EXECUTION COPY
U.S. $1,200,000,000
FIVE YEAR 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 19
SECTION 1.03. Accounting Terms 19
SECTION 1.04. Currency Equivalents Generally 19
ARTICLE II
SECTION 2.01. The Regular Advances 20
SECTION 2.02. Making the Regular Advances 21
SECTION 2.03. The Competitive Bid Advances 23
SECTION 2.04. Fees 26
SECTION 2.05. Termination or Reduction of the
Commitments 27
SECTION 2.06. Repayment of Regular Advances 27
SECTION 2.07. Interest on Regular Advances 27
SECTION 2.08. Interest Rate Determination 28
SECTION 2.09. Optional Conversion of Revolving Credit
Advances 29
SECTION 2.10. Prepayments of Regular Advances 29
SECTION 2.11. Increased Costs 30
SECTION 2.12. Illegality 31
SECTION 2.13. Payments and Computations 31
SECTION 2.14. Taxes 32
SECTION 2.15. Sharing of Payments, Etc. 33
SECTION 2.16. Letters of Credit 34
SECTION 2.17. Use of Proceeds 38
SECTION 2.18. Defaulting Lenders 38
SECTION 2.19. Evidence of Debt 40
ARTICLE III
SECTION 3.01. Conditions Precedent to Initial Extension
of Credit 40
SECTION 3.02. Conditions Precedent to Each Regular
Borrowing and each Issuance and Renewal of Letters
of Credit 42
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing 42
SECTION 3.04. Determinations Under Section 3.01 43
ARTICLE IV
SECTION 4.01. Representations and Warranties of the
Borrower 43
ARTICLE V
SECTION 5.01. Affirmative Covenants 45
SECTION 5.02. Negative Covenants 48
SECTION 5.03. Financial Covenants 51
ARTICLE VI
SECTION 6.01. Events of Default 51
SECTION 6.02. Actions in Respect of the Letters of
Credit upon Event of Default 54
ARTICLE VII
SECTION 7.01. Authorization and Action 56
SECTION 7.02. Agent's Reliance, Etc. 57
SECTION 7.03. Citibank, Chase and Affiliates 57
SECTION 7.04. Lender Credit Decision 57
SECTION 7.05. Indemnification 57
SECTION 7.06. Successor Agents 59
ARTICLE VIII
SECTION 8.01. Amendments, Etc. 59
SECTION 8.02. Notices, Etc. 60
SECTION 8.03. No Waiver; Remedies 60
SECTION 8.04. Costs and Expenses 60
SECTION 8.05. Right of Set-off 61
SECTION 8.06. Binding Effect 62
SECTION 8.07. Assignments, Designations and
Participations 62
SECTION 8.08. Confidentiality 65
SECTION 8.09. No Liability of the Issuing Banks 66
SECTION 8.10. Governing Law 66
SECTION 8.11. Execution in Counterparts 66
SECTION 8.13. Jurisdiction, Etc. 67
SECTION 8.14. Waiver of Jury Trial 68
Schedules
Schedule I - List of Commitments and Applicable Lending Offices
Schedule 2.03(h) - Existing Competitive Bid Advances
Schedule 2.16(g) - Existing Letters of Credit
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
FIVE YEAR 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 the signature pages
hereof as the Initial Lenders (the "Initial Lenders") and the
Initial Issuing Banks (the "Initial Issuing Banks"), and
CITIBANK, N.A. ("Citibank"), as an administrative agent (in such
capacity, an "Administrative Agent") for the Lender Parties (as
hereinafter defined) and as paying agent (in such capacity, the
"Paying Agent") for the Lender Parties, and 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 Lender Parties,
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, a
Competitive Bid Advance, a Swing Line Advance or a Letter of
Credit 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 and the applicable
Issuing Bank, shall designate.
"Applicable Lending Office" means, with respect to each
Lender Party, such Lender Party's Domestic Lending Office in
the case of a Base Rate Advance and such Lender Party'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 Party notified by such Lender Party to
the Paying Agent as its Applicable Lending Office with
respect to such Competitive Bid Advance.
"Applicable Margin" means, as of any date of
determination, a percentage per annum determined by
reference to the Performance Level in effect on such date as
set forth below:
Performanc Applicable Applicable Fees for
e Margin for Margin for Trade
Level Base Rate Eurodollar Letters of
Advances Rate Credit
Advances
Level 1 0.000% 0.170% 0.150%
Level 2 0.000% 0.285% 0.275%
Level 3 0.000% 0.375% 0.350%
Level 4 0.000% 0.475% 0.450%
Level 5 0.000% 0.550% 0.525%
Level 6 0.000% 0.750% 0.725%
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 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 Utilization Fee
Level
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 Party and an Eligible
Assignee, and accepted by the Paying Agent, in substantially
the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at
any time, the maximum amount available to be drawn under
such Letter of Credit at such time (assuming compliance at
such time with all conditions to drawing), provided that
with respect to any Letter of Credit denominated in an
Alternative Currency, such maximum amount shall be
calculated as the equivalent Dollar amount, determined in
accordance with Section 1.04, of the stated maximum amount.
"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, a Swing
Line 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(c).
"Commitment" means a Revolving Credit Commitment or a
Letter of Credit Commitment.
"Competitive Bid Advance" means an Existing Competitive
Bid Advance or 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 Party 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 Party not permitted by this Agreement, (b) was
available to such Agent or such Lender Party on a non-
confidential basis prior to its disclosure to such Agent or
such Lender Party or (c) becomes available to such Agent or
such Lender Party 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 Party'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 Party.
"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(e) 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 Party 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) any Swing Line Bank pursuant to Section 2.02(b) to
purchase a portion of a Swing Line Advance made by such
Swing Line Bank, (b) any Issuing Bank pursuant to
Section 2.16(c) to purchase a portion of a Letter of Credit
Advance made by such Issuing Bank, (c) the Paying Agent
pursuant to Section 2.02(e) to reimburse the Paying Agent
for the amount of any Advance made by the Paying Agent for
the account of such Lender, (d) any other Lender pursuant to
Section 2.15 to purchase any participation in Advances owing
to such other Lender Party and (e) the Paying Agent or any
Issuing Bank pursuant to Section 7.05 to reimburse the
Paying Agent or such Issuing Bank for such Lender's ratable
share of any amount required to be paid by the Lenders to
the Paying Agent or such Issuing Bank 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 (other
than a Letter of Credit issued pursuant to this Agreement)
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 Party, the office of such Lender Party 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 Party, or such other
office of such Lender Party as such Lender Party 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.
"Electronic Issuing Bank" has the meaning specified in
Section 2.16(a).
"Electronic L/C" and "Electronic L/C Reserve" each has
the meaning specified in Section 2.16(a).
"Eligible Assignee" means (a) 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 and (b) with
respect to the Letter of Credit Facility, any Person
approved by the Paying Agent and, so long as no Event of
Default shall have occurred and be continuing, 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.
"Eligible Securities" means (a) readily marketable
securities issued or guaranteed by the government of the
United States of America or any agency thereof having a
maturity at the time of issuance not exceeding one year,
(b) commercial paper rated at least A-1 by S&P or P-1 by
Moody's, in each case having a maturity at the time of
issuance not exceeding one year, and (c) certificates of
deposit of or time deposits with any commercial bank, the
long-term debt of which has been assigned a rating of at
least BBB by S&P or Baa2 by Moody's and which is a Lender
and is organized and existing under the laws of the United
States of America or any state thereof or the District of
Columbia.
"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 Party, the office of such Lender Party 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 Party (or, if no such
office is specified, its Domestic Lending Office), or such
other office of such Lender Party as such Lender Party 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 Competitive Bid Advance" has the meaning
specified in Section 2.03(h).
"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.
"Existing Letters of Credit" has the meaning specified
in Section 2.16(g).
"Facility" means the Revolving Credit Facility, the
Swing Line Facility or the Letter of 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 Applicable
Level Percentage
Level 1 0.080%
Level 2 0.090%
Level 3 0.125%
Level 4 0.150%
Level 5 0.200%
Level 6 0.250%
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.
"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 Extension of Credit" means the earlier to
occur of the initial Borrowing (other than a Borrowing
consisting of any Existing Competitive Bid Advances) and the
initial issuance of a Letter of Credit (other than an
Existing Letter of Credit) hereunder.
"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 Termination 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.
