EXECUTION COPY
U.S. $400,000,000
364-DAY CREDIT AGREEMENT
Dated as of June 29, 2001
Among
FEDERATED DEPARTMENT STORES, INC.
as Borrower
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent and as Paying Agent
and
THE CHASE MANHATTAN BANK
as Administrative Agent
and
FLEET NATIONAL BANK
as Syndication Agent
and
BANK OF AMERICA, N.A.
THE BANK OF NEW YORK
and
CREDIT SUISSE FIRST BOSTON
as Documentation Agents
TABLE OF CONTENTS
ARTICLE I
SECTION 1.02. Computation of Time Periods 18
SECTION 1.03. Accounting Terms 18
SECTION 1.04. Currency Equivalents Generally 18
ARTICLE II
SECTION 2.01. The Revolving Credit Advances 18
SECTION 2.02. Making the Revolving Credit Advances 18
SECTION 2.03. The Competitive Bid Advances 20
SECTION 2.04. Fees 23
SECTION 2.05. Termination or Reduction of the
Commitments 23
SECTION 2.06. Repayment of Revolving Credit Advances;
Term Loan Election 23
SECTION 2.07. Interest on Revolving Credit Advances 24
SECTION 2.08. Interest Rate Determination 24
SECTION 2.09. Optional Conversion of Revolving Credit
Advances 25
SECTION 2.10. Optional Prepayments of Revolving Credit
Advances 26
SECTION 2.11. Increased Costs 26
SECTION 2.12. Illegality 27
SECTION 2.13. Payments and Computations 27
SECTION 2.14. Taxes 28
SECTION 2.15. Sharing of Payments, Etc. 29
SECTION 2.17. Use of Proceeds 32
SECTION 2.18. Defaulting Lenders 32
SECTION 2.19. Evidence of Debt 34
SECTION 3.01. Conditions Precedent to Effectiveness of
Section 2.01 and 2.03 34
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing, and Extension Date. 36
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing 36
SECTION 3.04. Determinations Under Section 3.01 37
ARTICLE IV
SECTION 4.01. Representations and Warranties of the
Borrower 37
ARTICLE V
SECTION 5.01. Affirmative Covenants 39
SECTION 5.02. Negative Covenants 41
SECTION 5.03. Financial Covenants 44
ARTICLE VI
SECTION 6.01. Events of Default 45
ARTICLE VII
SECTION 7.01. Authorization and Action 47
SECTION 7.02. Agent's Reliance, Etc. 48
SECTION 7.03. Citibank, Chase and Affiliates 48
SECTION 7.04. Lender Credit Decision 48
SECTION 7.05. Indemnification 48
SECTION 7.06. Successor Agents 49
SECTION 7.07. Other Agents 49
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 50
SECTION 8.02. Notices, Etc. 50
SECTION 8.03. No Waiver; Remedies 50
SECTION 8.04. Costs and Expenses 50
SECTION 8.05. Right of Set-off 52
SECTION 8.06. Binding Effect 52
SECTION 8.07. Assignments, Designations and
Participations 52
SECTION 8.08. Confidentiality 55
SECTION 8.09. Governing Law 56
SECTION 8.10. Execution in Counterparts 56
SECTION 8.12. Jurisdiction, Etc. 56
SECTION 8.13. Waiver of Jury Trial 57
Schedules
Schedule I - List of Commitments and Applicable Lending Offices
Schedule 4.01(c) - Required Authorizations, Approvals, Actions,
Notices and Filings
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Counsel for the Borrower
364-DAY CREDIT AGREEMENT
Dated as of June 29, 2001
FEDERATED DEPARTMENT STORES, INC., a Delaware
corporation (the "Borrower"), the banks, financial institutions
and other institutional lenders listed on Schedule I hereto as
the Initial Lenders (the "Initial Lenders"), CITIBANK, N.A.
("Citibank"), as an administrative agent (in such capacity, an
"Administrative Agent") for the Lenders (as hereinafter defined)
and as paying agent (in such capacity, the "Paying Agent") for
the Lenders, THE CHASE MANHATTAN BANK ("Chase"), as an
administrative agent (in such capacity, an "Administrative
Agent"; the Administrative Agents and the Paying Agent being,
collectively, the "Agents") for the Lenders, FLEET NATIONAL BANK,
as syndication agent (the "Syndication Agent"), and BANK OF
AMERICA, N.A., THE BANK OF NEW YORK and CREDIT SUISSE FIRST
BOSTON, as documentation agents (each, a "Documentation Agent")
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms.
As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms
defined):
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Advance" means a Revolving Credit Advance or a
Competitive Bid Advance.
"Affiliate" means, as to any Person, any other Person
that, directly or indirectly, controls, is controlled by or
is under common control with such Person or is a director or
officer of such Person. For purposes of this definition,
the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person
means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to
direct or cause the direction of the management and policies
of such Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Agent" has the meaning specified in the recital of
parties to this Agreement.
"Alternative Currency" means lawful money of Austria,
Belgium, the Federal Republic of Germany, France, Italy, the
Swiss Confederation, the United Kingdom and such other
lawful currencies other than Dollars that are freely
transferable and convertible into Dollars as the Borrower,
with the consent of the Paying Agent, shall designate.
"Applicable Lending Office" means, with respect to each
Lender, such Lender's Domestic Lending Office in the case of
a Base Rate Advance and such Lender's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance and, in the
case of a Competitive Bid Advance, the office of such Lender
notified by such Lender to the Agent as its Applicable
Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, as of any date of
determination prior to the Term Loan Conversion Date, a
percentage per annum determined by reference to the
Performance Level in effect on such date as set forth below:
Performanc Applicable Applicable
e Level Margin for Margin for
Base Rate Eurodollar
Advances Rate
Advances
Level 1 0.0000% 0.190%
Level 2 0.0000% 0.305%
Level 3 0.0000% 0.400%
Level 4 0.0000% 0.500%
Level 5 0.0000% 0.575%
Level 6 0.0000% 0.800%
and, as of any date of determination on or after the Term
Loan Conversion Date, a percentage per annum determined by
reference to the Performance Level in effect on such date as
set forth below:
Performanc Applicable Applicable
e Level Margin for Margin for
Base Rate Eurodollar
Advances Rate
Advances
Level 1 0.0000% 0.375%
Level 2 0.0000% 0.500%
Level 3 0.0000% 0.625%
Level 4 0.0000% 0.750%
Level 5 0.0000% 1.000%
Level 6 0.0000% 1.250%
In the case of a change in the Applicable Margin due to a
change in the Interest Coverage Ratio, such change shall be
effective five Business Days after the date on which the
Paying Agent receives financial statements pursuant to
Section 5.01(h)(i) or (ii) together with a certificate of
the chief financial officer of the Borrower demonstrating
such Interest Coverage Ratio. In the case of a change in
the Applicable Margin due to a change in the Public Debt
Rating, such change shall be effective five Business Days
after the date on which the Paying Agent receives a
certificate of the chief financial officer of the Borrower
pursuant to Section 5.01(h)(vi) setting forth such Public
Debt Rating.
"Applicable Utilization Fee" means, as of any date
prior to the Term Loan Conversion Date on which the
aggregate Advances exceed 50% of the aggregate Commitments,
a percentage per annum determined by reference to the
Performance Level in effect on such date as set forth below:
Performanc Applicable
e Level Utilization Fee
Level 1 0.125%
Level 2 0.125%
Level 3 0.125%
Level 4 0.125%
Level 5 0.250%
Level 6 0.250%
In the case of a change in the Applicable Utilization Fee
due to a change in the Interest Coverage Ratio, such change
shall be effective five Business Days after the date on
which the Paying Agent receives financial statements
pursuant to Section 5.01(h)(i) or (ii) together with a
certificate of the chief financial officer of the Borrower
demonstrating such Interest Coverage Ratio. In the case of
a change in the Applicable Utilization Fee due to a change
in the Public Debt Rating, such change shall be effective
five Business Days after the date on which the Paying Agent
receives a certificate of the chief financial officer of the
Borrower pursuant to Section 5.01(h)(vi) setting forth such
Public Debt Rating.
"Assignment and Acceptance" means an assignment and
acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Paying Agent, in substantially
the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section
2.16(c).
"Assumption Agreement" has the meaning specified in
Section 2.16(c).
"Base Rate" means a fluctuating interest rate per annum
in effect from time to time, which rate per annum shall at
all times be equal to the highest of:
(a) the rate of interest announced publicly by
Citibank in New York, New York, from time to time, as
Citibank's base rate;
(b) the sum (adjusted to the nearest 1/16 of 1%
or, if there is no nearest 1/16 of 1%, to the next
higher 1/16 of 1%) of (i) 1/2 of 1% per annum, plus
(ii) the rate obtained by dividing (A) the latest
three-week moving average of secondary market morning
offering rates in the United States for three-month
certificates of deposit of major United States money
market banks, such three-week moving average (adjusted
to the basis of a year of 360 days) being determined
weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day) for
the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the
Federal Reserve Bank of New York or, if such
publication shall be suspended or terminated, on the
basis of quotations for such rates received by Citibank
from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a
percentage equal to 100% minus the average of the daily
percentages specified during such three-week period by
the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve
requirement (including, but not limited to, any
emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities
consisting of or including (among other liabilities)
three-month U.S. dollar non-personal time deposits in
the United States, plus (iii) the average during such
three-week period of the annual assessment rates
estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal
Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United
States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"Base Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a
Competitive Bid Borrowing.
"Business Day" means a day of the year on which banks
are not required or authorized by law to close in New York
City and, if the applicable Business Day relates to any
Eurodollar Rate Advances, on which dealings are carried on
in the London interbank market.
"Capitalized Leases" means all leases that have been or
should be, in accordance with GAAP, recorded as capitalized
leases.
"Chase" has the meaning specified in the recital of
parties to this Agreement.
"Citibank" has the meaning specified in the recital of
parties to this Agreement.
"Commercial Paper" means any unsecured promissory note
or notes issued by the Borrower pursuant to any commercial
paper program (whether rated or unrated) with a maturity of
not more than 270 days from the time of issuance.
"Commercial Paper Set-Aside Amount" has the meaning
specified in Section 2.01(b).
"Commitment" means a Revolving Credit Commitment.
"Competitive Bid Advance" means an advance by a Lender
to the Borrower as part of a Competitive Bid Borrowing
resulting from the competitive bidding procedure described
in Section 2.03 and refers to a Fixed Rate Advance or a LIBO
Rate Advance.
"Competitive Bid Borrowing" means a borrowing
consisting of simultaneous Competitive Bid Advances from
each of the Lenders whose offer to make one or more
Competitive Bid Advances as part of such borrowing has been
accepted under the competitive bidding procedure described
in Section 2.03.
"Competitive Bid Note" means a promissory note of the
Borrower payable to the order of any Lender, in
substantially the form of Exhibit A-2 hereto, evidencing the
indebtedness of the Borrower to such Lender resulting from a
Competitive Bid Advance made by such Lender.
"Confidential Information" means all information about
the Borrower and its Subsidiaries that has been furnished by
the Borrower or any of its Subsidiaries to any Agent or any
Lender whether furnished before or after the date of this
Agreement, and regardless of the manner in which it is
furnished, but does not include any such information that
(a) is or becomes generally available to the public other
than as a result of a disclosure by such Agent or such
Lender not permitted by this Agreement, (b) was available to
such Agent or such Lender on a non-confidential basis prior
to its disclosure to such Agent or such Lender or (c)
becomes available to such Agent or such Lender on a non-
confidential basis from a Person other than the Borrower or
any of its Subsidiaries that is not, to the best of such
Agent's or such Lender's knowledge, acting in violation of a
confidentiality agreement with the Borrower or any of its
Subsidiaries or is not otherwise prohibited from disclosing
the information to such Agent or such Lender.
"Consenting Lender" has the meaning specified in
Section 2.16(b).
"Consolidated" refers to the consolidation of accounts
in accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to
a conversion of Revolving Credit Advances of one Type into
Revolving Credit Advances of the other Type pursuant to
Section 2.08 or 2.09.
"Debt" of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money,
(b) all Obligations of such Person for the deferred purchase
price of property or services (other than Obligations for
property (excluding real property, capital stock and
property subject to Capitalized Leases) and services
purchased, and expense accruals and deferred compensation
items arising in the ordinary course of such Person's
business), (c) all Obligations of such Person evidenced by
notes, bonds, debentures or other similar instruments (other
than performance, surety and appeals bonds arising in the
ordinary course of business), (d) all payment Obligations of
such Person created or arising under any conditional sale or
other title retention agreement with respect to property
acquired by such Person (unless the rights and remedies of
the seller, lessor or lender under such agreement in the
event of default are limited to repossession or sale of such
property), (e) all Obligations of such Person as lessee
under Capitalized Leases, (f) all Obligations, contingent or
otherwise, of such Person in respect of acceptances, letters
of credit or similar extensions of credit, (g) all
Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any
capital stock of or other ownership or profit interest in
such Person or any other Person or any warrants, rights or
options to acquire such capital stock (other than
Obligations of such Person with respect to employee stock
plans), valued, in the case of Redeemable Preferred Stock,
at the greater of its involuntary liquidation preference
plus accrued and unpaid dividends, (h) all Obligations of
such Person in respect of Hedge Agreements, (i) all Debt of
others referred to in clauses (a) through (h) above or
clause (j) below guaranteed directly or indirectly in any
manner by such Person, or in effect guaranteed directly or
indirectly by such Person through an agreement (1) to pay or
purchase such Debt or to advance or supply funds for the
payment or purchase of such Debt, (2) to purchase, sell or
lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor
to make payment of such Debt or to assure the holder of such
Debt against loss, (3) to supply funds to or in any other
manner invest in the debtor (including any agreement to pay
for property or services irrespective of whether such
property is received or such services are rendered) or
(4) otherwise to assure a creditor against loss, and (j) all
Debt referred to in clauses (a) through (i) above secured by
(or for which the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and
contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment of
such Debt, provided that the amount of Debt of the type
referred to in clauses (i) and (j) above will be included
within the definition of "Debt" only to the extent of the
amount of the obligations so guaranteed or otherwise
supported.
"Default" means any Event of Default or any event that
would constitute an Event of Default but for the requirement
that notice be given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender
at any time, the portion of any Advance required to be made
by such Lender to the Borrower pursuant to Section 2.01 or
2.02 at or prior to such time which has not been made by
such Lender or by the Paying Agent for the account of such
Lender pursuant to Section 2.02(d) as of such time. In the
event that a portion of a Defaulted Advance shall be deemed
made pursuant to Section 2.18(a), the remaining portion of
such Defaulted Advance shall be considered a Defaulted
Advance originally required to be made pursuant to
Section 2.01 on the same date as the Defaulted Advance so
deemed made in part.
"Defaulted Amount" means, with respect to any Lender at
any time, any amount required to be paid by such Lender to
the Paying Agent or any other Lender hereunder or under any
other Loan Document at or prior to such time which has not
been so paid as of such time, including, without limitation,
any amount required to be paid by such Lender to (a) the
Paying Agent pursuant to Section 2.02(d) to reimburse the
Paying Agent for the amount of any Advance made by the
Paying Agent for the account of such Lender, (b) any other
Lender pursuant to Section 2.15 to purchase any
participation in Advances owing to such other Lender and
(c) the Paying Agent pursuant to Section 7.05 to reimburse
the Paying Agent for such Lender's ratable share of any
amount required to be paid by the Lenders to the Paying
Agent as provided therein. In the event that a portion of a
Defaulted Amount shall be deemed paid pursuant to
Section 2.18(b), the remaining portion of such Defaulted
Amount shall be considered a Defaulted Amount originally
required to be paid hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed
paid in part.
"Defaulting Lender" means, at any time, any Lender
that, at such time, (a) owes a Defaulted Advance or a
Defaulted Amount or (b) shall take any action or be the
subject of any action or proceeding of a type described in
Section 6.01(e).
"Designated Bidder" means (a) an Eligible Assignee or
(b) a special purpose corporation that is engaged in making,
purchasing or otherwise investing in commercial loans in the
ordinary course of its business and that issues (or the
parent of which issues) commercial paper rated at least
"Prime-1" (or the then equivalent grade) by Moody's or "A-1"
(or the then equivalent grade) by S&P that, in the case of
either clause (a) or (b), (i) is organized under the laws of
the United States or any State thereof, (ii) shall have
become a party hereto pursuant to Sections 8.07(f), (g) and
(h) and (iii) is not otherwise a Lender.
"Designation Agreement" means a designation agreement
entered into by a Lender (other than a Designated Bidder)
and a Designated Bidder, and accepted by the Paying Agent,
in substantially the form of Exhibit D hereto.
"Documentary L/C" means any letter of credit that is
issued for the benefit of a supplier of inventory to the
Borrower or any of its Subsidiaries to effect payment of
such Inventory.
"Documentation Agent" has the meaning specified in the
recital of parties to this Agreement.
"Dollars" and the sign "$" each means lawful money of
the United States.
"Domestic Lending Office" means, with respect to any
Lender, the office of such Lender specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in
the Assignment and Acceptance pursuant to which it became a
Lender, or such other office of such Lender as such Lender
may from time to time specify to the Borrower and the Paying
Agent.
"EBITDA" means, for any period, (i) the sum, determined
on a Consolidated basis, of (a) net income (or net loss),
(b) Net Interest Expense, (c) income tax expense, (d)
depreciation expense, (e) amortization expense (including,
without limitation, amortization of (1) excess of cost over
net assets acquired, (2) reorganization value in excess of
amounts allocable to identifiable assets and (3) unearned
restricted stock) and (f) unusual and extraordinary losses
less (ii) unusual and extraordinary gains, in each case of
the Borrower and its Subsidiaries determined in accordance
with GAAP for such period.
"Effective Date" means the first date on which the
conditions set forth in Section 3.01 shall have been
satisfied.
"Eligible Assignee" means with respect to the Revolving
Credit Facility (i) a Lender; (ii) an Affiliate of a Lender;
and (iii) any other Person approved by the Paying Agent and,
unless an Event of Default has occurred and is continuing at
the time any assignment is effected in accordance with
Section 8.07, the Borrower, such approval not to be
unreasonably withheld or delayed; provided, however, that
neither the Borrower nor an Affiliate of the Borrower shall
qualify as an Eligible Assignee.
"Environmental Action" means any action, suit, demand,
demand letter, claim, notice of non-compliance or violation,
notice of liability or potential liability, investigation,
proceeding, consent order or consent agreement relating in
any way to any Environmental Law, Environmental Permit or
Hazardous Materials or arising from alleged injury or threat
of injury to health, safety or the environment, including,
without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any
governmental or regulatory authority or any third party for
damages, contribution, indemnification, cost recovery,
compensation or injunctive relief.
"Environmental Law" means any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code,
order, judgment, decree or judicial or agency
interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural
resources, including, without limitation, those relating to
the use, handling, transportation, treatment, storage,
disposal, release or discharge of Hazardous Materials.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of
Title IV of ERISA is a member of the Borrower's controlled
group, or under common control with the Borrower, within the
meaning of Section 414 of the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a
reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan unless the 30-day notice
requirement with respect to such event has been waived by
the PBGC, or (ii) the requirements of subsection (1) of
Section 4043(b) of ERISA (without regard to subsection (2)
of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a
Plan, and an event described in paragraph (9), (10), (11),
(12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding
waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to terminate
such Plan pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (d) the cessation of
operations at a facility of the Borrower or any ERISA
Affiliate in the circumstances described in Section 4062(e)
of ERISA; (e) the withdrawal by the Borrower or any ERISA
Affiliate from a Multiple Employer Plan during a plan year
for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for the
imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan; (g) the adoption of
an amendment to a Plan requiring the provision of security
to such Plan pursuant to Section 307 of ERISA; or (h) the
institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any
event or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning assigned to
that term in Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any
Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on Schedule I
hereto or in the Assignment and Acceptance pursuant to which
it became a Lender (or, if no such office is specified, its
Domestic Lending Office), or such other office of such
Lender as such Lender may from time to time specify to the
Borrower and the Paying Agent.
"Eurodollar Rate" means, with respect to each day
during each Interest Period for a Eurodollar Rate Advance
comprising a Revolving Credit Borrowing, the rate of
interest per annum obtained by dividing (a) the "Eurodollar
Rate" determined (i) on the basis of the rate for deposits
in Dollars for a period equal to such Interest Period
appearing on Page 3750 of the Telerate screen as of 11:00
A.M., London time, two Business Days prior to the beginning
of such Interest Period, or if such rate does not appear on
Page 3750 of the Telerate screen (or otherwise on such
service), the rate per annum (rounded upward to the nearest
1/16 of 1% per annum) at which deposits are offered by
another publicly available service displaying eurodollar
rates as may be agreed upon by the Paying Agent and the
Borrower or (ii) in the absence of such appearance or
agreement, by reference to the average of the rate of
interest per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is not
such a multiple) at which deposits in Dollars are offered by
the principal office of each of the Reference Banks in
London, England, to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount
substantially equal to such Reference Bank's Eurodollar Rate
Advance to be outstanding during such Interest Period (or,
if such Reference Bank shall not have a Eurodollar Rate
Advance that is to be outstanding during such Interest
Period, in an amount equal to $1,000,000) and for a period
equal to such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period. In the case of any Eurodollar Rate
determined pursuant to clause (a)(ii) above, the Eurodollar
Rate for any Interest Period for each Eurodollar Rate
Advance comprising such Revolving Credit Borrowing shall be
determined by the Paying Agent on the basis of applicable
rates received by the Paying Agent from the Reference Banks
two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit
Advance that bears interest as provided in
Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest
Period for all Eurodollar Rate Advances or LIBO Rate
Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued
from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation,
any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System
in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with
respect to any other category of liabilities that includes
deposits by reference to which the interest rate on
Eurodollar Rate Advances or LIBO Rate Advances is
determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Existing Credit Agreements" means (a) the $500,000,000
Third Amended and Restated Credit Agreement dated as of July
24, 2000, as amended through the date hereof, among the
Borrower, certain lenders party thereto, Citibank, as an
administrative agent and paying agent, The Chase Manhattan
Bank, as an administrative agent, Fleet National Bank, as
syndication agent, and Bank of America, N.A., as
documentation agent and (b) the $1,500,000,000 Five Year
Credit Agreement dated as of July 28, 1997 as amended
through the date hereof, among the Borrower, certain lenders
party thereto, Citibank, as an administrative agent and
paying agent, The Chase Manhattan Bank, as an administrative
agent, BankBoston, N.A., as syndication agent, and The Bank
of America, National Trust & Savings Association, as
documentation agent.
"Extension Date" has the meaning specified in Section
2.16(b).
"Facility" means the Revolving Credit Facility.
"Facility Fee Percentage" means, as of any date, a
percentage per annum determined by reference to the
Performance Level in effect on such date as set forth below:
Performance Facility Fee
Level Percentage
Level 1 0.060%
Level 2 0.070%
Level 3 0.100%
Level 4 0.125%
Level 5 0.175%
Level 6 0.200%
In the case of a change in the Facility Fee Percentage due
to a change in the Interest Coverage Ratio, such change
shall be effective five Business Days after the date on
which the Paying Agent receives financial statements
pursuant to Section 5.01(h)(i) or (ii) together with a
certificate of the chief financial officer of the Borrower
demonstrating such Interest Coverage Ratio. In the case of
a change in the Facility Fee Percentage due to a change in
the Public Debt Rating, such change shall be effective five
Business Days after the date on which the Paying Agent
receives a certificate of the chief financial officer of the
Borrower pursuant to Section 5.01(h)(vi) setting forth such
Public Debt Rating.
