Exhibit 10.7
AMENDMENT NO. 4
TO CREDIT AGREEMENT
THIS AMENDMENT NO. 4 TO CREDIT AGREEMENT dated as of January 20, 1995
(the "Amendment") is entered into by and between NORDSTROM CREDIT, INC., a
Colorado corporation (the "Borrower") and BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION (the "Bank").
RECITALS
A. Borrower and Bank (as successor in interest to Seattle-First
National Bank ("Seafirst") pursuant to an Assignment and Assumption
Agreement dated as of June 30, 1994 by and between Seafirst, as Assignor,
and Bank, as Assignee) are parties to a Credit Agreement dated as of June
30, 1992, as amended by that certain Amendment No. 1 to Credit Agreement
dated as of January 1, 1993, that certain Amendment No. 2 to Credit
Agreement dated as of June 29, 1993 and that certain Amendment No. 3 to
Credit Agreement dated as of June 30, 1994 (as amended, the "Credit
Agreement"), pursuant to which Bank has extended certain credit facilities
to Borrower.
B. Borrower has requested that Bank agree to certain amendments of
the Credit Agreement.
C. Bank is willing to amend the Credit Agreement, subject to the
terms and conditions of this Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Defined Terms. Unless otherwise defined herein, capitalized
terms used herein shall have the meanings, if any, assigned to them in the
Credit Agreement.
2. Amendments to Credit Agreement.
(a) The second and third sentences of the Credit Agreement
shall be deleted.
(b) Article 1 of the Credit Agreement shall be amended and
restated in its entirety as follows:
"1.1 Revolving Loan Facility. Bank agrees, on the terms and
conditions set forth herein, to make loans to Borrower from time to time on
any Business Day until the Maturity Date, in an aggregate amount not to
exceed at any time outstanding $90,000,000 (such amount, as the same may be
reduced under Section 1.5, the "Commitment"). Within the limits of the
Commitment, and subject to the other terms and conditions hereof, Borrower
may borrow under this Section 1.1, prepay under Section 1.6 and reborrow
under this Section 1.1.
1.2 Revolving Note. The Loans made by Bank shall be evidenced by a
promissory note ("Revolving Note") made by Borrower to the order of Bank in
substantially the form of Exhibit A attached hereto. Bank shall endorse on
the schedules annexed to the Revolving Note or in Bank's other records the
date, amount and maturity of each Loan made by it and the amount of each
payment of principal made by Borrower with respect thereto. Bank is
irrevocably authorized by Borrower to endorse its Revolving Note and Bank's
records shall be conclusive absent manifest error of the amount of the
Loans made by Bank to Borrower and the interest and payments thereon. Any
failure so to endorse or record or any error in doing so shall not,
however, limit or otherwise affect the obligations of Borrower hereunder or
under the Revolving Note.
1.3 Procedure for Borrowing. Each Borrowing shall be made upon
Borrower's irrevocable written notice delivered to Bank in the form of a
Notice of Borrowing (which notice must be received by Bank prior to 9:00
a.m. (San Francisco time) (a) three Business Days prior to the requested
Borrowing Date, in the case of Offshore Rate Loans; (b) two Business Days
prior to the requested Borrowing Date, in the case of CD Rate Loans; and
(c) on the requested Borrowing Date, in the case of Base Rate Loans,
specifying: (i) the amount of the Borrowing, which shall be in an
aggregate minimum amount of $1,000,000 or any multiple of $1,000,000 in
excess thereof; (ii) the requested Borrowing Date, which shall be a
Business Day; (iii) the Type of Loans comprising the Borrowing; and (iv)
the duration of the Interest Period applicable to such Loans included in
such notice. If the Notice of Borrowing fails to specify the duration of
the Interest Period for any Borrowing comprised of CD Rate Loans or
Offshore Rate Loans, such Interest Period shall be 90 days or three months,
respectively.
1.4 Conversion and Continuation Elections. (a) Borrower may, upon
irrevocable written notice to Bank in accordance with subsection 1.4(b):
(i) elect, as of any Business Day, in the case of Base Rate Loans, or as of
the last day of the applicable Interest Period, in the case of CD Rate
Loans or Offshore Rate Loans, to convert any such Loans (or any part
thereof in an amount not less than $1,000,000, or that is in an integral
multiple of $1,000,000 in excess thereof) into Loans of any other Type; or
(ii) elect, as of the last day of the applicable Interest Period, to
continue any Loan having an Interest Period expiring on such day (or any
part thereof in an amount not less than $1,000,000, or that is in an
integral multiple of $1,000,000 in excess thereof); provided, that if at
any time the aggregate amount of any CD Rate Loan or Offshore Rate Loan is
reduced, by payment, prepayment, or conversion of part thereof to be less
than $1,000,000, such CD Rate Loan or Offshore Rate Loan shall
automatically convert into a Base Rate Loan, and on and after such date the
right of Borrower to continue such Loan as, and convert such Loan into, a
CD Rate Loan or an Offshore Rate Loan, as the case may be, shall terminate.
(b) Borrower shall deliver a Notice of Conversion/Continuation
to be received by Bank not later than 9:00 a.m. (San Francisco time) at
least (i) three Business Days in advance of the Conversion/Continuation
Date, if any Loan is to be converted into or continued as an Offshore Rate
Loan; (ii) two Business Days in advance of the Conversion/Continuation
Date, if any Loan is to be converted into or continued as a CD Rate Loan;
and (iii) on the Conversion/Continuation Date, if any Loan is to be
converted into a Base Rate Loan, specifying: (A) the proposed
Conversion/Continuation Date; (B) the amount of the Loan to be converted or
continued; (C) the Type of Loan resulting from the proposed conversion or
continuation; and (D) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period.
(c) If upon the expiration of any Interest Period applicable
to any CD Rate Loan or Offshore Rate Loan Borrower has failed to select
timely a new Interest Period to be applicable to such Loan, or if any
Default or event that with the giving of notice or lapse of time or both
would become a Default then exists, Borrower shall be deemed to have
elected to convert such Loan into a Base Rate Loan effective as of the
expiration date of such Interest Period.
