.A.
as Senior Managing Agent and as a Bank
Domestic and Offshore Lending Office:
Wells Fargo Bank, N.A.
707 Wilshire Boulevard, 16th Floor
MAC E28-18-165
Los Angeles, California 90017
Attention: Matthew Frey
Telephone: (213) 614-5038
Facsimile: (213) 614-2305
S-10.02-3.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Wells Fargo Bank, N.A.
999 Third Avenue
Seattle, Washington 98104
Attention: Steve Andersen
Telephone: (206) 292-3666
Facsimile: (206) 292-3595
U.S. BANK NATIONAL ASSOCIATION
as Senior Managing Agent and as a Bank
Domestic and Offshore Lending Office:
U.S. Bank National Association
101 South Capital Boulevard
Boise, Idaho 83702
Attention: Kathy O'Grady
Telephone: (503) 275-3805
Facsimile: (503) 275-8181
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
U.S. Bank National Association
101 South Capital Boulevard
Boise, Idaho 83702
Attention: James W. Henken
Telephone: (208) 383-7823
Facsimile: (208) 383-7563
FIRST UNION NATIONAL BANK
as Senior Managing Agent and as a Bank
Domestic and Offshore Lending Office:
First Union National Bank
301 South College Street, 4th Floor
Charlotte, North Carolina 28288-0479
Attention: Todd Tucker
Telephone: (704) 383-0905
Facsimile: (704) 383-7999
S-10.02-4.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
First Union National Bank
One First Union Center
Charlotte, North Carolina 28288
Attention: Mike Grady
Telephone: (704) 383-7514
Facsimile: (704) 383-7236
UNION BANK OF CALIFORNIA, N.A.
as Senior Managing Agent and as a Bank
Domestic and Offshore Lending Office:
Union Bank of California, N.A.
Commercial Customer Service Unit
1980 Saturn Street
Monterey Park, California 91755
Attention: Ruby Gonzales
Telephone: (323) 720-7055
Facsimile: (323) 724-6198
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Union Bank of California, N.A.
350 California Street, 6th Floor
San Francisco, California 94104
Attention: Timothy P. Streb
Telephone: (415) 705-7021
Facsimile: (415) 705-7085
THE NORTHERN TRUST COMPANY
as Managing Agent and as a Bank
Domestic and Offshore Lending Office:
The Northern Trust Company
50 South LaSalle
Chicago, Illinois 60675
Attention: Linda Honda
Telephone: (312) 444-3532
Facsimile: (312) 630-1566
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
The Northern Trust Company
50 South LaSalle
Chicago, Illinois 60675
Attention: Patrick J. Connelly
Telephone: (312) 444-5048
Facsimile: (312) 444-5055
FIRST SECURITY BANK, N.A.
as Managing Agent and as a Bank
Domestic and Offshore Lending Office:
First Security Bank, N.A.
Commercial Loan Account Center
P.O. Box 7666
Boise, Idaho 83707-1666
Attention: Mary Wissel
Telephone: (208) 393-4046
Facsimile: (208) 393-4540
S-10.02-5.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
First Security Bank, N.A.
Idaho Corporate Banking
119 North 9th Street
Boise, Idaho 83702
Attention: Mary Monroe
Telephone: (208) 393-2106
Facsimile: (208) 393-2472
THE BANKS
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
Domestic and Offshore Lending Office:
Suntrust Bank, Central Florida, N.A.
200 South Orange Avenue
Orlando, Florida 32801
Attention: Joanna Contreras
Telephone: (407) 237-5283
Facsimile: (407) 237-5342
S-10.02-6.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Suntrust Bank, Central Florida, N.A.
303 Peachtree Street, 3rd Floor
Atlanta, Georgia 30308
Attention: Ann Ford
Telephone: (407) 724-3899
Facsimile: (407) 827-6270
KEYBANK NATIONAL ASSOCIATION
Domestic and Offshore Lending Office:
KeyBank National Association
831 East Parkcenter Boulevard
Boise, Idaho 88705
Attention: Specialty Services Team
Telephone: (800) 297-5518
Facsimile: (800) 297-5495
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
KeyBank National Association
700 Fifth Avenue
WA31-10-4612
Seattle, Washington 98104
Attention: Patrick Kennedy
Telephone: (206) 684-6079
Facsimile: (206) 684-6035
THE HUNTINGTON NATIONAL BANK
Domestic and Offshore Lending Office:
The Huntington National Bank
7450 Huntington Park Drive
Mail Code HZ0338
Columbus, Ohio 43235
Attention: Alla Kier
Telephone: (614) 480-1200
Facsimile: (614) 480-2533
S-10.02-7.
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
The Huntington National Bank
240 South Pineapple Avenue
Mail Code FL631
Sarasota, Florida 34236
Attention: James C. Wardlaw
Telephone: (941) 951-4686
Facsimile: (941) 951-4659
THE BANK OF NEW YORK
Domestic and Offshore Lending Office:
The Bank of New York
One Wall Street, 8th Floor
New York, New York 10286
Attention: Charlotte Sohn
Telephone: (212) 635-7869
Facsimile: (212) 635-1481/1483
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
The Bank of New York
One Wall Street, 8th Floor
New York, New York 10286
Attention: Charlotte Sohn
Telephone: (212) 635-7869
Facsimile: (212) 635-1481/1483
INTERNATIONAL BANK OF COMMERCE
Domestic and Offshore Lending Office:
International Bank of Commerce
130 East Travis
San Antonio, Texas 78205
Attention: Christine D. McCullar
Telephone: (210) 518-2507
Facsimile: (210) 518-2591
S-10.02-8.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
International Bank of Commerce
130 East Travis
San Antonio, Texas 78205
Attention: Thomas Travis
Telephone: (210) 518-2502
Facsimile: (210) 518-2590
UMB BANK, N.A.
Domestic and Offshore Lending Office:
UMB Bank, n.a.
1010 Grand Boulevard
Kansas City, Missouri 64106
Attention: Vaughnda Ritchie
Telephone: (816) 860-7019
Facsimile: (816) 860-3772
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
UMB Bank, n.a.
1010 Grand Boulevard
Kansas City, Missouri 64106
Attention: David A. Proffitt
Telephone: (816) 860-7935
Facsimile: (816) 860-7143
SOUTHTRUST BANK
Domestic and Offshore Lending Office:
SouthTrust Bank
600 West Peachtree Street, 27th Floor
Atlanta, Georgia 30308
Attention: Robert M. Searson
Telephone: (404) 853-5754
Facsimile: (404) 853-5766
S-10.02-9.