"Issuing Bank" means Citibank, Chase, any other Lender
Party that has a Letter of Credit Commitment set forth
opposite its name on Schedule I hereto, any other Lender
Party approved as an Issuing Bank by the Paying Agent and,
so long as no Event of Default shall have occurred and be
continuing, the Borrower (such approval not to be
unreasonably withheld or delayed) and each Eligible Assignee
to which a Letter of Credit Commitment hereunder has been
assigned pursuant to Section 8.07 so long as each such
Lender Party or Eligible Assignee expressly agrees to
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 an Issuing Bank and notifies the
Paying Agent of its Applicable Lending Office and the amount
of its Letter of Credit Commitment (which information shall
be recorded by the Paying Agent in the Register).
"L/C Related Documents" has the meaning specified in
Section 2.16(e).
"Lender Party" means any Lender, any Swing Line Bank or
any Issuing Bank.
"Lenders" means the Initial Lenders and each Person
that shall become a party hereto pursuant to Section 8.07
and, except when used in reference to a Letter of Credit, a
Regular Advance, a Regular Borrowing, a Revolving Credit
Note, a Commitment or a related term, each Designated
Bidder.
"Letter of Credit" has the meaning specified in
Section 2.16(a).
"Letter of Credit Advance" means an advance made by any
Issuing Bank or any Lender pursuant to Section 2.16(c).
"Letter of Credit Agreement" has the meaning specified
in Section 2.16(b)(i).
"Letter of Credit Collateral" has the meaning specified
in Section 6.02(b).
"Letter of Credit Collateral Account" has the meaning
specified in Section 6.02(a).
"Letter of Credit Commitment" means, with respect to
any Issuing Bank at any time, the amount set forth opposite
such Issuing Bank's name on Schedule I hereto under the
caption "Letter of Credit Commitment" or, if such Issuing
Bank has entered into one or more Assignments and
Acceptances or if a Lender has otherwise become an Issuing
Bank, set forth for such Issuing Bank in the Register
maintained by the Paying Agent pursuant to Section 8.07(i)
as such Issuing Bank's "Letter of Credit Commitment", as
such amount may be reduced at or prior to such time pursuant
to Section 2.05.
"Letter of Credit Facility" means, at any time, an
amount equal to the lesser of (a) the aggregate amount of
the Issuing Banks' Letter of Credit Commitments and (b)
$1,000,000,000, as such amount may be reduced at or prior to
such time pursuant to Section 2.05.
"Letter of Credit Obligations" means, at any time, the
sum of (a) the maximum aggregate amount then available to be
drawn under the Letters of Credit outstanding at such time
(the determination of such maximum amount to assume the
occurrence of, and compliance with, all conditions for
drawing referred to therein) plus (b) the aggregate amount
of the Borrower's Obligations then outstanding under the
Loan Documents in respect of the Letters of Credit,
including all Advances resulting from drawings under Letters
of Credit and all fees and expenses in respect of the
Letters of Credit payable pursuant to Section 2.16(f).
"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, the Notes and
each Letter of Credit Agreement, 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 Party 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.
"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.
"Note" means a Revolving Credit Note or a Competitive
Bid Note.
"Notice of Revolving Credit Borrowing" has the meaning
specified in Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the meaning
specified in Section 2.03(a).
"Notice of Issuance" has the meaning specified in
Section 2.16(b)(i).
"Notice of Renewal" has the meaning specified in
Section 2.16(a).
"Notice of Swing Line Borrowing" has the meaning
specified in Section 2.02(b).
"Notice of Termination" has the meaning specified in
Section 2.16(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, Letter of Credit commissions, 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.
"Potential Defaulting Lender" has the meaning specified
in Section 2.01(b).
"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(i).
"Regular Advances" means any Advance other than a
Competitive Bid Advance.
"Regular Borrowing" means a Revolving Credit Borrowing
or a Swing Line Borrowing.
"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, Swing Line Advances and Letter of Credit
Advances owing to Lenders at such time, (b) the aggregate
Available Amount of all Letters of Credit outstanding at
such time and (c) 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, Swing Line Advances and Letter of
Credit Advances made by such Defaulting Lender and
outstanding at such time, (ii) if such Defaulting Lender
shall be an Issuing Bank, the Available Amount of all
Letters of Credit issued by such Defaulting Lender and
outstanding at such time and (iii) the Unused Revolving
Credit Commitment of such Defaulting Lender at such time.
For purposes of this definition, the aggregate principal
amount of Swing Line Advances owing to any Swing Line Bank
and of Letter of Credit Advances owing to any Issuing Bank
and the Available Amount of each Letter of Credit shall be
considered to be owed to the Lenders ratably in accordance
with their respective Revolving Credit Commitments.
"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.
"Revolving Credit Advance" means an advance by a Lender
to the Borrower as part of a Revolving Credit Borrowing 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(i) 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 Regular Advance, a Regular Borrowing, a Note
(other than a Competitive Bid 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-1 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.
"Standby Letter of Credit" means any Letter of Credit
issued under the Letter of Credit Facility, other than a
Trade Letter of Credit.
"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.
"Swing Line Advance" means an advance made by (a) any
Swing Line Bank pursuant to Section 2.01(b) or (b) any
Revolving Credit Lender pursuant to Section 2.02(b).
"Swing Line Bank" means each of Citibank, Chase, Fleet
National Bank and up to three additional Revolving Credit
Lenders as may be designated by the Borrower from time to
time (with the consent of any Lender so designated),
provided that any of Citibank, Chase, Fleet National Bank or
any other Lender as shall have been so designated may resign
upon 30 days' prior written notice to the Borrower and the
Paying Agent.
"Swing Line Borrowing" means a borrowing consisting of
a Swing Line Advance made by any Swing Line Bank.
"Swing Line Facility" has the meaning specified in
Section 2.01(b).
"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.
"Termination Date" means the earlier of June 29, 2006
and the date of termination in whole of the Revolving Credit
Commitments, the Swing Line Facility and the Letter of
Credit Commitments pursuant to Section 2.05 or 6.01.
"Trade Letter of Credit" means any Letter of Credit
that is issued under the Letter of Credit Facility for the
benefit of a supplier of inventory to the Borrower or any of
its Subsidiaries to effect payment for such inventory, the
conditions to drawing under which include the presentation
to the Issuing Bank that issued such Letter of Credit of
negotiable bills of lading, invoices and related documents
sufficient, in the judgment of such Issuing Bank, to create
a valid and perfected lien on or security interest in such
inventory, bills of lading, invoices and related documents
in favor of such Issuing Bank.
"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 sum
of (i) the aggregate principal amount of all Revolving
Credit Advances, Swing Line Advances and Letter of Credit
Advances made by such Lender, in each case in its capacity
as a Lender, and outstanding at such time, and (ii) such
Lender's Pro Rata Share of (A) the aggregate Available
Amount of all Letters of Credit outstanding at such time,
(B) the aggregate amount of the Competitive Bid Advances
outstanding at such time, and (C) to the extent not included
in clause (b)(i) of this definition, the aggregate principal
amount of all Letter of Credit Advances made by the Issuing
Banks pursuant to Section 2.16(c) and outstanding at such
time and of all Swing Line Advances made by the Swing Line
Banks pursuant to Section 2.01(b) 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 AND THE LETTERS OF CREDIT
SECTION 2.01. The Regular 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
Termination 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 (other than a
Borrowing the proceeds of which shall be used solely to repay in
full outstanding Letter of Credit Advances made by any Issuing
Bank) or, if less, an aggregate amount equal to the amount by
which the aggregate amount of a proposed Competitive Bid
Borrowing requested by the Borrower exceeds the aggregate amount
of Competitive Bid Advances offered to be made by the Lenders and
accepted by the Borrower in respect of such Competitive Bid
Borrowing, if such Competitive Bid Borrowing is made on the same
date as such Revolving Credit Borrowing, 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) The Swing Line Advances. Each Swing Line Bank
severally agrees, on the terms and conditions hereinafter set
forth, to make Swing Line Advances to the Borrower from time to
time on any Business Day during the period from the date hereof
until the Termination Date (i) in an aggregate amount for all
Swing Line Advances owing to such Swing Line Bank (in its
capacity as such) not to exceed at any time outstanding
$25,000,000, (ii) in an aggregate amount owing to all Swing Line
Banks not to exceed at any time outstanding $50,000,000, as such
amount may be reduced from time to time pursuant to Section 2.05
(the "Swing Line Facility") and (iii) in an amount for each such
Borrowing not to exceed an amount equal to the amount by which
the aggregate of the Unused Revolving Credit Commitments of the
Revolving Credit Lenders at such time exceeds the Commercial
Paper Set-Aside Amount at such time; provided, however, that if
at any time of receipt by any Swing Line Bank of a Notice of
Swing Line Borrowing, (x) any Revolving Credit Lender shall be a
Defaulting Lender or such Swing Line Bank determines in good
faith that any Lender is reasonably likely to become a Defaulting
Lender within the next 30 days (a "Potential Defaulting Lender")
and (y) the sum of the aggregate Unused Revolving Credit
Commitments of the Revolving Credit Lenders (other than Revolving
Credit Lenders that are Defaulting Lenders or Potential
Defaulting Lenders) plus the Commercial Paper Set-Aside Amount at
such time shall be less than the amount of the requested Swing
Line Borrowing, such Swing Line Bank shall not be required to,
but may, if in its sole discretion it elects to do so, make the
Swing Line Advance requested in such Notice of Swing Line
Borrowing. No Swing Line Advance shall be used for the purpose
of funding the payment of principal of any other Swing Line
Advance. Each Swing Line Borrowing shall be in an amount of
$5,000,000 or an integral multiple of $1,000,000 in excess
thereof and shall be made as a Base Rate Advance. Within the
limits of the Swing Line Facility and within the limits referred
to in clauses (i) and (iii) above (and if at the time of receipt
by any Swing Line Bank of a Notice of Swing Line Borrowing, any
Lender shall be a Defaulting Lender or a Potential Defaulting
Lender, so long as any Swing Line Bank, in its sole discretion,
elects to make Swing Line Advances), the Borrower may borrow
under this Section 2.01(b), repay pursuant to Section 2.06(b) or
prepay pursuant to Section 2.10 and reborrow under this
Section 2.01(b).