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates on
overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as
published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so
published for any day that is a Business Day, the average of
the quotations for such day on such transactions received by
the Paying Agent from three Federal funds brokers of
recognized standing selected by it.
"Fiscal Year" means a fiscal year of the Borrower and
its Consolidated Subsidiaries ending on the Saturday closest
to January 31 in any calendar year.
"Five Year Credit Agreement" means the Five Year Credit
Agreement of even date herewith among the Borrower, the
lenders party thereto, Citibank, as administrative agent and
as paying agent, and Chase, as administrative agent, Fleet
National Bank, as syndication agent, and Bank of America,
N.A., The Bank of New York and Credit Suisse First Boston,
as documentation agents, as amended, supplemented or
otherwise modified from time to time.
"Fixed Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"GAAP" means generally accepted accounting principles
in the United States of America as in effect from time to
time set forth in the opinions and pronouncements of the
Accounting Principles Board and the American Institute of
Certified Public Accountants and the statements and
pronouncements of the Financial Accounting Standards Board,
or in such other statements by any successor entity as may
be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of
the date of determination; provided that, with respect to
the calculation of the financial ratios and the terms used
in the covenants contained in this Agreement and the
definitions related thereto, "GAAP" means generally accepted
accounting principles in effect in the United States on the
date of the financial statements referred to in Section
4.01(e), it being understood that, upon any change in GAAP
as at such date that affects in any material respect the
financial ratios and the covenants contained in this
Agreement, the Borrower and the Paying Agent will negotiate
in good faith to adapt or conform any such financial ratios
and covenants and the definitions related thereto to any
such changes in GAAP to the extent necessary to maintain the
original economic terms of such financial ratios and
covenants as in effect under this Agreement on the date
hereof, the Paying Agent shall promptly notify the Lenders
in writing of the negotiated changes to such financial
ratios, covenants and definitions, and if, by the 30th day
after the date such notice is given (i) the Required Lenders
shall not have objected in writing to such changes, such
changes shall be deemed to be effective, and this Agreement
shall be deemed to be amended accordingly, as of such 30th
day, without further action on the part of any party hereto
or (ii) the Required Lenders shall have objected to such
changes, then, until this Agreement shall be amended in
accordance with the terms of Section 8.01 to reflect such
changes as may be necessary to maintain the original
economic terms of such financial ratios and covenants, the
financial ratios and covenants immediately in effect prior
to such amendment shall remain in effect.
"Hazardous Materials" means (a) petroleum and petroleum
products, byproducts or breakdown products, radioactive
materials, asbestos-containing materials, polychlorinated
biphenyls and radon gas and (b) any other chemicals,
materials or substances designated, classified or regulated
as hazardous or toxic or as a pollutant or contaminant under
any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or
collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option
contracts and other similar agreements.
"Indemnified Party" has the meaning specified in
Section 8.04(b).
"Information Memorandum" means the information
memorandum dated May 2001 used by the Administrative Agents
in connection with the syndication of the Commitments.
"Initial Lenders" has the meaning specified in the
recital of parties of this Agreement.
"Interest Coverage Ratio" means, at any date of
determination, the ratio of Consolidated EBITDA for the
Measurement Period then most recently ended to Net Interest
Expense for such Measurement Period determined in accordance
with GAAP.
"Interest Period" means, for each Eurodollar Rate
Advance comprising part of the same Revolving Credit
Borrowing and each LIBO Rate Advance comprising part of the
same Competitive Bid Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or LIBO Rate Advance or
the date of the Conversion of any Base Rate Advance into
such Eurodollar Rate Advance and ending on the last day of
the period selected by the Borrower pursuant to the
provisions below and, thereafter, with respect to Eurodollar
Rate Advances, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending
on the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each such
Interest Period shall be seven days or one, two, three or
six months, as the Borrower may, upon notice received by the
Paying Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the first day of such
Interest Period, select; provided, however, that:
(i) the Borrower may not select any Interest
Period that ends after the Revolver Termination Date
then in effect or, if the Advances have been converted
to a term loan pursuant to Section 2.06 prior to such
selection, that ends after the Maturity Date;
(ii) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the
same Revolving Credit Borrowing or for LIBO Rate
Advances comprising part of the same Competitive Bid
Borrowing shall be of the same duration;
(iii) whenever the last day of any Interest
Period would otherwise occur on a day other than a
Business Day, the last day of such Interest Period
shall be extended to occur on the next succeeding
Business Day, provided, however, that, if such
extension would cause the last day of such Interest
Period to occur in the next following calendar month,
the last day of such Interest Period shall occur on the
next preceding Business Day; and
(iv) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which
there is no numerically corresponding day in the
calendar month that succeeds such initial calendar
month by the number of months equal to the number of
months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding
calendar month.
"Internal Revenue Code" means the Internal Revenue Code
of 1986, as amended from time to time, and the regulations
promulgated and rulings issued thereunder.
"Insufficiency" means, with respect to any Plan, the
amount, if any, of its unfunded benefit liabilities, as
defined in Section 4001(a)(18) of ERISA.
"Lenders" means the Initial Lenders, each Assuming
Lender that shall become a party hereto pursuant to Section
2.16 and each Person that shall become a party hereto
pursuant to Section 8.07 and, except when used in reference
to a Revolving Credit Advance, A Revolving Credit Note, a
Commitment or a related term, each Designated Bidder.
"Leverage Ratio" means, at any date of determination,
the ratio of Consolidated Debt to the sum of Consolidated
Debt plus Consolidated net worth of the Borrower and its
Subsidiaries calculated on a Consolidated basis in
accordance with GAAP.
"LIBO Rate" means, with respect to each day during each
Interest Period for a LIBO Rate Advance comprising a
Competitive Bid Borrowing, the rate of interest per annum
obtained by dividing (a) the "LIBO Rate" determined (i) on a
basis of the rate for deposits in Dollars for a period equal
to such Interest Period appearing on page 3750 of the
Telerate screen as of 11:00 A.M., London time, two Business
Days prior to the beginning of such Interest Period or, if
such rate does not appear on Page 3750 of the Telerate
screen (or otherwise on such service), the rate per annum
(rounded upward to the nearest 1/16 of 1% per annum) at
which deposits are offered by another publicly available
service displaying eurodollar rates as may be agreed upon by
the Paying Agent and the Borrower or (ii) in the absence of
such appearance or agreement, by reference to the average of
the rate of interest per annum (rounded upward to the
nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) at which deposits in Dollars
are offered by the principal office of each of the Reference
Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period in an
amount substantially equal to each of such Reference Bank's
LIBO Rate Advance to be outstanding during such Interest
Period (or, if any such Reference Bank shall not have a LIBO
Rate Advance that is to be outstanding during such Interest
Period, in an amount equal to $1,000,000) and for a period
equal to such Interest Period by (b) a percentage equal to
100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period. In the case of any LIBO Rate determined
pursuant to clause (a)(ii) above, the LIBO Rate for any
Interest Period for each LIBO Rate Advance comprising such
Competitive Bid Borrowing shall be determined by the Paying
Agent on the basis of applicable rates received by the
Paying Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"LIBO Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"Lien" means any lien, security interest or other
charge or encumbrance of any kind, or any other type of
preferential arrangement, including, without limitation, the
lien or retained security title of a conditional vendor and
any easement, right of way or other encumbrance on title to
real property.
"Loan Documents" means this Agreement and the Notes, as
each may be amended, supplemented or otherwise modified from
time to time.
"Material Adverse Change" means any material adverse
change in the business, condition (financial or otherwise),
operations, performance, properties or prospects of the
Borrower and its Subsidiaries, taken as a whole.
"Material Adverse Effect" means an effect that causes
or results in or has a reasonable likelihood of causing or
resulting in any material adverse change in (a) the
business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its
Subsidiaries, taken as a whole, (b) the rights and remedies
of any Agent or any Lender under any Loan Document, (c) the
ability of the Borrower to perform its Obligations under any
Loan Document or (d) the legality, validity or
enforceability of any Loan Document.
"Material Subsidiary" of the Borrower means, at any
time, any Subsidiary of the Borrower having (a) assets with
a value of not less than 5% of the total value of the assets
of the Borrower and its Consolidated Subsidiaries, taken as
a whole, or (b) Consolidated EBITDA not less than 5% of the
Consolidated EBITDA of the Borrower and its Consolidated
Subsidiaries, taken as a whole, in each case as of the end
of or for the most recently completed Fiscal Year of the
Borrower.
"Maturity Date" means the earlier of (a) the second
anniversary of the Term Loan Conversion Date and (b) the
date of termination in whole of the aggregate Commitments
pursuant to Section 2.05 or 6.01.
"Measurement Period" means, at any date of
determination, the period of the four consecutive fiscal
quarters of the Borrower then most recently ended for which
the Paying Agent has (or should have) received financial
statements in compliance with Section 5.01(h) (or Section
5.01(h) of the Existing Credit Agreements).
"Minor Subsidiary" means any Subsidiary of the Borrower
that is not a Material Subsidiary.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as
defined in Section 4001(a)(3) of ERISA, to which the
Borrower or any ERISA Affiliate is making or accruing an
obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to
make contributions.
"Multiple Employer Plan" means a single employer plan,
as defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Borrower or any ERISA
Affiliate and at least one Person other than the Borrower
and the ERISA Affiliates or (b) was so maintained and in
respect of which the Borrower or any ERISA Affiliate could
have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Net Interest Expense" means, for any period, the
amount (if any) by which (a) interest payable on all Debt
(including, without limitation, the interest component of
Capitalized Leases) and amortization of deferred financing
fees and debt discount in respect of all Debt exceeds (b)
interest income, in each case of the Borrower and its
Subsidiaries for such period, calculated on a Consolidated
basis in accordance with GAAP.
"Non-Consenting Lender" has the meaning specified in
Section 2.16(b).
"Note" means a Revolving Credit Note or a Competitive
Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Obligation" means, with respect to any Person, any
payment, performance or other obligation of such Person of
any kind, including, without limitation, any liability of
such Person on any claim, whether or not the right of any
creditor to payment in respect of such claim is reduced to
judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or
unsecured, and whether or not such claim is discharged,
stayed or otherwise affected by any proceeding referred to
in Section 6.01(e). Without limiting the generality of the
foregoing, the Obligations of the Borrower under the Loan
Documents include (a) the obligation to pay principal,
interest, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by the
Borrower under any Loan Document and (b) the obligation of
the Borrower to reimburse any amount in respect of any of
the foregoing that any Lender, in its sole discretion, may
elect to pay or advance on behalf of the Borrower.
"Original Currency" has the meaning specified in
Section 8.12.
"Other Currency" has the meaning specified in Section
8.12.
"Paying Agent" has the meaning specified in the recital
of parties to this Agreement.
"Paying Agent's Account" means the account of the
Paying Agent maintained by the Paying Agent with its office
at 399 Park Avenue, New York, New York 10043, Account
No. 36852248, Account Name: Medium Term Finance/NAIB Agency,
Reference: Federated.
"PBGC" means the Pension Benefit Guaranty Corporation
(or any successor).
"Performance Level" means, as of any date of
determination, the numerically lower level set forth below
as then in effect, as determined by reference to the Public
Debt Rating and Interest Coverage Ratio then in effect,
provided, however, that if the Level established by
reference to the Public Debt Rating and the Level
established by reference to the Interest Coverage Ratio are
more than one Level apart, the Performance Level shall be
the Level that is numerically one below the numerically
higher of the two Levels so established:
Level 1 The Public Debt Rating is greater than
or equal to A2 or A or the Interest Coverage
Ratio is 6.25:1.00 or greater;
Level 2 The Public Debt Rating is A3 or A- or
the Interest Coverage Ratio is 5.75:1.00 or
greater but less than 6.25:1.00;
Level 3 The Public Debt Rating is Baa1 or BBB+
or the Interest Coverage Ratio is 5.00:1.00
or greater but less than 5.75:1.00;
Level 4 The Public Debt Rating is Baa2 or BBB or
the Interest Coverage Ratio is 4.50:1.00 or
greater but less than 5.00:1.00;
Level 5 The Public Debt Rating is Baa3 or BBB-
or the Interest Coverage Ratio is 3:75:1.00
or greater but less than 4.50:1.00;
Level 6 The Public Debt Rating is lower than
Baa3 or BBB- and the Interest Coverage Ratio
is lower than 3.75:1.00;
"Permitted Liens" means such of the following as to
which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced: (a) Liens
for taxes, assessments and governmental charges or levies to
the extent not required to be paid under Section 5.01(b)
hereof; (b) Liens imposed by law, such as materialmen's,
mechanics', carriers', workmen's and repairmen's Liens and
other similar Liens arising in the ordinary course of
business securing obligations that are not overdue for a
period of more than 30 days or that are being contested in
good faith by appropriate proceedings; (c) Liens (if any)
arising by operation of law and pledges or deposits made in
the ordinary course of business in connection with liability
insurance, workers' compensation, unemployment insurance,
old-age pensions and other social security benefits, other
than with respect to employee benefit plans subject to
ERISA; and (d) zoning restrictions, easements, rights of
way, reciprocal easement agreements, operating agreements,
covenants, conditions or restrictions on the use of any real
property that do not interfere in any material respect with
the ordinary conduct of the business of the Borrower and its
Subsidiaries or do not materially adversely affect the value
of such property for the purpose of such business.
"Person" means an individual, partnership, corporation
(including a business trust), joint stock company, trust,
unincorporated association, joint venture, limited liability
company or other entity, or a government or any political
subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Preferred Stock" means, with respect to any
corporation, capital stock issued by such corporation that
is entitled to a preference or priority over any other
capital stock issued by such corporation upon any
distribution of such corporation's assets, whether by
dividend or upon liquidation.
"Pro Rata Share" of any amount means, with respect to
any Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such
Lender's Revolving Credit Commitment at such time and the
denominator of which is the Revolving Credit Facility at
such time.
"Public Debt Rating" means, as of any date, the higher
of (a) the lowest rating that has been most recently
announced by Moody's for any class of non-credit enhanced
long-term senior unsecured debt issued by the Borrower and
(b) the rating that has been most recently announced by S&P
as the Borrower's "Corporate Credit Rating", provided, that
if the ratings referred to in clause (a) and (b) above are
each referred to in Performance Levels which are more than
one Performance Level apart, the Public Debt Rating shall be
the Public Debt Rating indicated within the Performance
Level that is numerically one below the numerically higher
of the two Performance Levels in which the ratings are so
referenced. For purposes of the foregoing, (i) if only one
of S&P and Moody's shall have in effect a Public Debt
Rating, the Applicable Margin, the Facility Fee Percentage
and Applicable Utilization Fee shall be determined by
reference to the available rating; (ii) if neither S&P nor
Moody's shall have in effect a Public Debt Rating, the
Applicable Margin, the Facility Fee Percentage and
Applicable Utilization Fee will be determined by reference
to the Interest Coverage Ratio then in effect; (iii) if any
rating established by S&P or Moody's shall be changed, such
change shall be effective as of five Business Days after the
date on which such change is demonstrated in a certificate
of the chief financial officer of the Borrower delivered
pursuant to Section 5.01(h)(vi); and (iv) if S&P or Moody's
shall change the basis on which ratings are established,
each reference to the Public Debt Rating announced by S&P or
Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be.
"Receivables Financing Facility" means the receivables
financing facilities currently established by the Borrower
and any replacement thereof or other receivables financing
pursuant to which certain Subsidiaries of the Borrower issue
non-recourse Debt and commercial paper secured by certain
receivables of the Borrower and its Subsidiaries.
"Redeemable" means, with respect to any capital stock
or other ownership or profit interest, Debt or other right
or Obligation, any such right or Obligation that (a) the
issuer has undertaken to redeem at a fixed or determinable
date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the
option of the holder.
"Reference Banks" means Citibank and Chase.
"Register" has the meaning specified in
Section 8.07(e).
"Reportable Event" has the meaning specified in Section
4043 of ERISA, excluding any event with respect to which the
30-day notice requirement has been waived.
"Required Lenders" means at any time Lenders owed or
holding at least a majority in interest of the sum of (a)
the then aggregate unpaid principal amount of the Revolving
Credit Advances owing to Lenders at such time, and (b) the
aggregate Unused Revolving Credit Commitments at such time,
provided, however, that if any Lender shall be a Defaulting
Lender at such time, there shall be excluded from the
determination of Required Lenders at such time (i) the
unpaid principal amount of the Revolving Credit Advances
made by such Defaulting Lender and outstanding at such time
and (ii) the Unused Revolving Credit Commitment of such
Defaulting Lender at such time.
"Responsible Officer" means any executive officer of
the Borrower or any of its Subsidiaries or any other officer
of the Borrower of any of its Subsidiaries responsible for
overseeing or reviewing compliance with this Agreement or
any other Loan Document.
"Revolver Termination Date" means the earlier of June
28, 2002 (subject to the extension thereof pursuant to
Section 2.16) and the date of termination in whole of the
Revolving Credit Commitments pursuant to Section 2.05 or
6.01; provided, however, that the Revolver Termination Date
of any Lender that is a Non-Consenting Lender to any
requested extension pursuant to Section 2.16 shall be the
Revolver Termination Date in effect immediately prior to the
applicable Extension Date for all purposes of this Agreement
and any Notes.
"Revolving Credit Advance" means an advance by a Lender
to the Borrower as part of a Revolving Credit Borrowing and,
if the Borrower has made the Term Loan Election in
accordance with Section 2.06, includes each such Advance
that remains outstanding after the Term Loan Conversion
Date, and refers to a Base Rate Advance or a Eurodollar Rate
Advance (each of which shall be a "Type" of Revolving
Credit Advance).
"Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Revolving Credit Advances of the
same Type made by each of the Lenders pursuant to
Section 2.01.
"Revolving Credit Commitment" means, with respect to
any Revolving Credit Lender at any time, the amount set
forth opposite such Lender's name on Schedule I hereto under
the caption "Revolving Credit Commitment" or, if such Lender
has entered into one or more Assignment and Acceptances, set
forth for such Lender in the Register maintained by the
Paying Agent pursuant to Section 8.07(e) as such Lender's
"Revolving Credit Commitment", as such amount may be reduced
at or prior to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time, the
aggregate amount of the Revolving Credit Lenders' Revolving
Credit Commitments at such time.
"Revolving Credit Lender" means any Lender that has a
Revolving Credit Commitment and, except when used in
reference to a Revolving Credit Advance, a Revolving Credit
Borrowing, a Revolving Credit Note, a Commitment or a
related term, any Designated Bidder.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender, in
substantially the form of Exhibit A hereto, evidencing the
aggregate indebtedness of the Borrower to such Lender
resulting from the Revolving Credit Advances made by such
Lender.
"S&P" means Standard & Poor's, a division of The McGraw-
Hill Companies, Inc.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is
maintained for employees of the Borrower or any ERISA
Affiliate and no Person other than the Borrower and the
ERISA Affiliates or (b) was so maintained and in respect of
which the Borrower or any ERISA Affiliate could have
liability under Section 4069 of ERISA in the event such plan
has been or were to be terminated.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company, trust
or estate of which (or in which) more than 50% of (a) the
issued and outstanding capital stock having ordinary voting
power to elect a majority of the Board of Directors of such
corporation (irrespective of whether at the time capital
stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of
such limited liability company, partnership or joint venture
or (c) the beneficial interest in such trust or estate is at
the time directly or indirectly owned or controlled by such
Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other
Subsidiaries.
"Syndication Agent" has the meaning specified in the
recital of parties to this Agreement.
"Tangible Assets" means, with respect to any Person as
of any date of determination, the total assets of such
Person less the sum of (i) goodwill, organizational
expenses, research and development expenses, trademarks,
trade names, copyrights, patents, patent applications,
licenses and rights in any thereof, and other similar
intangibles, (ii) all prepaid expenses, deferred charges or
unamortized debt discount and expense, (iii) all reserves
carried and not deducted from assets, and (iv) any items not
included in clauses (i) through (iii) above, in each case of
such Person and which are treated as intangibles in
conformity with GAAP.
"Term Loan Conversion Date" has the meaning specified
in Section 2.06.
"Term Loan Election" has the meaning specified in
Section 2.06.
"Unused Revolving Credit Commitment" means, with
respect to any Lender at any time, (a) such Lender's
Revolving Credit Commitment at such time minus (b) the
aggregate principal amount of all Revolving Credit Advances
made by such Lender and outstanding at such time minus (c)
such Lender's pro rata share of the aggregate principal
amount of all Competitive Bid Advances made by the Lenders
and outstanding at such time.
"Voting Stock" means capital stock issued by a
corporation, or equivalent interests in any other Person,
the holders of which are ordinarily, in the absence of
contingencies, entitled to vote for the election of
directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by
the happening of such a contingency.
"Withdrawal Liability" has the meaning specified in
Part 1 of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified
date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each mean "to but
excluding".
SECTION 1.03. Accounting Terms. All accounting terms
not specifically defined herein shall be construed in accordance
with GAAP.
SECTION 1.04. Currency Equivalents Generally. For all
purposes of this Agreement except as otherwise specifically
provided herein, the equivalent in any Alternative Currency of an
amount in Dollars shall be determined at the rate of exchange
quoted by Citibank in New York City, at 9:00 A.M. (New York City
time) on the date of determination, to prime banks in New York
City for the spot purchase in the New York foreign exchange
market of such amount of Dollars with such Alternative Currency.
Citibank's determination of each spot rate of exchange pursuant
to this Agreement shall be final and conclusive absent manifest
error.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. (a) The
Revolving Credit Advances. Each Lender severally agrees, on the
terms and conditions hereinafter set forth, to make Revolving
Credit Advances to the Borrower from time to time on any Business
Day during the period from the Effective Date until the earlier
of the Revolver Termination Date and the Term Loan Conversion
Date in an amount for each such Advance not to exceed an amount
equal to such Lender's Unused Revolving Credit Commitment less
such Lender's Pro Rata Share of the Commercial Paper Set-Aside
Amount at such time. Each Revolving Credit Borrowing shall be in
an aggregate amount of $10,000,000 or an integral multiple of
$5,000,000 in excess thereof, and shall consist of Revolving
Credit Advances of the same Type made on the same day by the
Lenders ratably according to their respective Revolving Credit
Commitments. Within the limits of each Lender's Revolving Credit
Commitment, the Borrower may borrow under this Section 2.01,
repay pursuant to Section 2.06(a), prepay pursuant to
Section 2.10 and reborrow under this Section 2.01.
(b) Set-Aside of Commitments to Backstop Commercial
Paper. At any time during which the Borrower has any Commercial
Paper outstanding, a portion of the Unused Revolving Credit
Commitments in an aggregate amount equal to the amount by which
(i) the aggregate face amount of such Commercial Paper
outstanding at such time exceeds (ii) the "Commercial Paper Set-
Aside Amount" in effect under the Five Year Credit Agreement at
such time shall, without further action on the part of any party,
be deemed to be reserved for use as support for the obligations
of the Borrower under such Commercial Paper; provided that the
reservation of Unused Revolving Credit Commitments described in
this Section 2.01(b) shall be increased or decreased accordingly
upon notice from the Borrower to the Paying Agent at any time to
reflect the Borrower's required liquidity reserves for Commercial
Paper. The amount of Revolving Credit Commitments so reserved at
any time pursuant to this Section 2.01(b) is referred to herein
as the "Commercial Paper Set-Aside Amount".