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
SouthTrust Bank
600 West Peachtree Street, 27th Fl
Atlanta, Georgia 30308
Attention: Donna King
Telephone: (404) 853-5763
Facsimile: (404) 853-5766
BANCA DI ROMA, SAN FRANCISCO BRANCH
Domestic and Offshore Lending Office:
Banca di Roma, San Francisco Branch
One Market
Steuart Tower, Suite 1000
San Francisco, California 94105
Attention: Richard G. Dietz
Telephone: (415) 977-7320
Facsimile: (415) 357-9869
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
Banca di Roma, San Francisco Branch
One Market
Steuart Tower, Suite 1000
San Francisco, California 94105
Attention: Thomas C. Woodruff
Telephone: (415) 977-7308
Facsimile: (415) 357-9869
FIRSTAR BANK, NATIONAL ASSOCIATION
Domestic and Offshore Lending Office:
Firstar Bank, National Association
Commercial Loan Operations
1850 Osborn Avenue
Oshkosh, Wisconsin 54901
Attention: Patti Gumbert
Telephone: (920) 426-7913
Facsimile: (920) 426-7655
S-10.02-10.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Firstar Bank, National Association
425 Walnut Street, 8th Floor
Mail Location 8160
Cincinnati, Ohio 45202
Attention: Richard W. Neltner
Telephone: (513) 632-4073
Facsimile: (513) 632-2068
BANK OF OKLAHOMA, N.A.
Domestic and Offshore Lending Office:
Bank Of Oklahoma, N.A.
P.O. Box 2300
Tulsa, Oklahoma 94192
Attention: Sharon Shannon
Telephone: (918) 588-6335
Facsimile: (918) 588-8231
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Bank Of Oklahoma, N.A.
One Williams Tower
Tulsa, Oklahoma 94192
Attention: Jane Faulkenberry
Telephone: (918) 588-6272
Facsimile: (918) 588-8231
S-10.02-11.
EXHIBIT A
FORM OF NOTICE OF BORROWING
Date: ______________
To: Bank of America, N.A.,
as Agent
Ladies and Gentlemen:
The undersigned, Albertson's, Inc. (the "Company"), refers to the
Credit Agreement, dated as of March 22, 2000 (as extended, renewed, amended or
restated from time to time, the "5-Year Credit Agreement"), among the Company,
the several financial institutions from time to time party thereto (the
"Banks"), the Co-Agents party thereto, and Bank of America, N.A., as Agent (the
"Agent"), the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.03 of the 5-Year
Credit Agreement, of the Committed Borrowing specified below:
1. The Business Day of the proposed Committed Borrowing is _______________.
2. The aggregate amount of the proposed Committed Borrowing is $______________.
3. The Committed Borrowing is to be comprised of $___________ of [Base Rate
Committed Loans] [Offshore Rate Committed Loans].
4. [The duration of the Interest Period for the Offshore Rate Committed Loans
included in the Committed Borrowing shall be _____ months.]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed Committed
Borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) the representations and warranties of the Company contained
in Article V of the 5-Year Credit Agreement are true and correct as
though made on and as of such date, except to the extent such
representations and warranties expressly refer to an earlier date, in
which case they are true and correct as of such date, and except that
this notice shall be deemed instead to refer to the last day of the
most recent year for which financial statements have then been
delivered in respect of the representation and warranty made in
Section 5.10(a) of the 5-Year Credit Agreement;
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Borrowing;
(c) there has occurred since January 28, 1999 no event or
circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect; and
A-1.
(d) after giving effect to the proposed Committed Borrowing, the
aggregate principal amount of all outstanding Committed Loans plus the
aggregate principal amount of all Bid Loans outstanding, shall not at
any time exceed the Aggregate Commitments.
ALBERTSON'S, INC.
By:
Title:
A-2.
EXHIBIT B
FORM OF NOTICE OF CONVERSION/CONTINUATION
Date: _______________
To: Bank of America, N.A.,
as Agent
Ladies and Gentlemen:
The undersigned, Albertson's (the "Company"), refers to the Credit
Agreement, dated as of March 22, 2000 (as extended, renewed, amended or restated
from time to time, the "5-Year Credit Agreement"), among the Company, the
several financial institutions from time to time party thereto (the "Banks"),
the Co-Agents party thereto, and Bank of America, N.A., as Agent (the "Agent"),
the terms defined therein being used herein as therein defined, and hereby gives
you notice irrevocably, pursuant to Section 2.04 of the 5-Year Credit Agreement,
of the [conversion] [continuation] of Committed Loans specified below:
1. The Conversion/Continuation Date is ______________.
2. The aggregate amount of the Committed Loans to be [converted] [continued]
is $_______________.
3. The Committed Loans are to be [converted into] [continued as] [Offshore Rate
Committed Loans] [Base Rate Committed Loans].
4. [The duration of the Interest Period for the [Offshore Rate Committed Loans]
included in the [conversion][continuation] shall be [____ months].]
ALBERTSON'S, INC.
By:
Title:
B-1.
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
ALBERTSON'S, INC.
Financial Statements Date: ______________
Reference is made to that certain Credit Agreement dated as of March
22, 2000 (as extended, renewed, amended or restated from time to time, the
"5-Year Credit Agreement"), among ______________ (the "Company"), the several
financial institutions from time to time party thereto (the "Banks"), the
Co-Agents party thereto, and Bank of America, N.A., as Agent (in such capacity,
the "Agent"). Unless otherwise defined herein, capitalized terms used herein
have the respective meanings assigned to them in the 5-Year Credit Agreement.
The undersigned Responsible Officer of the Company hereby certifies as
of the date hereof that he/she is the [_______________] of the Company, and
that, as such, he/she is authorized to execute and deliver this Certificate to
the Banks and the Agent on the behalf of the Company and its consolidated
Subsidiaries, and that:
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by subsection 6.01(a) of the 5-Year Credit
Agreement.]
1. Attached hereto are true and correct copies of the audited
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
at the end of the fiscal year ended _______________ and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the SEC,
accompanied by the unqualified opinion of the Independent Auditor, which opinion
(a) shall state that such consolidated financial statements present fairly the
financial position for the periods indicated in conformity with GAAP applied on
a basis consistent with prior years and (b) is not qualified as to (i) going
concern, or (ii) any limitation in the scope of audit.
or
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by subsection 6.01(b) of the 5-Year Credit
Agreement.]