(d) Unless Bank otherwise agrees in writing, during the
existence of a Default or event that with the giving of notice or lapse of
time or both would become a Default Borrower may not elect to have a Loan
converted into or continued as an Offshore Rate Loan or a CD Rate Loan.
1.5 Voluntary Termination or Reduction of Commitment. Borrower may,
upon not less than five Business Days' prior notice to Bank, terminate the
Commitment, or permanently reduce the Commitment by an aggregate minimum
amount of $1,000,000; unless, after giving effect thereto and to any
prepayments of Loans made on the effective date thereof, the
then-outstanding principal amount of the Loans would exceed the amount of
the Commitment then in effect. Once reduced in accordance with this
Section, the Commitment may not be increased. All accrued commitment fees
to, but not including the effective date of any reduction or termination of
Commitment, shall be paid on the effective date of such reduction or
termination.
1.6 Optional Prepayments. Subject to Section 5.4, Borrower may, at
any time or from time to time, upon not less than three Business Days'
irrevocable notice to Bank, prepay Loans in whole or in part in an amount not
less than $1,000,000. Such notice of prepayment shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid. If such
notice is given by Borrower, Borrower 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 prepaid and any amounts required pursuant to Section 5.4.
1.7 Repayment. Borrower shall repay to Bank on the Maturity Date the
principal amount of Loans outstanding on such date.
1.8 Interest. (a) Each 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, CD Rate or the Base Rate, as the case may be
(and subject to Borrower's right to convert to other Types of Loans under
Section 1.4), plus the Applicable Margin.
(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 Loans under Section 1.6 for the portion of the Loans so
prepaid and upon payment (including prepayment) in full thereof and, during
the existence of any Default, interest shall be paid on demand of Bank.
(c) Anything herein to the contrary notwithstanding, the
obligations of Borrower to Bank 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 Bank would be
contrary to the provisions of any law applicable to Bank limiting the
highest rate of interest that may be lawfully contracted for, charged or
received by Bank, and in such event Borrower shall pay Bank interest at the
highest rate permitted by applicable law.
1.9 Facility Fee. Borrower will pay to Bank quarterly in advance a
facility fee equal to the amount of the Commitment (without regard to usage)
times the Applicable Fee Percentage.
1.10 Computation of Fees and Interest. All computations of interest
for Base Rate Loans when the Base Rate is determined by Bank's "reference
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. Each determination of an interest rate by
Bank shall be conclusive and binding on Borrower in the absence of manifest
error.
1.11 Payments by Borrower. All payments to be made by Borrower shall
be made without set-off, recoupment or counterclaim. Except as otherwise
expressly provided herein, all payments by Borrower shall be made to Bank at
the address from time to time specified by Bank for such purpose, and shall be
made in dollars and in immediately available funds, no later than 3:00 p.m.
(San Francisco time) on the date specified herein. Any payment received by
Bank later than 3:00 p.m. (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. 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.
1.12 Conditions to Lending. The obligation of Bank to
make any Loan or to continue or convert any Loan under Section 2.04 is
subject to the satisfaction of the following conditions precedent on the
relevant Borrowing Date or Conversion/Continuation Date:
(a) Notice of Borrowing or Conversion/Continuation. Bank shall
have received a Notice of Borrowing or a Notice of Conversion/Continuation, as
applicable;
(b) Continuation of Representations and Warranties.
The representations and warranties in Article 2 shall be true and correct on
and as of such Borrowing Date or Conversion/Continuation Date with the same
effect as if made on and as of such Borrowing Date or
Conversion/Continuation Date; and
(c) No Existing Default.
No Default or event that with the giving of notice or lapse of time or both
would become a Default shall exist or shall result from such Borrowing or
continuation or conversion.
Each Notice of Borrowing and Notice of Conversion/Continuation submitted by
Borrower hereunder shall constitute a representation and warranty by
Borrower hereunder, as of the date of each such notice and as of each
Borrowing Date or Conversion/Continuation Date, as applicable, that the
conditions in Section 1.12 are satisfied."
(c) Each reference in the Credit Agreement to "advance" or
"advances" and "Revolving Loan" or "Revolving Loans" shall be deleted and
"Loan" or "Loans, as applicable, shall be inserted in lieu thereof.
(d) Article 2 shall be amended by adding the following prior
to Section 2.1 thereof: "Borrower represents and warrants to Bank that:"
(e) Section 2.1 shall be amended by deleting the following:
"The Borrower represents and warrants to Bank that, as of the date of this
Agreement and as of each request by Borrower for an advance hereunder, the"
and inserting "The" in lieu thereof.
(f) The following shall be added as new Sections 2.2, 2.3, 2.4
and 2.5 to the Credit Agreement, immediately following Section 2.1 thereof:
"2.2 Borrower:
(a) is a corporation duly organized, validly existing and in
good standing under the laws of the State of Colorado;
(b) has the power and authority and all governmental licenses,
authorizations, consents and approvals to own its assets, carry on its
business and to execute, deliver, and perform its obligations under this
Agreement and the Revolving Note;
(c) is duly qualified as a foreign corporation and is licensed
and in good standing under the laws of each jurisdiction where its
ownership, lease or operation of property or the conduct of its business
requires such qualification or license; and
(d) is in compliance with all Requirements of Law; except, in
each case referred to in clause (c) or clause (d), to the extent that the
failure to do so could not reasonably be expected to cause (i) a material
adverse change in, or a have material adverse effect upon, the operations,
business, properties or condition (financial or otherwise) of Borrower or
Borrower and its subsidiaries, if any taken as a whole; (ii) a material
impairment of the ability of Borrower to perform under this Agreement or
the Revolving Note and to avoid any Default; or (iii) a material adverse
effect upon the legality, validity, binding effect or enforceability
against Borrower of this Agreement or the Revolving Note.