SECTION 2.02. Making the Revolving Credit Advances.
Each Revolving Credit Borrowing shall be made on notice, given
not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Revolving Credit
Borrowing in the case of a Revolving Credit Borrowing consisting
of Eurodollar Rate Advances, or the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Base Rate Advances, by the Borrower to
the Paying Agent, which shall give to each Lender prompt notice
thereof by telecopier or telex. Each such notice of a Revolving
Credit Borrowing (a "Notice of Revolving Credit Borrowing") shall
be by telephone, confirmed immediately in writing, or telecopier
or telex in substantially the form of Exhibit B hereto,
specifying therein the requested (i) date of such Revolving
Credit Borrowing, (ii) Type of Advances comprising such Revolving
Credit Borrowing, (iii) aggregate amount of such Revolving Credit
Borrowing, and (iv) in the case of a Revolving Credit Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period
for each such Revolving Credit Advance. Each Lender shall,
before 1:00 P.M. (New York City time) on the date of such
Revolving Credit Borrowing, make available for the account of its
Applicable Lending Office to the Paying Agent at the Paying
Agent's Account, in same day funds, such Lender's ratable portion
of such Revolving Credit Borrowing. After the Paying Agent's
receipt of such funds and upon fulfillment of the applicable
conditions set forth in Article III, the Paying Agent will make
such funds available to the Borrower at the Paying Agent's
address referred to in Section 8.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate
Advances for any Revolving Credit Borrowing if the aggregate
amount of such Revolving Credit Borrowing is less than
$10,000,000 or if the obligation of the Lenders to make
Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.08 or 2.12 and (ii) the Eurodollar Rate Advances may
not be outstanding as part of more than ten separate Revolving
Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any
Revolving Credit Borrowing that the related Notice of Revolving
Credit Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against any
loss, cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in such Notice
of Revolving Credit Borrowing for such Revolving Credit Borrowing
the applicable conditions set forth in Article III, including,
without limitation, any loss (excluding loss of anticipated
profits), cost or expense incurred by reason of the liquidation
or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of
such Revolving Credit Borrowing when such Advance, as a result of
such failure, is not made on such date.
(d) Unless the Paying Agent shall have received notice
from a Lender prior to the date of any Revolving Credit Borrowing
that such Lender will not make available to the Paying Agent such
Lender's ratable portion of such Revolving Credit Borrowing, the
Paying Agent may assume that such Lender has made such portion
available to the Paying Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the
Paying Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount.
If and to the extent that such Lender shall not have so made such
ratable portion available to the Paying Agent, such Lender and
the Borrower severally agree to repay to the Paying Agent
forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid to
the Paying Agent, at (i) in the case of the Borrower, the
interest rate applicable at the time to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall repay to the Paying Agent such
corresponding amount, such amount so repaid shall constitute such
Lender's Advance as part of such Borrowing for purposes of this
Agreement.
(e) The failure of any Lender to make the Advance to
be made by it as part of any Revolving Credit Borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to
make its Advance on the date of such Borrowing, but no Lender
shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each
Lender severally agrees that the Borrower may make Competitive
Bid Borrowings under this Section 2.03 from time to time on any
Business Day during the period from the date hereof until the
date occurring 30 days prior to the Revolver Termination Date in
the manner set forth below; provided that, (x) such Competitive
Bid Borrowing shall not exceed an amount equal to the amount by
which the aggregate Unused Revolving Credit Commitments of the
Lenders in effect immediately prior to giving effect to such
Competitive Bid Borrowing exceeds the Commercial Paper Set-Aside
Amount at such time and (y) following the making of each
Competitive Bid Borrowing, the aggregate amount of the
Competitive Bid Advances of all Lenders then outstanding shall
not exceed $400,000,000:.
(i) The Borrower may request a Competitive Bid
Borrowing under this Section 2.03 by delivering to the
Paying Agent, by telecopier or telex, a notice of a
Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of such
proposed Competitive Bid Borrowing, (w) aggregate amount of
such proposed Competitive Bid Borrowing, (x) in the case of
a Competitive Bid Borrowing consisting of LIBO Rate
Advances, Interest Period, or in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances, maturity
date for repayment of each Fixed Rate Advance to be made as
part of such Competitive Bid Borrowing (which maturity date
may not be earlier than the date occurring 7 days after the
date of such Competitive Bid Borrowing or later than the
earlier of (I) 180 days after the date of such Competitive
Bid Borrowing and (II) the Revolver Termination Date),
(y) interest payment date or dates relating thereto, and
(z) other terms (if any) to be applicable to such
Competitive Bid Borrowing, not later than 10:00 A.M.
(New York City time) (A) at least one Business Day prior to
the date of the proposed Competitive Bid Borrowing, if the
Borrower shall specify in the Notice of Competitive Bid
Borrowing that the rates of interest to be offered by the
Lenders shall be fixed rates per annum (the Advances
comprising any such Competitive Bid Borrowing being referred
to herein as "Fixed Rate Advances") and (B) at least four
Business Days prior to the date of the proposed Competitive
Bid Borrowing, if the Borrower shall instead specify in the
Notice of Competitive Bid Borrowing that the rates of
interest be offered by the Lenders are to be based on the
LIBO Rate (the Advances comprising such Competitive Bid
Borrowing being referred to herein as "LIBO Rate Advances").
Each Notice of Competitive Bid Borrowing shall be
irrevocable and binding on the Borrower. The Paying Agent
shall in turn promptly notify each Lender of each request
for a Competitive Bid Borrowing received by it from the
Borrower by sending such Lender a copy of the related Notice
of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it
elects to do so, irrevocably offer to make one or more
Competitive Bid Advances to the Borrower as part of such
proposed Competitive Bid Borrowing at a rate or rates of
interest specified by such Lender in its sole discretion, by
notifying the Paying Agent (which shall give prompt notice
thereof to the Borrower), before 10:00 A.M. (New York City
time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing
consisting of Fixed Rate Advances and before 10:00 A.M. (New
York City time) three Business Days before the date of such
proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances,
of the minimum amount and maximum amount of each Competitive
Bid Advance which such Lender would be willing to make as
part of such proposed Competitive Bid Borrowing (which
amounts may, subject to the proviso to the first sentence of
this Section 2.03(a), exceed such Lender's Revolving Credit
Commitment, if any), the rate or rates of interest therefor
and such Lender's Applicable Lending Office with respect to
such Competitive Bid Advance; provided that if the Paying
Agent in its capacity as a Lender shall, in its sole
discretion, elect to make any such offer, it shall notify
the Borrower of such offer before 9:00 A.M. (New York City
time) on the date on which notice of such election is to be
given to the Paying Agent by the other Lenders. If any
Lender shall elect not to make such an offer, such Lender
shall so notify the Paying Agent, before 10:00 A.M.
(New York City time) on the date on which notice of such
election is to be given to the Paying Agent by the other
Lenders, and such Lender shall not be obligated to, and
shall not, make any Competitive Bid Advance as part of such
Competitive Bid Borrowing; provided that the failure by any
Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Bid Advance as part of
such proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before
11:00 A.M. (New York City time) on the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive Bid
Borrowing consisting of Fixed Rate Advances and before
1:00 P.M. (New York City time) three Business Days before
the date of such proposed Competitive Bid Borrowing, in the
case of a Competitive Bid Borrowing consisting of LIBO Rate
Advances, either:
(x) cancel such Competitive Bid Borrowing by
giving the Paying Agent notice to that effect, or
(y) accept one or more of the offers made by any
Lender or Lenders pursuant to paragraph (ii) above, in
its sole discretion, by giving notice to the Paying
Agent of the amount of each Competitive Bid Advance
(which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum
amount, notified to the Borrower by the Paying Agent on
behalf of such Lender for such Competitive Bid Advance
pursuant to paragraph (ii) above) to be made by each
Lender as part of such Competitive Bid Borrowing, and
reject any remaining offers made by Lenders pursuant to
paragraph (ii) above by giving the Paying Agent notice
to that effect. The Borrower shall accept the offers
made by any Lender or Lenders to make Competitive Bid
Advances in order of the lowest to the highest rates of
interest offered by such Lenders. If two or more
Lenders have offered the same interest rate, the amount
to be borrowed at such interest rate will be allocated
among such Lenders in proportion to the amount that
each such Lender offered at such interest rate.
(iv) If the Borrower notifies the Paying Agent that
such Competitive Bid Borrowing is cancelled pursuant to
paragraph (iii)(x) above, the Paying Agent shall give prompt
notice thereof to the Lenders and such Competitive Bid
Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers
made by any Lender or Lenders pursuant to paragraph (iii)(y)
above, the Paying Agent shall in turn promptly notify
(A) each Lender that has made an offer as described in
paragraph (ii) above, of the date and aggregate amount of
such Competitive Bid Borrowing and whether or not any offer
or offers made by such Lender pursuant to paragraph (ii)
above have been accepted by the Borrower, (B) each Lender
that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each Competitive
Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing, and (C) each Lender that is to
make a Competitive Bid Advance as part of such Competitive
Bid Borrowing, upon receipt, that the Paying Agent has
received forms of documents appearing to fulfill the
applicable conditions set forth in Article III. Each Lender
that is to make a Competitive Bid Advance as part of such
Competitive Bid Borrowing shall, before 12:00 noon (New York
City time) on the date of such Competitive Bid Borrowing
specified in the notice received from the Paying Agent
pursuant to clause (A) of the preceding sentence or any
later time when such Lender shall have received notice from
the Paying Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable
Lending Office to the Paying Agent at the Paying Agent's
Account, in same day funds, such Lender's portion of such
Competitive Bid Borrowing. Upon fulfillment of the
applicable conditions set forth in Article III and after
receipt by the Paying Agent of such funds, the Paying Agent
will make such funds available to the Borrower at the Paying
Agent's address referred to in Section 8.02. Promptly after
each Competitive Bid Borrowing the Paying Agent will notify
each Lender of the amount and maturity of the Competitive
Bid Borrowing and the aggregate amount of the Competitive
Bid Advances outstanding immediately after giving effect to
such Competitive Bid Borrowing.
(vi) If the Borrower notifies the Paying Agent that it
accepts one or more of the offers made by any Lender or
Lenders pursuant to paragraph (iii)(y) above, such notice of
acceptance shall be irrevocable and binding on the Borrower.
The Borrower shall indemnify each Lender against any loss,
cost or expense incurred by such Lender as a result of any
failure to fulfill on or before the date specified in the
related Notice of Competitive Bid Borrowing for such
Competitive Bid Borrowing the applicable conditions set
forth in Article III, including, without limitation, any
loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such
Lender to fund the Competitive Bid Advance to be made by
such Lender as part of such Competitive Bid Borrowing when
such Competitive Bid Advance, as a result of such failure,
is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an
aggregate amount of $25,000,000 or an integral multiple of
$1,000,000 in excess thereof and, following the making of each
Competitive Bid Borrowing, the Borrower and each Lender shall be
in compliance with the limitations set forth in the proviso to
the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth
in this Section 2.03, the Borrower may from time to time borrow
under this Section 2.03, repay or prepay pursuant to
subsection (d) below, and reborrow under this Section 2.03,
provided that a Competitive Bid Borrowing shall not be made
within two Business Days of the date of any other Competitive Bid
Borrowing.
(d) The Borrower shall repay to the Paying Agent for
the account of each Lender that has made a Competitive Bid
Advance, on the maturity date of each Competitive Bid Advance
(such maturity date being that specified by the Borrower for
repayment of such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and provided in the Competitive Bid Note
evidencing such Competitive Bid Advance), the then unpaid
principal amount of such Competitive Bid Advance. The Borrower
shall have no right to prepay any principal amount of any
Competitive Bid Advance unless, and then only on the terms,
agreed by the Lender of such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid
principal amount of each Competitive Bid Advance from the date of
such Competitive Bid Advance to the date the principal amount of
such Competitive Bid Advance is repaid in full, at the rate of
interest for such Competitive Bid Advance specified by the Lender
making such Competitive Bid Advance in its notice with respect
thereto delivered pursuant to subsection (a)(ii) above, payable
on the interest payment date or dates specified by the Borrower
for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i)
above, as provided in the Competitive Bid Note evidencing such
Competitive Bid Advance. Upon the occurrence and during the
continuance of an Event of Default, the Borrower shall pay
interest on the amount of unpaid principal of and interest on
each Competitive Bid Advance owing to a Lender, payable in
arrears on the date or dates interest is payable thereon, at a
rate per annum equal at all times to 2% per annum above the rate
per annum required to be paid on such Competitive Bid Advance
under the terms of the Competitive Bid Note evidencing such
Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from
each Competitive Bid Advance made to the Borrower as part of a
Competitive Bid Borrowing shall, upon the request of the Lender
making such Competitive Bid Advance, be evidenced by a separate
Competitive Bid Note of the Borrower payable to the order of the
Lender making such Competitive Bid Advance, which Competitive Bid
Note shall be delivered by the Borrower to the Paying Agent
promptly following the making of such Competitive Bid Advance in
a principal amount equal to the principal amount of such
Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid
Borrowing, the Borrower shall pay a non-refundable fee of $2,000
to the Paying Agent for its own account.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower
agrees to pay to the Paying Agent for the account of each Lender
(other than the Designated Bidders) a facility fee on the
aggregate amount of such Lender's Revolving Credit Commitment
from the date hereof in the case of each Initial Lender and from
the effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each other
Lender until the earlier of the Revolver Termination Date and the
Term Loan Conversion Date at a rate per annum equal to the
Facility Fee Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June, September
and December, commencing September 30, 2001, and on the Revolver
Termination Date or the Term Loan Conversion Date, as the case
may be; provided, however, that any facility fee accrued with
respect to the Revolving Credit Commitment of a Defaulting Lender
during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by
the Borrower so long as such Lender shall be a Defaulting Lender
except to the extent that such facility fee shall otherwise have
been due and payable by the Borrower prior to such time; and
provided further that no facility fee shall accrue on the
Revolving Credit Commitment of a Defaulting Lender so long as
such Lender shall be a Defaulting Lender.
(b) Paying Agent's Fees. The Borrower shall pay to
the Paying Agent for its own account such fees as may from time
to time be agreed between the Borrower and the Paying Agent.
SECTION 2.05. Termination or Reduction of the
Commitments. (a) If the Borrower has not made the Term Loan
Election on or prior to the Revolver Termination Date, the
Commitments shall be automatically terminated on the Revolver
Termination Date. If the Borrower has made the Term Loan
Election in accordance with Section 2.06, on the Term Loan
Conversion Date and from time to time thereafter upon each
prepayment of the Revolving Credit Advances, the aggregate
Commitments of the Lenders shall be automatically and permanently
reduced on a pro rata basis by an amount equal to the aggregate
Unused Revolving Credit Commitment in effect immediately prior to
such reduction.
(b) The Borrower shall have the right, upon at least
three Business Days' notice to the Paying Agent, to terminate in
whole or reduce ratably in part the Unused Revolving Credit
Commitments, provided that each partial reduction shall be in the
aggregate amount of $25,000,000 or an integral multiple of
$10,000,000 in excess thereof.
SECTION 2.06. Repayment of Revolving Credit Advances;
Term Loan Election. Subject to the next succeeding sentence, the
Borrower shall repay to the Paying Agent for the ratable account
of the Lenders on the Revolver Termination Date the aggregate
principal amount of the Revolving Credit Advances then
outstanding. The Borrower may, so long as at the time of the
giving of notice (and the giving of such notice shall constitute
a representation and warranty by the Borrower that on such date
such statements are true) and on the Term Loan Conversion Date
(i) no Default has occurred and is continuing and (ii) the
representations and warranties contained in Section 4.01 are
correct on and as of such date, before and after giving effect to
such conversion, as though made on and as of such date (other
than any such representations or warranties that, by their terms,
refer to a specific date other than the date of such conversion,
in which case as of such specific date) at any time prior to the
Revolver Termination Date and upon not less than 15 days' notice
to the Paying Agent, elect (the "Term Loan Election") to convert
all of the Revolving Credit Advances outstanding on the date
specified in such notice (the "Term Loan Conversion Date") into a
term loan which the Borrower shall repay in full to the Paying
Agent for the ratable account of the Lenders on the Maturity
Date.
SECTION 2.07. Interest on Revolving Credit Advances.
(a) Scheduled Interest. The Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Advance owing to
each Lender from the date of such Advance until such principal
amount shall be paid in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such
Advance is a Base Rate Advance, a rate per annum equal at
all times to the sum of (x) the Base Rate in effect from
time to time plus (y) the Applicable Margin in effect from
time to time plus (z) the Applicable Utilization Fee, if
any, in effect from time to time, payable in arrears
quarterly on the last day of each March, June, September and
December during such periods and on the date such Base Rate
Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as
such Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such
Advance to the sum of (x) the Eurodollar Rate for such
Interest Period for such Advance plus (y) the Applicable
Margin in effect from time to time plus (z) the Applicable
Utilization Fee, if any, in effect from time to time,
payable in arrears on the last day of such Interest Period
and, if such Interest Period has a duration of more than
three months, on each day that occurs during such Interest
Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance
shall be Converted or paid in full.
(b) Default Interest. Upon the occurrence and during
the continuance of an Event of Default, the Borrower shall pay
interest on (i) the unpaid principal amount of each Revolving
Credit Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above, at a rate
per annum equal at all times to 2% per annum above the rate per
annum required to be paid on such Advance pursuant to
clause (a)(i) or (a)(ii) above and (ii) to the fullest extent
permitted by law, the amount of any interest, fee or other amount
payable hereunder that is not paid when due, from the date such
amount shall be due until such amount shall be paid in full,
payable in arrears on the date such amount shall be paid in full
and on demand, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on Base Rate
Advances pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a) Each
Reference Bank agrees to furnish to the Paying Agent timely
information for the purpose of determining each Eurodollar Rate
and each LIBO Rate when necessary. If any one or more of the
Reference Banks shall not furnish such timely information to the
Paying Agent for the purpose of determining any such interest
rate, the Paying Agent shall determine such interest rate on the
basis of timely information furnished by the remaining Reference
Banks. The Paying Agent shall give prompt notice to the Borrower
and the Lenders of the applicable interest rate determined by the
Paying Agent for purposes of Section 2.07(a)(i) or (ii), and the
rate, if any, furnished by each Reference Bank for the purpose of
determining the interest rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances,
the Required Lenders notify the Paying Agent that the Eurodollar
Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Required Lenders of making,
funding or maintaining their respective Eurodollar Rate Advances
for such Interest Period, the Paying Agent shall forthwith so
notify the Borrower and the Lenders, whereupon (i) each
Eurodollar Rate Advance will automatically, on the last day of
the then existing Interest Period therefor, Convert into a Base
Rate Advance, and (ii) the obligation of the Lenders to make, or
to Convert Revolving Credit Advances into, Eurodollar Rate
Advances shall be suspended until the Paying Agent shall notify
the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
(c) If the Borrower shall fail to select the duration
of any Interest Period for any Eurodollar Rate Advances in
accordance with the provisions contained in the definition of
"Interest Period" in Section 1.01, the Paying Agent will
forthwith so notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing
Interest Period therefor, Convert into Base Rate Advances.
(d) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any
Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $10,000,000, such Advances shall
automatically Convert into Base Rate Advances.
(e) Upon the occurrence and during the continuance of
any Event of Default, (i) each Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into,
Eurodollar Rate Advances shall be suspended for the duration of
such Event of Default.
(f) During such time as the Eurodollar Rate or the
LIBO Rate, as the case may be, is determined by clause (a)(ii) of
the definition thereof, respectively, if neither Reference Bank
furnishes timely information to the Paying Agent for determining
the Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances
or LIBO Rate Advances, as the case may be,
(i) the Paying Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot be
determined for such Eurodollar Rate Advances or LIBO Rate
Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each
such Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate
Advance (or if such Advance is then a Base Rate Advance,
will continue as a Base Rate Advance) until the Paying Agent
shall notify the Borrower and the Lenders that the
circumstances causing the suspension of Eurodollar Rate
Advances or LIBO Rate Advances no longer exist, and
(iii) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances or to Convert
Advances into Eurodollar Rate Advances shall be suspended
until the Paying Agent shall notify the Borrower and the
Lenders that the circumstances causing such suspension no
longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. The Borrower may, upon notice given to the Paying
Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Conversion and
subject to the provisions of Sections 2.08 and 2.12, on any
Business Day Convert all Revolving Credit Advances of one Type
comprising the same Borrowing into Revolving Credit Advances of
the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(b) and no Conversion of
any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(b).
Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion,
(ii) the Revolving Credit Advances to be Converted, and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of
the initial Interest Period for each such Advance. Each notice
of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.10. Optional Prepayments of Revolving Credit
Advances. The Borrower may, upon at least three Business Days'
notice in the case of Eurodollar Rate Advances and same day
notice in the case of Base Rate Advances, in each case to the
Paying Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amount of the
Revolving Credit Advances comprising part of the same Borrowing
in whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be in
an aggregate principal amount of $10,000,000 or an integral
multiple of $1,000,000 in excess thereof and (y) in the event of
any such prepayment of a Eurodollar Rate Advance, the Borrower
shall be obligated to reimburse the Lenders in respect thereof
pursuant to Section 8.04(c).
SECTION 2.11. Increased Costs. (a) If, due to either
(i) the introduction of or any change in or in the interpretation
of any law or regulation or (ii) the compliance 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 any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or LIBO
Rate Advances (excluding for purposes of this Section 2.11 any
such increased costs resulting from (i) Taxes or Other Taxes (as
to which Section 2.14 shall govern) and (ii) changes in the basis
of taxation of overall net income or overall gross income by the
United States or by the foreign jurisdiction or state under the
laws of which such Lender is organized or has its Applicable
Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Paying Agent), pay to the
Paying Agent for the account of such Lender additional amounts
sufficient to compensate such Lender for such increased cost;
provided, however, that a Lender claiming additional amounts
under this Section 2.11(a) agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office
if the making of such a designation would avoid the need for, or
reduce the amount of, such increased cost that may thereafter
accrue and would not, in the reasonable judgment of such Lender,
be otherwise disadvantageous to such Lender. A certificate as to
the amount of such increased cost, submitted to the Borrower by
such Lender, shall be conclusive and binding for all purposes,
absent manifest error. If the Borrower so notifies the Paying
Agent within ten Business Days after any Lender notifies the
Borrower of any increased cost pursuant to the foregoing
provisions of this Section 2.11(a), the Borrower may, upon
payment of such increased cost to such Lender, replace such
Lender with a Person that is an Eligible Assignee in accordance
with the terms of Section 8.07 (and the Lender being so replaced
shall take all action as may be necessary to assign its rights
and obligations under this Agreement to such Eligible Assignee).