1. Attached hereto are true and correct copies of the unaudited consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of the end of
the fiscal quarter ended _________ and the related consolidated statements of
income, shareholders' equity and cash flows for the period commencing on the
first day and ending on the last day of such quarter, which are complete and
accurate in all material respects and fairly present, in accordance with GAAP
(subject to ordinary, good faith year-end audit adjustments), the financial
position, the results of operations and the cash flows of the Company and the
Consolidated Subsidiaries.
C-1
2. The undersigned has reviewed and is familiar with the terms of the 5-Year
Credit Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and condition (financial or
otherwise) of the Company and its Subsidiaries during the accounting period
covered by the attached financial statements.
3. The Company and its Subsidiaries, during such period, have observed,
performed or satisfied all of the covenants and other agreements, and satisfied
every condition in the 5-Year Credit Agreement to be observed, performed or
satisfied by the Company and its Subsidiaries, and the undersigned has no
knowledge of any Default or Event of Default.
4. The financial covenant analyses and information set forth on Schedule 1
attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as the
____________ of the Company as of ____________, ________.
ALBERTSON'S, INC.
By:
Title:
C-2
SCHEDULE 1
to the Compliance Certificate
ALBERTSON'S, INC.
5-YEAR CREDIT AGREEMENT DATED AS OF MARCH 22, 2000
Dated _________________
For the fiscal quarter ended __________
(in thousands)
Consolidated Tangible Net Worth Calculation:
Common stock $___________
Capital in excess ___________
Retained earnings ___________
Stockholders' equity ___________
Plus: Deferred investment tax credits ___________
Minus: Intangible assets:
(specify) ___________
Plus: CTNW Adjustments, if any:
(specify) ___________
Consolidated Tangible Net Worth $__________
Section 7.05: Consolidated Tangible Net Worth shall be not less
than $2.1 billion $__________
1
EXHIBIT D
FORM OF LEGAL OPINION OF COMPANY'S COUNSEL
[Form of opinion of Thomas R. Saldin, Esq.,
Executive Vice-President and General Counsel to the Company]
March 22, 2000
To the Banks and the Agent Referred to Below
c/o Bank of America N.A., as Agent
Re: Albertson's, Inc.
Ladies and Gentlemen:
I have acted as counsel for Albertson's, Inc. (the "Company")
in connection with the Credit Agreement, dated as of March 22, 2000 (the "5-Year
Credit Agreement") among the Company, the financial institutions party thereto
(the "Banks"), the Documentation Agent and the Syndication Agent party thereto,
and Bank of America N.A., as Agent (the "Agent").
This opinion is being delivered to you pursuant to Section
4.01(d) of the 5-Year Credit Agreement. Capitalized terms used herein and not
otherwise defined herein shall have the same meanings herein as ascribed thereto
in the 5-Year Credit Agreement.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of the Loan Documents and such other documents,
corporate records, certificates of public officials and other instruments and
have conducted such other investigations of fact and law as I have deemed
necessary or advisable for purposes of this opinion.
In my examination I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, including endorsements, the
authority of all persons signing each of the documents on behalf of the parties
thereto (other than the Company), 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 did not
independently establish or verify, I have relied upon oral or written statements
and representations of officers and other representatives of the Company and
others, and factual representations contained in the Loan Documents.
I am a member of the Bar of the State of Idaho, and I express
no opinion as to the laws of any jurisdiction, or the effect of any such laws on
the opinions herein stated, other than (i) the laws of the State of Idaho, (ii)
the General Corporation Law of the State of Delaware (the "Delaware Statute")
with respect to the opinions set forth in paragraph 1 hereof, and (iii) the
federal laws of the United States of America to the extent specifically referred
to herein.
Upon the basis of the foregoing, I am of the opinion that:
D-1
1. The Company is a corporation duly incorporated, validly existing and in
good standing under the Delaware Statute, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted. The Company is qualified as a foreign
corporation and is in good standing in the State of Idaho.
2. The execution, delivery and performance by the Company of the Loan
Documents are within the Company'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 Company or of any agreement,
judgment, injunction, order, decree or other instrument binding upon the Company
or result in the creation or imposition of any Lien on any asset of the Company
or any of its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the Company
and constitute valid and binding agreements of the Company, in each case
enforceable in accordance with their terms, except as the same may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights generally and
by general principles of equity. Insofar as this opinion addresses instruments
or agreements expressed to be governed by New York law, it is my opinion (i)
that an Idaho court would give effect to such choice of New York Law and (ii) in
any event, the conclusion stated in this paragraph would be correct as a matter
of Idaho law.
4. Except as disclosed in the Company's 1998 Form 10-K, there is no action,
suit or proceeding pending against, or to the best of my knowledge threatened
against or affecting, the Company or any of its Subsidiaries before any court or
arbitrator or any governmental body, agency or official, in which there is a
reasonable possibility of an adverse decision which could materially adversely
effect the business, consolidated financial position or consolidated reports of
operations of the Company and its Consolidated Subsidiaries, considered as a
whole or which in any manner draws into question the validity of the Loan
Documents.
5. The Company is not an "investment company," or a company "controlled" by
an "investment company," within the meaning of the Investment Company Act of
1940, as amended.
This opinion is being furnished only to you solely for your
benefit in connection with the 5-Year Credit Agreement and is not to be used,
circulated, quoted, referred to or relied upon by any other person or for any
other purpose without my prior express written consent; provided, the Agent and
each Bank may deliver a copy to its legal counsel in connection with the 5-Year
Credit Agreement, to any prospective Assignee or Participant of any Bank and to
any successor Agent, and such legal counsel, any Assignee or Participant and any
successor Agent shall be entitled to rely hereon, it being understood that this
opinion is rendered only as of the date hereof.