(c) 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 aggregate face
amount of such Commercial Paper outstanding 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(c) 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(c) is referred to herein as the
"Commercial Paper Set-Aside Amount".
SECTION 2.02. Making the Regular Advances. (a)
Revolving Credit Advances. Except as otherwise provided in
Section 2.02(b) and Section 2.16, 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-1 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; provided, however, that, in the case of any
such Borrowing, the Paying Agent shall first make a portion of
such funds equal to the aggregate principal amount of any Swing
Line Advances and Letter of Credit Advances made by any Swing
Line Bank or any Issuing Bank, as the case may be, and by any
other Revolving Credit Lender and outstanding on the date of such
Revolving Credit Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to such Swing Line Bank
or such Issuing Bank, as the case may be, and such other
Revolving Credit Lenders for repayment of such Swing Line
Advances and Letter of Credit Advances.
(b) Swing Line Advances. Each Swing Line Borrowing
shall be made on notice, given not later than 11:00 A.M.
(New York City time) on the date of the proposed Swing Line
Borrowing, by the Borrower to any Swing Line Bank and the Paying
Agent. Each such notice of a Swing Line Borrowing (a "Notice of
Swing Line Borrowing") shall be by telephone, confirmed
immediately in writing, or telex or telecopier, specifying
therein the requested (i) date of such Borrowing, (ii) amount of
such Borrowing and (iii) maturity of such Borrowing (which
maturity shall be no later than the seventh day after the
requested date of such Borrowing). If, in accordance with
Section 2.01(b), it makes the requested Swing Line Advance, such
Swing Line Bank will make the amount thereof available to the
Paying Agent at the Paying Agent's Account, in same day funds.
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. Upon written demand by any Swing Line Bank with an
outstanding Swing Line Advance, with a copy of such demand to the
Paying Agent, each other Revolving Credit Lender shall purchase
from such Swing Line Bank, and such Swing Line Bank shall sell
and assign to each such other Revolving Credit Lender, such other
Lender's Pro Rata Share of such outstanding Swing Line Advance as
of the date of such demand, by making available for the account
of its Applicable Lending Office to the Paying Agent for the
account of such Swing Line Bank, by deposit to the Paying Agent's
Account, in same day funds, an amount equal to the portion of the
outstanding principal amount of such Swing Line Advance to be
purchased by such Lender. The Borrower hereby agrees to each
such sale and assignment. Each Revolving Credit Lender agrees to
purchase its Pro Rata Share of an outstanding Swing Line Advance
on (i) the Business Day on which demand therefor is made by the
Swing Line Bank that made such Advance, provided that notice of
such demand is given not later than 11:00 A.M. (New York City
time) on such Business Day or (ii) the first Business Day next
succeeding such demand if notice of such demand is given after
such time. Upon any such assignment by a Swing Line Bank to any
other Revolving Credit Lender of a portion of a Swing Line
Advance, such Swing Line Bank represents and warrants to such
other Lender that such Swing Line Bank is the legal and
beneficial owner of such interest being assigned by it, but makes
no other representation or warranty and assumes no responsibility
with respect to such Swing Line Advance, the Loan Documents or
the Borrower. If and to the extent that any Revolving Credit
Lender shall not have so made the amount of such Swing Line
Advance available to the Paying Agent, such Revolving Credit
Lender agrees to pay to the Paying Agent forthwith on demand such
amount together with interest thereon, for each day from the date
of demand by such Swing Line Bank until the date such amount is
paid to the Paying Agent, at the Federal Funds Rate. If such
Lender shall pay to the Paying Agent such amount for the account
of such Swing Line Bank on any Business Day, such amount so paid
in respect of principal shall constitute a Swing Line Advance
made by such Lender on such Business Day for purposes of this
Agreement, and the outstanding principal amount of the Swing Line
Advance made by such Swing Line Bank shall be reduced by such
amount on such Business Day.
(c) 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.
(d) Each Notice of Revolving Credit Borrowing and
Notice of Swing Line 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.
(e) Unless the Paying Agent shall have received notice
from a Lender prior to the date of any Regular Borrowing that
such Lender will not make available to the Paying Agent such
Lender's ratable portion of such Regular 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) or (b) 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.
(f) The failure of any Lender to make the Advance to
be made by it as part of any Regular 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 Effective Date until the
date occurring 30 days prior to the 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 $1,200,000,000:
(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 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.
(h) Effective as of the Effective Date, (i) the
competitive bid advances made to the Borrower prior to such date
by Persons that are Lenders hereunder and set forth on Schedule
2.03(h) hereto (each such competitive bid advance being an
"Existing Competitive Bid Advance") in an aggregate principal
amount not exceeding the total amount set forth on such Schedule
will be deemed to have been made as, and be, Competitive Bid
Advances hereunder and (ii) the Obligations of the Borrower in
respect of the Existing Competitive Bid Advances shall be
Obligations of the Borrower hereunder and shall no longer be
Obligations under the documents pursuant to which such Existing
Competitive Bid Advances were initially made.
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 Termination 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
Termination Date; 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. 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 portion of the Swing
Line Facility and the Letter of Credit Facility and 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. The Swing
Line Facility and the Letter of Credit Facility shall be
permanently reduced from time to time on the date of each
reduction in the Revolving Credit Facility by the amount, if any,
by which the aggregate amount of the Swing Line Facility and the
Letter of Credit Facility, respectively, exceed the Revolving
Credit Facility after giving effect to such reduction of the
Revolving Credit Facility.
SECTION 2.06. Repayment of Regular Advances. (a)
Revolving Credit Advances. The Borrower shall repay to the Paying
Agent for the ratable account of the Lenders on the Termination
Date the aggregate principal amount of the Revolving Credit
Advances then outstanding.
(b) Swing Line Advances. The Borrower shall repay to
the Paying Agent for the account of each Swing Line Bank and each
other Revolving Lender that has made a Swing Line Advance the
outstanding principal amount of each Swing Line Advance made by
each of them on the earlier of the maturity date specified in the
applicable Notice of Swing Line Borrowing (which maturity shall
be no later than the seventh day after the requested date of such
Borrowing) and the Termination Date.
(c) Letter of Credit Advances. The Borrower shall
repay to the Paying Agent for the account of each Issuing Bank
and each other Revolving Credit Lender that has made a Letter of
Credit Advance the outstanding principal amount of each Letter of
Credit Advance made by each of them on demand.
SECTION 2.07. Interest on Regular Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the
unpaid principal amount of each Regular 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 Regular
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(c) and no Conversion of
any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(c).
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. Prepayments of Regular Advances. (a)
Optional. 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
Regular 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).