(b) If any Lender determines that compliance with any
law or regulation or any guideline or request from any central
bank or other governmental authority (whether or not having the
force of law) affects or would affect the amount of capital
required or expected to be maintained by such Lender or any
corporation controlling such Lender and that the amount of such
capital is increased by or based upon the existence of such
Lender's commitment to lend hereunder and other commitments of
such type, then, upon demand by such Lender (with a copy of such
demand to the Paying Agent), the Borrower shall pay to the Paying
Agent for the account of such Lender, from time to time as
specified by such Lender, additional amounts sufficient to
compensate such Lender or such corporation in the light of such
circumstances, to the extent that such Lender reasonably
determines such increase in capital to be allocable to the
existence of such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to the Borrower and the
Paying Agent by such Lender shall be conclusive and binding for
all purposes, absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the
Paying Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate
Advances or LIBO Rate Advances or to fund or maintain Eurodollar
Rate Advances or LIBO Rate Advances hereunder, (i) each
Eurodollar Rate Advance or LIBO Rate Advance, as the case may be,
will automatically, upon such demand, Convert into a Base Rate
Advance or an Advance that bears interest at the rate set forth
in Section 2.07(a)(i), as the case may be, and (ii) the
obligation of the Lenders to make Eurodollar Rate Advances or
LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurodollar Rate Advances shall be suspended until the Paying
Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The
Borrower shall make each payment hereunder and under the Notes
not later than 1:00 P.M. (New York City time) on the day when due
in U.S. dollars to the Paying Agent at the Paying Agent's Account
in same day funds. The Paying Agent will promptly thereafter
cause to be distributed like funds relating to the payment of
principal or interest or facility fees ratably (other than
amounts payable pursuant to Section 2.04(b), 2.11, 2.14, 8.04(c))
to the Lenders for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any
other amount payable to any Lender to such Lender for the account
of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any Assuming
Lender becoming a Lender hereunder as a result of an extension of
the Revolver Termination Date pursuant to Section 2.16, and upon
the Paying Agent's receipt of such Lender's Assumption Agreement
and recording of the information contained therein in the
Register, from and after the applicable Extension Date, the
Paying Agent shall make all payments hereunder and under any
Notes issued in connection therewith in respect of the interest
assumed thereby to the Assuming Lender. Upon its acceptance of
an Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to Section 8.07(e),
from and after the effective date specified in such Assignment
and Acceptance, the Paying Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned
thereby to the Lender assignee thereunder, and the parties to
such Assignment and Acceptance shall make all appropriate
adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and
to the extent payment owed to such Lender is not made when due
hereunder or under the Note held by such Lender, to charge from
time to time against any or all of the Borrower's accounts with
such Lender any amount so due.
(c) All computations of interest and fees shall be
made by the Paying Agent on the basis of a year of 360 days, in
each case for the actual number of days (including the first day
but excluding the last day) occurring in the period for which
such interest or fees are payable. Each determination by the
Paying Agent of an interest rate, facility fee or commission
hereunder shall be conclusive and binding for all purposes,
absent manifest error.
(d) Whenever any payment hereunder or under the Notes
shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next succeeding Business Day,
and such extension of time shall in such case be included in the
computation of payment of interest or facility fee, as the case
may be; provided, however, that, if such extension would cause
payment of interest on or principal of Eurodollar Rate Advances
or LIBO Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business
Day.
(e) Unless the Paying Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Lenders hereunder that the Borrower will not make such
payment in full, the Paying Agent may assume that the Borrower
has made such payment in full to the Paying Agent on such date
and the Paying Agent may, in reliance upon such assumption, cause
to be distributed to each Lender on such due date an amount equal
to the amount then due such Lender. If and to the extent the
Borrower shall not have so made such payment in full to the
Paying Agent, each Lender shall repay to the Paying Agent
forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender
repays such amount to the Paying Agent, at the Federal Funds
Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in
accordance with Section 2.13, free and clear of and without
deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender and
any Agent, taxes imposed on its overall net income, and franchise
taxes imposed on it in lieu of net income taxes, by the
jurisdiction under the laws of which such Lender or such Agent
(as the case may be) is organized or any political subdivision
thereof and, in the case of each Lender, taxes imposed on its
overall net income, and franchise taxes imposed on it in lieu of
net income taxes, by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or
under the Notes being hereinafter referred to as "Taxes"). If
the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under any Note to any
Lender or any Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions
(including deductions applicable to additional sums payable under
this Section 2.14) such Lender or such Agent (as the case may be)
receives an amount equal to the sum it would have received had no
such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
hereunder or under the Notes or from the execution, delivery or
registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender and each
Agent for and hold it harmless against the full amount of Taxes
or Other Taxes (including, without limitation, taxes of any kind
imposed by any jurisdiction on amounts payable under this
Section 2.14) imposed on or paid by such Lender or such Agent (as
the case may be) and any liability (including penalties, interest
and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such
Lender or such Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Paying Agent, at its
address referred to in Section 8.02, the original or a certified
copy of a receipt evidencing such payment. In the case of any
payment hereunder or under the Notes by or on behalf of the
Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a
United States person, if the Borrower determines that no Taxes
are payable in respect thereof, the Borrower shall furnish, or
shall cause such payor to furnish, to the Paying Agent, at such
address, an opinion of counsel acceptable to the Paying Agent
stating that such payment is exempt from Taxes. For purposes of
this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Initial Lender and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of
each other Lender, and from time to time thereafter as requested
in writing by the Borrower (but only so long as such Lender
remains lawfully able to do so), shall provide each of the Paying
Agent and the Borrower with two original Internal Revenue Service
forms W-8ECI or W-8BEN, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, certifying that
such Lender is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this
Agreement or the Notes. If the form provided by a Lender at the
time such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in excess
of zero, withholding tax at such rate shall be considered
excluded from Taxes unless and until such Lender provides the
appropriate forms certifying that a lesser rate applies,
whereupon withholding tax at such lesser rate only shall be
considered excluded from Taxes for periods governed by such form;
provided, however, that, if at the date of the Assignment and
Acceptance pursuant to which a Lender assignee becomes a party to
this Agreement, the Lender assignor was entitled to payments
under subsection (a) in respect of United States withholding tax
with respect to interest paid at such date, then, to such extent,
the term Taxes shall include (in addition to withholding taxes
that may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date. If
any form or document referred to in this subsection (e) requires
the disclosure of information, other than information necessary
to compute the tax payable and information required on the date
hereof by Internal Revenue Service form W-8ECI or W-8BEN, that
the Lender reasonably considers to be confidential, the Lender
shall give notice thereof to the Borrower and shall not be
obligated to include in such form or document such confidential
information.
(f) For any period with respect to which a Lender has
failed to provide the Borrower with the appropriate form
described in Section 2.14(e) (other than if such failure is due
to a change in law occurring subsequent to the date on which a
form originally was required to be provided, or if such form
otherwise is not required under subsection (e) above), such
Lender shall not be entitled to indemnification under
Section 2.14(a) or (c) with respect to Taxes imposed by the
United States by reason of such failure; provided, however, that
should a Lender become subject to Taxes because of its failure to
deliver a form required hereunder, the Borrower shall take such
steps as the Lender shall reasonably request to assist the Lender
to recover such Taxes.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 agrees to use reasonable efforts
(consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Eurodollar
Lending Office if the making of such a change would avoid the
need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such
Lender.
SECTION 2.15. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of
the Advances owing to it (other than pursuant to Section 2.04(b),
2.11, 2.14 or 8.04) in excess of its ratable share of payments on
account of the Revolving Credit Advances obtained by all the
Lenders, such Lender shall forthwith purchase from the other
Lenders such participations in the Revolving Credit Advances
owing to them as shall be necessary to cause such purchasing
Lender to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender, such
purchase from each Lender shall be rescinded and such Lender
shall repay to the purchasing Lender the purchase price to the
extent of such recovery together with an amount equal to such
Lender's ratable share (according to the proportion of (i) the
amount of such Lender's required repayment to (ii) the total
amount so recovered from the purchasing Lender) of any interest
or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees
that any Lender so purchasing a participation from another Lender
pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
SECTION 2.16. Extension of Termination Date. (a) At
least 40 days but not more than 60 days prior to the Revolver
Termination Date in effect at any time, the Borrower, by written
notice to the Paying Agent, may request an extension of the
Revolver Termination Date in effect at such time for a period of
364 days from its then scheduled expiration; provided, however,
that the Borrower shall not have made the Term Loan Election
prior to the then scheduled Revolver Termination Date. The
Paying Agent shall promptly notify each Lender of such request,
and each Lender shall in turn, in its sole discretion, not
earlier than 30 days but at least 25 days prior to such Revolver
Termination Date, notify the Borrower and the Paying Agent in
writing as to whether such Lender will consent to such extension.
If any Lender shall fail to notify the Paying Agent and the
Borrower in writing of its consent to any such request for
extension of the Revolver Termination Date at least 25 days prior
to the scheduled occurrence thereof at such time, such Lender
shall be deemed to be a Non-Consenting Lender with respect to
such request. The Paying Agent shall notify the Borrower not
later than 20 days prior to the scheduled Revolver Termination
Date in effect at such time of the decision of the Lenders
regarding the Borrower's request for an extension of the Revolver
Termination Date.
(b) If all of the Lenders consent in writing to any
such request in accordance with subsection (a) of this Section
2.16, the Revolver Termination Date shall, effective as at the
Revolver Termination Date otherwise in effect at such time (the
"Extension Date"), be extended for a period of 364 days from such
Extension Date; provided that on each Extension Date, no Default
shall have occurred and be continuing, or shall occur as a
consequence thereof and the giving of a request for extension
shall constitute a representation and warranty by the Borrower
that the representations and warranties contained in Section 4.01
are correct in all material respects on and as of the date of
such notice and on such Extension Date, as though made on and as
of such dates. If Lenders holding at least a majority in
interest of the aggregate Commitments at such time consent in
writing to any such request in accordance with subsection (a) of
this Section 2.16, the Revolver Termination Date in effect at
such time shall, effective as at the applicable Extension Date,
be extended as to those Lenders that so consented (each a
"Consenting Lender") but shall not be extended as to any other
Lender (each a "Non-Consenting Lender"). To the extent that the
Revolver Termination Date is not extended as to any Lender
pursuant to this Section 2.16 and the Commitment of such Lender
is not assumed in accordance with subsection (c) of this Section
2.16 on or prior to the applicable Extension Date, the Commitment
of such Non-Consenting Lender shall automatically terminate in
whole on such unextended Revolver Termination Date without any
further notice or other action by the Borrower (other than
payment in full of all principal, interest, fees and other
amounts then owing to such Non-Consenting Lender on such
unextended Revolver Termination Date), such Lender or any other
Person; provided that such Non-Consenting Lender's rights under
Sections 2.12, 2.13 and 8.04, and its obligations under Section
7.05, shall survive the Revolver Termination Date for such Lender
as to matters occurring prior to such date. It is understood and
agreed that no Lender shall have any obligation whatsoever to
agree to any request made by the Borrower for any requested
extension of the Revolver Termination Date.
(c) If Lenders holding at least a majority in interest
of the aggregate Commitments at any time consent to any such
request pursuant to subsection (a) of this Section 2.16, the
Borrower may arrange for one or more Consenting Lenders or other
Eligible Assignees (each such Consenting Lender or Eligible
Assignee that accepts an offer to assume a Non-Consenting
Lender's Commitment as of the applicable Extension Date being an
"Assuming Lender") to assume, effective as of the Extension Date,
any Non-Consenting Lender's Commitment and all of the obligations
of such Non-Consenting Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to, such
Non-Consenting Lender; provided, however, that the amount of the
Commitment of any such Assuming Lender as a result of such
substitution shall in no event be less than $10,000,000 unless
the amount of the Commitment of such Non-Consenting Lender is
less than $10,000,000, in which case such Assuming Lender shall
assume all of such lesser amount; and provided further that:
(i) any such Consenting Lender or Assuming Lender
shall have paid to such Non-Consenting Lender (A) the
aggregate principal amount of, and any interest accrued and
unpaid to the effective date of the assignment on, the
outstanding Revolving Credit Advances, if any, of such Non-
Consenting Lender plus (B) any accrued but unpaid facility
fees or utilization fees owing to such Non-Consenting Lender
as of the effective date of such assignment;
(ii) all additional costs, reimbursements, expense
reimbursements and indemnities payable to such Non-
Consenting Lender, and all other accrued and unpaid amounts
owing to such Non-Consenting Lender hereunder, as of the
effective date of such assignment shall have been paid to
such Non-Consenting Lender; and
(iii) with respect to any such Assuming Lender, the
applicable processing and recordation fee required under
Section 8.07(a) for such assignment shall have been paid;
provided further that such Non-Consenting Lender's rights under
Sections 2.11, 2.14 and 8.03, and its obligations under Section
7.05, shall survive such substitution as to matters occurring
prior to the date of substitution. At least three Business Days
prior to any Extension Date, (A) each such Assuming Lender, if
any, shall have delivered to the Borrower and the Paying Agent an
assumption agreement, in form and substance satisfactory to the
Borrower and the Paying Agent (an "Assumption Agreement"), duly
executed by such Assuming Lender, such Non-Consenting Lender, the
Borrower and the Paying Agent, (B) any such Consenting Lender
shall have delivered confirmation in writing satisfactory to the
Borrower and the Paying Agent as to the increase in the amount of
its Commitment and (C) each Non-Consenting Lender being replaced
pursuant to this Section 2.16 shall have delivered to the Paying
Agent any Note or Notes held by such Non-Consenting Lender. Upon
the payment or prepayment of all amounts referred to in clauses
(i), (ii) and (iii) of the immediately preceding sentence, each
such Assuming Lender, as of the Extension Date, will be
substituted for such Non-Consenting Lender under this Agreement
and shall be a Lender for all purposes of this Agreement, without
any further acknowledgment by or the consent of the other
Lenders, and the obligations of each such Non-Consenting Lender
hereunder shall, by the provisions hereof, be released and
discharged.
(d) If Lenders holding a majority in interest of the
aggregate Commitments (after giving effect to any assumptions
pursuant to subsection (c) of this Section 2.16) consent in
writing to a requested extension (whether by execution or
delivery of an Assumption Agreement or otherwise) not later than
one Business Day prior to such Extension Date, the Paying Agent
shall so notify the Borrower, and, so long as no Default shall
have occurred and be continuing as of such Extension Date, or
shall occur as a consequence thereof, the Revolver Termination
Date then in effect with respect to the Commitments of such
Consenting Lenders and Assuming Lenders shall be extended for the
364-day period described in subsection (a) of this Section 2.16,
and all references in this Agreement, and in the Notes, if any,
to the "Revolver Termination Date" shall, with respect to each
Consenting Lender and each Assuming Lender for such Extension
Date, refer to the Revolver Termination Date as so extended,
provided, however, that after giving effect to such extension the
aggregate Commitments of the Consenting Lenders are greater than
or equal to $200,000,001. Promptly following each Extension
Date, the Paying Agent shall notify the Lenders (including,
without limitation, each Assuming Lender) of the extension of the
scheduled Revolver Termination Date in effect immediately prior
thereto and shall thereupon record in the Register the relevant
information with respect to each such Consenting Lender and each
such Assuming Lender.
SECTION 2.17. Use of Proceeds. The proceeds of the
Advances shall be available (and the Borrower agrees that it
shall use such proceeds) solely for general corporate purposes of
the Borrower and its Subsidiaries.
SECTION 2.18. Defaulting Lenders. (a) If at any one
time, (i) any Lender shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrower
and (iii) the Borrower shall be required to make any payment
hereunder or under any other Loan Document to or for the account
of such Defaulting Lender, then the Borrower may, so long as no
Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law: (x) replace such
Lender with a Person that is an Eligible Assignee in accordance
with the terms of Section 8.07 (and the Lender being so replaced
shall take all action as may be necessary to assign its rights
and obligations under this Agreement to such Eligible Assignee)
and (y) set off and otherwise apply the Obligation of the
Borrower to make such payment to or for the account of such
Defaulting Lender against the obligation of such Defaulting
Lender to make such Defaulted Advance. If on any date the
Borrower shall so set off and otherwise apply its Obligation to
make any such payment against the obligation of such Defaulting
Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by the Borrower
shall constitute for all purposes of this Agreement and the other
Loan Documents an Advance by such Defaulting Lender made on such
date under the Facility pursuant to which such Defaulted Advance
was originally required to have been made pursuant to
Section 2.01. Such Advance shall be a Base Rate Advance and
shall be considered, for all purposes of this Agreement, to
comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising
such Borrowing shall be Eurodollar Rate Advances on the date such
Advance is deemed to be made pursuant to this subsection (a).
The Borrower shall notify the Paying Agent at any time the
Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of
the Defaulting Lender and the Defaulted Advance required to be
made by such Defaulting Lender and (B) the amount set off and
otherwise applied in respect of such Defaulted Advance pursuant
to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such
Defaulting Lender that is paid by the Borrower, after giving
effect to the amount set off and otherwise applied by the
Borrower pursuant to this subsection (a), shall be applied by the
Paying Agent as specified in subsection (b) or (c) of this
Section 2.18.
(b) If at any one time (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Amount to the Paying Agent or any of the other Lenders
and (iii) the Borrower shall make any payment hereunder or under
any other Loan Document to the Paying Agent for the account of
such Defaulting Lender, then the Paying Agent may, on its behalf
or on behalf of such other Lenders and to the fullest extent
permitted by applicable law, apply at such time the amount so
paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. If the Paying Agent shall
so apply any such amount to the payment of any such Defaulted
Amount on any date, the amount so applied by the Paying Agent
shall constitute for all purposes of this Agreement and the other
Loan Documents payment, to such extent, of such Defaulted Amount
on such date. Any such amount so applied by the Paying Agent
shall be retained by the Paying Agent or distributed by the
Paying Agent to such other Lenders, ratably in accordance with
the respective portions of such Defaulted Amounts payable at such
time to the Paying Agent and such other Lenders and, if the
amount of such payment made by the Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to
the Paying Agent and the other Lenders, in the following order of
priority:
(i) first, to the Paying Agent for any Defaulted
Amount then owing to the Paying Agent; and
(ii) second, to any other Lenders for any Defaulted
Amounts then owing to such other Lenders, ratably in
accordance with such respective Defaulted Amounts then owing
to such other Lenders.
Any portion of such amount paid by the Borrower for the account
of such Defaulting Lender remaining after giving effect to the
amount applied by the Paying Agent pursuant to this
subsection (b) shall be applied by the Paying Agent as specified
in subsection (c) of this Section 2.18.
(c) If at any one time (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower,
the Paying Agent or any other Lender shall be required to pay or
distribute any amount hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the
Borrower or such other Lender shall pay such amount to the Paying
Agent to be held by the Paying Agent, to the fullest extent
permitted by applicable law, in escrow or the Paying Agent shall,
to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Paying
Agent in escrow under this subsection (c) shall be deposited by
the Paying Agent in an account with Citibank, in the name and
under the control of the Paying Agent, but subject to the
provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to
the credit balance of such account from time to time, shall be
Citibank's standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from
time to time shall be held by the Paying Agent in escrow under,
and applied by the Paying Agent from time to time in accordance
with the provisions of, this subsection (c). The Paying Agent
shall, to the fullest extent permitted by applicable law, apply
all funds so held in escrow from time to time to the extent
necessary to make any Advances required to be made by such
Defaulting Lender and to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to
the Paying Agent or any other Lender, as and when such Advances
or amounts are required to be made or paid and, if the amount so
held in escrow shall at any time be insufficient to make and pay
all such Advances and amounts required to be made or paid at such
time, in the following order of priority:
(i) first, to the Paying Agent for any amount then due
and payable by such Defaulting Lender to the Paying Agent
hereunder;
(ii) second, to any other Lenders for any amount then
due and payable by such Defaulting Lender to such other
Lenders hereunder, ratably in accordance with such
respective amounts then due and payable to such other
Lenders; and
(iii) third, to the Borrower for any Advance then
required to be made by such Defaulting Lender pursuant to a
Commitment of such Defaulting Lender.
In the event that such Defaulting Lender shall, at any time,
cease to be a Defaulting Lender, any funds held by the Paying
Agent in escrow at such time with respect to such Defaulting
Lender shall be distributed by the Paying Agent to such
Defaulting Lender and applied by such Defaulting Lender to the
Obligations owing to such Lender at such time under this
Agreement and the other Loan Documents ratably in accordance with
the respective amounts of such Obligations outstanding at such
time.
(d) The rights and remedies against a Defaulting
Lender under this Section 2.18 are in addition to other rights
and remedies that the Borrower may have against such Defaulting
Lender with respect to any Defaulted Advance and that the Paying
Agent or any Lender may have against such Defaulting Lender with
respect to any Defaulted Amount.
SECTION 2.19. Evidence of Debt. (a) Each Lender
shall maintain in accordance with its usual practice an account
or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Advance owing to such Lender from time
to time, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender to the Borrower
(with a copy of such notice to the Paying Agent) to the effect
that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the
Advances owing to, or to be made by, such Lender, the Borrower
shall promptly execute and deliver to such Lender a Note, payable
to the order of such Lender in a principal amount equal to the
Commitment of such Lender.
(b) The Register maintained by the Paying Agent
pursuant to Section 8.07 shall include a control account, and a
subsidiary account for each Lender, in which accounts (taken
together) shall be recorded (i) the date and amount of each
Borrowing made hereunder, the type of Advances comprising such
Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any
principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder, and (iv) the
amount of any sum received by the Paying Agent from the Borrower
hereunder and each Lender's share thereof.
(c) Notwithstanding anything to the contrary contained
in this Agreement, entries made in good faith by the Paying Agent
in the Register pursuant to subsection (b) above, and by each
Lender in its account or accounts pursuant to subsection (a)
above, shall be prima facie evidence of the amount of principal
and interest due and payable or to become due and payable from
the Borrower to, in the case of the Register, each Lender and, in
the case of such account or accounts, such Lender, under this
Agreement, absent manifest error; provided, however, that the
failure of the Paying Agent or such Lender to make an entry, or
any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement.
(d) References herein to Notes shall mean and be
references to Revolving Credit Notes to the extent issued
hereunder.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Sections 2.01 and 2.03. Sections 2.01 and 2.03 of this Agreement
shall become effective on and as of the first date (the
"Effective Date") on which the following conditions precedent
have been satisfied:
(a) There shall have occurred no Material Adverse
Change since February 3, 2001. Nothing shall have come to
the attention of the Lenders during the course of their due
diligence investigation to lead them to believe that the
Information Memorandum was or has become misleading,
incorrect or incomplete in any material respect. Without
limiting the generality of the foregoing, the Lenders shall
have been given such access to the management, records,
books of account, contracts and properties of the Borrower
and its Subsidiaries as they shall have reasonably
requested.
(b) There shall exist no action, suit, investigation,
litigation or proceeding affecting the Borrower or any of
its Subsidiaries pending or threatened before any court,
governmental agency or arbitrator that (i) would be
reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(c) All amounts owing under the Existing Credit
Agreements shall have been paid in full in cash (or
otherwise satisfied in accordance with the terms of the Five
Year Credit Agreement) and all Commitments (as defined in
the Existing Credit Agreements) shall have been terminated.
(d) All governmental and third party consents and
approvals necessary in connection with the transactions
contemplated hereby shall have been obtained (without the
imposition of any conditions that are not acceptable to the
Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of
the Lenders that restrains, prevents or imposes materially
adverse conditions upon the transactions contemplated
hereby.
(e) The Borrower shall have paid all accrued fees and
expenses of the Agents (including the reasonable accrued
fees and expenses of counsel to the Agents) and all accrued
fees of the Lenders.