Very truly yours,
D-2
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of _____________ is made between __________________ (the
"Assignor") and ________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Credit Agreement dated
as of March 22, 2000 (as amended, restated, modified, supplemented or renewed
from time to time, the "5-Year Credit Agreement"), among Albertson's, Inc. (the
"Company"), the several financial institutions from time to time party thereto
(including the Assignor, the "Banks"), the Co-Agents party thereto, and Bank of
America, N.A., as agent for the Banks (the "Agent"). Any terms defined in the
5-Year Credit Agreement and not defined in this Assignment and Acceptance are
used herein as defined in the 5-Year Credit Agreement;
WHEREAS, as provided under the 5-Year Credit Agreement, the Assignor
has committed to making Loans to the Company in an aggregate amount not to
exceed $__________ (the "Commitment");
WHEREAS, [the Assignor has made Loans in the aggregate principal amount
of $__________ to the Company consisting of $___________ principal amount of
Committed Loans [and $____________ principal amount of Bid Loans]] [no Loans are
outstanding under the 5-Year Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part of the]
[all] rights and obligations of the Assignor under the 5-Year Credit Agreement
in respect of its Commitment, [together with a corresponding portion of each of
its outstanding Loans], in an amount equal to ___% of the Assignor's Commitment
and Loans, on the terms and subject to the conditions set forth herein, and the
Assignee wishes to accept assignment of such rights and to assume such
obligations from the Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
1. Assignment and Acceptance.
(a) Subject to the terms and conditions of this Assignment and Acceptance,
(i) the Assignor hereby sells, transfers and assigns to the Assignee, and (ii)
the Assignee hereby purchases, assumes and undertakes from the Assignor, without
recourse and without representation or warranty (except as provided in this
Assignment and Acceptance) ___% (the "Assignee's Percentage Share") of (A) the
Commitment [and the Loans] of the Assignor and (B) all related rights, benefits,
obligations, liabilities and indemnities of the Assignor under and in connection
with the 5-Year Credit Agreement and the Loan Documents.
E-1
(b) With effect on and after the Effective Date (as defined in Section 5
hereof), the Assignee shall be a party to the 5-Year Credit Agreement and
succeed to all of the rights and be obligated to perform all of the obligations
of a Bank under the 5-Year Credit Agreement, including the requirements
concerning confidentiality and the payment of indemnification, with a Commitment
in the amount set forth in subsection (c) below. The Assignee agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of the 5-Year Credit Agreement are required to be performed by it as a
Bank. It is the intent of the parties hereto that the Commitment of the Assignor
shall, as of the Effective Date, be reduced by an amount equal to the portion
thereof assigned to the Assignee hereunder, and the Assignor shall relinquish
its rights and be released from its obligations under the 5-Year Credit
Agreement to the extent such obligations have been assumed by the Assignee;
provided, however, that the Assignor shall not relinquish its rights under
Article III or Sections 10.04 and 10.05 of the 5-Year Credit Agreement to the
extent such rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth herein,
on the Effective Date: (i) the Assignee's Commitment will be $__________; and
(ii) the Assignee's aggregate outstanding Committed Loans will be
$_______________ [and its aggregate outstanding Bid Loans will be $___________].
(d) After giving effect to the assignment and assumption set forth herein,
on the Effective Date: (i) the Assignor's Commitment will be $__________; and
(ii) the Assignor's aggregate outstanding Committed Loans will be
$_______________ [and its aggregate outstanding Bid Loans will be $___________].
2. Payments.
(a) As consideration for the sale, assignment and transfer contemplated in
Section 1 hereof, the Assignee shall pay to the Assignor on the Effective Date
in immediately available funds an amount equal to $__________, representing the
Assignee's Percentage Share of the principal amount of all Loans previously made
by the Assignor to the Company under the 5-Year Credit Agreement and outstanding
on the Effective Date.
(b) The [Assignor] [Assignee] further agrees to pay to the Agent a
processing fee in the amount specified in Section 10.08 of the 5-Year Credit
Agreement.
3. Reallocation of Payments. Any interest, fees and other payments accrued to
the Effective Date with respect to the Commitment [and Loans] of the Assignor
shall be for the account of the Assignor. Any interest, fees and other payments
accrued on and after the Effective Date with respect to the portion of such
Commitment [and Loans] assigned to the Assignee shall be for the account of the
Assignee. Each of the Assignor and the Assignee agrees that it will hold in
trust for the other party any interest, fees and other amounts which it may
receive to which the other party is entitled pursuant to the preceding sentence
and pay to the other party any such amounts which it may receive promptly upon
receipt.
4. Independent Credit Decision. The Assignee: (a) acknowledges that it has
received a copy of the 5-Year Credit Agreement and the Schedules and Exhibits
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thereto, together with copies of the most recent financial statements referred
to in Section 5.10 or Section 6.01 of the 5-Year Credit Agreement, and such
other documents and information as it has deemed appropriate to make its own
credit and legal analysis and decision to enter into this Assignment and
Acceptance; and (b) agrees that it will, independently and without reliance upon
the Assignor, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit and legal decisions in taking or not taking action under the 5-Year
Credit Agreement.
5. Effective Date; Notices.
(a) As between the Assignor and the Assignee, the effective date for this
Assignment and Acceptance shall be ______________ (the "Effective Date");
provided that the following conditions precedent have been satisfied on or
before the Effective Date:
(i) this Assignment and Acceptance shall be executed and delivered by
the Assignor and the Assignee;
(ii) any consent of the Company, the Swingline Bank and the Agent
required under Section 10.08 of the 5-Year Credit Agreement for the
effectiveness of the assignment hereunder by the Assignor to the Assignee
shall have been duly obtained and shall be in full force and effect as of
the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due to the
Assignor under this Assignment and Acceptance;
(iv) the processing fee referred to in Section 2(b) hereof and in
Section 10.08 of the 5-Year Credit Agreement shall have been paid to the
Agent; and
(v) the Assignor and Assignee shall have complied with the other
requirements of Section 10.08 of the 5-Year Credit Agreement and with the
requirements of Sections 9.10 and 10.10 of the 5-Year Credit Agreement (in
each case to the extent applicable).
(b) Promptly following the execution of this Assignment and Acceptance, the
Assignor shall deliver to the Company and the Agent for acknowledgement by the
Agent, a Notice of Assignment substantially in the form attached hereto as
Schedule 1.
6. Agent. The Assignee hereby appoints and authorizes the Assignor to take such
action as agent on its behalf and to exercise such powers under the 5-Year
Credit Agreement as are delegated to the Agent by the Banks pursuant to the
terms of the 5-Year Credit Agreement. [The Assignee shall assume no duties or
obligations held by the Assignor in its capacity as Agent under the 5-Year
Credit Agreement.] [INCLUDE ONLY IF ASSIGNOR IS AGENT]
7. Withholding Tax. The Assignee (a) represents and warrants to the Assignor,
the Agent and the Company that under applicable law and treaties no tax will be
required to be withheld by the Bank with respect to any payments to be made to
the Assignee hereunder, and (b) agrees to furnish (if it is organized under the
laws of any jurisdiction other than the United States or any State thereof) to
the Agent and the Company prior to the time that the Agent or
E-3
Company is required to make any payment of interest or fees under the 5-Year
Credit Agreement, duplicate executed originals of either U.S. Internal Revenue
Service Form W-8BEN or U.S. Internal Revenue Service Form W-8ECI (wherein the
Assignee claims entitlement to the benefits of a tax treaty that provides for a
complete exemption from U.S. federal income withholding tax on all payments
hereunder) and agrees to provide new Forms W-8BEN or W-8ECI upon the expiration
of any previously delivered form or comparable statements in accordance with
applicable U.S. law and regulations and amendments thereto, duly executed and
completed by the Assignee, as and when required under the 5-Year Credit
Agreement.