(b) Mandatory. (i) (A) The Borrower shall, on each
Business Day, prepay an aggregate principal amount of the
Revolving Credit Advances comprising part of the same Borrowings,
the Swing Line Advances and the Letter of Credit Advances equal
to the amount by which (1) the sum of the aggregate principal
amount of (w) the Revolving Credit Advances, (x) the Swing Line
Advances, (y) the Letter of Credit Advances and (z) the
Competitive Bid Advances then outstanding plus the aggregate
Available Amount of all Letters of Credit then outstanding
exceeds (2) the amount by which (I) the Revolving Credit Facility
exceeds (II) the Commercial Paper Set-Aside Amount on such
Business Day. Such prepayments of the Revolving Credit Facility
shall be first applied to prepay Letter of Credit Advances then
outstanding until such Advances are paid in full, second applied
to prepay Swing Line Advances then outstanding until such
Advances are paid in full and third applied to prepay Revolving
Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full.
(B) The Borrower shall, on each Business Day and on
the Termination Date, pay to the Paying Agent for deposit in the
Letter of Credit Collateral Account an amount sufficient to cause
the aggregate amount on deposit in such account to equal the
amount by which the aggregate Available Amount of all Letters of
Credit then outstanding exceeds the Letter of Credit Facility on
such Business Day or the Termination Date, as the case may be,
provided that with respect to any payment to be made under this
clause (B) on the Termination Date, the Borrower shall make such
payment or, at its option, provide a "back-to-back" letter of
credit to the Issuing Banks that issued the Letters of Credit
outstanding at such time in a form satisfactory to such Issuing
Banks and the Paying Agent in their sole discretion, issued by a
bank satisfactory to such Issuing Banks and the Paying Agent in
their sole discretion, in an amount equal to the aggregate
Available Amount of the Letters of Credit then outstanding.
(ii) All prepayments under this subsection (b)
shall be made together with accrued interest to the date of such
prepayment on the principal amount prepaid.
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 Party of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances
or LIBO Rate Advances or of agreeing to issue or of issuing or
maintaining Letters of Credit (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 Party 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 Party (with a copy of such demand to the Paying
Agent), pay to the Paying Agent for the account of such Lender
Party additional amounts sufficient to compensate such Lender
Party 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 Party 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
Party or any corporation controlling such Lender Party and that
the amount of such capital is increased by or based upon the
existence of such Lender Party's commitment to lend or to issue
Letters of Credit hereunder and other commitments of such type or
the issuance or maintenance of the Letters of Credit (or similar
contingent obligations), then, upon demand by such Lender Party
(with a copy of such demand to the Paying Agent), the Borrower
shall pay to the Paying Agent for the account of such Lender
Party, from time to time as specified by such Lender Party,
additional amounts sufficient to compensate such Lender Party or
such corporation in the light of such circumstances, to the
extent that such Lender Party reasonably determines such increase
in capital to be allocable to the existence of such Lender
Party's commitment to lend or to issue Letters of Credit
hereunder or the issuance or maintenance of the Letters of Credit
(or similar contingent obligations). A certificate as to such
amounts submitted to the Borrower and the Paying Agent by such
Lender Party 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 Party to such Lender Party for
the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon its
acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to
Section 8.07(i), 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 Party 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 Party,
if and to the extent payment owed to such Lender Party is not
made when due hereunder or under the Note held by such Lender
Party, to charge from time to time against any or all of the
Borrower's accounts with such Lender Party any amount so due.
(c) All computations of interest, fees and Letter of
Credit commissions 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, fees or commissions 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 Party
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 Party or such
Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender Party, 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 Party'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 Party 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 Party 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 Party 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 Party 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 Party 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 Party organized under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Initial Lender or Initial Issuing Bank, as the case may be,
and on the date of the Assignment and Acceptance pursuant to
which it becomes a Lender Party in the case of each other Lender
Party, and from time to time thereafter as requested in writing
by the Borrower (but only so long as such Lender Party 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 Party 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 Party
at the time such Lender Party 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 Party
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 Party assignee becomes
a party to this Agreement, the Lender Party 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 Party 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 Party reasonably considers to be
confidential, the Lender Party 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
Party 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 Party 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 Party become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall
take such steps as the Lender Party shall reasonably request to
assist the Lender Party to recover such Taxes.
(g) Any Lender Party 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 Party, be otherwise
disadvantageous to such Lender Party.
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, Swing Line Advances or
Letter of Credit Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances, Swing Line
Advances or Letter of 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. Letters of Credit. (a) The Letter of
Credit Facility. Each Issuing Bank severally agrees, on the
terms and conditions hereinafter set forth, to issue letters of
credit (together with the Existing Letters of Credit, the
"Letters of Credit") for the account of the Borrower specified by
the Borrower from time to time on any Business Day during the
period from the date hereof until 10 days before the Termination
Date (i) in an aggregate Available Amount for all Letters of
Credit issued by such Issuing Bank not to exceed at any time such
Issuing Bank's Letter of Credit Commitment (or such greater
amount as such Issuing Bank shall agree) and (ii) in an Available
Amount for each such Letter of Credit not to exceed an amount
equal to (1) the lesser of (x) the Letter of Credit Facility at
such time and (y) an amount equal to the Unused Revolving Credit
Commitments of the Revolving Credit Lenders at such time less (2)
the sum of the Commercial Paper Set-Aside Amount and the
Electronic L/C Reserve then in effect, provided that no Standby
Letters of Credit shall be denominated in an Alternative Currency
and no Trade Letter of Credit denominated in an Alternative
Currency shall be issued if the aggregate Available Amount of all
outstanding Letters of Credit denominated in Alternative
Currencies shall exceed the equivalent Dollar amount, determined
in accordance with Section 1.04, of $25,000,000. No Letter of
Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the
earlier of (A) in the case of a Letter of Credit denominated in
an Alternative Currency, 60 days before the Termination Date, and
in all other cases, 10 days before the Termination Date and (B)
(1) in the case of a Standby Letter of Credit, one year after the
date of issuance thereof (but such Standby Letter of Credit may
by its terms be automatically renewable annually upon notice (a
"Notice of Renewal") given to the Issuing Bank that issued such
Standby Letter of Credit and the Paying Agent on or prior to any
date for notice of renewal set forth in such Letter of Credit but
in any event at least three Business Days prior to the date of
the proposed renewal of such Standby Letter of Credit and upon
fulfillment of the applicable conditions set forth in Article III
unless such Issuing Bank has notified the Borrower (with a copy
to the Paying Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit but in any event
at least 30 Business Days prior to the date of automatic renewal
of its election not to renew such Standby Letter of Credit (a
"Notice of Termination")) and (2) in the case of a Trade Letter
of Credit, one year after the date of issuance thereof; provided
that the terms of each Standby Letter of Credit that is
automatically renewable annually shall (x) require the Issuing
Bank that issued such Standby Letter of Credit to give the
beneficiary named in such Standby Letter of Credit notice of any
Notice of Termination, (y) permit such beneficiary, upon receipt
of such notice, to draw under such Standby Letter of Credit prior
to the date such Standby Letter of Credit otherwise would have
been automatically renewed and (z) not permit the expiration date
(after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date after the dates
referred to in clause (A) above. If either a Notice of Renewal
is not given by the Borrower or a Notice of Termination is given
by the relevant Issuing Bank pursuant to the immediately
preceding sentence, such Standby Letter of Credit shall expire on
the date on which it otherwise would have been automatically
renewed; provided, however, that even in the absence of receipt
of a Notice of Renewal the relevant Issuing Bank may in its
discretion, unless instructed to the contrary by the Paying Agent
or the Borrower, deem that a Notice of Renewal had been timely
delivered and in such case, a Notice of Renewal shall be deemed
to have been so delivered for all purposes under this Agreement.
Within the limits of the Letter of Credit Facility, and subject
to the limits referred to above, the Borrower may request the
issuance of Letters of Credit under this Section 2.16(a), repay
any Letter of Credit Advances resulting from drawings thereunder
pursuant to Section 2.16(c) and request the issuance of
additional Letters of Credit under this Section 2.16(a). The
Borrower and any one Issuing Bank (the "Electronic Issuing Bank")
may from time to time agree to reserve under the Letter of Credit
Facility an amount (the "Electronic L/C Reserve") not to exceed
the Letter of Credit Facility, which reserve shall (A) be
available solely for electronically issued Trade Letters of
Credit from time to time in accordance with customary procedures
applicable thereto and each such electronically issued Letter of
Credit (an "Electronic L/C") shall be considered a Letter of
Credit for all purposes under this Agreement and (B) be
established or revised upon not less than 2 Business Days' prior
written notice thereof from the Borrower to the Paying Agent,
provided that, upon the occurrence and during the continuance of
an Event of Default, the ability to establish and maintain the
Electronic L/C Reserve and the ability of an Issuing Bank to
electronically issue Trade Letters of Credit under this Agreement
shall be suspended.