(f) On the Effective Date, the following statements
shall be true and the Paying Agent shall have received for
the account of each Lender a certificate signed by a duly
authorized officer of the Borrower, dated the Effective
Date, stating that:
(i) The representations and warranties contained
in Section 4.01 are correct on and as of the Effective
Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(g) The Paying Agent shall have received on or before
the Effective Date the following, each dated such day, in
form and substance satisfactory to the Paying Agent and
(except for the Revolving Credit Notes) in sufficient copies
for each Lender:
(i) The Revolving Credit Notes to the order of
each of the Lenders that have requested Revolving
Credit Notes prior to the Effective Date.
(ii) Certified copies of the resolutions of the
Board of Directors of the Borrower approving this
Agreement and the Notes, and of all documents
(including, without limitation, charters and bylaws)
evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Agreement and the Notes.
(iii) A certificate of the Secretary or an
Assistant Secretary of the Borrower certifying the
names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered
hereunder.
(iv) A favorable opinion of Jones, Day, Reavis &
Pogue, counsel for the Borrower, substantially in the
form of Exhibit E hereto and as to such other matters
as any Lender through the Paying Agent may reasonably
request.
(v) A favorable opinion of Dennis J. Broderick,
General Counsel for the Borrower, in form and substance
satisfactory to the Paying Agent.
(vi) A favorable opinion of Shearman & Sterling,
counsel for the Agents, in form and substance
satisfactory to the Agents.
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing and Extension Date. The obligation of each
Lender to make a Revolving Credit Advance on the occasion of each
Revolving Credit Borrowing and each extension of Commitments
pursuant to Section 2.16 shall be subject to the conditions
precedent that the Effective Date shall have occurred and on the
date of such Revolving Credit Borrowing or the applicable
Extension Date (a) the following statements shall be true (and
each of the giving of the applicable Notice of Revolving Credit
Borrowing request for Commitment Extension and the acceptance by
the Borrower of the proceeds of such Revolving Credit Borrowing
shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing or such Extension Date such
statements are true):
(i) the representations and warranties contained in
Section 4.01 (except the representations set forth in the
last sentence of subsection (e) thereof and in subsection
(f)(i) thereof) are correct on and as of the date of such
Borrowing or such Extension Date, before and after giving
effect to such Borrowing and to the application of the
proceeds therefrom or such Extension Date, as though made on
and as of such date other than any such representations or
warranties that, by their terms, refer to a specific date
other than the date of such Borrowing or such Extension
Date, in which case as of such specific date; and
(ii) no event has occurred and is continuing, or would
result from such Borrowing or from the application of the
proceeds therefrom or such Extension Date, that constitutes
a Default;
and (b) the Paying Agent shall have received such other
approvals, opinions or documents as any Lender through the Paying
Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing. The obligation of each Lender that is to make a
Competitive Bid Advance on the occasion of a Competitive Bid
Borrowing to make such Competitive Bid Advance as part of such
Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Paying Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect
thereto, (ii) on or before the date of such Competitive Bid
Borrowing, but prior to such Competitive Bid Borrowing, the
Paying Agent shall have received a Competitive Bid Note payable
to the order of such Lender for each of the one or more
Competitive Bid Advances to be made by such Lender as part of
such Competitive Bid Borrowing for each such Lender that shall
have requested such Note prior to the date of such Competitive
Bid Borrowing, in a principal amount equal to the principal
amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive
Bid Advance in accordance with Section 2.03, and (iii) on the
date of such Competitive Bid Borrowing the following statements
shall be true (and each of the giving of the applicable Notice of
Competitive Bid Borrowing and the acceptance by the Borrower of
the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower that on the date of
such Competitive Bid Borrowing such statements are true):
(a) the representations and warranties contained in
Section 4.01 (except the representations set forth in the
last sentence of subsection (e) thereof and in subsection
(f)(i) thereof) are correct on and as of the date of such
Competitive Bid Borrowing, before and after giving effect to
such Competitive Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date
other than any such representations or warranties that, by
their terms, refer to a specific date other than the date of
such Borrowing, in which case as of such specific date; and
(b) no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default.
SECTION 3.04. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified
in Section 3.01, each Lender shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender prior
to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its
objection thereto. The Paying Agent shall promptly notify the
Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) The execution, delivery and performance by the
Borrower of this Agreement and the other Loan Documents, and
the consummation of the transactions contemplated hereby and
thereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and
do not contravene (i) the Borrower's charter or by-laws or
(ii) law or any contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body or any other third party is required for
the due execution, delivery and performance by the Borrower
of this Agreement or any other Loan Document except for the
authorizations, approvals, actions, notices and filings
listed on Schedule 4.01(c) hereto, all of which have been
duly obtained, taken, given or made and are in full force
and effect.
(d) This Agreement has been, and each of the other
Loan Documents when delivered hereunder will have been, duly
executed and delivered by the Borrower. This Agreement is,
and each of the other Loan Documents when delivered
hereunder will be, the legal, valid and binding obligation
of the Borrower enforceable against the Borrower in
accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and
its Subsidiaries as at February 3, 2001, and the related
Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for the Fiscal Year then
ended, accompanied by an opinion of KPMG Peat Marwick LLP,
independent public accountants, and the Consolidated balance
sheet of the Borrower and its Subsidiaries as at May 5,
2001, and the related Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the
three months then ended, duly certified by the chief
financial officer of the Borrower, copies of which have been
furnished to each Lender, fairly present, subject, in the
case of said balance sheet as at May 5, 2001, and said
statements of income and cash flows for the three months
then ended, to year-end audit adjustments, the Consolidated
financial condition of the Borrower and its Subsidiaries as
at such dates and the Consolidated results of the operations
of the Borrower and its Subsidiaries for the periods ended
on such dates, all in accordance with generally accepted
accounting principles consistently applied. Since
February 3, 2001, there has been no Material Adverse Change.
(f) There is no pending or threatened action, suit,
investigation, litigation or proceeding, including, without
limitation, any Environmental Action, affecting the Borrower
or any of its Subsidiaries pending or threatened before any
court, governmental agency or arbitrator that (i) would be
reasonably likely to have a Material Adverse Effect or
(ii) purports to affect the legality, validity or
enforceability of this Agreement or any Note or the
consummation of the transactions contemplated hereby.
(g) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U issued by
the Board of Governors of the Federal Reserve System), and
no proceeds of any Advance will be used to purchase or carry
any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock other
than Voting Stock of the Borrower in violation of Regulation
T, U or X of the Board of Governors of the Federal Reserve
System.
(h) The Borrower is not (i) an "investment company",
within the meaning of the Investment Company Act of 1940, as
amended or (ii) a "holding company", as defined in, or
subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended.
(i) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan that has resulted
in or is reasonably expected to result in a material
liability to the Borrower or any ERISA Affiliate.
(j) As of the last annual actuarial valuation date,
the funded current liability percentage, as defined in
Section 302(d)(8) of ERISA, of each Plan exceeds 90% and
there has been no material adverse change in the funding
status of any such Plan since such date.
(k) Neither the Borrower nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan that could be reasonably
expected to result in a material liability of the Borrower
or any ERISA Affiliate.
(l) Neither the Borrower nor any ERISA Affiliate has
been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA which
reorganization or termination could be reasonably expected
to result in a material liability of the Borrower or any
ERISA Affiliate, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA which
reorganization or termination could be reasonably expected
to result in a material liability of the Borrower or any
ERISA Affiliate.
(m) Except as set forth in the financial statements
referred to in this Section 4.01 and in Section 5.01(h), the
Borrower and its Subsidiaries have no material liability
with respect to "expected post retirement benefit
obligations" within the meaning of Statement of Financial
Accounting Standards No. 106.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects,
with all applicable laws, rules, regulations and orders,
such to include, without limitation, compliance with ERISA
and Environmental Laws except, in any case, where the
failure so to comply, either individually or in the
aggregate, could not be reasonably expected to have a
Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before
the same shall become delinquent, (i) all taxes, assessments
and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property; provided,
however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim (x) that is being contested
in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until
any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors and (y) if
such non-payments, either individually or in the aggregate,
could not be reasonably expected to have a Material Adverse
Effect.
(c) Maintenance of Insurance. Maintain, and cause
each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates except where
failure to maintain such insurance could not be reasonably
expected to have a Material Adverse Effect.
(d) Preservation of Corporate Existence, Etc.
Preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence, rights
(charter and statutory), permits, licenses, approvals,
privileges and franchises, except, with respect to such
rights, permits, licenses, approvals, and privileges, where
the failure to do so could not be reasonably expected to
have a Material Adverse Effect; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or
consolidation permitted under Section 5.02(b) and provided
further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve or maintain
(i) the corporate existence of any Minor Subsidiary if the
Board of Directors of the parent of such Minor Subsidiary,
or an executive officer of such parent to whom such Board of
Directors has delegated the requisite authority, shall
determine that the preservation and maintenance thereof is
no longer desirable in the conduct of the business of such
parent and that the loss thereof is not disadvantageous in
any material respect to the Borrower, such parent, the
Agents or the Lenders or (ii) any right, permit, license,
approval or franchise if the Board of Directors of the
Borrower or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct
of the business of the Borrower or such Subsidiary, as the
case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower,
such Subsidiary, the Agents or the Lenders.
(e) Visitation Rights. At any reasonable time and
from time to time, (i) permit any Agent or any of the
Lenders or any agents or representatives thereof, (x) to
examine and make copies of and abstracts from the records
and books of account of, and visit the properties of, the
Borrower and any of its Subsidiaries, and (y) to discuss the
affairs, finances and accounts of the Borrower and any of
its Subsidiaries with any of their officers or directors and
with their independent certified public accountants,
provided, however, that with respect to the Lenders and
their rights described in clause (x) above, so long as no
Event of Default shall have occurred and be continuing, such
Lenders shall exercise rights at the same time (such time to
be arranged by the Paying Agent with the Borrower) and (ii)
take such action as may be necessary to authorize its
independent certified public accountants to disclose to the
Persons described in clause (i) above any and all financial
statements and other information of any kind, including,
without limitation, copies of any management letter, or the
substance of any information that such accountants may have
with respect to the business, financial condition or results
of operations of the Borrower or any of its Subsidiaries.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in
which full and correct entries shall be made of all
financial transactions and the assets and business of the
Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time
to time.
(g) Maintenance of Properties, Etc. Except as
otherwise permitted pursuant to Section 5.02(e), or where
the failure to do so, either individually or in the
aggregate, could not be reasonably expected to have a
Material Adverse Effect, maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of
its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear
and tear excepted.
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event within
45 days after the end of each of the first three
quarters of each Fiscal Year, Consolidated balance
sheet of the Borrower and its Subsidiaries as of the
end of such quarter and Consolidated statements of
income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of
the previous Fiscal Year and ending with the end of
such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the
Borrower as having been prepared in accordance with
generally accepted accounting principles and
certificates of the chief financial officer of the
Borrower as to compliance with the terms of this
Agreement and setting forth in reasonable detail the
then applicable Public Debt Ratings and Interest
Coverage Ratio and the calculations necessary to
demonstrate compliance with Section 5.03, provided that
in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower
shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to
GAAP;
(ii) as soon as available and in any event within
90 days after the end of each Fiscal Year, a copy of
the annual audit report for such year for the Borrower
and its Subsidiaries, containing a Consolidated balance
sheet of the Borrower and its Subsidiaries as of the
end of such Fiscal Year and Consolidated statements of
income and cash flows of the Borrower and its
Subsidiaries for such Fiscal Year, in each case
accompanied by an opinion acceptable to the Required
Lenders by KPMG Peat Marwick LLP or other independent
public accountants acceptable to the Required Lenders
and certificates of the chief financial officer of the
Borrower as to compliance with the terms of this
Agreement and setting forth in reasonable detail the
then applicable Public Debt Ratings and Interest
Coverage Ratio and the calculations necessary to
demonstrate compliance with Section 5.03, provided that
in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower
shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to
GAAP;
(iii) as soon as possible and in any event
within five days after any Responsible Officer becomes
aware of the occurrence of each Default and each event,
development or circumstance that has or could
reasonably be expected to have a Material Adverse
Effect in each case continuing on the date of such
statement, a statement of the chief financial officer
of the Borrower setting forth details of such Default,
event, development or other circumstance (including,
without limitation, the anticipated effect thereof) and
the action that the Borrower has taken and proposes to
take with respect thereto;
(iv) promptly after the sending or filing thereof,
copies of all reports that the Borrower sends to any of
the holders of any class of its outstanding securities,
and copies of all reports and registration statements
(in the form in which such registration statements
become effective), other than registration statements
on Form S-8 or any successor form thereto, that the
Borrower or any Subsidiary files with the Securities
and Exchange Commission or any national securities
exchange;
(v) promptly after the commencement thereof,
notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type
described in Section 4.01(f);
(vi) as soon as possible, and in any event within
five Business Days after any change in the then
applicable Public Debt Rating, a certificate of the
chief financial officer of the Borrower setting forth
such Public Debt Rating; and
(vii) such other information respecting the
business, condition (financial or otherwise),
operations, properties or prospects of Borrower or any
of its Subsidiaries as any Lender through either
Administrative Agent may from time to time reasonably
request.
(i) Transactions with Affiliates. Conduct, and cause
each of its Subsidiaries to conduct, all transactions
otherwise permitted under this Agreement with any of their
Affiliates on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would
obtain in a comparable arm's-length transaction with a
Person not an Affiliate, other than, so long as no Default
has occurred and is continuing, transactions in the ordinary
course of business between or among the Borrower and any of
its Subsidiaries if such transaction could not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.02. Negative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any Lien on or with respect to
any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter
acquired, or sign or file, or permit any of its Subsidiaries
to sign or file, under the Uniform Commercial Code of any
jurisdiction, a financing statement that names the Borrower
or any of its Subsidiaries as debtor, or sign, or permit any
of its Subsidiaries to sign, any security agreement
authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to
receive income, excluding, however, from the operation of
the foregoing restrictions the following:
(i) Liens created under the Five Year Credit
Agreement;
(ii) Permitted Liens;
(iii) the Liens existing on the date hereof
and described on Schedule 5.02(a) hereto;
(iv) purchase money Liens upon or in real property
or equipment acquired or held by the Borrower or any of
its Subsidiaries in the ordinary course of business to
secure the purchase price of such property or equipment
or to secure Debt incurred solely for the purpose of
financing the acquisition, construction or improvement
of any such property or equipment to be subject to such
Liens, or Liens existing on any such property or
equipment at the time of acquisition (other than any
such Liens created in contemplation of such acquisition
that were not incurred to finance the acquisition of
such property or equipment), or extensions, renewals or
replacements of any of the foregoing for the same or a
lesser amount; provided, however, that no such Lien
shall extend to or cover any properties of any
character other than the real property or equipment
being acquired, constructed or improved (except that
Liens incurred in connection with the construction or
improvement of real property may extend to additional
real property immediately contiguous to such property
being constructed or improved) and no such extension,
renewal or replacement shall extend to or cover any
such properties not theretofore subject to the Lien
being extended, renewed or replaced;
(v) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(d)(vii); provided
that no such Lien shall extend to or cover any assets
other than the assets subject to such Capitalized
Leases;
(vi) Liens on property of a Person existing at the
time such Person is merged into or consolidated with
the Borrower or any Subsidiary of the Borrower or
becomes a Subsidiary of the Borrower; provided that
such Liens (other than replacement Liens permitted
under clause (xi) below) were not created in
contemplation of such merger, consolidation or
investment and do not extend to any assets other than
those of the Person merged into or consolidated with
the Borrower or such Subsidiary or acquired by the
Borrower or such Subsidiary;
(vii) Liens on accounts receivable and other
related assets arising solely in connection with the
sale or other disposition of such accounts receivable
pursuant to Section 5.02(e)(ii);
(viii) Liens securing Documentary L/Cs;
provided that no such Lien shall extend to or cover any
assets of the Borrower or any of its Subsidiaries other
than the inventory (and bills of lading and other
documents related thereto) being financed by any such
Documentary L/C;
(ix) Liens in respect of goods consigned to the
Borrower or any of its Subsidiaries in the ordinary
course of business; provided that such Liens are
limited to the goods so consigned;
(x) financing statements filed in the ordinary
course of business solely for notice purposes in
respect of operating leases and in-store retail
licensing arrangements entered into in the ordinary
course of business;
(xi) Liens securing Debt incurred by the Borrower
or its Subsidiaries, in an aggregate amount at any time
outstanding not to exceed $250,000,000; and
(xii) the replacement, extension or renewal of
any Lien permitted by clause (iii), (v) or (vi) above
upon or in the same property theretofore subject
thereto or, in the case of Liens on real property and
related personal property of the Borrower or any of its
Subsidiaries, upon or in substitute property of like
kind of the Borrower or such Subsidiary, as the case
may be, determined in good faith by the Board of
Directors of the Borrower or such Subsidiary to be of
the same or lesser value than the property theretofore
subject thereto, or the replacement, extension or
renewal (without increase in the amount or change in
any direct or contingent obligor) of the Debt secured
thereby.
(b) Mergers, Etc. Merge or consolidate with or into
any Person, or permit any of its Material Subsidiaries to do
so, except that (i) any Subsidiary of the Borrower may merge
or consolidate with or into any other Subsidiary of the
Borrower, (ii) any Subsidiary of the Borrower may merge into
the Borrower and the Borrower may merge with any other
Person so long as the Borrower is the surviving corporation
and (iii) in connection with any acquisition, any Subsidiary
of the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or
consolidate with it, so long as the Person surviving such
merger shall be a Subsidiary of the Borrower, provided, in
each case, that no Event of Default shall have occurred and
be continuing at the time of such proposed transaction or
would result therefrom.
(c) Accounting Changes. Make or permit, or permit any
of its Subsidiaries to make or permit, any change in
accounting policies or reporting practices, except as
required or permitted by generally accepted accounting
principles.
(d) Subsidiary Debt. Permit any of its Subsidiaries
to create, assume or suffer to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly
owned Subsidiary of the Borrower;
(ii) in the case of FDS Bank, Debt owed to the
Borrower and incurred in connection with the financing
of accounts receivable in an aggregate principal amount
not to exceed $200,000,000 at any time outstanding;
(iii) Debt existing on the Effective Date and
described on Schedule 5.02(d) hereto (the "Existing
Debt"), and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, the
Existing Debt, provided that the principal amount of
such Existing Debt shall not be increased above the
principal amount thereof outstanding immediately prior
to such extension, refunding or refinancing, and the
direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such
extension, refunding or refinancing;
(iv) Debt secured by Liens permitted by
Section 5.02(a)(iv) aggregating not more than
$75,000,000 at any one time outstanding;
(v) unsecured Debt incurred in the ordinary
course of business aggregating for all of the
Borrower's Subsidiaries not more than $150,000,000 at
any one time outstanding;
(vi) indorsement of negotiable instruments for
deposit or collection or similar transactions in the
ordinary course of business;
(vii) Capitalized Leases not to exceed in the
aggregate $100,000,000 at any time outstanding;
(viii) Debt secured by Liens permitted pursuant
to Section 5.02(a)(xi);
(ix) Debt incurred in connection with the sale or
other disposition of accounts receivable pursuant to
Section 5.02(e)(ii) arising in connection with the
Receivables Financing Facility, including, without
limitation, Debt consisting of indemnification
obligations of the Borrower's Subsidiaries and the
Borrower's guaranty thereof and Debt in respect of
Hedge Agreements, provided that such Hedge Agreements
shall be non-speculative in nature (including, without
limitation, with respect to the term and purpose
thereof);
(x) Debt in respect of Documentary L/Cs in an
aggregate face amount not to exceed $250,000,000 at any
time; and
(xi) Debt of any Person that becomes a Subsidiary
of the Borrower after the date hereof that is existing
at the time such Person becomes a Subsidiary of the
Borrower (other than Debt incurred solely in
contemplation of such Person becoming a Subsidiary of
the Borrower) and any Debt extending the maturity of,
or refunding or refinancing, such Debt, in whole or in
part, provided that the principal amount of such Debt
shall not be increased above the principal amount
thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and
contingent obligors therefor shall not be changed, as a
result of or in connection with such extension,
refunding or refinancing.
(e) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries to
sell, lease, transfer or otherwise dispose of, any assets or
grant any option or other right to purchase, lease or
otherwise acquire any assets, except (i) sales of assets for
fair value, provided that the aggregate value of assets
sold, leased, transferred or otherwise disposed of pursuant
to this clause during the term of this Agreement shall not
be greater than 20% of the value of the total Tangible
Assets of the Borrower and its Subsidiaries on a
Consolidated basis as of February 3, 2001 (as shown on the
Consolidated balance sheet of the Borrower and its
Subsidiaries on such date), and (ii) the sale or other
disposition of accounts receivable and related charge
accounts in the ordinary course of business of the Borrower
and its Subsidiaries pursuant to the Receivables Financing
Facility and the sale of certain accounts receivable to
General Electric Capital Corporation.
(f) Change in Nature of Business. Make, or permit any
of its Subsidiaries to make, any material change in the
nature of its business as carried on at the date hereof,
except where such change could not be reasonably expected to
have a Material Adverse Effect.
SECTION 5.03. Financial Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will:
(a) Leverage Ratio. Maintain at the end of each
Measurement Period a Leverage Ratio not greater than 0.62 to
1.0.