8. Representations and Warranties.
(a) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any Lien or other adverse claim; (ii) it is duly
organized and existing and it has the full power and authority to take, and has
taken, all action necessary to execute and deliver this Assignment and
Acceptance and any other documents required or permitted to be executed or
delivered by it in connection with this Assignment and Acceptance and to fulfill
its obligations hereunder; (iii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than those referred to in Section
5(a)(ii) hereof and any already given or obtained) for its due execution,
delivery and performance of this Assignment and Acceptance, and apart from any
agreements or undertakings or filings required by the 5-Year Credit Agreement,
no further action by, or notice to, or filing with, any Person is required of it
for such execution, delivery or performance; and (iv) this Assignment and
Acceptance has been duly executed and delivered by it and constitutes the legal,
valid and binding obligation of the Assignor, enforceable against the Assignor
in accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles.
(b) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or representations
made in or in connection with the 5-Year Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
5-Year Credit Agreement or any other instrument or document furnished pursuant
thereto. The Assignor makes no representation or warranty in connection with,
and assumes no responsibility with respect to, the solvency, financial condition
or statements of the Company, or the performance or observance by the Company,
of any of its respective obligations under the 5-Year Credit Agreement or any
other instrument or document furnished in connection therewith.
(c) The Assignee represents and warrants that (i) it is duly organized and
existing and it has full power and authority to take, and has taken, all action
necessary to execute and deliver this Assignment and Acceptance and any other
documents required or permitted to be executed or delivered by it in connection
with this Assignment and Acceptance, and to fulfill its obligations hereunder;
(ii) no notices to, or consents, authorizations or approvals of, any Person are
required (other than those referred to in Section 5(a)(ii) hereof and any
already given or obtained) for its due execution, delivery and performance of
this Assignment and Acceptance; and apart from any agreements or undertakings or
filings required by the 5-Year Credit Agreement, no further action by, or notice
to, or filing with, any Person is required of it for such execution, delivery or
E-4
performance; (iii) this Assignment and Acceptance has been duly executed and
delivered by it and constitutes the legal, valid and binding obligation of the
Assignee, enforceable against the Assignee in accordance with the terms hereof,
subject, as to enforcement, to bankruptcy, insolvency, moratorium,
reorganization and other laws of general application relating to or affecting
creditors' rights and to general equitable principles; and (iv) it is an
Eligible Assignee.
9. Further Assurances.
(a) The Company shall ensure that all written information, exhibits and
reports furnished to the Agent or the Banks do not and will not contain any
untrue statement of a material fact and do not and will not omit to state any
material fact or any fact necessary to make the statements contained therein not
misleading in light of the circumstances in which made, and will promptly
disclose to the Agent and the Banks and correct any defect or error that may be
discovered therein or in any Loan Document or in the execution, acknowledgement
or recordation thereof.
(b) Promptly upon request by the Agent or the Majority Banks, the Company
shall (and shall cause any of its Subsidiaries to) do, execute, acknowledge, and
deliver, any and all such further acts, certificates, assurances and other
instruments the Agent or such Banks, as the case may be, may reasonably require
from time to time in order to carry out more effectively the purposes of this
Agreement or any other Loan Document.
10. Miscellaneous.
(a) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure or
delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of the
provisions of this Assignment and Acceptance shall be without prejudice to any
rights with respect to any other or further breach thereof.
(b) All payments made hereunder shall be made without any set-off or
counterclaim.
(c) The Assignor and the Assignee shall each pay its own costs and expenses
incurred in connection with the negotiation, preparation, execution and
performance of this Assignment and Acceptance.
(d) This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(e) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THE ASSIGNOR AND THE ASSIGNEE
EACH IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT SITTING IN NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO THIS ASSIGNMENT AND ACCEPTANCE AND IRREVOCABLY AGREES THAT
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ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED
IN SUCH NEW YORK STATE OR FEDERAL COURT. EACH PARTY TO THIS ASSIGNMENT AND
ACCEPTANCE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO, ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON
THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS
ASSIGNMENT AND ACCEPTANCE OR ANY DOCUMENT RELATED HERETO, AND PERSONAL SERVICE
OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NEW YORK LAW.
(f) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS
ASSIGNMENT AND ACCEPTANCE, AND ANY RELATED DOCUMENTS AND AGREEMENTS, OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER
LITIGATION OF ANY TYPE BROUGHT BY EITHER OF THE PARTIES AGAINST THE OTHER PARTY,
WHETHER WITH RESPECT TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. EACH OF THE
PARTIES ALSO AGREES THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY.
[Other provisions to be added as may be negotiated between the Assignor and the
Assignee, provided that such provisions are not inconsistent with the 5-Year
Credit Agreement.]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly authorized
officers as of the date first above written.
[ASSIGNOR]
By:
Title:
[ASSIGNEE]
By:
Title:
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SCHEDULE 1
to the Assignment and Acceptance
NOTICE OF ASSIGNMENT AND ACCEPTANCE
Date: ___________________
Bank of America, N.A.
Retail Industry Group #33751
[Mail Code: CA5-705-41-89]
555 California Street, 41st Floor
San Francisco, CA 94104
Attention: James P. Johnson
Telephone: (415) 622-6177
Facsimile: (415)
Albertson's, Inc.
250 Park Center Blvd.
Box 20
Boise, ID 83726
Attention: Finance Department
Telephone: (208) 395-6534
Facsimile: (208) 395-6631
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of March 22, 2000 (as
amended, restated, modified, supplemented or renewed from time to time, the
"5-Year Credit Agreement") among Albertson's, Inc. (the "Company"), the Banks
referred to therein, the Co-Agents party thereto, and Bank of America, N.A., as
Agent for the Banks (the "Agent"). Terms defined in the 5-Year Credit Agreement
are used herein as therein defined.