(b) Request for Issuance. (i) Each Letter of Credit
shall be issued upon notice, given not later than 11:00 A.M.
(New York City time) on the second Business Day prior to the date
of the proposed issuance of such Letter of Credit, by the
Borrower to any Issuing Bank or by such later date as may be
agreed by the Borrower and such Issuing Bank (subject to the
proviso to the last sentence in Section 2.16(a)), which shall
give to the Paying Agent and each Revolving Credit Lender prompt
notice thereof by telex or telecopier); provided, however, that
the Borrower may request (and if such request is made, the
Borrower shall represent and warrant that, after giving effect to
such issuance, the aggregate Available Amount of Letters of
Credit outstanding does not exceed the Letter of Credit Facility)
and the Electronic Issuing Bank may issue Electronic L/Cs without
the giving of notice thereof by such Issuing Bank to the Paying
Agent and each Revolving Credit Lender unless and until the
Paying Agent has notified such Issuing Bank that it must give
such notice prior to any issuance of Letters of Credit and,
provided further that the amount, if any, of the Electronic L/C
Reserve shall reduce the amount of non-electronically issued
Trade Letters of Credit that may be issued. Each such notice of
issuance of a Letter of Credit (a "Notice of Issuance") shall be
by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of
such Letter of Credit, (C) expiration date of such Letter of
Credit, (D) name and address of the beneficiary of such Letter of
Credit and (E) form of such Letter of Credit, and shall be
accompanied by such application and agreement for letter of
credit as such Issuing Bank may specify to the Borrower for use
in connection with such requested Letter of Credit or, in the
case of Electronic L/Cs, shall be subject to the agreement
entered into with the Electronic Issuing Bank with respect
thereto (in each case, a "Letter of Credit Agreement"). If
(x) the requested form of such Letter of Credit is reasonably
acceptable to such Issuing Bank in its sole discretion and (y) it
has not received notice of objection to such issuance on the
grounds that the Borrower has failed to satisfy the conditions
set forth in Section 3.02 from the Required Lenders, such Issuing
Bank will, upon fulfillment of the applicable conditions set
forth in Article III, make such Letter of Credit available to the
Borrower at its office referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with such
issuance. In the event and to the extent that the provisions of
any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(ii) Each Issuing Bank shall furnish (A) to the Paying
Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit
issued by such Issuing Bank during the previous week and drawings
during such week under all Letters of Credit issued by such
Issuing Bank, (B) to each Revolving Credit Lender on the first
Business Day of each month a written report summarizing issuance
and expiration dates of Letters of Credit issued by such Issuing
Bank during the preceding month and drawings during such month
under all Letters of Credit issued by such Issuing Bank and
(C) to the Paying Agent and each Revolving Credit Lender on the
first Business Day of each calendar quarter a written report
setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by
such Issuing Bank.
(c) Drawing and Reimbursement. Unless the Borrower
shall have paid the Paying Agent for the account of the
applicable Issuing Bank simultaneously with or prior to such
Issuing Bank's payment of a draft drawn under a Letter of Credit
issued by it in accordance with the terms of Section 2.16(a) an
amount equal to the amount of such payment (such amount to be
notified to the Borrower by the Issuing Bank on the Business Day
immediately preceding any such payment), the payment by such
Issuing Bank of a draft drawn under any such Letter of Credit
shall constitute for all purposes of this Agreement the making by
such Issuing Bank of a Letter of Credit Advance, which shall be a
Base Rate Advance, in the amount of such draft or, in the case of
any such Letter of Credit denominated in an Alternative Currency,
an amount equal to the Dollar equivalent of such draft. Upon
written demand by any Issuing Bank with an outstanding Letter of
Credit Advance, with a copy of such demand to the Paying Agent,
each Revolving Credit Lender shall purchase from such Issuing
Bank, and such Issuing Bank shall sell and assign to each such
Revolving Credit Lender, such Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such
purchase, by making available for the account of its Applicable
Lending Office to the Paying Agent for the account of such
Issuing Bank, by deposit to the Paying Agent's Account, in same
day funds, an amount equal to the portion of the outstanding
principal amount of such Letter of Credit Advance to be purchased
by such Lender. The Borrower hereby agrees to each such sale and
assignment. Each Revolving Credit Lender agrees to purchase its
Pro Rata Share of an outstanding Letter of Credit Advance on
(i) the Business Day on which demand therefor is made by the
Issuing Bank which made such Advance, provided notice of such
demand is given not later than 11:00 A.M. (New York City time) on
such Business Day or (ii) the first Business Day next succeeding
such demand if notice of such demand is given after such time.
Upon any such assignment by an Issuing Bank to any Revolving
Credit Lender of a portion of a Letter of Credit Advance, such
Issuing Bank represents and warrants to such Lender that such
Issuing Bank is the legal and beneficial owner of such interest
being assigned by it, free and clear of any liens, but makes no
other representation or warranty and assumes no responsibility
with respect to such Letter of Credit Advance, the Loan Documents
or the Borrower. If and to the extent that any Revolving Credit
Lender shall not have so made the amount of such Letter of Credit
Advance available to the Paying Agent, such Revolving Credit
Lender agrees to pay to the Paying Agent forthwith on demand such
amount together with interest thereon, for each day from the date
of demand by such Issuing Bank until the date such amount is paid
to the Paying Agent, at the Federal Funds Rate for its account or
the account of such Issuing Bank, as applicable. If such Lender
shall pay to the Paying Agent such amount for the account of such
Issuing Bank on any Business Day, such amount so paid in respect
of principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement,
and the outstanding principal amount of the Letter of Credit
Advance made by such Issuing Bank shall be reduced by such amount
on such Business Day. For purposes of this subsection (c), the
equivalent Dollar amount of any reimbursement obligation of the
Borrower in respect of any Letter of Credit denominated in an
Alternative Currency, and of any obligation of the Revolving
Credit Lenders to pay to the applicable Issuing Bank their Pro
Rata Share of drafts drawn under any Letter of Credit that is
denominated in an Alternative Currency, shall be determined by
using the quoted spot rate at which the applicable Issuing Bank
offers to exchange Dollars for such Alternative Currency at the
office where the draft giving rise to such reimbursement
obligation was presented at 11:00 A.M. local time for such office
on the date on which the applicable Issuing Bank honors a draft
drawn under such Letter of Credit. The applicable Issuing Bank's
determination of each spot rate of exchange pursuant to this
Section 2.16(c) shall be final and conclusive in the absence of
manifest error.
(d) Failure to Make Letter of Credit Advances. The
failure of any Lender to make the Letter of Credit Advance to be
made by it on the date specified in Section 2.16(c) shall not
relieve any other Lender of its obligation hereunder to make its
Letter of Credit Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such
date.
(e) Obligations Absolute. The Obligations of the
Borrower under this Agreement, any Letter of Credit Agreement and
any other agreement or instrument relating to any Letter of
Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument
under all circumstances, including, without limitation, the
following circumstances:
(i) any lack of validity or enforceability of this
Agreement, any Note, any Letter of Credit Agreement, any
Letter of Credit or any other agreement or instrument
relating thereto (all of the foregoing being, collectively,
the "L/C Related Documents");
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations
of the Borrower in respect of any L/C Related Document or
any other amendment or waiver of or any consent to departure
from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense
or other right that the Borrower may have at any time
against any beneficiary or any transferee of a Letter of
Credit (or any Persons for whom any such beneficiary or any
such transferee may be acting), any Issuing Bank or any
other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated
transaction;
(iv) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(v) payment by any Issuing Bank under a Letter of
Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of
Credit, unless such draft or certificate is substantially
different from the applicable form specified by such Letter
of Credit;
(vi) any exchange, release or non-perfection of any
Letter of Credit Collateral or other collateral, or any
release or amendment or waiver of or consent to departure
from any guarantee, for all or any of the Obligations of the
Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including, without limitation, any other circumstance that
might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
(f) Compensation. (i) The Borrower shall pay to the
Paying Agent for the account of each Revolving Credit Lender a
commission on such Lender's Pro Rata Share of the average daily
aggregate Available Amount of (A) all Standby Letters of Credit
outstanding from time to time at a rate per annum equal to the
Applicable Margin in effect from time to time for Eurodollar Rate
Advances and (B) all Trade Letters of Credit outstanding from
time to time at a rate per annum equal to the Applicable Margin
in effect from time to time for Trade Letters of Credit, in each
case, calculated for the quarterly period ending on the last
Business Day of each March, June, September and December and
payable in arrears on the fifth Business Day following each such
period, and on the Termination Date.