(b) Interest Coverage Ratio. Maintain at the end of
each Measurement Period an Interest Coverage Ratio of at
least 3.25 to 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable; or the
Borrower shall fail to pay any interest on any Advance or
make any other payment of fees or other amounts payable
under any Loan Document within three Business Days after the
same becomes due and payable; or
(b) Any representation or warranty made by the
Borrower herein (or any of its officers) in connection with
this Agreement shall prove to have been incorrect in any
material respect when made; or
(c) (i) The Borrower shall fail to perform or observe
any term, covenant or agreement contained in
Section 5.01(d), (e), (h) or (i), 5.02 (other than, with
respect to Section 5.01(h) and 5.02(a), to the extent
described in clause (ii) below) or 5.03, or (ii) the
Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 5.02(a) (solely with
respect to the imposition of non-consensual Liens) or
Section 5.01(h)(i) or (ii) if such failure shall remain
unremedied for 10 days or (iii) the Borrower shall fail to
perform any other term, covenant or agreement contained in
any Loan Document on its part to be performed or observed if
such failure shall remain unremedied for 20 days after the
earlier of the date on which (A) a Responsible Officer of
the Borrower becomes aware of such failure or (B) written
notice thereof shall have been given to the Borrower by the
Paying Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail
to pay any principal of or premium or interest on any Debt
that is outstanding in a principal or notional amount of at
least $75,000,000 (or its equivalent in any Alternative
Currency) in the aggregate (but excluding Debt outstanding
hereunder) of the Borrower or such Subsidiary (as the case
may be), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after
the applicable grace period, if any, specified in the
agreement or instrument relating to such Debt; or any other
event shall occur or condition shall exist under any
agreement or instrument relating to any such Debt and shall
continue after the applicable grace period, if any,
specified in such agreement or instrument, if the effect of
such event or condition is to accelerate, or to permit the
acceleration of, the maturity of such Debt; or any such Debt
shall be declared to be due and payable, or required to be
prepaid or redeemed (other than by a regularly scheduled
required prepayment or redemption), purchased or defeased,
or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the
stated maturity thereof; or
(e) The Borrower or any of its Subsidiaries shall
generally not pay its debts as such debts become due, or
shall admit in writing its inability to pay its debts
generally, or shall make a general assignment for the
benefit of creditors; or any proceeding shall be instituted
by or against the Borrower or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its
debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for
any substantial part of its property and, in the case of any
such proceeding instituted against it (but not instituted by
it), either such proceeding shall remain undismissed or
unstayed for a period of 60 days, or any of the actions
sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment
of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall
occur; or the Borrower or any of its Subsidiaries shall take
any corporate action to authorize any of the actions set
forth above in this subsection (e); or
(f) Any judgment or order for the payment of money in
excess of $100,000,000 (or its equivalent in any Alternative
Currency) shall be rendered against the Borrower or any of
its Subsidiaries and either (i) enforcement proceedings
shall have been commenced by any creditor upon such judgment
or order or (ii) there shall be any period of 20 consecutive
Business Days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; provided, however, that
any such judgment or order shall only be an Event of Default
under this Section 6.01(f) if and to the extent that the
amount of such judgment or order not covered by a valid and
binding policy of insurance between the defendant and the
insurer covering payment thereof exceeds $100,000,000 so
long as such insurer, which shall be rated at least "A" by
A.M. Best Company, has been notified of, and has not
disputed the claim made for payment of, the amount of such
judgment or order; or
(g) Any non-monetary judgment or order shall be
rendered against the Borrower or any of its Subsidiaries
that could be reasonably expected to have a Material Adverse
Effect, and there shall be any period of 20 consecutive
Business Days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(h) (i) Any Person or two or more Persons acting in
concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934),
directly or indirectly, of Voting Stock of the Borrower (or
other securities convertible into such Voting Stock)
representing 50% or more of the combined voting power of all
Voting Stock of the Borrower; or (ii) during any period of
up to 24 consecutive months, commencing before or after the
date of this Agreement, individuals who at the beginning of
such 24-month period were directors of the Borrower
(together with any new directors whose election by such
Board of Directors or whose nomination for election by the
shareholders of the Borrower was approved by a majority of
the directors then still in office who were either directors
at the beginning of such period or whose election or
nomination for election was previously so approved) shall
cease for any reason to constitute a majority of the board
of directors of the Borrower; or (iii) any Person or two or
more Persons acting in concert shall have acquired by
contract or otherwise, or shall have entered into a contract
or arrangement that, upon consummation, will result in its
or their acquisition of the power to exercise, directly or
indirectly, control over the management and policies of the
Borrower; or
(i) any ERISA Event shall have occurred with respect
to a Plan and the sum (determined as of the date of
occurrence of such ERISA Event) of the Insufficiency of such
Plan and the Insufficiency of any and all other Plans with
respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Borrower and its ERISA
Affiliates related to such ERISA Event) exceeds $75,000,000;
or
(j) the Borrower or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that it
has incurred Withdrawal Liability to such Multiemployer Plan
in an amount that, when aggregated with all other amounts
required to be paid to Multiemployer Plans by the Borrower
and its ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $75,000,000 or
requires payments exceeding $10,000,000 per annum; or
(k) the Borrower or any ERISA Affiliate shall have
been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or is being
terminated, within the meaning of Title IV of ERISA, and as
a result of such reorganization or termination the aggregate
annual contributions of the Borrower and its ERISA
Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be
increased over the amounts contributed to such Multiemployer
Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such
reorganization or termination occurs by an amount exceeding
$10,000,000; or
(l) any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 shall for any reason cease
to be valid and binding on or enforceable against the
Borrower, or the Borrower shall so state in writing;
then, and in any such event, the Paying Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the obligation of each Lender to
make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided, however, that
in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the United States Bankruptcy
Code, (A) the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Notes, all such interest
and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the
Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender
hereby appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers and discretion
under this Agreement and the other Loan Documents as are
delegated to such Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto. As
to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or
take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and
such instructions shall be binding upon all Lenders and all
holders of Notes; provided, however, that no Agent shall be
required to take any action that exposes such Agent to personal
liability or that is contrary to this Agreement or applicable
law. Each Agent agrees to give to each Lender prompt notice of
each notice given to it by the Borrower pursuant to the terms of
this Agreement.
SECTION 7.02. Agent's Reliance, Etc. No Agent nor any
of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their
own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, each Agent: (i) may treat
the payee of any Note as the holder thereof until the Paying
Agent receives and accepts an Assumption Agreement entered into
by an Assuming Lender as provided in Section 2.16, or an
Assignment and Acceptance entered into by the Lender that is the
payee of such Note, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 8.07; (ii) may consult with
legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation
to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or
oral) made in or in connection with the Loan Documents;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of the Borrower or to
inspect the property (including the books and records) of the
Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any
lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other
instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument
or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank, Chase and Affiliates. With
respect to their Commitments, the Advances made by them and the
Note issued to them, Citibank and Chase shall have the same
rights and powers under the Loan Documents as any other Lender
and may exercise the same as though they were not the Agents; and
the terms "Lender" or "Lenders" and "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank and Chase
in their individual capacities. Citibank, Chase and their
Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who
may do business with or own securities of the Borrower or any
such Subsidiary, all as if Citibank and Chase were not the Agents
and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
any Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
SECTION 7.05. Indemnification. Each Lender (other
than the Designated Bidders) severally agrees to indemnify the
Agents, the Syndication Agent and each Documentation Agent (to
the extent not promptly reimbursed by the Borrower) from and
against such Lender's ratable share (determined as provided
below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits or costs or reasonable
expenses or disbursements of any kind or nature whatsoever that
may be imposed on, incurred by, or asserted against such Agent,
Syndication Agent or Documentation Agent, as the case may be, in
any way relating to or arising out of the Loan Documents or any
action taken or omitted by such Agent, Syndication Agent or
Documentation Agent, as the case may be, under the Loan
Documents; provided, however, that no Lender shall be liable for
any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the gross negligence or willful
misconduct of any Agent, Syndication Agent or Documentation
Agent, as the case may be. Without limitation of the foregoing,
each Lender (other than the Designated Bidders) agrees to
reimburse each Agent, Syndication Agent and Documentation Agent,
as the case may be, promptly upon demand for its ratable share of
any reasonable costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrower
under Section 8.04, to the extent that such Agent, Syndication
Agent or Documentation Agent, as the case may be, is not promptly
reimbursed for such costs and expenses by the Borrower. For
purposes of this Section 7.05(a), the Lender Parties' respective
ratable shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective
Lenders, and (b) their respective Unused Revolving Credit
Commitments at such time. In the event that any Defaulted
Advance shall be owing by any Defaulting Lender at any time, such
Lender's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be
considered to be unused for purposes of this Section 7.05(a) to
the extent of the amount of such Defaulted Advance. The failure
of any Lender to reimburse any Agent, Syndication Agent or
Documentation Agent, as the case may be, promptly upon demand for
its ratable share of any amount required to be paid by the
Lenders to any Agent, Syndication Agent or Documentation Agent,
as the case may be, as provided herein shall not relieve any
other Lender of its obligation hereunder to reimburse such Agent,
Syndication Agent or Documentation Agent, as the case may be, for
its ratable share of such amount, but no Lender shall be
responsible for the failure of any other Lender to reimburse such
Agent, Syndication Agent or Documentation Agent, as the case may
be, for such other Lender's ratable share of such amount.
Without prejudice to the survival of any other agreement of any
Lender hereunder, the agreement and obligations of each Lender
contained in this Section 7.05(a) shall survive the payment in
full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 7.06. Successor Agents. Either Administrative
Agent or the Paying Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor
Administrative Agent or Paying Agent, as the case may be,
subject, so long as no Default shall have occurred and be
continuing, to the consent of the Borrower (which consent shall
not be unreasonably withheld or delayed). If no successor
Administrative Agent or Paying Agent shall have been so appointed
by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative
Agent's or Paying Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent or
Paying Agent, then the retiring Administrative Agent or Paying
Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent or Paying Agent, which shall be a commercial
bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of
at least $1,000,000,000. Upon the acceptance of any appointment
as Administrative Agent or Paying Agent hereunder by a successor
Administrative Agent or Paying Agent, such successor
Administrative Agent or Paying Agent shall thereupon succeed to
and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent or
Paying Agent, and the retiring Administrative Agent or Paying
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's or
Paying Agent's resignation or removal hereunder as Administrative
Agent or Paying Agent, the provisions of this Article VII shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent or Paying Agent
under this Agreement.
SECTION 7.07. Other Agents. Each Lender and the
Borrower hereby acknowledge that neither the syndication agent,
the documentation agent nor any other Lender designated as any
"Agent" (other than the Agent) on the cover page or the signature
pages hereof has any liability hereunder other than in its
capacity as a Lender.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement or the Revolving Credit Notes,
nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and
signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed
by all the Lenders (other than the Designated Bidders and other
than any Lender that is, at such time, a Defaulting Lender), do
any of the following: (a) waive any of the conditions specified
in Section 3.01, (b) increase the Commitments of the Lenders or
subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Revolving Credit Notes or any
fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the
Revolving Credit Notes or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Revolving Credit Notes,
or the number of Lenders, that shall be required for the Lenders
or any of them to take any action hereunder or (f) amend this
Section 8.01; and provided, however, that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative
Agents or the Paying Agent, as the case may be, in addition to
the Lenders required above to take such action, affect the rights
or duties of the Administrative Agents or Paying Agent, as the
case may be, under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic or telex communication) and
mailed, telecopied, telegraphed, telexed or delivered, if to the
Borrower, at its address at 7 West Seventh Street, Cincinnati,
Ohio 45202, Attention: Chief Financial Officer, with a copy to
General Counsel; if to any Initial Lender, at its Domestic
Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a
Lender; and if Citibank in its capacity as Paying Agent or
Administrative Agent, at its address at 2 Penns Way, Suite 200,
New Castle, Delaware 19720, Attention: Tim Card, Loan
Syndications; or, as to the Borrower, the Paying Agent or such
Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties
and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and
the Paying Agent. All such notices and communications shall, (a)
when mailed, be effective three Business Days after the same is
deposited in the mails, (b) when mailed for next day delivery by
a reputable freight company or reputable overnight courier
service, be effective one Business Day thereafter, and (c) when
sent by telegraph, telecopier or telex, be effective when the
same is confirmed by telephone, telecopier confirmation or return
telecopy or telex answerback, respectively, except that notices
and communications to the Paying Agent pursuant to Article II,
III or VII shall not be effective until received by the Paying
Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the
Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed
counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the
part of any Lender or any Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower
agrees to pay on demand all costs and expenses of the Paying
Agent and the Administrative Agents in connection with the
preparation, execution, delivery, administration, modification
and amendment of the Loan Documents and the other documents to be
delivered hereunder, including, without limitation, (A) all due
diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal,
consultant, and audit expenses and (B) the reasonable fees and
expenses of counsel for the Paying Agent and the Administrative
Agents with respect thereto and with respect to advising the
Paying Agent and the Administrative Agents as to their rights and
responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses of the Paying
Agent, the Administrative Agents and the Lenders, if any
(including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of the Loan
Documents and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of
counsel for the Paying Agent, the Administrative Agents and each
Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless
the Agents and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Loan Documents, any of
the transactions contemplated thereby or the actual or proposed
use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower
or any of its Subsidiaries or any Environmental Action relating
in any way to the Borrower or any of its Subsidiaries, except to
the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the
indemnity in this Section 8.04(b) applies, such indemnity shall
be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors,
shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are
consummated, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. The
Borrower also agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or
otherwise) to the Borrower or any of its security holders or
creditors arising out of, related to or in connection with the
Facilities, the actual or proposed use of the Advances, the Loan
Documents or any of the transactions contemplated thereby, except
(a) to the extent that such liability is found in a final
non-appealable judgment by a court of competent jurisdiction to
have resulted from such Indemnified Party's gross negligence or
willful misconduct and (b) for direct, as opposed to
consequential, damages for breach of the Indemnified Parties'
obligations hereunder.
(c) If any payment of principal of, or Conversion of,
any Eurodollar Rate Advance or LIBO Rate Advance is made by the
Borrower to or for the account of a Lender other than on the last
day of the Interest Period for such Advance, as a result of a
payment or Conversion pursuant to Section 2.08(d) or (e), 2.10 or
2.12, acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, or by an Eligible Assignee
to a Lender other than on the last day of the Interest Period for
such Advance upon an assignment of rights and obligations under
this Agreement pursuant to Section 8.07 as a result of a demand
by the Borrower pursuant to Section 8.07(a), the Borrower shall,
upon demand by such Lender (with a copy of such demand to the
Paying Agent), pay to the Paying Agent for the account of such
Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur
as a result of such payment or Conversion, including, without
limitation, any loss (excluding loss of anticipated profits),
cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender to
fund or maintain such Advance.
(d) If the Borrower fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document,
including, without limitation, reasonable fees and expenses of
counsel and indemnities, such amount may be paid on behalf of the
Borrower by the Paying Agent or any Lender, in its sole
discretion.
(e) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in Sections 2.11, 2.14 and
8.04 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Agents to declare the
Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Note held by such
Lender, whether or not such Lender shall have made any demand
under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application, provided that
the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off)
that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall
become effective (other than Sections 2.01 and 2.03, which shall
only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Agents and when the Paying Agent
shall have been notified by each Initial Lender that such Initial
Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Agents and each Lender
and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. Assignments, Designations and
Participations. (a) Each Lender (other than the Designated
Bidders) may, and if demanded by the Borrower (following a demand
by such Lender pursuant to Section 2.11) upon at least ten
Business Days' notice to such Lender and the Paying Agent will,
assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Revolving Credit Advances
owing to it and the Revolving Credit Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and
obligations under this Agreement (other than any right to make
Competitive Bid Advances, Competitive Bid Advances owing to it
and Competitive Bid Notes), (ii) except in the case of an
assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's
rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event
be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Borrower pursuant to this Section 8.07(a) shall
be arranged by the Borrower after consultation with the Paying
Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations
of the assigning Lender under this Agreement, (v) no Lender shall
be obligated to make any such assignment as a result of a demand
by the Borrower pursuant to this Section 8.07(a) unless and until
such Lender shall have received one or more payments from either
the Borrower or one or more Eligible Assignees in an aggregate
amount at least equal to the aggregate outstanding principal
amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this
Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Paying Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together
with any Revolving Credit Note subject to such assignment and a
processing and recordation fee of $3,500.
(b) Upon the execution, delivery, acceptance and
recording, from and after the effective date specified in each
Assignment and Acceptance, (x) 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, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto).
(c) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with any Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in
connection with, any Loan Document or any other instrument or
document furnished pursuant hereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning
Lender or any other Lender 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 this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the
Agents to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated
to the Agents by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that
it is an Eligible Assignee, together with any Revolving Credit
Note or Notes, if any, subject to such assignment, the Paying
Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its
receipt of such notice and if so requested by the assignee, the
Borrower, at its own expense, shall execute and deliver to the
Paying Agent in exchange for the surrendered Revolving Credit
Note a new Note to the order of such assignee in an amount equal
to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment
hereunder and so requests, a new Revolving Credit Note to the
order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Revolving Credit
Note or Notes, if any, shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered
Revolving Credit Note or Notes, if any, shall be dated the
effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
(e) Each Lender (other than the Designated Bidders)
may designate one or more banks or other entities to have a right
to make Competitive Bid Advances as a Lender pursuant to
Section 2.03; provided, however, that (i) no such Lender shall be
entitled to make more than two such designations, (ii) each such
Lender making one or more of such designations shall retain the
right to make Competitive Bid Advances as a Lender pursuant to
Section 2.03, (iii) each such designation shall be to a
Designated Bidder and (iv) the parties to each such designation
shall execute and deliver to the Paying Agent, for its acceptance
and recording in the Register, a Designation Agreement. Upon
such execution, delivery, acceptance and recording, from and
after the effective date specified in each Designation Agreement,
the designee thereunder shall be a party hereto with a right to
make Competitive Bid Advances as a Lender pursuant to
Section 2.03 and the obligations related thereto.
(f) By executing and delivering a Designation
Agreement, the Lender making the designation thereunder and its
designee thereunder confirm and agree with each other and the
other parties hereto as follows: (i) such Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with any Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in
connection with, this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such designee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Designation Agreement; (iv) such designee will,
independently and without reliance upon any Agent, such
designating Lender or any other Lender 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 this Agreement; (v) such designee confirms
that it is a Designated Bidder; (vi) such designee appoints and
authorizes the Agents to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement
as are delegated to the Agents by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto;
and (vii) such designee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(g) Upon its receipt of a Designation Agreement
executed by a designating Lender and a designee representing that
it is a Designated Bidder, the Paying Agent shall, if such
Designation Agreement has been completed and is substantially in
the form of Exhibit D hereto, (i) accept such Designation
Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(h) The Paying Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and
Acceptance and each Designation Agreement delivered to and
accepted by it and a register for the recordation of the names
and addresses of the Lenders and, with respect to Lenders other
than Designated Bidders, the Commitment of, and principal amount
of the Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the
Borrower, the Paying Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(i) Each Lender may sell participations to one or more
banks or other entities (other than the Borrower or any of its
Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Advances owing to it and
the Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agents and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to
approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or postpone any
date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(j) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation
or participation pursuant to this Section 8.07, disclose to the
assignee, designee or participant or proposed assignee, designee
or participant, any information relating to the Borrower
furnished to such Lender by or on behalf of the Borrower;
provided that, prior to any such disclosure, the assignee,
designee or participant or proposed assignee, designee or
participant shall agree to preserve the confidentiality of any
Confidential Information relating to the Borrower received by it
from such Lender.
(k) Notwithstanding any other provision set forth in
this Agreement, any Lender may at any time create a security
interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. None of the Agents or
any Lender shall disclose any Confidential Information to any
Person without the written consent of the Borrower, other than
(a) to such Agent's or such Lender's Affiliates to whom
disclosure is required to enable any such Agent or Lender to
perform its obligations under this Agreement or in connection
with the administration or monitoring of the Loan Documents by
such Agent or Lender and their officers, directors, employees,
agents, representatives and advisors and to actual or prospective
Eligible Assignees and participants, and that, in each case, are
advised of the confidential nature of such Confidential
Information, (b) as required by any law, rule or regulation or
judicial process, (c) to any rating agency when required by it in
connection with the Competitive Bid Advances made by, and the
rating of, any Designated Bidder, provided that, prior to any
such disclosure, such rating agency shall undertake to preserve
the confidentiality of any Confidential Information received by
it from such Lender and (d) as requested or required by any
state, federal or foreign authority or examiner regulating banks
or banking.
SECTION 8.09. Governing Law. This Agreement and the
Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 8.10. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 8.11. Judgment. (a) If for the purposes of
obtaining judgment in any court it is necessary to convert a sum
due hereunder or under the Notes in any currency (the "Original
Currency") into another currency (the "Other Currency") the
parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Paying
Agent could purchase the Original Currency with the Other
Currency at 9:00 A.M. (New York City time) on the first Business
Day preceding that on which final judgment is given.
(b) The obligation of the Borrower in respect of any
sum due in the Original Currency from it to any Lender or the
Paying Agent hereunder shall, notwithstanding any judgment in any
Other Currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Paying Agent
(as the case may be) of any sum adjudged to be so due in such
Other Currency such Lender or the Paying Agent (as the case may
be) may in accordance with normal banking procedures purchase
Dollars with such Other Currency; if the amount of the Original
Currency so purchased is less than the sum originally due to such
Lender or the Paying Agent (as the case may be) in the Original
Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or
the Paying Agent (as the case may be) against such loss, and if
the amount of the Original Currency so purchased exceeds the sum
originally due to any Lender or the Paying Agent (as the case may
be) in the Original Currency, such Lender or the Paying Agent (as
the case may be) agrees to remit to the Borrower such excess.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of
any New York State court or federal court of the United States of
America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent
permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts
of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the Notes in any
New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
SECTION 8.13. Waiver of Jury Trial. Each of the
Borrower, the Agents and the Lenders hereby irrevocably waives
all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the
actions of any Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
THE BORROWER
FEDERATED DEPARTMENT STORES, INC.
By: /s/ Karen M. Hoguet
Title: Senior Vice President and
Chief Financial Officer
CITIBANK, N.A.,
as an Administrative Agent and as
Paying Agent
By: /s/ Steven R. Victorin
Title: Vice President
THE CHASE MANHATTAN BANK,
as an Administrative Agent
By: /s/ _________________
Title: Vice President
THE INITIAL LENDERS
Lead Arrangers
CITIBANK, NA.
By: /s/ Steven R. Victorin
Title: Vice President
THE CHASE MANHATTAN BANK
By: /s/ Barry K. Bergman
Title: Vice President
Syndication Agent
FLEET NATIONAL BANK
By: /s/ Judith C.E. Kelly
Title: Director
Documentation Agents
BANK OF AMERICA, N.A.
By: /s/ Amy Krovocheck
Title: Vice President
THE BANK OF NEW YORK
By: /s/ William Barnum
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Bill O'Daly
Title: Vice President
By: /s/ Kristin Lepri
Title: Assistant Vice President
Senior Managing Agents
BANK ONE, NA
By: /s/ Catherine A. Muszynski
Title: Vice President
FIRSTAR BANK, N.A.
By: /s/ Derek S. Roudebush
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Bruce A. Kintner
Title: Vice President
Managing Agents
THE FIFTH THIRD BANK
By: /s/ Christine L. Wagner
Title: Assistant Vice President
MELLON BANK, N.A.
By: /s/ Louis E. Flori
Title: Vice President
SUMITOMO MITSUI BANKING CORPORATION
By: /s/ John H. Kemper
Title: Senior Vice President
Lenders
ALLFIRST BANK
By: /s/ Robert M. Beaver
Title: Senior Vice President
BANCA NAZIONALE DEL LAVORO S.P.A., NEW
YORK BRANCH
By: /s/ Juan J. Cortes
Title: Vice President
By: /s/ Leonardo Valentini
Title: First Vice President
FIRST UNION NATIONAL BANK
By: /s/ Margaret Gibbins
Title: Senior Vice President
STANDARD CHARTERED BANK
By: /s/ Shafiq Ur Rahman
Title: Senior Vice President
By: /s/ Jamin K. Hill
Title: Senior Vice President
WELLS FARGO BANK, N.A.
By: /s/ James Heinz
Title: Vice President
By: /s/ Melissa Nachman
Title: Vice President
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
Name of Initial Revolving Domestic Lending Eurodollar Lending
Lender Credit Office Office
Commitment
Allfirst Bank $5,000,000 Credit: Credit:
25 S. Charles 25 S. Charles
Street Street
Baltimore, MD Baltimore, MD
21201 21201
Attn: John Attn: Sean
Serocca Fitzgerald
Phone: (410) 244- Phone: (410) 244-
4852 4575
Fax: (410) 545- Fax: (410) 545
2047 2079
Administrative: Administrative:
25 S. Charles 25 S. Charles
Street Street
Baltimore, MD Baltimore, MD
21201 21201
Attn: John Attn: Sean
Serocca Fitzgerald
Phone: (410) 244- Phone: (410) 244-
4852 4575
Fax: (410) 545- Fax: (410) 545-
2047 2079
Banca Nazionale $6,250,000 Credit: Credit:
del Lavoro 25 West 51st 25 West 51st
Street Street
New York, NY New York, NY
10019 10019
Attn: Juan Cortes Attn: Juan Cortes
Phone: (212) 314- Phone: (212) 314-
0295 0295
Fax: (212) 765- Fax: (212) 765-
2978 2978
Administrative: Administrative:
Attn: Anna Attn: Anna
Hernandez Hernandez
Phone: (212) 314- Phone: (212) 314-
0679 0679
Fax: (212) 765- Fax: (212) 765-
2978 2978
Bank of America, $33,750,000 Credit: Credit:
N.A. 901 Main St, 67th 901 Main St, 67th
Floor Floor
Dallas, TX 75202 Dallas, TX 75202
Attn: Amy Attn: Amy
Krovocheck Krovocheck
Phone: (214) 209- Phone: (214) 209-
0193 0193
Fax: (214) 209- Fax: (214) 209-
0980 0980
Administrative: Administrative:
1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520- Concord, CA 94520-
3282 3282
Attn: G.K. Attn: G.K.