1. We hereby give you notice of[, and request the consent of the
Swingline Bank, [the Company and] the Agent to,] the assignment by
________________________ (the "Assignor") to ____________________ (the
"Assignee") of ____% of the right, title and interest of the Assignor in and to
the 5-Year Credit Agreement (including, without limitation, ____% of the right,
title and interest of the Assignor in and to the Commitment of the Assignor [and
all outstanding Loans made by the Assignor]) pursuant to that certain Assignment
and Acceptance Agreement, dated as of ___________ (the "Assignment and
Acceptance") between Assignor and Assignee, a copy of which Assignment and
Acceptance is attached hereto. Before giving effect to such assignment the
Assignor's Commitment is $___________. [The Assignor has made Loans in the
aggregate principal amount of $__________ to the Company consisting of
$___________ principal amount of Committed Loans [and $____________ principal
amount of Bid Loans].] [No Loans are outstanding under the 5-Year Credit
Agreement.]
1.
2. The Assignee agrees that, upon receiving the consent of the Company
and the Agent to such assignment (if applicable) and from and after the
Effective Date (as such term is defined in Section 5 of the Assignment and
Acceptance), the Assignee shall be bound by the terms of the 5-Year Credit
Agreement, with respect to the interest in the 5-Year Credit Agreement assigned
to it as specified above, as fully and to the same extent as if the Assignee
were the Bank originally holding such interest in the 5-Year Credit Agreement.
3. The following administrative details apply to the Assignee:
(A) Lending Office(s):
Assignee name:
Address:
Attention:
Telephone: ( )
------
Facsimile: ( )
------
Assignee name:
Address:
Attention:
Telephone: ( )
------
Facsimile: ( )
------
(B) Notice Address:
Assignee name:
Address:
Attention:
Telephone: ( )
------
Facsimile: ( )
------
(C) Payment Instructions:
Account No.:
At:
2.
Reference:
Attention:
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and Assignee contained in the Assignment and
Acceptance.
5. This Notice of Assignment and Acceptance may be executed by the
Assignor and the Assignee in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute one and the same notice and agreement.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
Adjusted Commitment: [ASSIGNOR]
- -------------------
$ By:
-----------------------------
Title:
Adjusted Pro Rata Share:
- -----------------------
- -------%
Commitment: [ASSIGNEE]
- ----------
$ ] By:
----------------------------
Title:
Pro Rata Share:
- --------------
- -------%
[CONSENTED TO this _____ day of ___________________:
ALBERTSON'S, INC.
By:
Title: ]
-------------------------------------------
3.
ACKNOWLEDGED [AND CONSENTED TO] this ____ day of ________:
BANK OF AMERICA, N.A., as Agent and as Swingline Bank
By:
Title:
4.
EXHIBIT F
FORM OF INVITATION FOR COMPETITIVE BIDS
Via Facsimile
Date: __________________
To the Bid Loan Banks and Designated Bidders Listed on Annex A Attached Hereto
-------
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of March
22, 2000 (as extended, renewed, amended or restated from time to time, the
"5-Year Credit Agreement"), among _______________ (the "Company"), the Banks
party thereto, the Co-Agents party thereto, and Bank of America, N.A., as Agent
for the Banks (the "Agent"). Capitalized terms used herein have the meanings
specified in the 5-Year Credit Agreement.
Pursuant to subsection 2.06(b) of the 5-Year Credit Agreement, you are
hereby invited to submit offers to make Bid Loans to the Company based on the
following specifications:
1. Date of Bid Borrowing: _______________;
2. Aggregate amount of Bid Borrowing: $___________________;
3. The Bid Loans shall be Absolute Rate Bid Loans; and
4. Interest Period[s] and requested Interest Payment Dates, if any:
[____________________], [________________] and
[________________].
All Competitive Bids shall be in the form of Exhibit H to the 5-Year
Credit Agreement and shall be received by the Agent no later than 7:30 a.m. (San
Francisco time) on ___________, 2000; provided that terms of the offer or offers
contained in any Competitive Bid(s) to be submitted by the Agent (or any
Affiliate of the Agent) in the capacity of a Bid Loan Bank or Designated Bidder
shall be notified to the Company not later than 7:15 a.m. (San Francisco time)
on ________________.
BANK OF AMERICA, N.A., as Agent
By:
Title:
F-1
ANNEX A
to the Invitation for Competitive Bids
List of Bid Loan Banks and Designated Bidders
[Bank]
Facsimile: (415) 622-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
1
EXHIBIT G
FORM OF COMPETITIVE BID REQUEST
Date: _______________
To: Bank of America, N.A.,
as Agent
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of March 22, 2000
(as extended, renewed, amended or restated from time to time, the "5-Year Credit
Agreement"), among Albertson's, Inc. (the "Company"), the Banks party thereto,
the Co-Agents party thereto, and Bank of America, N.A., as Agent for the Banks
(the "Agent"). Capitalized terms used herein have the meanings specified in the
5-Year Credit Agreement.
This is a Competitive Bid Request for Bid Loans pursuant to Section
2.06 of the 5-Year Credit Agreement as follows:
(i) The Business Day of the proposed Bid Borrowing is: ______________.
(ii) The aggregate amount of the proposed Bid Borrowing is:
$___________________.
(iii) The proposed Bid Borrowing to be made pursuant to Section 2.06
shall be comprised of Absolute Rate Bid Loans.
(iv) The Interest Period[s] and Interest Payment Dates, if any, for
the Bid Loans comprised in the Bid Borrowing shall be: _______________,
[_________________] and [___________________].
[The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the proposed Bid
Borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) the representations and warranties of the Company contained in
Article V of the 5-Year Credit Agreement are true and correct as though
made on and as of such date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they are true
and correct as of such date and except that this notice shall be deemed
instead to refer to the last day of the most recent quarter and year for
which financial statements have then been delivered in respect of the
representation and warranty made in Section 5.10(a) of the 5-Year Credit
Agreement);
(b) no Default or Event of Default has occurred and is continuing, or
would result from such proposed Bid Borrowing; and
G-1
(c) after giving effect to the Bid Borrowing requested hereby the
outstanding aggregate principal amount of all Bid Loans made by all Bid
Loan Banks and Designated Bidders, plus the outstanding aggregate principal
amount of all Committed Loans made by all Banks, will not exceed the
Aggregate Commitment.
ALBERTSON'S, INC.
By: ______________________________
Title: _____________________________
G-2
EXHIBIT H
FORM OF COMPETITIVE BID
Date: _______________
To: Bank of America, N.A.,
as Agent
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of March 22, 2000
(as extended, renewed, amended or restated from time to time, the "5-Year Credit
Agreement"), among Albertson's, Inc. (the "Company"), the Banks party thereto,
the Co-Agents party thereto, and Bank of America, N.A., as Agent for the Banks
(the "Agent"). Capitalized terms used herein have the meanings specified in the
5-Year Credit Agreement.