(ii) The Borrower shall pay to each Issuing Bank, for
its own account, such commissions, issuance fees, fronting fees,
transfer fees and other fees and charges in connection with the
issuance or administration of each Letter of Credit as the
Borrower and such Issuing Bank shall agree.
(g) Existing Letters of Credit. Effective as of the
Effective Date (i) the letters of credit issued for the account
of the Borrower prior to such date by Persons that are Issuing
Banks hereunder and set forth on Schedule 2.16(g) hereto (such
letters of credit being the "Existing Letters of Credit") in an
aggregate face amount not exceeding the total amount set forth on
such Schedule will be deemed to have been issued as, and be,
Letters of Credit hereunder and (ii) the Existing Letters of
Credit and the reimbursement obligations in respect thereof shall
be Obligations of the Borrower hereunder and shall no longer be
Obligations under the documents pursuant to which such Existing
Letters of Credit were initially issued.
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 and Competitive Bid Notes to
the extent issued hereunder.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Initial
Extension of Credit. The obligation of each Lender to make an
Advance or of any Issuing Bank to issue a Letter of Credit on the
occasion of the Initial Extension of Credit hereunder is subject
to the satisfaction of the following conditions precedent before
or concurrently with the Initial Extension of Credit:
(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 (or shall be concurrently with
the Initial Extension of Credit) paid in full in cash (or
otherwise satisfied with respect to Existing Letters of
Credit and the Existing Competitive Bid Advances) 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
Lender Parties) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of
the Lender Parties 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 Lender Parties.
(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 or
would result from the Initial Extension of Credit 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 Party:
(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 Party 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 Regular
Borrowing and each Issuance and Renewal of Letters of Credit.
The obligation of each Lender to make a Regular Advance (other
than a Letter of Credit Advance made by an Issuing Bank or a
Revolving Credit Lender pursuant to Section 2.16(c), or a Swing
Line Advance made by a Revolving Credit Lender pursuant to
Section 2.02(b)) on the occasion of each Regular Borrowing
(including the initial Borrowing), the obligation of each Swing
Line Bank to make a Swing Line Advance on the occasion of each
Swing Line Borrowing and the obligation of each Issuing Bank to
issue Letters of Credit (including the initial issuance) or renew
a Standby Letter of Credit from time to time shall be subject to
the conditions precedent that the Effective Date shall have
occurred and on the date of such Borrowing, issuance or renewal
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Revolving Credit Borrowing,
Notice of Swing Line Borrowing, Notice of Issuance or Notice of
Renewal and the acceptance by the Borrower of the proceeds of
such Borrowing or such Letter of Credit Issuance or the renewal
of such Standby Letter of Credit shall constitute a
representation and warranty by the Borrower that on the date of
such Borrowing, issuance or renewal 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, issuance or renewal, before and after giving
effect to such Borrowing, issuance or renewal 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, issuance or renewal,
in which case as of such specific date; and
(ii) no event has occurred and is continuing, or would
result from such Borrowing, issuance or renewal or from the
application of the proceeds therefrom, 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 Party 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 Lender
Parties unless an officer of the Agent responsible for the
transactions contemplated by the Loan Documents shall have
received notice from such Lender Party prior to the Initial
Extension of Credit specifying its objection thereto and if the
Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Paying Agent such
Lender Party's ratable portion of such Borrowing.
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 Party, 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, any Letter of Credit shall be
outstanding (and not cash collateralized or for which a "back-to-
back" letter of credit shall not have been issued pursuant to
Section 2.10(b)(i)(B)) or any Lender Party 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 Lender Parties 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 Lender Parties.
(e) Visitation Rights. At any reasonable time and
from time to time, (i) permit any Agent or any of the Lender
Parties 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 Lender Parties
and their rights described in clause (x) above, so long as
no Event of Default shall have occurred and be continuing,
such Lender Parties 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 Party 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, any Letter of Credit shall be
outstanding (and not cash collateralized or for which a "back-to-
back" letter of credit shall not have been issued pursuant to
Section 2.10(b)(i)(B)) or any Lender Party 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 or existing under the Loan
Documents;
(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 or Trade
Letters of Credit; 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 or Trade Letter of
Credit, as the case may be;
(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 Available Amount not to exceed $250,000,000
at any time outstanding; 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, any Letter of Credit shall be
outstanding (and not cash collateralized or for which a "back-to-
back" letter of credit shall not have been issued pursuant to
Section 2.10(b)(i)(B)) or any Lender Party 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 Party; 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 (other than Letter of Credit Advances by an Issuing
Bank or a Revolving Credit Lender pursuant to Section 2.16(c) and
other than Swing Line Advances by a Revolving Credit Lender
pursuant to Section 2.02(b)) and of each Issuing Bank to issue
Letters of Credit 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 (other
than Letter of Credit Advances by an Issuing Bank or a Revolving
Credit Lender pursuant to Section 2.16(c) and other than Swing
Line Advances by a Revolving Credit Lender pursuant to Section
2.02(b)) and of each Issuing Bank to issue Letters of Credit
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.
SECTION 6.02. Actions in Respect of the Letters of
Credit upon Event of Default. (a) If, at any time and from time
to time, any Letters of Credit shall have been issued by any
Issuing Bank hereunder and (i) an Event of Default shall have
occurred and be continuing, (ii) the Borrower shall have given
notice of prepayment in whole under Section 2.10 of all Advances
or shall have prepaid in whole all Advances, (iii) the
Termination Date shall have occurred or (iv) if at any time, as a
result of prepayments pursuant to Section 2.10, the Termination
Date shall be a date not more than 30 days following the
expiration of any Letter of Credit, then, upon the occurrence of
any of the events described in clauses (i) through (iv) above,
the Paying Agent may, and upon the request of any Issuing Bank or
of the Required Lenders shall, whether in addition to the taking
by any Agent of any of the actions described in Article VI or
otherwise, make demand upon the Borrower to, and forthwith upon
such demand the Borrower will, pay to the Paying Agent for its
benefit and the ratable benefit of the Lender Parties in same day
funds at the Paying Agent's office designated in such demand, for
deposit in a special cash collateral account (the "Letter of
Credit Collateral Account") to be maintained in the name of the
Paying Agent and under the sole dominion and control of the
Paying Agent for the benefit of the Paying Agent and the ratable
benefit of the Lender Parties at such place as shall be
designated by the Paying Agent, an amount equal to the amount of
the Letter of Credit Obligations.
(b) The Borrower hereby pledges and assigns to the
Paying Agent for its benefit and the ratable benefit of the
Lender Parties, and grants to the Paying Agent for its benefit
and the ratable benefit of the Lender Parties a lien on and a
security interest in, the following collateral (the "Letter of
Credit Collateral"):
(i) the Letter of Credit Collateral Account, all cash
deposited therein, and all certificates and instruments, if
any, from time to time representing or evidencing the Letter
of Credit Collateral Account;
(ii) all Eligible Securities from time to time held by
the Paying Agent and all certificates and instruments from
time to time representing or evidencing Eligible Securities;
(iii) all notes, certificates of deposit and other
instruments from time to time hereafter delivered to or
otherwise possessed by the Paying Agent for or on behalf of
the Borrower in substitution for or in respect of any or all
of the then existing Letter of Credit Collateral;
(iv) all interest, dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any
or all of the then existing Letter of Credit Collateral; and
(v) to the extent not covered by clauses (i) through
(iv) above, all proceeds of any or all of the foregoing
Letter of Credit Collateral.
The lien and security interest granted hereby secures the payment
of all Obligations of the Borrower now or hereafter existing
hereunder and under any other Loan Document.
(c) The Borrower hereby authorizes the Paying Agent to
apply, from time to time after funds are deposited in the Letter
of Credit Collateral Account, funds then held in the Letter of
Credit Collateral Account to the payment of any amounts, in such
order as the Paying Agent may elect, as shall have become or
shall become due and payable by the Borrower to the Lender
Parties in respect of the Letters of Credit.