2.3 The execution, delivery and performance by Borrower of this
Agreement and the Revolving Note and all documents given in connection
herewith or therewith have been duly authorized by all necessary corporate
action, and do not and will not:
(a) contravene the terms of any of Borrower's certificate or
articles of incorporation, bylaws, any certificate of determination or
instrument relating to the rights of preferred shareholders of Borrower,
any shareholder rights agreement related to Borrower, or any applicable
resolutions of the board of directors (or any committee thereof) of
Borrower;
(b) conflict with or result in any breach or contravention of,
or the creation of any lien under, any document evidencing any contractual
obligation to which Borrower is a party or any order, injunction, writ or
decree of any Governmental Authority to which Borrower or its property is
subject; or
(c) violate any Requirement of Law.
2.4 No approval, consent, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority is necessary
or required in connection with the execution, delivery or performance by,
or enforcement against, Borrower this Agreement or the Revolving Note.
2.5 This Agreement and the Revolving Note constitute the legal,
valid and binding obligations of Borrower, enforceable against Borrower in
accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles
relating to enforceability."
(g) The word "written" shall be added to the third line of
Article 3 of the Credit Agreement after the word "prior" in such line.
(h) The following shall be added to the Credit Agreement after
subsection 3.4(d) thereof as new subsection (e):
"(e) promptly after learning thereof, notice of any change in
the Applicable Rating by S&P or Moody's that would change the Applicable
Fee Percentage."
(i) The following shall be added after the phrase "immediately
due and payable" in the fifth line of Section 4.1 of the Credit Agreement:
"without presentment, demand, protest or other notice of any kind,
all of which are hereby expressly waived by Borrower; and exercise all
rights and remedies available to it under the Revolving Note, this
Agreement, or applicable law; provided, however, that upon the occurrence
of any event specified in subsection (f) or (g) of Section 4.1 (in the case
of an involuntary proceeding against Borrower as described in clause (i) of
such subsection (g) upon the expiration of the 60-day period mentioned
therein), the obligation of Bank to make Loans shall automatically
terminate and the unpaid principal amount of all outstanding Loans and all
interest and other amounts as aforesaid shall automatically become due and
payable without further act of Bank"
(j) Subsection 4.1(f) of the Agreement shall be amended and
restated in its entirety as follows:
"(f) Insolvency; Voluntary Proceedings. Borrower or
Nordstrom, Inc. (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) commences any Insolvency Proceeding with respect
to itself; or (iv) takes any action to effectuate or authorize any of the
foregoing; or"
(k) The following shall be added as new Subsection 4.1(g) of
the Agreement, immediately following subsection 4.1(f), and the remaining
subsections of 4.1 shall be relettered accordingly:
"(g)Involuntary Proceedings Proceedings"}. (i) Any
involuntary Insolvency Proceeding is commenced or filed against Borrower or
Nordstrom, Inc., or any writ, judgment, warrant of attachment, execution or
similar process, is issued or levied against a substantial part of
Borrower's or Nordstrom, Inc'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)
Borrower or Nordstrom, Inc. 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)
Borrower or Nordstrom, Inc. 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"
(l) Subsection 4.1(h) (after giving effect to the relettering
described in subsection (k) above) of the Credit Agreement by inserting "or
Nordstrom, Inc." after "Borrower" in the first line thereof, and by
inserting "or Nordstrom, Inc.'s" after "Borrower's" in the sixth line
thereof.
(m) The following shall be added to the Credit Agreement
immediately after Section 4.2 thereof as new Section 4.3:
"4.3 Rights Not Exclusive. The rights provided for in this
Agreement and the Revolving Note 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."
(n) The following shall be added as Article 5 of the Credit
Agreement, immediately following Article 4 thereof, and Article 5 of the
Credit Agreement shall be renumbered as Article 6 and the sections of such
Article shall be renumbered accordingly:
"ARTICLE 5
TAXES, YIELD PROTECTION AND ILLEGALITY
5.1 Taxes. If any payments to Bank under this Agreement are made
from outside the United States, Borrower will not deduct any foreign taxes
from any payments it makes to Bank. If any such taxes are imposed on any
payments made by Borrower (including payments under this Section), Borrower
will pay the taxes and will also pay to Bank, at the time interest is paid,
any additional amount which Bank specifies as necessary to preserve the
after-tax yield Bank would have received if such taxes had not been
imposed. Borrower will confirm that it has paid the taxes by giving Bank
official tax receipts (or notarized copies) within 30 days after the due
date.
5.2 Illegality. (a) If 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 Bank or any applicable lending office of
Bank to make Offshore Rate Loans, then, on written notice thereof by Bank
to Borrower, any obligation of Bank to make Offshore Rate Loans shall be
suspended until Bank notifies Borrower that the circumstances giving rise
to such determination no longer exist.
(b) If Bank determines that it is unlawful to maintain
Offshore Rate Loans, Borrower shall, upon its receipt of notice of such
fact and demand from Bank, prepay in full all Offshore Rate Loans then
outstanding, together with interest accrued thereon and amounts required
under Section 5.4, either on the last day of the Interest Period thereof,
if Bank may lawfully continue to maintain Offshore Rate Loans to such day,
or immediately, if Bank may not lawfully continue to maintain Offshore Rate
Loans. If Borrower is required to so prepay any Offshore Rate Loan, then
concurrently with such prepayment, Borrower shall borrow from Bank, in the
amount of such repayment, a Base Rate Loan.
5.3 Increased Costs and Reduction of Return. (a) If Bank
determines that, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation or (ii) the compliance by
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 Bank of agreeing to make or making,
funding or maintaining any CD Rate Loan or Offshore Rate Loan, then
Borrower shall be liable for, and shall from time to time, upon demand, pay
to Bank, additional amounts as are sufficient to compensate Bank for such
increased costs.
(b) If Bank 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 Bank (or any applicable lending office of Bank) or any
corporation controlling Bank with any Capital Adequacy Regulation, affects
or would affect the amount of capital required or expected to be maintained
by Bank or any corporation controlling Bank and (taking into consideration
Bank's or such corporation's policies with respect to capital adequacy and
Bank'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, then, upon demand of Bank to Borrower,
Borrower shall pay to Bank, from time to time as specified by Bank,
additional amounts sufficient to compensate Bank for such increase.