In response to the Competitive Bid Request of the Company dated
___________ and in accordance with subsection 2.06(c)(ii) of the 5-Year Credit
Agreement, the undersigned [Bank] [Designated Bidder] offers to make Bid Loan[s]
thereunder in the following principal amounts[s], at the following interest
rates and for the following Interest Period[s], with Interest Payment Dates as
specified by the Company:
Date of Bid Borrowing: _____________________
Aggregate Maximum Bid Amount: $________________
Offer 1 (Maximum Bid Amount: $________________)
Principal Amount $_______ Principal Amount $________ Principal Amount $_________
Interest: Interest: Interest:
[Absolute Rate __%] [Absolute Rate __%] [Absolute Rate __%]
Interest Period _________ Interest Period __________ Interest Period ___________
Offer 2 (Maximum Bid Amount: $________________)
Principal Amount $________ Principal Amount $________ Principal Amount $________
H-1
Interest: Interest: Interest:
[Absolute Rate __%] [Absolute Rate __%] [Absolute Rate __%]
Interest Period __________ Interest Period ___________ Interest Period _________
Principal Amount $________ Principal Amount $________ Principal Amount $________
Interest: Interest: Interest:
[Absolute Rate __%] [Absolute Rate __%] [Absolute Rate __%]
Interest Period __________ Interest Period __________ Interest Period __________
[NAME OF BANK/DESIGNATED BIDDER]
By: _____________________
Title: __________________
H-2
EXHIBIT I
FORM OF COMMITTED LOAN NOTE
U.S. $___________________ Date: _______________
FOR VALUE RECEIVED, the undersigned, Albertson's, Inc., a Delaware
corporation (the "Company"), hereby promises to pay to the order of
_________________________ (the "Bank") the principal sum of ___________________
Dollars ($_____________) or, if less, the aggregate unpaid principal amount of
all Committed Loans made by the Bank to the Company pursuant to the Credit
Agreement, dated as of March 22, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "5-Year Credit Agreement"), among the
Company, the Bank, the other financial institutions from time to time party
thereto (the "Banks"), the Documentation Agent and the Syndication Agent party
thereto, and Bank of America, N.A., as Agent for the Banks (the "Agent"), on the
dates and in the amounts provided in the 5-Year Credit Agreement. The Company
further promises to pay interest on the unpaid principal amount of the Committed
Loans evidenced hereby from time to time at the rates, on the dates, and
otherwise as provided in the 5-Year Credit Agreement.
The Bank is authorized to endorse the amount of each Committed Loan,
the date on which each Committed Loan is made, and each payment of principal
with respect thereto on the schedule annexed hereto and made a part hereof, or
on continuations thereof which shall be attached hereto and made a part hereof;
provided that any failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Company under the 5-Year Credit Agreement and this Promissory Note (this
"Note").
This Note is one of the Committed Loan Notes referred to in, and is
entitled to the benefits of, the 5-Year Credit Agreement, which 5-Year Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
Terms defined in the 5-Year Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
ALBERTSON'S, INC.
By:
Title:
I-1
SCHEDULE
to Committed Loan Note
Date Loan Disbursed Amount of Loan Principal Payment Date Principal Paid
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I-2
EXHIBIT J
FORM OF BID LOAN NOTE
Date: ________________
FOR VALUE RECEIVED, the undersigned, Albertson's, Inc., a Delaware
corporation (the "Company"), hereby promises to pay to the order of
_________________________ (the "Bank") the aggregate unpaid principal amount of
all Bid Loans made by the Bank to the Company pursuant to the Credit Agreement,
dated as of March 22, 2000 (as amended, restated, supplemented or otherwise
modified from time to time, the "5-Year Credit Agreement"), among the Company,
the Bank, the other financial institutions from time to time party thereto (the
"Banks"), the Co-Agents party thereto, and Bank of America, N.A., as Agent for
the Banks (the "Agent"), on the dates and in the amounts provided in the 5-Year
Credit Agreement. The Company further promises to pay interest on the unpaid
principal amount of the Bid Loans evidenced hereby from time to time at the
rates, on the dates, and otherwise as provided in the 5-Year Credit Agreement.
The Bank is authorized to endorse the amount of and the date on which
each Bid Loan is made, the maturity date therefor and each payment of principal
with respect thereto on the schedules annexed hereto and made a part hereof, or
on continuations thereof which shall be attached hereto and made a part hereof;
provided that any failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Company under the 5-Year Credit Agreement and this Promissory Note (this
"Note").
This Note is one of the Bid Loan Notes referred to in, and is entitled
to the benefits of, the 5-Year Credit Agreement, which 5-Year Credit Agreement,
among other things, contains provisions for acceleration of the maturity hereof
upon the happening of certain stated events and also for prepayments on account
of principal hereof prior to the maturity hereof upon the terms and conditions
therein specified.
Terms defined in the 5-Year Credit Agreement are used herein with their
defined meanings therein unless otherwise defined herein.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
ALBERTSON'S, INC.
By: ______________________________
Title: ____________________________
J-1
SCHEDULE
to Bid Loan Note
Date Loan Disbursed Amount of Loan Maturity Date Principal Payment Date Principal Paid
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J-2
EXHIBIT K
FORM OF DESIGNATION AGREEMENT
Dated ______________
Reference is made to the Credit Agreement dated as of March
22, 2000 (as extended, renewed, amended or restated from time to time, the
"5-Year Credit Agreement") among _______________________ (the Company"), the
Banks party thereto, the Co-Agents party thereto, and Bank of America, N.A., as
Agent for the Banks (the "Agent"). Capitalized terms used herein have the
meanings specified in the 5-Year Credit Agreement.
_________________ (the "Designator") and ___________________ the ("Designee")
agree as follows:
1. The Designator hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Bid Loans pursuant to Section
2.06 of the 5-Year Credit Agreement.
2. The Designator makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the 5-Year Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
5-Year Credit Agreement or any other instrument or document furnished pursuant
thereto or (ii) the financial condition of the Company or the performance or
observance by the Borrower of any of its obligations under the 5-Year Credit
Agreement or any other instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the 5-Year
Credit Agreement, together with copies of the financial statements referred to
in Section 5.10 or Section 6.01 thereof and such other documents and information
as it has deemed appropriate to make its own credit analysis and decision to
enter into this Designation Agreement; (ii) agrees that it will, independently
and without reliance upon the Agent, the Designator or any other Bank and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the 5-Year Credit Agreement; (iii) confirms that it is an entity qualified to be
a Designated Bidder; (iv) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under the 5-Year Credit
Agreement as are delegated to the Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
5-Year Credit Agreement are required to be performed by it as a Designated
Bidder; (vi) agrees to and accepts all duties, obligations and responsibilities
of a Bank set forth in Article IX of the 5-Year Credit Agreement and confirms
that said Article shall otherwise apply to the Designated Bidder as if it were a
Bank named therein; and (vii) specifies as its Lending Office with respect to
Bid Loans (and address for notices) the offices set forth beneath its name on
the signature page hereof.