(d) Neither the Borrower nor any Person claiming or
acting on behalf of or through the Borrower shall have any right
to withdraw any of the funds held in the Letter of Credit
Collateral Account, except as provided in Section 6.02(h);
provided, however, that as long as no Event of Default shall have
occurred and be continuing, and to the extent that there is an
amount in excess of $1,000,000 in the Letter of Credit Collateral
Account at the end of any Business Day after taking into account
applications of funds, if any, from the Letter of Credit
Collateral Account made pursuant to Section 6.02(c), the Paying
Agent will, at the written request of the Borrower, from time to
time invest amounts on deposit in the Letter of Credit Collateral
Account in such Eligible Securities as the Borrower may select
and the Paying Agent may approve; provided further that the
Borrower shall take such action as the Paying Agent may deem
necessary or desirable to create a perfected security interest in
favor of the Paying Agent on behalf of itself and the Lender
Parties in any such Eligible Securities. If the Borrower shall
have the right to have amounts on deposit in the Letter of Credit
Collateral Account invested by the Paying Agent, but shall have
failed to request the Paying Agent to invest such amounts, the
Paying Agent will endeavor to invest such amounts in such
Eligible Securities as the Paying Agent shall select. Any
interest received by the Paying Agent in respect of Eligible
Securities shall be credited against the Letter of Credit
Obligations. Non-interest proceeds from Eligible Securities that
are not invested or reinvested in Eligible Securities as provided
above shall be deposited and held in cash in the Letter of Credit
Collateral Account under the sole dominion and control of the
Paying Agent.
(e) The Borrower agrees that it will not (i) sell or
otherwise dispose of any interest in the Letter of Credit
Collateral or (ii) create or permit to exist any lien, security
interest or other charge or encumbrance upon or with respect to
any of the Letter of Credit Collateral, except for the security
interest created by this Section 6.02.
(f) If any Event of Default shall have occurred and be
continuing:
(i) The Paying Agent may, in its sole discretion,
without notice to the Borrower except as required by law and
at any time from time to time, charge, set off and otherwise
apply all or any part of first, the Letter of Credit
Obligations and second, the other Obligations of the
Borrower now or hereafter existing under any of the Loan
Documents, against the Letter of Credit Collateral Account
or any part thereof, in such order as the Paying Agent shall
elect. The Paying Agent agrees promptly to notify the
Borrower after any such set-off and application made by the
Paying Agent, provided that the failure to give such notice
shall not affect the validity of such set-off and
application. The rights of the Paying Agent under this
Section 6.02(f) are in addition to other rights and remedies
(including other rights of set-off) that the Paying Agent
may have.
(ii) The Paying Agent may also exercise, in its sole
discretion, in respect of the Letter of Credit Collateral
Account, in addition to the other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party upon default under
the Uniform Commercial Code in effect in the State of New
York at that time, and the Paying Agent may, without notice
except as specified below, sell the Letter of Credit
Collateral or any part thereof in one or more parcels at
public or private sale, at any of the Paying Agent's offices
or elsewhere, for cash, on credit or for future delivery,
and upon such other terms as the Paying Agent may deem
commercially reasonable. The Borrower agrees that, to the
extent notice of sale shall be required by law, at least ten
days' notice to the Borrower of the time and place of any
public sale or the time after which any private sale is to
be made shall constitute reasonable notification. The
Paying Agent shall not be obligated to make any sale of
Letter of Credit Collateral or any part thereof, regardless
of notice of sale having been given. The Paying Agent may
adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and
place to which it was so adjourned.
(iii) Any cash held in the Letter of Credit Collateral
Account, and all cash proceeds received by the Paying Agent
in respect of any sale of, collection from or other
realization upon all or any part of the Letter of Credit
Collateral Account may, in the discretion of the Paying
Agent, then or at any time thereafter be applied (after
payment of any amounts payable pursuant to Section 8.04) in
whole or in part by the Paying Agent for the ratable benefit
of the Lender Parties against all or any part of the
obligations of the Borrower now or hereafter existing under
any of the Loan Documents in such order as the Paying Agent
may elect.
(g) The Paying Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Letter of
Credit Collateral if the Letter of Credit Collateral is accorded
treatment substantially equal to that which the Paying Agent
accords its own property, it being understood that the Paying
Agent shall not have any responsibility or liability (i) for
ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any
Eligible Securities, whether or not the Paying Agent has or is
deemed to have knowledge of such matters, (ii) for taking any
necessary steps to preserve rights against any parties with
respect to the Letter of Credit Collateral, (iii) for the
collection of any proceeds from Eligible Securities, (iv) by
reason of any invalidity, lack of value or uncollectability of
any of the payments received by the Paying Agent from obligors
with respect to Eligible Securities, or (v) for any loss
resulting from investments made pursuant to Section 6.02(d),
except to the extent such loss was attributable to the Paying
Agent's gross negligence or wilful misconduct in complying with
Section 6.02(d), or (vi) in connection with any investments made
pursuant to Section 6.02(d) without a written request from the
Borrower, or any failure by the Paying Agent to make any such
investment.
(h) Any surplus of the funds held in the Letter of
Credit Collateral Account and remaining after payment in full of
all of the obligations of the Borrower under this Agreement and
under any other Loan Document after the Termination Date shall be
paid to the Borrower or to whomsoever may be lawfully entitled to
receive such surplus.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender
Party 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
Lender Parties 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
Party 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 Assignment and Acceptance entered
into by the Lender Party 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
Party and shall not be responsible to any Lender Party 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 Party 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
Party and may exercise the same as though they were not the
Agents; and the terms "Lender" or "Lenders" and "Lender Party" or
"Lender Parties" 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 Lender Parties.
SECTION 7.04. Lender Credit Decision. Each Lender
Party 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 Party also acknowledges that it will, independently
and without reliance upon any Agent 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 this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party
(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 Party 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 Party (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
Lender Parties, (b) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding
at such time and (c) 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 Party'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 such 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
Lender Parties to such Agent, Syndication Agent or Documentation
Agent, as the case may be, as provided herein shall not relieve
any other Lender Party 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 Party
shall be responsible for the failure of any other Lender Party to
reimburse such Agent, Syndication Agent or Documentation Agent,
as the case may be, for such other Lender Party's ratable share
of such amount. Without prejudice to the survival of any other
agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party 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.
(b) Each Lender Party (other than the Designated
Bidders) severally agrees to indemnify each Issuing Bank (to the
extent not reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against such Issuing Bank in any way relating to
or arising out of the Loan Documents or any action taken or
omitted by such Issuing Bank under the Loan Documents; provided,
that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
such Issuing Bank's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender Party (other
than the Designated Bidders) agrees to reimburse such Issuing
Bank promptly upon demand for its ratable share of any 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 Issuing Bank is not promptly reimbursed
for such costs and expenses by the Borrower. For purposes of
this Section 7.05(b), the Lenders 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 Lender
Parties, (b) their respective Pro Rata Shares of the aggregate
Available Amount of all Letters of Credit outstanding at such
time, and (c) their respective Unused Revolving Credit
Commitments at such time. The failure of any Lender party (other
than a Designated Bidder) to reimburse such Issuing Bank promptly
upon demand for its ratable share of any amount required to be
paid by the Lender Parties to such Issuing Bank as provided
herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse such Issuing Bank for its ratable share of
such amount, but no Lender Party shall be responsible for the
failure of any other Lender Party to reimburse such Issuing Bank
for such other Lender Party's ratable share of such amount.
Without prejudice to the survival of any other agreement of any
Lender Party hereunder, the agreement and obligations of each
Lender Party contained in this Section 7.05(b) 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 Lender Parties 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 Lender Parties, 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 Party 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, the
aggregate Available Amount of outstanding Letters of Credit 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 further that no amendment, waiver
or consent shall, unless in writing and signed by each Swing Line
Bank or Issuing Bank, as the case may be, in addition to the
Lenders required above to take such action, affect the rights or
duties of the Swing Line Banks or of the Issuing Banks, as the
case may be, under this Agreement or any Note; and provided,
further, 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, Swing Line Bank or any
Initial Issuing Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender
Party, at its Domestic Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender Party; 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 Party 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 Party 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 Party 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 Party 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 Party (with a copy
of such demand to the Paying Agent), pay to the Paying Agent for
the account of such Lender Party any amounts required to
compensate such Lender Party 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 Party 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 Party 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
Party 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 Party, whether or not such Lender Party
shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender Party
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 Party 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 Party 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 and Initial
Issuing Bank that such Initial Lender or Initial Issuing Bank, as
the case may be, has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Agents and
each Lender Party 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) Each Issuing Bank may assign to one or more
Eligible Assignees all or a portion of its rights and obligations
under the undrawn portion of its Letter of Credit Commitment at
any time; provided, however, that (i) except in the case of an
assignment to a Person that immediately prior to such assignment
was an Issuing Bank or an assignment of all of an Issuing Bank's
rights and obligations under this Agreement, the amount of the
Letter of Credit Commitment of the assigning Issuing Bank 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 and shall
be in an integral multiple of $1,000,000 in excess thereof, (ii)
each such assignment shall be to an Eligible Assignee, and (iii)
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 a
processing and recordation fee (unless paid pursuant to Section
8.07(a)) of $2,000 for each Assignment and Acceptance between an
Issuing Bank and its Affiliate or another Issuing Bank or $3,500
for each other Assignment and Acceptance.