Lapitan Lapitan
Phone: (925) 675- Phone: (925) 675-
8205 8205
Fax: (925) 969- Fax: (925) 969-
2852 2852
The Bank of New $33,750,000 Credit: Credit:
York One Wall Street, One Wall Street,
8th Floor 8th Floor
New York, NY New York, NY
10286 10286
Attn: Clarence Attn: Clarence
Burleigh Burleigh
Phone: (212) 635- Phone: (212) 635-
7867 7867
Fax: (212) 635- Fax: (212) 635-
1483 1483
Administrative: Administrative:
One Wall Street, One Wall Street,
8th Floor 8th Floor
New York, NY New York, NY
10286 10286
Attn: Susan Attn: Susan
Baratta Baratta
Phone: (212) 635- Phone: (212) 635-
6761 6761
Fax: (212) 635- Fax: (212) 635-
6397 6397
Bank One, NA $21,250,000 Credit: Credit:
1 Bank One Plaza 1 Bank One Plaza
Suite ILI0086 Suite ILI0086
Chicago, IL 60670 Chicago, IL 60670
Attn: Paul Rigby Attn: Paul Rigby
Phone: (312) 732- Phone: (312) 732-
6132 6132
Fax: (312) 336- Fax: (312) 336-
4380 4380
Administrative: Administrative:
1 Bank One Plaza 1 Bank One Plaza
Suite ILI0086 Suite ILI0086
Chicago, IL 60670 Chicago, IL 60670
Attn: Tess Siao Attn: Tess Siao
Phone: (312) 732- Phone: (312) 732-
8705 8705
Fax: (312) 336- Fax: (312) 336-
2715 2715
The Chase $50,000,000 Credit: Credit:
Manhattan Bank 270 Park Avenue, 270 Park Avenue,
48th Fl. 48th Fl.
New York, NY New York, NY
10017 10017
Attn: Barry Attn: Barry
Bergman Bergman
Phone: (212) 270- Phone: (212) 270-
0203 0203
Fax: (212) 270- Fax: (212) 270-
5646 5646
Administrative: Administrative:
1 Chase Manhattan 1 Chase Manhattan
Plaza Plaza
8th Floor 8th Floor
New York, NY New York, NY
10081 10081
Attn: Amy Attn: Amy Labinger
Labinger Phone: (212) 552-
Phone: (212) 552- 4025
4025 Fax: (212) 552-
Fax: (212) 552- 7500
7500
Citibank, N.A. $50,000,000 Credit: Credit:
388 Greenwich 388 Greenwich
Street Street
New York, NY 10013 New York, NY 10013
Attn: Robert Snell Attn: Robert Snell
Phone: (212) 816- Phone: (212) 816-
Fax: (212) 793- Fax: (212) 793-
7585 7585
Administrative: Administrative:
2 Penns Plaza 2 Penns Plaza
Suite 200 Suite 200
New Castle, DE New Castle, DE
19720 19720
Attn: Tim Card Attn: Tim Card
Phone: (718) 248- Phone: (718) 248-
4536 4536
Fax: (718) 248- Fax: (718) 248-
4844 4844
Credit Suisse $33,750,000$ Credit: Credit:
First Boston 11 Madison Ave., 11 Madison Ave.,
19th Fl. 19th Fl.
New York, NY New York, NY
10010 10010
Attn: William Attn: William
O'Daly O'Daly
Phone: (212) 325- Phone: (212) 325-
1986 1986
Fax: (212) 325- Fax: (212) 325-
8314 8314
Administrative: Administrative:
11 Madison Ave. 11 Madison Ave.
New York, NY New York, NY
10010 10010
Attn: Ronald Attn: Ronald
David David
Phone: (212) 325- Phone: (212) 325-
1865 1865
Fax: (212) 335- Fax: (212) 335-
0593 0593
The Fifth-Third $18,750,000 Credit: Credit:
Bank 38 Fountain Square 38 Fountain Square
Plaza Plaza
Cincinnati, OH Cincinnati, OH
45263 45263
Attn: Christine Attn: Christine
Wagner Wagner
Phone: (513) 744- Phone: (513) 744-
7348 7348
Fax: (513) 744- Fax: (513) 744-
5947 5947
Administrative: Administrative:
38 Fountain Square 38 Fountain Square
Plaza Plaza
Cincinnati, OH Cincinnati, OH
45263 45263
Attn: Jennifer Attn: Jennifer
Pund Pund
Phone: (513) 579- Phone: (513) 579-
5389 5389
Fax: (513) 744- Fax: (513) 744-
5947 5947
First Union $12,500,000 Credit: Credit:
National Bank Widener Building, Widener Building,
12th Floor 12th Floor
One South Penn One South Penn
Square Square
Philadelphia, PA Philadelphia, PA
19107 19107
Attn: Beth Kmiec Attn: Beth Kmiec
Phone: (215) 786- Phone: (215) 786-
3838 3838
Fax: (215) 786 Fax: (215) 786
1877 1877
Administrative: Administrative:
201 South College 201 South College
Street Street
17th Floor 17th Floor
Charlotte, NC Charlotte, NC
28288-1183 28288-1183
Attn: Lisa VanNote Attn: Lisa VanNote
Phone: (704) 374- Phone: (704) 374-
4282 4282
Fax: (704) 383- Fax: (704) 383-
7999 7999
Firstar Bank, $21,250,000 Credit: Credit:
N.A. 425 Walnut Street, 425 Walnut Street,
ML: 8160 ML: 8160
Cincinnati, OH Cincinnati, OH
45202 45202
Attn: Derek Attn: Derek
Roudebush Roudebush
Phone: (513) 632- Phone: (513) 632-
4010 4010
Fax: (513) 762- Fax: (513) 762-
2068 2068
Administrative: Administrative:
425 Walnut Street 425 Walnut Street
Cincinnati, OH Cincinnati, OH
45202 45202
Attn: Patty Attn: Patty
Gambert Gambert
Phone: (513) 632- Phone: (513) 632-
4034 4034
Fax: (513) 632- Fax: (513) 632-
3099 3099
Fleet National $36,250,000 Credit: Credit:
Bank 100 Federal Street 100 Federal Street
MA DE 100 09E MA DE 100 09E
Boston, MA 02110 Boston, MA 02110
Attn: Judy Kelly Attn: Judy Kelly
Phone: (617) 434- Phone: (617) 434-
5280 5280
Fax: (617) 434- Fax: (617) 434-
6685 6685
Administrative: Administrative:
One Federal Street One Federal Street
MA De 10307L MA DE 10307L
Boston, MA 02110 Boston, MA 02110
Attn: Dwayne Attn: Dwayne
Nelson Nelson
Phone: (617) 346- Phone: (617) 346-
4223 4223
Fax: (617) 346- Fax: (617) 346-
0595 0595
Mellon Bank, $18,750,000 Credit: Credit:
N.A. One Mellon Bank One Mellon Bank
Center, Center,
Room 370 Room 370
Pittsburgh, PA Pittsburgh, PA
15258-0001 15258-0001
Attn: Louis Flori Attn: Louis Flori
Phone: (412) 234- Phone: (412) 234-
7298 7298
Fax: (412) 236- Fax: (412) 236-
1914 1914
Administrative: Administrative:
Three Mellon Bank Three Mellon Bank
Center, Center,
Room 1203 Room 1203
Pittsburgh, PA Pittsburgh, PA
15259-0003 15259-0003
Attn: Richard Attn: Richard
Bouchard Bouchard
Phone: (412) 234- Phone: (412) 234-
5767 5767
Fax: (412) 209- Fax: (412) 209-
6124 6124
PNC Bank, $21,250,000 Credit: Credit:
National 201 East 5th 201 East 5th
Association Street Street
Cincinnati, OH Cincinnati, OH
45202 45202
Attn: Joe Attn: Joe
Richardson Richardson
Phone: (513) 651- Phone: (513) 651-
8688 8688
Fax: (513) 651- Fax: (513) 651-
8951 8951
Administrative: Administrative:
201 E. 5th Street 201 E. 5th Street
Cincinnati, OH Cincinnati, OH
45202 45202
Attn: Sandy Attn: Sandy
Wilson Wilson
Phone:(513) 651- Phone: (513) 651-
8984 8984
Fax: (513) 651- Fax: (513) 651-
8951 8951
Standard $6,250,000 Credit: Credit:
Chartered Bank 7 World Trade 7 World Trade
Center, 27th Fl. Center, 27th Fl.
New York, NY New York, NY
10048 10048
Attn: David Attn: David
Cutting Cutting
Phone: (212) 667- Phone: (212) 667-
0469 0469
Fax: (212) 667- Fax: (212) 667-
0225 0225
Administrative: Administrative:
707 Wilshire 707 Wilshire
Blvd., W-8-33 Blvd., W-8-33
Los Angeles, CA Los Angeles, CA
90017 90017
Attn: Qustanti Attn: Qustanti
Shiber Shiber
Phone: (213) 614- Phone: (213) 614-
5037 5037
Fax: (213) 614- Fax: (213) 614-
4270 4270
Sumitomo Mitsui $18,750,000 Credit: Credit:
Banking 233 South Wacker 233 South Wacker
Corporation Drive, Suite 4010 Drive, Suite 4010
Chicago, IL 60606 Chicago, IL 60606
Attn: John H. Attn: John H.
Kemper Kemper
Phone: (312) 876- Phone: (312) 876-
7797 7797
Fax: (312) 876- Fax: (312) 876-
6436 6436
Administrative: Administrative:
277 Park Avenue 277 Park Avenue
New York, NY New York, NY
10172 10172
Attn: Courtney L. Attn: Courtney L.
Whitlock Whitlock
Phone: (212) 224- Phone: (212) 224-
4335 4335
Fax (212) 224-5197 Fax (212) 224-5197
Wells Fargo Bank $12,500,000 Credit: Credit:
230 West Monroe 230 West Monroe
Street Street
Suite 2900 Suite 2900
Chicago, IL 60606 Chicago, IL 60606
Attn: Jim Heinz Attn: Jim Heinz
Phone: (312) 845- Phone: (312) 845-
4523 4523
Fax: (312) 553- Fax: (312) 553-
4783 4783
Administrative: Administrative:
201 Third Street 201 Third Street
MAC 0187-081 MAC 0187-081
San Francisco, CA San Francisco, CA
94103 94103
Attn: Ginnie Attn: Ginnie
Padgett Padgett
Phone: (415) 477- Phone: (415) 477-
5374 5374
Fax: (415) 979- Fax: (415) 979-
0675 0675
___________
TOTAL OF COMMITMENTS: $400,000,000
SCHEDULE 4.01(c)
Required Authorizations, Approvals, Actions, Notices and Filings
None
SCHEDULE 5.02(a)
Existing Liens
Liens and security interests granted in connection with the
Debt referenced below, pursuant to the principal instructions
below and other related security instruments and affecting the
collateral identified below.
Debt Principal Instrument Collateral/Property
Encumbered
Capitalized Leases Miscellaneous leases Miscellaneous real
regarding real and and personal
personal property property leased by
leased by Borrower Borrower and its
and its subsidiaries
subsidiaries, which
leases meet certain
accounting criteria
that requires that
they be capitalized
for account purposes
only
Accounts Receivable Amended and Restated Proprietary credit
Facility Pooling and card receivables
Servicing Agreement, arising out of the
dated as of December sale of merchandise
15, 1992 among Prime and services by
Receivables department store
Corporation, as subsidiaries of
Transferor, FDS Bank Federated that are
(formerly known as transferred to Prime
FDS National Bank), Credit Card Master
as Servicer, and The Trust.
Chase Manhattan
Bank, successor to
Chemical Bank, as
Trustee of Prime
Credit Card Master
Trust.
Accounts Receivable Pooling and Visa credit card
Facility Servicing Agreement, receivables arising
dated as of January out of the sale of
22, 1997 among Prime merchandise and
II Receivables services that are
Corporation, FDS transferred to Prime
Bank (formerly known II Credit Card
as FDS National Master Trust
Bank), as Servicer,
and The Chase
Manhattan Bank, as
Trustee of Prime II
Credit Master Trust
Accounts Receivable Amended and Restated Proprietary credit
Facility Pooling and card receivables
Servicing Agreement arising out of the
dated as of March sale of merchandise
18, 1998 among and services by
Fingerhut Fingerhut and its
Receivables, Inc., subsidiaries that
Axsys National Bank are transferred to
(formerly Fingerhut Fingerhut Credit
National Bank), as Card Master Trust
Servicer, and The
Bank of New York
(Delaware) as
Trustee of Fingerhut
Credit Card Master
Trust
$550,926,100.00 Loan 151 Broad Street,
to Macy's East, Stamford,
Inc., Macy's West, Connecticut
Inc., Macy's Texas,
Inc., Rich's Christiana Mall,
Department Stores, Newark, Delaware
Inc. and Stern's
Department Stores, 19501 Biscayne
Inc. (as owners of Boulevard, North
the properties Miami, Florida
encumbered) from
Federated Georgia Square Mall,
Noteholding 3700 Atlanta
Corporation. In a Highway, Athens,
restructuring event Georgia
in 1999 through
various transfers Augusta Mall,
and mergers the Wrightsboro Road and
properties once Bobby Jones
owned by Macy's Expressway, Augusta,
Primary Real Estate, Georgia
Inc. are now owned
by the operating 1200 Cumberland
entities listed Mall, Atlanta,
above. Georgia
Gwinnett Place, 2100
Pleasant Hill Road,
Duluth, Georgia
Macon Mall, 3661
Eisenhower Parkway,
Macon, Georgia
Northlake Mall, 4800
Briarcliff Road,
N.E., Atlanta,
Georgia
180 Peachtree
Street, Atlanta,
Georgia
$550,926,100.00 Loan Perimeter Mall, 4400
to Macy's East, Ashford-Dunwoodie
Inc., Macy's West, Road, Atlanta,
Inc., Macy's Texas, Georgia
Inc., Rich's
Department Stores, Southlake Mall,
Inc. and Stern's Morrow Industrial
Department Stores, Boulevard and
Inc. (as owners of Jonesboro Road,
the properties Morrow, Georgia
encumbered) from
Federated White Marsh Mall,
Noteholding 8200 Perry Hall
Corporation. In a Boulevard,
restructuring event Parksville, Maryland
in 1999 through
various transfers Cherry Hill Center,
and mergers the 514 Cherry Hill,
properties once Cherry Hill, New
owned by Macy's Jersey
Primary Real Estate,
Inc. are now owned Deptford Mall,
by the operating Almonesson-Westville
entities listed Road and Clements
above. (Continued) Bridge Road,
Deptford, New Jersey
(Second Mortgage)
Brunswick Square,
Route 18, East
Brunswick Township,
New Jersey
Woodbridge Road and
Parsonage Road,
Menlo Park, New
Jersey
Monmouth Mall,
Eatontown Traffic
Circle, Eatontown,
New Jersey
Ocean County Mall,
1201 Hooper Avenue,
Toms River, New
Jersey
400 Quaker Bridge
Mall, Lawrenceville,
New Jersey
$550,926,100.00 Loan Rockaway Town
to Macy's East, Square, Rockaway
Inc., Macy's West, Township, New Jersey
Inc., Macy's Texas,
Inc., Rich's 100 Route 46, Wayne,
Department Stores, New Jersey (Second
Inc. and Stern's Mortgage)
Department Stores,
Inc. (as owners of Herald Square, 151
the properties West 34th Street,
encumbered) from New York, New York
Federated
Noteholding Colonie Shopping
Corporation. In a Center, Wolf Road,
restructuring event Route 5, Colonie,
in 1999 through New York
various transfers
and mergers the 400 Sunrise Mall,
properties once Massapequa, New York
owned by Macy's
Primary Real Estate, 200 Nanuet Center,
Inc. are now owned Nanuet, New York
by the operating
entities listed Roosevelt Field
above. (Continued) Shopping Center,
Garden Center, New
York (Second
Mortgage)
100 Richmond Hill
Road, Staten Island,
New York
The Court at King of
Prussia, 680 West
DeKalb Pike, King of
Prussia,
Pennsylvania
US Route 22 and
McArthur Road,
Whitehall,
Pennsylvania
$550,926,100.00 Loan Montgomeryville
to Macy's East, Mall, Route 309 and
Inc., Macy's West, Route 202, North
Inc., Macy's Texas, Wales, Pennsylvania
Inc., Rich's
Department Stores, 2300 East Lincoln
Inc. and Stern's Highway, Langhorne,
Department Stores, Pennsylvania (Second
Inc. (as owners of Mortgage)
the properties
encumbered) from Baltimore Pike and
Federated Sproul Road,
Noteholding Springfield,
Corporation. In a Pennsylvania
restructuring event
in 1999 through 120 Stockton Street,
various transfers San Francisco,
and mergers the California
properties once (Mainstore - East)
owned by Macy's (Second Mortgage)
Primary Real Estate,
Inc. are now owned Sunvalley Shopping
by the operating Center, 1555 Willow
entities listed Pass Road, Concord,
above. (Continued) California
The Village at Corte
Madera, 1800 Redwood
Highway, Corte
Madera, California
2210 Tully Road, San
Jose, California
(Second Mortgage)
Solano Mall, 1544
Travis Boulevard,
Fairfield,
California
$550,926,100.00 Loan Fresno Fashion
to Macy's East, Square Shopping
Inc., Macy's West, Center, 4888 North
Inc., Macy's Texas, Fresno Street,
Inc., Rich's Fresno, California
Department Stores,
Inc. and Stern's 115 Hillsdale Mall,
Department Stores, San Mateo,
Inc. (as owners of California
the properties
encumbered) from 500 Vintage Faire,
Federated Modesto, California
Noteholding
Corporation. In a 100 Del Monte
restructuring event Shopping Center,
in 1999 through Monteray, California
various transfers
and mergers the 200 Newpark Mall,
properties once Newark, California
owned by Macy's
Primary Real Estate, 5140 Thornwood
Inc. are now owned Drive, San Jose,
by the operating California
entities listed
above. (Continued) 408 L. Street,
Sacramento,
California
800 Santa Rosa
Plaza, Santa Rosa,
California
One Serramonte
Center, Daly City,
California
3000 Stanford
Shopping Center,
Palo Alto,
California
5242 Pacific Avenue,
Stockton, California
(Second Mortgage)
1300 Stoneridge
Mall, Pleasanton,
California
Town Center, 200
West Washington
Avenue, Sunnyvale,
California
$550,926,100.00 Loan 2801 Stevens Creek
to Macy's East, Road, San Jose,
Inc., Macy's West, California
Inc., Macy's Texas,
Inc., Rich's Meadowood Mall
Department Stores, Circle, 5100
Inc. and Stern's Meadowood Circle,
Department Stores, Reno, Nevada
Inc. (as owners of
the properties Dallas Galleria,
encumbered) from 13350 Dallas
Federated Parkway, Dallas,
Noteholding Texas
Corporation. In a
restructuring event 2201 John Glenn
in 1999 through Drive, Concord,
various transfers California
and mergers the
properties once 2838 South El
owned by Macy's Camino, San Mateo,
Primary Real Estate, California
Inc. are now owned
by the operating
entities listed
above. (Continued)
SCHEDULE 5.02(d)
Existing Debt
($000) Estimated as of June 29, 2001
Description of Debt Amount of Debt
Prime Receivables Backed Notes 997,589
Seven Hills Receivables Backed 375,000
Commercial Paper
Fingerhut Receivables Backed Notes 675,000
Capitalized Leases 49,943
Total Debt: 2,097,532
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated:
_______________, ____
FOR VALUE RECEIVED, the undersigned, FEDERATED
DEPARTMENT STORES, INC., a Delaware corporation (the "Borrower"),
HEREBY PROMISES TO PAY to the order of ___________________ (the
"Lender") for the account of its Applicable Lending Office on the
Revolver Termination Date, or if the Borrower has made a Term
Loan Election pursuant to Section 2.06 of the Credit Agreement,
on the Maturity Date (each as defined in the Credit Agreement
referred to below) the aggregate principal amount of the
Revolving Credit Advances (as defined below) owing to the Lender
by the Borrower pursuant to the 364-Day Credit Agreement dated as
of June 29, 2001 among the Borrower, the Lender and certain other
lender parties party thereto, Citibank, N.A., as Administrative
Agent and as Paying Agent for the Lender and such other lenders,
The Chase Manhattan Bank, as Administrative Agent for the Lender
and such other lenders, Fleet National Bank, as Syndication
Agent, and Bank of America, N.A., The Bank of New York and Credit
Suisse First Boston, as Documentation Agents (as amended,
supplemented or otherwise modified from time to time, the "Credit
Agreement"; the terms defined therein being used herein as
therein defined), outstanding on the Revolver Termination Date,
or if the Borrower has made a Term Loan Election pursuant to
Section 2.06 of the Credit Agreement, on the Maturity Date.
The Borrower promises to pay interest on the unpaid
principal amount of each Revolving Credit Advance from the date
of such Revolving Credit Advance until such principal amount is
paid in full, at such interest rates, and payable at such times,
as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money
of the United States of America to Citibank, N.A., as Paying
Agent, at 399 Park Avenue, New York, NY 10043, in same day funds.
Each Revolving Credit Advance owing to the Lender by the Borrower
pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached
hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit
Notes referred to in, and is entitled to the benefits of, the
Credit Agreement. The Credit Agreement, among other things,
(i) provides for the making of Revolving Credit Advances by the
Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the U.S. dollar amount
first above mentioned, the indebtedness of the Borrower resulting
from each such Revolving Credit Advance being evidenced by this
Promissory Note, and (ii) 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.
FEDERATED DEPARTMENT
STORES, INC.
By
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Date Amount of Principal Paid Unpaid Notation
Advance or Prepaid Principal Made By
Balance
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated:
_______________, 200_
FOR VALUE RECEIVED, the undersigned, FEDERATED
DEPARTMENT STORES, INC., a Delaware corporation (the "Borrower"),
HEREBY PROMISES TO PAY to the order of _________________________
(the "Lender") for the account of its Applicable Lending Office
(as defined in the Credit Agreement dated as of June 29, 2001
among the Borrower, the Lender and certain other lenders parties
thereto, Citibank, N.A., as Administrative Agent and as Paying
Agent for the Lender and such other lenders, The Chase Manhattan
Bank, as Administrative Agent for the Lender and such other
lenders , Fleet National Bank, as Syndication Agent, and Bank of
America, N.A., The Bank of New York and Credit Suisse First
Boston, as Documentation Agents, (as amended or modified from
time to time, the "Credit Agreement"; the terms defined therein
being used herein as therein defined)), on _______________, 200_,
the principal amount of U.S.$_______________].