4. Following the execution of this Designation Agreement by the Designator
and its Designee, it will be delivered to the Agent for acceptance by the Agent.
K-1
The effective date of this Designation Agreement shall be the date of acceptance
thereof by the Agent (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the Effective
Date, the Designee shall be a party to the 5-Year Credit Agreement as a
"Designated Bidder" with a right to make Bid Loans pursuant to Section 2.06 of
the 5-Year Credit Agreement and the rights and obligations of a Designated
Bidder related thereto.
6. THIS DESIGNATION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Designation
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
[NAME OF DESIGNATOR]
By:
Title:
[NAME OF DESIGNEE]
By:
Title:
Lending Office(s) (and address for notices):
Attn.:
Tel.:
Fax:
K-2
Attn.:
Tel.:
Fax:
Accepted [as of] the ___ day of ____________, _______
BANK OF AMERICA, N.A., as Agent
and Swingline Bank
By:
Title:
K-3
EXHIBIT L
FORM OF COMMITMENT INCREASE AGREEMENT
Date: ___________________
Bank of America, N.A.,
as Agent and as a Bank
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of March 22, 2000 (as extended,
renewed, amended or restated from time to time, the "5-Year Credit Agreement")
among Albertson's, Inc. (the Company"), the Banks party thereto, the Co-Agents
party thereto, and Bank of America, N.A., as Agent for the Banks (the "Agent").
Terms defined in the 5-Year Credit Agreement are used herein as therein defined.
This Commitment Increase Agreement is made and delivered pursuant to
Section 2.18 of the 5-Year Credit Agreement.
Subject to the terms and conditions of Section 2.18 of the 5-Year Credit
Agreement, _______________________________ (the "Increasing Bank") will increase
its Commitment to an amount equal to $___________, on the Increased Commitment
Date applicable to it. The Increasing Bank hereby confirms and agrees that with
effect on and after such Increased Commitment Date, the Commitment of the
Increasing Bank shall be increased to the amount set forth above, and the
Increasing Bank shall have all of the rights and be obligated to perform all of
the obligations of a Bank under the 5-Year Credit Agreement with a Commitment in
the amount set forth above.
Effective on the Increased Commitment Date applicable to it, the Increasing
Bank (i) accepts and assumes from the assigning Bank(s), without recourse, such
assignment of Loans as shall be necessary to effectuate the adjustments in the
Pro Rata Shares of the Banks contemplated by Section 2.18 of the 5-Year Credit
Agreement, and (ii) agrees to fund on such Increased Commitment Date such
assumed amounts to the Agent for the account of the assigning Banks in
accordance with the provisions of the 5-Year Credit Agreement, in the amount
notified to the Increasing Bank by the Agent.
This Commitment Increase Agreement shall constitute a Loan Document under
the 5-Year Credit Agreement.
THIS COMMITMENT INCREASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
L-1
IN WITNESS WHEREOF, the Increasing Bank has caused this Commitment Increase
Agreement to be duly executed and delivered in _____________, ______________, by
its proper and duly authorized officer as of the day and year first above
written.
[INCREASING BANK]
By: ___________________________
Title: ________________________
CONSENTED TO as of _________:
ALBERTSON'S, INC.
By:
Title:
ACKNOWLEDGED AND CONSENTED TO as of ____________:
BANK OF AMERICA, N.A.,
as Agent
By:
Title:
L-2
EXHIBIT M
FORM OF NEW BANK AGREEMENT
Date: ___________________
Bank of America, N.A.
as Agent
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of March 22, 2000 (as
extended, renewed, amended or restated from time to time, the "5-Year Credit
Agreement") among Albertson's, Inc. (the Company"), the Banks party thereto, the
Co-Agents party thereto, and Bank of America, N.A., as Agent for the Banks (the
"Agent"). Terms defined in the 5-Year Credit Agreement are used herein as
therein defined.
This New Bank Agreement is made and delivered pursuant to Section 2.18
of the 5-Year Credit Agreement.
Subject to the terms and conditions of Section 2.18 of the 5-Year
Credit Agreement, _________________________ (the "New Bank") will become a party
to the 5-Year Credit Agreement as a Bank, with a Commitment equal to
$___________, on the Increased Commitment Date applicable to it. The New Bank
hereby confirms and agrees that with effect on and after such Increased
Commitment Date, the New Bank shall be and become a party to the 5-Year Credit
Agreement as a Bank and have all of the rights and be obligated to perform all
of the obligations of a Bank thereunder with a Commitment in the amount set
forth above.
Effective on the Increased Commitment Date applicable to it, the New
Bank (i) accepts and assumes from the assigning Bank(s), without recourse, such
assignment of Loans as shall be necessary to effectuate the adjustments in the
Pro Rata Shares of the Banks contemplated by Section 2.18 of the 5-Year Credit
Agreement, and (ii) agrees to fund on such Increased Commitment Date such
assumed amounts to the Agent for the account of the assigning Bank(s) in
accordance with the provisions of the 5-Year Credit Agreement, in the amount
notified to the New Bank by the Agent.
The following administrative details apply to the New Bank:
(A) Lending Office(s):
Bank name:
Address:
M-1
Attention:
Telephone: ( )
------
Facsimile: ( )
------
Bank name:
Address:
Attention:
Telephone: ( )
------
Facsimile: ( )
------
(B) Notice Address:
--------------
Bank name:
Address:
Attention:
Telephone: ( )
------
Facsimile: ( )
------
M-2
(C) Payment Instructions:
--------------------
Account No.:
At:
Reference:
Attention:
This New Bank Agreement shall constitute a Loan Document under the
5-Year Credit Agreement.
THIS NEW BANK AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Bank has caused this New Bank Agreement to
be duly executed and delivered in _____________, ______________, by its proper
and duly authorized officer as of the day and year first above written.
[NEW BANK]
By: ___________________________
Title: ________________________
CONSENTED TO as of ___________:
ALBERTSON'S, INC.
By:
Title:
ACKNOWLEDGED AND CONSENTED TO as of _________:
M-3
BANK OF AMERICA, N.A.,
as Agent and Swingline Bank
By:
Title:
M-4