5.4 Funding Losses. Borrower shall reimburse Bank and hold Bank
harmless from any loss or expense which Bank may sustain or incur as a
consequence of: (a) the failure of Borrower to make on a timely basis any
payment of principal of any CD Rate Loan or Offshore Rate Loan; (b) the
failure of Borrower to borrow, continue or convert a Loan after Borrower
has given (or is deemed to have given) a Notice of Borrowing or a Notice of
Conversion/Continuation; (c) the failure of Borrower to make any
prepayment in accordance with any notice delivered under Section 1.6; (d)
the prepayment or other payment (including after acceleration thereof) of
an Offshore Rate Loan on a day that is not the last day of the relevant
Interest Period; or (e) the automatic conversion under Section 1.4 of any
Offshore Rate Loan or CD Rate Loan to a Base Rate 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 Loans or CD Rate Loans or from fees
payable to terminate the deposits from which such funds were obtained.
5.5 Inability to Determine Rates. If Bank determines that for any
reason adequate and reasonable means do not exist for determining the CD
Rate or Offshore Rate for any requested Interest Period with respect to a
proposed CD Rate Loan or Offshore Rate Loan, or that the CD Rate or
Offshore Rate applicable pursuant to subsection 1.8(a) for any requested
Interest Period with respect to a proposed CD Rate Loan or Offshore Rate
Loan does not adequately and fairly reflect the cost to Bank of funding
such Loan, Bank will promptly so notify Borrower. Thereafter, the
obligation of Bank to make or maintain CD Rate Loans or Offshore Rate
Loans, as the case may be, hereunder shall be suspended until Bank revokes
such notice in writing. Upon receipt of such notice, Borrower may revoke
any Notice of Borrowing or Notice of Conversion/Continuation then submitted
by it. If Borrower does not revoke such Notice, Bank shall make, convert
or continue the Loans, as proposed by Borrower, in the amount specified in
the applicable notice submitted by Borrower, but such Loans shall be made,
converted or continued as Base Rate Loans instead of CD Rate Loans or
Offshore Rate Loans.
5.6 Survival. The agreements and obligations of Borrower in this
Article 5 shall survive the payment of all other obligations under this
Agreement and the Revolving Note."
(o) Section 6.1 (as renumbered after giving effect to this
Amendment) of the Credit Agreement shall be amended and restated in its
entirety as follows:
"6.1 Notices. (a) All notices, requests and other communications
shall be in writing (including, unless the context expressly otherwise
provides, by facsimile transmission, provided that any matter transmitted
by Borrower by facsimile (i) shall be immediately confirmed by a telephone
call to the recipient at the number specified on the signature page hereof
with respect to such person, and (ii) shall be followed promptly by
delivery of a hard copy original thereof) and mailed, telecopied or
delivered, to the address or facsimile number specified for notices on the
signature page hereof with respect to such person; or, as directed to
Borrower or Bank, to such other address as shall be designated by such
party in a written notice to the other party.
(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 U.S. mail, or if delivered, upon
delivery; except that notices pursuant to Article 1 shall not be effective
until actually received by Bank.
(c) Any agreement of Bank herein to receive certain notices by
telephone or facsimile is solely for the convenience and at the request of
Borrower. Bank shall be entitled to rely on the authority of any person
purporting to be a person authorized by Borrower to give such notice and
Bank shall not have any liability to Borrower or other person on account of
any action taken or not taken by the Bank in reliance upon such telephonic
or facsimile notice. The obligation of Borrower to repay the Loans shall
not be affected in any way or to any extent by any failure by Bank to
receive written confirmation of any telephonic or facsimile notice or the
receipt by Bank of a confirmation which is at variance with the terms
understood by the Bank to be contained in the telephonic or facsimile
notice."
(p) Section 6.2 (as renumbered after giving effect to this
Amendment) of the Credit Agreement shall be amended by inserting after the
phrase "attorneys' fees" the phrase "including allocated costs of internal
counsel".
(q) Section 6.5 (as renumbered after giving effect to this
Amendment) of the Credit Agreement shall be amended by deleting the word
"Washington" and inserting the word "California" in lieu thereof.
(r) The following shall be added as new Article 7 of the
Credit Agreement, immediately after Article 6 thereof:
"ARTICLE 7
DEFINITIONS
7.1 Certain Defined Terms. The following terms have the following
meanings:
"Applicable Margin" means
(i) with respect to Base Rate Loans, .0000%;
(ii) with respect to CD Rate Loans, .3750%; and
(iii) with respect to Offshore Rate Loans, .3750%.
"Applicable Fee Percentage means, for any date, the per annum
percentage amount set forth below opposite the Applicable Rating:
Applicable Rating Applicable Fee
Percentage
-----------------------------------------------------
S&P Moody's
------------------------------
A- or more A3 or more 0.1250%
favorable favorable
BBB or more Baa2 or more 0.1500%
favorable favorable
BBB- or less Baa3 or less
favorable or favorable or
not rated not rated 0.2000%
"Applicable Rating" means the most favorable ratings issued
from time to time by S&P or Moody's as applicable to Borrower's senior
unsecured long-term debt; provided that (a) if the most favorable ratings
established by such rating agencies indicate two different pricing levels,
the level corresponding to the more favorable of such ratings shall apply,
(b) if only one such rating agency shall provide a rating as to Borrower's
senior unsecured long-term debt, the pricing level shall be determined
based upon such rating, (c) if the ratings system of either such rating
agency shall change, the pricing level shall be determined based upon the
rating from the agency whose ratings system is unchanged, (d) if the
ratings system of both such rating agencies shall change, Borrower and Bank
shall negotiate in good faith to amend the references to specific ratings
in the definition of "Applicable Fee Percentage" to reflect such changed
rating systems, and pending such amendment, if no pricing level is
otherwise determinable based upon the foregoing, the last pricing level in
effect shall apply, and (e) if neither S&P nor Moody's rates Borrower's
long term senior unsecured debt, the Applicable Fee Percentage shown in the
last row of the definition thereof will apply.