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal
amount is paid in full, at the interest rate and payable on the
interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of
a year of _____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money
of the United States of America to Citibank, N.A., as Paying
Agent, for the account of the Lender at the office at 399 Park
Avenue, New York, NY 10043 in same day funds.
This Promissory Note is one of the Competitive Bid
Notes referred to in, and is entitled to the benefits of, the
Credit Agreement. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York.
FEDERATED DEPARTMENT STORES,
INC.
By __________________________
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Paying Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, Federated Department Stores, Inc.,
refers to the 364-Day Credit Agreement dated as of June 29, 2001
(as amended or modified from time to time, the "Credit
Agreement", the terms defined therein being used herein as
therein defined), among the undersigned, certain Lenders party
thereto, Citibank, N.A., as Paying Agent and as Administrative
Agent for said Lenders, The Chase Manhattan Bank, as
Administrative Agent for said Lenders, Fleet National Bank, as
Syndication Agent, and Bank of America, N.A., The Bank of New
York and Credit Suisse First Boston, as Documentation Agents,,
and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby
requests a Revolving Credit Borrowing under the Credit Agreement,
and in that connection sets forth below the information relating
to such Revolving Credit Borrowing (the "Proposed Revolving
Credit Borrowing") as required by Section 2.02(a) of the Credit
Agreement:
(i) The Business Day of the Proposed Revolving Credit
Borrowing is _______________, ____.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurodollar Rate
Advances].
(iii)The aggregate amount of the Proposed Revolving Credit
Borrowing is $_______________.
[(iv)The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Revolving Credit Borrowing
is _____ month[s].]
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Revolving Credit Borrowing:
(A) the representations and warranties contained in
Section 4.01 of the Credit Agreement (except the representations
set forth in the last sentence of subsection (e) thereof and in
subsection (f)(i) thereof) are correct, before and after giving
effect to the Proposed Revolving Credit Borrowing and to the
application of the proceeds therefrom, as though made on and as
of such date other than any such representations or warranties
that, by their terms, refer to a specific date other than the
date of such Proposed Revolving Credit Borrowing, in which case
as of such specific date;
(B) no event has occurred and is continuing, or would
result from such Proposed Revolving Credit Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default; and
(C) the aggregate amount of the Proposed Revolving
Credit Borrowing and all other Borrowings to be made on the same
day under the Credit Agreement is within the aggregate amount of
the Unused Revolving Credit Commitments of the Lenders less the
Commercial Paper Set-Aside Amount.
Very truly yours,
FEDERATED DEPARTMENT
STORES, INC.
By
Title:
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Paying Agent
for the Lenders parties
to the Credit Agreement
referred to below
Two Penns Way
New Castle, Delaware 19720
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, Federated Department Stores, Inc.,
refers to the Credit Agreement, dated as of June 29, 2001 (as
amended or modified from time to time, the "Credit Agreement",
the terms defined therein being used herein as therein defined),
among the undersigned, certain Lenders parties thereto, Citibank,
N.A., as Paying Agent and as Administrative Agent for said
Lenders, The Chase Manhattan Bank, as Administrative Agent for
said Lenders, Fleet National Bank, as Syndication Agent, and Bank
of America, N.A., The Bank of New York and Credit Suisse First
Boston, as Documentation Agents,, and hereby gives you notice,
irrevocably, pursuant to Section 2.03 of the Credit Agreement
that the undersigned hereby requests a Competitive Bid Borrowing
under the Credit Agreement, and in that connection sets forth the
terms on which such Competitive Bid Borrowing (the "Proposed
Competitive Bid Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing
________________________
(B) Amount of Competitive Bid Borrowing
________________________
(C) [Maturity Date] [Interest Period]
________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
(F) ___________________ ________________________
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Competitive Bid Borrowing:
(a) the representations and warranties contained in
Section 4.01 of the Credit Agreement (except the
representations set forth in the last sentence of subsection
(e) thereof and in subsection (f)(i) thereof) are correct,
before and after giving effect to the Proposed Competitive
Bid Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date other than
any such representations or warranties that, by their terms,
refer to a specific date other than the date of such
Proposed Competitive Bid Borrowing, in which case as of such
specific date;
(b) no event has occurred and is continuing, or would
result from the Proposed Competitive Bid Borrowing or from
the application of the proceeds therefrom, that constitutes
a Default; and
(c) the aggregate amount of the Proposed Competitive
Bid Borrowing and all other Borrowings to be made on the
same day under the Credit Agreement is within the aggregate
amount of the unused Commitments of the Lenders.
The undersigned hereby confirms that the Proposed
Competitive Bid Borrowing is to be made available to it in
accordance with Section 2.03(a)(v) of the Credit Agreement.
Very truly yours,
FEDERATED DEPARTMENT STORES,
INC.
By __________________________
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit Agreement dated
as of June 29, 2001 (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement") among
Federated Department Stores, Inc., a Delaware corporation (the
"Borrower"), the Lenders (as defined in the Credit Agreement)
party thereto, Citibank, N.A., as an administrative agent for the
Lenders (in such capacity, an "Administrative Agent") and paying
agent (in such capacity, the "Paying Agent") for the Lenders, The
Chase Manhattan Bank, as an administrative agent (in such
capacity, an "Administrative Agent"; the Administrative Agents
and the Paying Agent being, collectively, the "Agents") for the
Lenders, Fleet National Bank, as Syndication Agent, and Bank of
America, N.A., The Bank of New York and Credit Suisse First
Boston, as Documentation Agents. Terms defined in the Credit
Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on
Schedule I hereto agree as follows:
1. The Assignor hereby sells and assigns without
recourse, except as to the representations and warranties made by
it herein, to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, an interest in and to the Assignor's
rights and obligations under the Credit Agreement as of the date
hereof (other than in respect of Competitive Bid Advances and
Competitive Bid Notes) equal to the percentage interest specified
on Schedule 1 hereto of all outstanding rights and obligations
under the Credit Agreement (other than in respect of Competitive
Bid Advances and Competitive Bid Notes). After giving effect to
such sale and assignment, the Assignee's Commitment and the
amount of the Advances owing to the Assignee will be as set forth
on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that 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
adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created
or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any
of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; and
(iv) attaches the Revolving Credit Note held by the Assignor and
requests that the Administrative Agent exchange such Revolving
Credit Note for a new Revolving Credit Note payable to the order
of the Assignee in an amount equal to the Commitment assumed by
the Assignee pursuant hereto or new Revolving Credit Notes
payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto and the
Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified
on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 thereof and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon any Agent, the Assignor
or any other Lender 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
Credit Agreement; (iii) confirms that it is an Eligible Assignee;
(iv) appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers and discretion
under the Loan Documents as are delegated to such Agent by the
terms thereof, together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will perform in
accordance with their terms all of the obligations that by the
terms of the Credit Agreement are required to be performed by it
as a Lender; and (vi) attaches any U.S. Internal Revenue Service
forms required under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and
Acceptance, it will be delivered to the Paying Agent for
acceptance and recording by the Paying Agent. The effective date
for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Paying Agent, unless
otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Paying
Agent, as of the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Paying
Agent, from and after the Effective Date, the Paying Agent shall
make all payments under the Credit Agreement and the Revolving
Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the Revolving Credit
Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
New York.
8. This Assignment and Acceptance may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused Schedule 1 to this Assignment and Acceptance to be
executed by their officers thereunto duly authorized as of the
date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned:
_____%
Assignee's Commitment:
$__________
Aggregate outstanding principal amount of ________ Advances
assigned: $__________
*[Principal amount of Revolving Credit Note payable to Assignee:
$__________]
**[Principal amount of Revolving Credit Note payable to Assignor:
$__________]
Effective Date***: _______________, ____
[NAME OF ASSIGNOR], as
Assignor
By
Title:
Dated: _______________, ____
[NAME OF ASSIGNEE], as
Assignee
By
Title:
Dated: _______________, ____
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
Accepted [and Approved]* this
__________ day of _______________, ____
CITIBANK, N.A., as Paying Agent
By
Title:
[Approved this __________ day
of _______________, ____
FEDERATED DEPARTMENT STORES, INC.
By ]1
Title:
_______________________________
* If requested by the Assignee.
** If requested by the Assignor
*** This date should be no earlier than five Business Days after
the delivery of this Assignment and Acceptance to the Paying
Agent.
* Required if the Assignees is an Eligible Assignee solely by
reason of clause (iii) of the definition of "Eligible
Assignee".
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
Dated _______________, ____
Reference is made to the 364-Day Credit Agreement dated as
of June 29, 2001 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement") among Federated
Department Stores, Inc., a Delaware corporation (the "Borrower"),
the Lender Parties (as defined in the Credit Agreement) party
thereto, Citibank, N.A., as an administrative agent for the
Lender Parties (in such capacity, an "Administrative Agent") and
paying agent (in such capacity, the "Paying Agent") for the
Lender Parties, and The Chase Manhattan Bank, as an
administrative agent (in such capacity, an "Administrative
Agent"; the Administrative Agents and the Paying Agent being,
collectively, the "Agents") for the Lender Parties, Fleet
National Bank, as Syndication Agent, and Bank of America, N.A.,
The Bank of New York and Credit Suisse First Boston, as
Documentation Agents. Terms defined in the Credit Agreement are
used herein with the same meaning.
_______________________ (the "Designor") and
______________________ (the "Designee") agree as follows:
1. The Designor hereby designates the Designee, and the
Designee hereby accepts such designation, to have a right to make
Competitive Bid Advances pursuant to Section 2.03 of the Credit
Agreement.
2. The Designor 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
Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value, or the
perfection or priority of any lien or security interest created
or purported to be created under or in connection with, of any
Loan Document or any other instrument or document furnished
pursuant thereto and (ii) the financial condition of the Borrower
or the performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or
document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy
of the Credit Agreement, together with copies of the financial
statements referred to in Section 4.01 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 any Agent, the Designor or any other
Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is a Designated Bidder;
(iv) appoints and authorizes each Agent to take such action as
agents on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to such Agent by the
terms thereof, together with such powers and discretion as are
reasonably incidental thereto; and (v) agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be
performed by it as a Lender Party.
4. Following the execution of this Designation Agreement
by the Designor and its Designee, it will be delivered to the
Paying Agent for acceptance and recording by the Paying Agent.
The effective date for this Designation Agreement (the "Effective
Date") shall be the date of acceptance hereof by the Paying
Agent, unless otherwise specified on the signature page hereto.
5. Upon such acceptance and recording by the Paying Agent,
as of the Effective Date, the Designee shall be a party to the
Credit Agreement with a right to make Competitive Bid Advances as
a Lender Party pursuant to Section 2.03 of the Credit Agreement
and the rights and obligations of a Lender Party related thereto.
6. This Designation Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York.
7. This Designation Agreement may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by
telecopier shall be effective as delivery of a manually executed
counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee have
caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above
written.
Effective Date: _______________,
____
[NAME OF DESIGNOR],
as Designor
By
Title:
[NAME OF DESIGNEE],
as Designee
By
Title:
Applicable Lending Office (and
address for notices):
[Address]
Accepted this ____ day
of _______________, ____
CITIBANK, N.A., as Paying Agent
By
Title:
EXHIBIT E - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
[Effective Date]
June 29, 2001
To the Lenders and the Agents
Referred to Below
c/o Citibank, N.A.
[Address]
Re: Federated Department Stores, Inc.
Ladies and Gentlemen:
We have acted as special counsel for Federated
Department Stores, Inc., a Delaware corporation (the "Borrower"),
in connection with each credit agreement dated as of June 29,
2001 (collectively, the "Credit Agreements" and each a "Credit
Agreement"), among the Borrower, the lenders (as defined in each
Credit Agreement as the Lenders or the Lender Parties,
respectively, and as referred to herein collectively, the
"Lenders"), Citibank, N.A., as administrative agent and paying
agent for the Lenders, The Chase Manhattan Bank, as
administrative agent for the Lenders, Fleet National Bank, as
syndication agent, and Bank of America, N.A., The Bank of New
York and Credit Suisse First Boston, as documentation agents
(collectively, the "Agents" and each, an "Agent"). This letter
is delivered to you pursuant to Section 3.01(g)(iv) of the Credit
Agreements. Capitalized terms used in this letter and not
otherwise defined have the meanings assigned to such terms in the
Credit Agreements. With your permission, all assumptions and
statements of reliance in this letter have been made without any
independent investigation or verification on our part except to
the extent otherwise expressly stated and we express no opinion
with respect to the subject matter or accuracy of the assumptions
or items upon which we have relied.
In connection with the opinions expressed in this
letter, we have examined such documents, records and matters of
law as we have deemed necessary for the purposes of the opinions
expressed below. We have examined, among other documents, the
following:
an executed copy of each Credit Agreement;
[an executed copy of each Revolving Credit
Promissory Note made by the Borrower in favor of a
Lender that requested such note prior to the
Effective Date (collectively, the "Notes");] and
the Officer's Certificate of the Borrower
delivered to us in connection with this letter, a
copy of which is attached as Annex A (the
"Officer's Certificate").
In all such examinations, we have assumed the legal
capacity of all natural persons executing documents, the
genuineness of all signatures, the authenticity of original and
certified documents and the conformity to original or certified
copies of all copies submitted to us as conformed or reproduction
copies. As to various questions of fact relevant to the opinions
expressed in this letter, we have relied upon, and assume the
accuracy of, representations and warranties contained in the
Credit Agreements and certificates of or from representatives of
the Borrower and public officials. With respect to the legal
conclusions as to valid existence and good standing expressed in
paragraph 1 below, we have relied solely upon certificates of
public officials. With respect to the opinions expressed in
paragraphs 3(iii)(a) and 4 below, our opinions are limited (i) to
our actual knowledge, if any, of the Borrower's specially
regulated business activities and properties based solely upon an
officer's certificate in respect of such matters and without any
independent investigation or verification on our part and (ii) to
our review of only those laws and regulations that, in our
experience, are normally applicable to transactions of the type
contemplated by the Credit Agreements.
To the extent it may be relevant to the opinions
expressed in this letter, we have assumed that the parties to the
Credit Agreements other than the Borrower have the power to enter
into and perform the Credit Agreements and to consummate the
transactions contemplated by the Credit Agreements and that the
Credit Agreements have been duly authorized, executed and
delivered by, and constitute enforceable obligations of, such
parties.
Based upon the foregoing, and subject to the
limitations, qualifications and assumptions set forth in this
letter, we are of the opinion that:
The Borrower is a corporation validly existing and in good
standing under the laws of the State of Delaware.
The Borrower has the corporate power and authority to enter into
and to perform its obligations under the Credit Agreements and
the Notes.
The execution and delivery by the Borrower of the Credit
Agreements and the Notes and the performance by the Borrower of
its obligations under the Credit Agreements and the Notes: (i)
have been authorized by all necessary corporate action by the
Borrower; (ii) do not contravene any provision of the certificate
of incorporation or by-laws of the Borrower; and (iii) do not
violate (a) any present law, or present regulation or rule of any
governmental agency or authority, of the State of New York or the
United States of America known by us to be applicable to the
Borrower or its property; (b) do not violate any agreement
binding upon the Borrower or its property or any court decree or
order binding upon the Borrower or its property (this opinion
being limited (1) to those agreements, decrees or orders that
have been identified to us in the Officer's Certificate and (2)
in that we express no opinion with respect to any violation not
readily ascertainable from the face of any such agreement, decree
or order or arising under or based upon any cross-default
provision insofar as it relates to a default under an agreement
not so identified to us or arising under or based upon any
covenant of a financial or numerical nature or requiring
computation); and (c) will not result in or require the creation
or imposition of any security interest or lien upon any of its
properties under the provisions of any agreement binding upon the
Borrower or its properties other than the security interests
created by the Credit Agreements and any rights of set-off or
other liens in favor of the Lender Parties arising under the
Credit Agreements or applicable law (this opinion being limited
to those agreements that have been identified to us in the
Officer's Certificate).
The execution and delivery by the Borrower of the Credit
Agreements and the Notes and the performance by the Borrower of
its obligations under the Credit Agreements and the Notes do not
require under present law any filing or registration by the
Borrower with, or approval or consent to the Borrower of, any
governmental agency or authority of the State of New York or of
the United States of America or any other Person party to any of
the agreements listed in the Officer's Certificate that has not
been made or obtained except (i) filings under securities
laws and (ii) filings, registrations, consents or approvals in
each case not required to be made or obtained by the date of this
letter.
The Credit Agreements and the Notes have been duly executed and
delivered on behalf of the Borrower. The Credit Agreements and
the Notes constitute valid, binding and enforceable obligations
of the Borrower.
The borrowings by the Borrower under the Credit Agreements and
the application of the proceeds of such borrowings as provided in
the Credit Agreements will not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System (the Margin
Regulations").
The Borrower is not required to register as "investment company"
(under and as defined in the Investment Company Act of 1940, as
amended (the "1940 Act")) and is not a company controlled by a
company required to register as such under the 1940 Act, and is
not a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company," or of a
"subsidiary company" of a "holding company," within the meaning
of the Public Utility Holding Company Act of 1935, as amended.
The opinions set forth above are subject to the
following qualifications:
Our opinions in the second sentence of paragraph 5
above as to enforceability are subject to (i) applicable
bankruptcy, insolvency, reorganization, fraudulent transfer,
voidable preference, moratorium or similar laws and related
judicial doctrines from time to time in effect affecting
creditors' rights and remedies generally and (ii) general
principles of equity (including, without limitation, standards of
materiality, good faith, fair dealing and reasonableness,
equitable defenses and limits on the availability of equitable
remedies), whether such principles are considered in a proceeding
at law or in equity.
We express no opinion as to the enforceability of any
provision in the Credit Agreements:
relating to indemnification, contribution or exculpation in
connection with violations of any securities laws or statutory
duties or public policy or in connection with willful, reckless
or unlawful acts or gross negligence of the indemnified or
exculpated party or the party receiving contribution;
relating to exculpation of any party in connection with its own
negligence that a court would determine in the circumstances
under applicable law to be unfair or insufficiently explicit;
providing that any person or entity other than a Lender Party may
exercise set-off rights other than in accordance with and under
applicable law;
relating to forum selection to the extent the forum is a federal
court;
relating to forum selection to the extent that (a) any relevant
action or proceeding does not arise out of or relate to the
Credit Agreements, (b) the Credit Agreements are not in
consideration of, and do not at all relevant times relate to and
constitute an obligation arising out of a transaction covering in
the aggregate, not less than $1,000,000 or (c) the enforceability
of any such provision is to be determined by any court other than
a court of the State of New York;
relating to choice of governing law to the extent that (a) the
Credit Agreements are not at all relevant times in consideration
of, and do not at all relevant times relate to and constitute an
obligation arising out of a transaction covering in the
aggregate, not less than $250,000 or (b) the enforceability of
any such provision is to be determined by any court other than a
court of the State of New York;
waiving any rights to trial by jury; and
specifying that provisions of the Credit Agreements may be waived
only in writing, to the extent that an oral agreement or an
implied agreement by trade practice or course of conduct has been
created that modifies any provision of the Credit Agreements; and
giving any person or entity the power to accelerate obligations
or to foreclose upon collateral without any notice to the
obligor.
Our opinions in the second sentence of paragraph 5
above as to enforceability are subject to the effect of generally
applicable rules of law that govern and afford judicial
discretion regarding the determination of damages and entitlement
to attorneys' fees and other costs.
We express no opinion as to the application of, and our
opinions above are subject to the effect, if any, of, any
applicable fraudulent conveyance, fraudulent transfer, fraudulent
obligation or preferential transfer law and any law governing the
liquidation or dissolution of, or the distribution of assets of,
any person or entity (including, without limitation, any law
relating to the payment of dividends or other distributions on
capital stock or the repurchase of capital stock).
For purposes of the opinions set forth in paragraph 6
above, we have assumed that (i) neither the Agents nor any of the
Lender Parties has or will have the benefit of any agreement or
arrangement (excluding the Credit Agreements and the Notes)
pursuant to which any extensions of credit are directly or
indirectly secured by Margin Stock, (ii) neither the Agents nor
any nor any of the Lender Parties nor any of their respective
affiliates has extended or will extend any other credit to the
Borrower directly or indirectly secured by Margin Stock, and
(iii) neither the Agents nor the Lenders Parties has relied or
will rely upon any Margin Stock as collateral in extending or
maintaining any extensions or credit pursuant to the Credit
Agreements and (iv) the aggregate principal amount of all
"purpose credit" extended does not exceed the "maximum loan value
of the collateral securing the credit" (each phrase as defined
under the Margin Regulations), as to which we express no opinion.
The opinions expressed in this letter are limited to
(i) the federal laws of the United States of America and the laws
of the State of New York and (ii) to the extent relevant to the
opinions expressed in paragraphs 1, 2 and 3(i) above, the General
Corporation Law of the State of Delaware, each as currently in
effect.
We express no opinion as to the compliance or
noncompliance, or the effect of the compliance or noncompliance,
of the addressees of this letter with any state or federal laws
or regulations applicable to it by reason of its status as or
affiliation with a federally insured depository institution,
except as expressly set forth in paragraph 6 above.
The opinions expressed in this letter are solely for
the benefit of the addressees of this letter in connection with
the transaction referred to in this letter and may not be relied
on by such addressees for any other purpose, in any manner or for
any purpose by any other person or entity; provided that the
Lenders are authorized to provide this opinion to each
participant and Eligible Assignee and such participants and
assignees may rely on this opinion as of the date hereof as if it
were addressed to them.
Very truly yours,
JONES, DAY, REAVIS & POGUE
[Federated Letterhead]
June 29, 2001
To: The Lenders and the Agents
Referred to Below
c/o Citibank, N.A.
[Address]
Re: Federated Department Stores, Inc.
Ladies and Gentlemen:
As General Counsel of Federated Department Stores,
Inc., a Delaware corporation (the "Borrower"), I have acted as
counsel for the Borrower in connection with each credit agreement
dated as of June 29, 2001 (collectively, the "Credit Agreements"
and each a "Credit Agreement"), among the Borrower, the lenders
(as defined in each Credit Agreement as the Lenders or the Lender
Parties, respectively, and as referred to herein collectively,
the "Lenders"), Citibank, N.A., as administrative agent and
paying agent for the Lenders, The Chase Manhattan Bank, as
administrative agent for the Lenders, Fleet National Bank, as
syndication agent, and Bank of America N.A., The Bank of New York
and Credit Suisse First Boston, as documentation agents. This
letter is delivered to you pursuant to Section 3.01(g)(v) of the
Credit Agreements. Capitalized terms used in this letter and not
otherwise defined have the meanings assigned to such terms in the
Credit Agreements.
I have examined such documents and records as I have
deemed necessary for purposes of this opinion. Based on the
foregoing, and subject to the assumptions, qualifications, and
limitations set forth in this letter, I am of the opinion that,
to the best of my knowledge, there is no action, suit,
investigation, litigation or proceeding affecting the Borrower or
any of its Subsidiaries, including any Environmental Action,
pending or threatened before any court, governmental agency or
arbitrator that (i) would be reasonably likely to have a Material
Adverse Effect or (ii) purports to affect the legality, validity
or enforceability of the Credit Agreements or any other Loan
Document or the consummation of the transactions contemplated by
the Loan Documents.
This opinion is furnished by me, as General Counsel of
the Borrower, to the addressees hereof solely for the benefit of
such entities and solely with respect to the above transactions,
upon the understanding that I am not assuming hereby any
professional responsibility to any other person whatsoever.
Very truly yours,
Dennis J. Broderick