"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 Bank in San
Francisco, California, as its "reference rate." (The reference rate is a
rate set by Bank based upon various factors including Bank'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 reference rate announced
by Bank shall take effect at the opening of business on the day specified
in the public announcement of such change.
"Base Rate Loan" means a Loan that bears interest based on the
Base Rate.
"Borrowing" means a borrowing hereunder consisting of a Loan of
a single Type made to Borrower on a given day by Bank under Article 1, and,
other than in the case of Base Rate Loans, having a single Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.3.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York or San Francisco are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate 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 Bank or of any corporation controlling
Bank.
"CD Rate" means, for any Interest Period with respect to CD
Rate Loans comprising part of the same Borrowing, the rate of interest
(rounded upward to the next 1/100th of 1%) determined as follows:
CD Rate = Certificate of Deposit Rate + Assessment
___________________________ Rate
1.00 - Reserve Percentage
Where:
"Assessment Rate" means, for any day of such Interest
Period, the rate determined by Bank as equal to the annual assessment rate
in effect on such day payable to the FDIC by a member of Bank Insurance
Fund that is classified as adequately capitalized and within supervisory
subgroup "A" (or a comparable successor assessment risk classification
within the meaning of 12 C.F.R. S327.3) for insuring time deposits at
offices of such member in the United States; or, in the event that the FDIC
shall at any time hereafter cease to assess time deposits based upon such
classifications or successor classifications, equal to the maximum annual
assessment rate in effect on such day that is payable to the FDIC by
commercial banks (whether or not applicable to Bank) for insuring time
deposits at offices of such banks in the United States.
"Certificate of Deposit Rate" means the rate of interest
per annum determined by Bank to be the arithmetic mean (rounded upward to
the next 1/100th of 1%) of the rates notified to Bank as the rates of
interest bid by two or more certificate of deposit dealers of recognized
standing selected by Bank for the purchase at face value of dollar
certificates of deposit issued by major United States banks, for a maturity
comparable to such Interest Period and in the approximate amount of the CD
Rate Loan to be made, at the time selected by Bank on the first day of such
Interest Period.
"Reserve Percentage" means, for any day of such Interest
Period, the maximum reserve percentage (expressed as a decimal, rounded
upward to the next 1/100th of 1%), as determined by Bank, in effect on such
day (including any ordinary, marginal, emergency, supplemental, special and
other reserve percentages), prescribed by the FRB for determining the
maximum reserves to be maintained by member banks of the Federal Reserve
System with deposits exceeding $1,000,000,000 for new non-personal time
deposits for a period comparable to such Interest Period and in an amount
of $100,000 or more.
The CD Rate shall be adjusted, as to all CD Rate Loans then
outstanding, automatically as of the effective date of any change in the
Assessment Rate or the Reserve Percentage.
"CD Rate Loan" means a Loan that bears interest based on the CD
Rate.
"Commitment", as to Bank, has the meaning specified in Section
1.1.
"Conversion/Continuation Date" means any date on which, under
Section 1.4, Borrower (a) converts a Loan of one Type to another Type, or
(b) continues as a Loan of the same Type, but with a new Interest Period, a
Loan having an Interest Period expiring on such date.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"FDIC" means the Federal Deposit Insurance Corporation, and any
Governmental Authority succeeding to any of its principal functions.
"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 (including
any such successor, "H.15(519)") on the preceding Business Day opposite the
caption "Federal Funds (Effective)"; or, if such rate is not so published
on any such preceding Business Day, the rate for such day will be the
arithmetic mean as determined by Bank 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 Bank.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its principal
functions.
"GAAP" means generally accepted accounting principles set forth
from time to time in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public Accountants
and statements and pronouncements of the Financial Accounting Standards
Board (or agencies with similar functions of comparable stature and
authority within the U.S. accounting profession).
"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.
"Insolvency Proceeding" means (a) any case, action or
proceeding 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; undertaken under
U.S. Federal, state or foreign law, including the Federal Bankruptcy Reform
Act of 1978 (11 U.S.C. S101, et seq.), as in effect from time to time.
"Interest Payment Date" means, as to any Offshore Rate Loan,
the last day of each Interest Period applicable to such Loan and, as to any
Base Rate Loan, the last Business Day of each calendar quarter and each
date such Loan is converted into another Type of Loan, provided, however,
that if any Interest Period for a CD Rate Loan or an Offshore Rate Loan
exceeds 90 days or three months, respectively, the date that falls 90 days
or three months (as the case may be) after the beginning of such Interest
Period and after each Interest Payment Date thereafter is also an Interest
Payment Date.
"Interest Period" means, (a) as to any Offshore Rate 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 Loan, and ending on the date one, two, three
or six months thereafter as selected by Borrower in its Notice of Borrowing
or Notice of Conversion/
Continuation; and (b) as to any CD Rate 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 a CD Rate Loan, and
ending 30, 60, 90 or 180 days thereafter, as selected by Borrower in its
Notice of Borrowing or Notice of Conversion/Continuation;
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 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;
(ii) any Interest Period pertaining to an Offshore Rate
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 January 20, 1998.
"Loan" means an extension of credit by Bank to Borrower under
Article 1, or any portion thereof remaining after or resulting from any
conversion of Loans under Section 1.4, and may be a Base Rate Loan, a CD
Rate Loan or an Offshore Rate Loan (each, a "Type" of Loan).
"Maturity Date" means the earlier to occur of:
(a) January 20, 1998; and
(b) the date on which the Commitment terminates in
accordance with the provisions of this Agreement.
"Moody's means Moody's Investors Service, Inc. and any
successor thereto that is a nationally recognized rating agency.
"Notice of Borrowing" means a notice in substantially the form
of Exhibit B.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit C.
"Offshore Rate" means, for any Interest Period, with respect to
any Offshore Rate Loan comprising part of the same Borrowing, the rate of
interest per annum (rounded upward to the next 1/16th of 1%) determined by
Bank as follows:
Offshore Rate = IBOR
____________________________________
1.00 - Eurodollar Reserve Percentage
Where,
"Eurodollar Reserve Percentage" means for any day for any
Interest Period the maximum reserve percentage (expressed as a decimal,
rounded upward to the next 1/100th of 1%) in effect on such day (whether or
not applicable to Bank) under regulations issued from time to time by the
FRB for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"); and
"IBOR" means the rate of interest per annum determined by
Bank as the rate at which dollar deposits in the approximate amount of
Bank's Offshore Rate Loan for such Interest Period would be offered by
Bank's Grand Cayman Branch, Grand Cayman B.W.I. (or such other office as
may be designated
for such purpose by Bank), to major banks in the offshore dollar interbank
market at their request at approximately 11:00 a.m. (New York City time)
two Business Days prior to the commencement of such Interest Period.
The Offshore Rate shall be adjusted automatically as to
all Offshore Rate Loans then outstanding as of the effective date of any
change in the Eurodollar Reserve Percentage.
"Offshore Rate Loan" means a Loan that bears interest based on
the Offshore Rate.
"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.
"S&P means Standard & Poor's Ratings Group and any successor
thereto that is a nationally recognized rating agency.
"Type" has the meaning specified in the definition of "Loan."
"United States" and "U.S." each mean the United States of
America.
7.2 Other Interpretive Provisions. (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. The term
"documents" includes any and all instruments, documents, agreements,
certificates, indentures, notices and other writings, however evidenced.
The term "including" is not limiting and means "including without
limitation." 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." The term "person" means an individual,
partnership, corporation, business trust, joint stock company, trust,
unincorporated association, joint venture or Governmental Authority.
(c) 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.
(d) The captions and headings of this Agreement are for
convenience of reference only and shall not affect the interpretation of
this Agreement. This Agreement and the other Loan Documents are the result
of negotiations among and has been reviewed by counsel to Bank and
Borrower, and are the products of both parties. Accordingly, they shall
not be construed against Bank merely because of Bank's involvement in their
preparation.
7.3 Accounting Principles and Periods. 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, consistently
applied. References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of Borrower."
(s) Bank's address as set forth on the signature page of the
Credit Agreement shall be amended by deleting the name and title "Stephen
J. DeMarti Vice President" and inserting the name and title "Maria
Vickroy-Peralta Assistant Vice President" in lieu thereof; and by adding
the following immediately after such name and title: "Telephone: (415)
622-7198
Facsimile: (415) 622-4585".
(t) Exhibit A to the Credit Agreement is hereby amended and
restated in its entirety so that, as amended, it shall read as set forth on
Exhibit A to this Amendment, which Exhibit A is incorporated herein by this
reference.
(u) Exhibit B to this Amendment, which is incorporated herein
by this reference, is hereby added as Exhibit B to the Agreement.
(v) Exhibit C to this Amendment, which is incorporated herein
by this reference, is hereby added as Exhibit C to the Agreement.
3. Representations and Warranties. Borrower hereby represents and
warrants to Bank as follows:
(a) No Default or event which with notice or lapse of time or
both would become a Default has occurred and is continuing.
(b) The execution, delivery and performance by Borrower of
this Amendment and the Replacement Note (as defined below) have been duly
authorized by all necessary corporate and other action and do not and will
not require any registration with, consent or approval of, notice to or
action by, any person (including any Governmental Authority) in order to be
effective and enforceable. The Credit Agreement, as amended by this
Amendment, and the Replacement Note constitute the legal, valid and binding
obligations of Borrower, enforceable against it in accordance with their
respective terms, without defense, counterclaim or offset.
(c) All representations and warranties of Borrower contained
in the Credit Agreement are true and correct.
(d) Borrower is entering into this Amendment and is executing
the Replacement Note on the basis of its own investigation and for its own
reasons, without reliance upon Bank or any other person.
4. Effective Date. This Amendment will become effective as of
January 20, 1995 (the "Effective Date"), provided that each of the
following conditions precedent has been satisfied:
(a) Bank has received from Borrower a duly executed original
of this Amendment.
(b) Bank has received from Borrower a duly executed Revolving
Note, in the form and substance of Exhibit A attached hereto (the
"Replacement Note").
(c) Bank has received from Borrower a copy of a resolution
passed by the board of directors of Borrower, certified by the Secretary or
an Assistant Secretary of Borrower as being in full force and effect on the
date hereof, authorizing the execution, delivery and performance of this
Amendment and the Replacement Note.
(d) an opinion of Lane Powell Spears Lubersky and Davis,
Graham & Stubbs, counsel to Borrower and addressed to Bank, substantially
in the form of Exhibit D.
5. Miscellaneous.
(a) Except as herein expressly amended, all terms, covenants
and provisions of the Credit Agreement are and shall remain in full force
and effect and all references therein to such Credit Agreement shall
henceforth refer to the Credit Agreement as amended by this Amendment.
This Amendment shall be deemed incorporated into, and a part of, the Credit
Agreement.
(b) This Amendment shall be binding upon and inure to the
benefit of the parties hereto and thereto and their respective successors
and assigns. No third party beneficiaries are intended in connection with
this Amendment.
(c) This Amendment shall be governed by and construed in
accordance with the law of the State of California.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument.
(e) This Amendment, together with the Credit Agreement and the
Replacement Note, contains the entire and exclusive agreement of the
parties hereto with reference to the matters discussed herein and therein.
This Amendment supersedes all prior drafts and communications with respect
thereto. This Amendment may not be amended except in accordance with the
provisions of Section 6.4 of the Credit Agreement.
(f) If any term or provision of this Amendment shall be deemed
prohibited by or invalid under any applicable law, such provision shall be
invalidated without affecting the remaining provisions of this Amendment or
the Credit Agreement, respectively.
IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Amendment as of the date first above written.
NORDSTROM CREDIT, INC.
By: /s/John C. Walgamott
--------------------
Name: John C. Walgamott
Title: President
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/James C. Deichen
-------------------
James C. Deichen
Senior Vice President
By: /s/Maria Vickroy-Peralta
------------------------
Maria Vickroy-Peralta
Assistant Vice President
EXHIBIT A
AMENDED AND RESTATED
REVOLVING NOTE
$90,000,000 As of January 20, 1995
FOR VALUE RECEIVED, the undersigned, NORDSTROM CREDIT, INC., a
Colorado corporation ("Borrower"), hereby promises to pay to the order of
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION ("Bank") the
principal sum of Ninety Million Dollars ($90,000,000) or, if less, the
aggregate unpaid principal amount of all Loans made by Bank to Borrower
pursuant to the Credit Agreement, dated as of June 30, 1992 (such Credit
Agreement, as amended by that certain Amendment No.1 to Credit Agreement
dated as of January 1, 1993, that certain Amendment No. 2 to Credit
Agreement dated as of June 29, 1993, that certain Amendment No. 3 to Credit
Agreement dated as of June 30, 1994 and that certain Amendment No. 4 to
Credit Agreement dated as of even date herewith, and as it may be further
amended, restated, supplemented or otherwise modified from time to time,
being hereinafter called the "Credit Agreement"), between Borrower and
Seattle-First National Bank, which has assigned its rights and obligations
thereunder to Bank, on the dates and in the amounts provided in the Credit
Agreement. Borrower further promises to pay interest on the unpaid
principal amount of the Loans evidenced hereby from time to time at the
rates, on the dates, and otherwise as provided in the Credit Agreement.
Bank is authorized to endorse the amount and the date on which
each 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 Borrower under the Credit Agreement and this Amended and
Restated Revolving Note (this "Revolving Note").
This Revolving Note is the Revolving Note referred to in, and
is entitled to the benefits of, the Credit Agreement, which 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.
The undersigned promises to pay costs of collection and attorneys'
fees (including allocated costs of internal counsel) if default is made in
the payment of this Revolving Note.
Terms defined in the Credit Agreement are used herein with
their defined meanings therein unless otherwise defined herein. THIS
REVOLVING NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF CALIFORNIA APPLICABLE TO
CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED
THAT BANK SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
This Revolving Note amends and restates in its entirety, but
does not extinguish the indebtedness under, the Revolving Note dated as of
June 30, 1994 executed by the undersigned in favor of Bank.
NORDSTROM CREDIT, INC.
By: ________________________
Title: _____________________
Schedule A to Note
BASE RATE LOANS AND REPAYMENT OF BASE RATE LOANS
(2) (3) (4)
Amount Maturity Amount of
of Date of Base (5)
(1) Base Base Rate Loan Notation
Date Rate Loan Rate Loan Repaid Made By
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
__________ _____________ ____________ ____________ ___________
Schedule B to Note
OFFSHORE RATE LOANS AND REPAYMENT OF OFFSHORE RATE LOANS
(2) (3) (4)
Amount Maturity Amount of
of Date of Offshore (5)
(1) Offshore Offshore Rate Notation
Date Rate Loan Rate Loan Loan Repaid Made By
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
_________ _____________ ____________ ______________ __________
Schedule C to Note
CD RATE LOANS AND REPAYMENT OF CD RATE LOANS
(2) (3) (4)
Amount Maturity Amount of (5)
(1) of CD Date of CD CD Rate Notation
Date Rate Loan Rate Loan Loan Repaid Made By
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
_________ _____________ _____________ _______________ __________
EXHIBIT B
NOTICE OF BORROWING
Date:________________, 199_
To: Bank of America National Trust and Savings Association, party to the
Credit Agreement dated as of June 30, 1992 (as extended, renewed,
amended or restated from time to time, the "Credit Agreement") among
Nordstrom Credit, Inc. and Bank of America National Trust and Savings
Association
Ladies and Gentlemen:
The undersigned Nordstrom Credit, Inc. ("Borrower"), refers to the
Credit Agreement, the terms defined therein being used herein as therein
defined, and hereby gives you notice irrevocably, pursuant to Section 1.3
of the Credit Agreement, of the Borrowing specified below:
1. The Business Day of the proposed Borrowing is
_________________, 19 .
2. The aggregate amount of the proposed Borrowing is
$_______________________.
3. The Borrowing is to be comprised of $____________ of [Base
Rate] [CD Rate] [Offshore Rate] Loans.
4. The duration of the Interest Period for the [CD Rate Loans]
[Offshore Rate Loans] included in the Borrowing shall be [_____ days]
[_____ 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
Borrowing, before and after giving effect thereto and to the application of
the proceeds therefrom:
(a) the representations and warranties of Borrower contained in
Article 2 of the Credit Agreement are true and correct as though made on
and as of such date;
(b) no Default or event that with the giving of notice or lapse
of time or both would become a Default has occurred and is continuing,
or would result from such proposed Borrowing; and
(c) The proposed Borrowing will not cause the aggregate principal
amount of all outstanding Loans to exceed the Commitment.
NORDSTROM CREDIT, INC.
By:________________________
Title:_____________________
By:________________________
Title:_____________________
EXHIBIT C
NOTICE OF CONVERSION/CONTINUATION
Date:__________________,199_
To: Bank of America National Trust and Savings Association, party to the
Credit Agreement dated as of June 30, 1992 (as extended, renewed,
amended or restated from time to time, the "Credit Agreement") among
Nordstrom Credit, Inc. and Bank of America National Trust and Savings
Association
Ladies and Gentlemen:
The undersigned, Nordstrom Credit, Inc. (the "Borrower"), refers to
the Credit Agreement, the terms defined therein being used herein as
therein defined, and hereby gives you notice irrevocably, pursuant to
Section 1.4 of the Credit Agreement, of the [conversion] [continuation] of
the Loans specified herein, that:
1. The Conversion/Continuation Date is ______________, 19__.
2. The aggregate amount of the Loans to be [converted]
[continued] is $ .
3. The Loans are to be [converted into] [continued as]
[CD Rate] [Offshore Rate] [Base Rate] Loans.
4. [If applicable:] The duration of the Interest Period for the
Loans included in the [conversion] [continuation] shall be [days]
[ months].
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the proposed
Conversion/Continuation Date, before and after giving effect thereto and to
the application of the proceeds therefrom:
(a) the representations and warranties of Borrower contained in
Article 2 of the Credit Agreement are true and correct as though made on
and as of such date;
(b) no Default or event that with the giving of notice or lapse
of time or both would become a Default has occurred and is continuing,
or would result from such proposed Borrowing; and
(c) the proposed [conversion][continuation] will not cause the
aggregate principal amount of all outstanding Loans to exceed the
Commitment.
NORDSTROM CREDIT, INC.
By:_________________________
Title:______________________
By:_________________________
Title:______________________
EXHIBIT D
FORM OF LEGAL OPINION
[Date]
Bank of America National Savings
and Trust Association
United States Division--Credit
Products--San Francisco #3838
555 California Street, 41st Floor
San Francisco, CA 94104
Ladies and Gentlemen:
We have acted as counsel for Nordstrom Credit, Inc. ("Borrower") in
connection with Amendment No. 4 to Credit Agreement dated as of January
___, 1995, between Borrower and Bank of America National Trust and Savings
Association ("Bank") (the "Amendment"). The Amendment sets forth certain
amendments to the Credit Agreement dated as of June 30, 1992 (as amended by
that certain Amendment No. 1 to Credit Agreement dated as of January 1,
1993, that certain Amendment No. 2 to Credit Agreement dated as of June 29,
1993 and that certain Amendment No. 3 to Credit Agreement dated as of June
30, 1994, the "Credit Agreement"), between Borrower and Bank. Capitalized
terms used herein have the respective meanings assigned in the Credit
Agreement or the Amendment.
In connection with this opinion we have examined: (i) copies of the
Credit Agreement, the Amendment and the Amended and Restated Revolving Note
dated as of January ___, 1995 (the "Revolving Note") executed by Borrower;
(ii) resolutions adopted by the board of directors of Borrower at a meeting
held on _______________________; (iii) good standing certificates with
respect to Borrower issued by the Colorado Secretary of State on January
___, 1995; and (iv) originals or copies of such other documents, corporate
records, certificates and other statements of government officials and
corporate officers and other representatives of the persons referred to
herein and of such other instruments as we have considered necessary or
appropriate for purposes of this opinion. For purposes of this opinion we
have assumed your due execution and delivery of the Credit Agreement and
the Amendment.
On the basis of the foregoing and subject to the qualifications
hereinafter stated, we advise you that it is our opinion:
1. Corporate Existence and Power. Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of
Colorado and is qualified to do business in each other jurisdiction where
the conduct of its business or the ownership of its properties requires
such qualification and where failure to qualify could have a material
adverse effect on the financial condition or operations of Borrower, and
has full corporate power, authority and legal right to carry on its
business as presently conducted, to own and operate its properties and
assets, and to execute and deliver the Amendment and perform its
obligations under the Credit Agreement, as amended by the Amendment, and
the Revolving Note.
2. Corporate Authorization. The execution, delivery and
performance by Borrower of the Amendment and Revolving Note and any
borrowing hereunder have been duly authorized by all necessary corporate
action of Borrower, do not require any shareholder approval or to the best
of our knowledge the approval or consent of any trustee or the holders of
any Indebtedness of Borrower, do not contravene any law, regulation, rule
or order binding on it or its articles of incorporation or bylaws and to
the best of our knowledge to not contravene the provisions of or constitute
a default under an indenture, mortgage, contract or other agreement or
instrument to which Borrower is a party or by which Borrower or any of its
properties may be bound or affected.
3. Government Approvals, Etc. No government approval or filing or
registration with any governmental authority is required for the making and
performance by Borrower of the Credit Agreement, as amended by the
Amendment, or the Revolving Note or in connection with Borrower's
performance of its obligations under the Credit Agreement, as amended by
the Amendment, or the Revolving Note.
4. Binding Obligations, Etc. The Amendment and the Revolving Note
have been duly executed and delivered by Borrower and the Credit Agreement,
as amended by the Amendment, and the Revolving Note constitute, the legal,
valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms.
5. Litigation. To the best of our knowledge there are no actions,
proceedings, investigations, or claims against or affecting Borrower now
pending before any court, arbitrator or governmental authority (nor to the
best of our knowledge has any thereof been threatened nor does any basis
exist therefor) which if determined adversely to Borrower would be likely
to have a material adverse effect on the financial condition or operations
of Borrower, or to result in a judgment or order against Borrower (in
excess of insurance coverage) for more than $1,000,000 in any one case of
$5,000,000 in the aggregate, except as set forth on the attached schedule.
6. Agreements. To the best of our knowledge Borrower is not in
material breach of or material default under any material agreement to
which it is a party or which is binding on it or any material part of its
assets.
7. Investment Company Status. None of the Borrower or any person
controlling the Borrower is (a) an "Investment Company" within the meaning
of the Investment Company Act of 1940; or (b) to our knowledge, subject to
regulation under any other Federal or state statute or regulation limiting
its ability to incur indebtedness.
8. Regulation U, Etc.. The execution and delivery of the Credit
Agreement, the Amendment and the Revolving Note, and the performance of the
Credit Agreement, as amended by the Amendment, and the Revolving Note, will
not conflict with or contravene any of Regulations G, T, U and X
promulgated by the Federal Reserve Board.
The opinions expressed above are subject to the following
qualifications:
(a) The enforceability of the obligations of Borrower under the
Credit Agreement, as amended by the Amendment, and the Revolving Note is
subject to applicable bankruptcy, insolvency and other similar laws
affecting creditors' rights generally and to general principles of equity
(whether asserted in an action in equity or at law).
(b) We have assumed the genuineness of all signatures, the
authenticity of all documents certified and submitted to us as originals
and the conformity with the original documents of all documents certified
and submitted to us as copies.
(c) We express no opinion as to the laws of any jurisdiction other
than the laws of the State of Colorado, the State of California, and the
federal laws of the United States.
This opinion may be relied on by you and by your participant,
Seattle-First National Bank.
Very truly yours,
[attach schedule listing pending litigation]