(c) 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 or
Issuing Bank, as the case may be, hereunder and (y) the Lender or
Issuing Bank 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).
(d) 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.
(e) 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-1 hereto.
(f) 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.
(g) 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.
(h) 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.
(i) 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.
(j) 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.
(k) 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.
(l) 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 Party 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 Party's Affiliates to
whom disclosure is required to enable any such Agent or Lender
Party to perform its obligations under this Agreement or in
connection with the administration or monitoring of the Loan
Documents by such Agent or Lender Party 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. No Liability of the Issuing Banks. The
Borrower assumes all risks of the acts or omissions of any
beneficiary or transferee of any Letter of Credit with respect to
its use of such Letter of Credit. Neither any Issuing Bank nor
any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection
therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by such Issuing Bank against
presentation of documents that do not comply with the terms of a
Letter of Credit, including failure of any documents to bear any
reference or adequate reference to the Letter of Credit, unless
such documents are substantially different from the applicable
form specified by such Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except that the Borrower shall have a
claim against such Issuing Bank, and such Issuing Bank shall be
liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower
proves were caused by (i) such Issuing Bank's willful misconduct
or gross negligence in determining whether documents presented
under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) such Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of
a draft and certificates strictly complying with the terms and
conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, such Issuing Bank may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any
notice or information to the contrary.
SECTION 8.10. 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 8.11. 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 8.12. 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 Party 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 Party or the Paying
Agent (as the case may be) of any sum adjudged to be so due in
such Other Currency such Lender Party 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 Party 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 Party 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 Party or
the Paying Agent (as the case may be) in the Original Currency,
such Lender Party or the Paying Agent (as the case may be) agrees
to remit to the Borrower such excess.
SECTION 8.13. 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 8.14. Waiver of Jury Trial. Each of the
Borrower, the Agents and the Lender Parties 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 Party 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: 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 $15,000,000 Credit: Credit:
25 S. Charles Street 25 S. Charles Street
Baltimore, MD 21201 Baltimore, MD 21201
Attn: John Serocca Attn: Sean
Phone: (410) 244- Fitzgerald
4852 Phone: (410) 244-
Fax: (410) 545-2047 4575
Administrative: Fax: (410) 545 2079
25 S. Charles Street Administrative:
Baltimore, MD 21201 25 S. Charles Street
Attn: John Serocca Baltimore, MD 21201
Phone: (410) 244- Attn: Sean
4852 Fitzgerald
Fax: (410) 545-2047 Phone: (410) 244-4575
Fax: (410) 545-2079
Banca Nazionale del $18,750,000 Credit: Credit:
Lavoro 25 West 51st Street 25 West 51st Street
New York, NY 10019 New York, NY 10019
Attn: Juan Cortes Attn: Juan Cortes
Phone: (212) 314-0295 Phone: (212) 314-0295
Fax: (212) 765-2978 Fax: (212) 765-2978
Administrative: Administrative:
Attn: Anna Hernandez Attn: Anna Hernandez
Phone: (212) 314-0679 Phone: (212) 314-0679
Fax: (212) 765-2978 Fax: (212) 765-2978
Bank of America, $101,250,000 Credit: Credit:
N.A. 901 Main St, 67th 901 Main St, 67th
Floor Floor
Dallas, TX 75202 Dallas, TX 75202
Attn: Amy Krovocheck Attn: Amy Krovocheck
Phone: (214) 209-0193 Phone: (214) 209-0193
Fax: (214) 209-0980 Fax: (214) 209-0980
Administrative: Administrative:
1850 Gateway Blvd. 1850 Gateway Blvd.
Concord, CA 94520- Concord, CA 94520-
3282 3282
Attn: G.K. Lapitan Attn: G.K. Lapitan
Phone: (925) 675- Phone: (925) 675-
8205 8205
Fax: (925) 969-2852 Fax: (925) 969-2852
The Bank of New $101,250,000 Credit: Credit:
York One Wall Street, 8th One Wall Street, 8th
Floor Floor
New York, NY 10286 New York, NY 10286
Attn: Clarence Attn: Clarence
Burleigh Burleigh
Phone: (212) 635-7867 Phone: (212) 635-7867
Fax: (212) 635-1483 Fax: (212) 635-1483
Administrative: Administrative:
One Wall Street, 8th One Wall Street, 8th
Floor Floor
New York, NY 10286 New York, NY 10286
Attn: Susan Baratta Attn: Susan Baratta
Phone: (212) 635- Phone: (212) 635-
6761 6761
Fax: (212) 635-6397 Fax: (212) 635-6397
Bank One, NA $63,750,000 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) 336-4380 Fax: (312) 336-4380
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) 336-2715 Fax: (312) 336-2715
The Chase Manhattan $150,000,000 Credit: Credit:
Bank 270 Park Avenue, 48th 270 Park Avenue, 48th
Fl. Fl.
New York, NY 10017 New York, NY 10017
Attn: Barry Bergman Attn: Barry Bergman
Phone: (212) 270-0203 Phone: (212) 270-0203
Fax: (212) 270-5646 Fax: (212) 270-5646
Administrative: Administrative:
1 Chase Manhattan 1 Chase Manhattan
Plaza Plaza
8th Floor 8th Floor
New York, NY 10081 New York, NY 10081
Attn: Amy Labinger Attn: Amy Labinger
Phone: (212) 552- Phone: (212) 552-
4025 4025
Fax: (212) 552-7500 Fax: (212) 552-7500
Citibank, N.A. $150,000,000 Credit: Credit:
388 Greenwich Street 388 Greenwich Street
New York, NY 10013 New York, NY 10013
Attn: Robert Snell Attn: Robert Snell
Phone: (212) 816- Phone: (212) 816-
Fax: (212) 793-7585 Fax: (212) 793-7585
Administrative: Administrative:
2 Penns Plaza 2 Penns Plaza
Suite 200 Suite 200
New Castle, DE 19720 New Castle, DE 19720
Attn: Tim Card Attn: Tim Card
Phone: (718) 248-4536 Phone: (718) 248-4536
Fax: (718) 248-4844 Fax: (718) 248-4844
Credit Suisse First $101,250,000 Credit: Credit:
Boston 11 Madison Ave., 19th 11 Madison Ave., 19th
Fl. Fl.
New York, NY 10010 New York, NY 10010
Attn: William O'Daly Attn: William O'Daly
Phone: (212) 325-1986 Phone: (212) 325-1986
Fax: (212) 325-8314 Fax: (212) 325-8314
Administrative: Administrative:
11 Madison Ave. 11 Madison Ave.
New York, NY 10010 New York, NY 10010
Attn: Ronald David Attn: Ronald David
Phone: (212) 325-1865 Phone: (212) 325-1865
Fax: (212) 335-0593 Fax: (212) 335-0593
The Fifth-Third $56,250,000 Credit: Credit:
Bank 38 Fountain Square 38 Fountain Square
Plaza Plaza
Cincinnati, OH 45263 Cincinnati, OH 45263
Attn: Christine Attn: Christine
Wagner Wagner
Phone: (513) 744- Phone: (513) 744-
7348 7348
Fax: (513) 744-5947 Fax: (513) 744-5947
Administrative: Administrative:
38 Fountain Square 38 Fountain Square
Plaza Plaza
Cincinnati, OH 45263 Cincinnati, OH 45263
Attn: Jennifer Pund Attn: Jennifer Pund
Phone: (513) 579- Phone: (513) 579-
5389 5389
Fax: (513) 744-5947 Fax: (513) 744-5947
First Union $37,500,000 Credit: Credit:
National Bank Widener Building, Widener Building,
12th Floor 12th Floor
One South Penn Square One South Penn Square
Philadelphia, PA Philadelphia, PA
19107 19107
Attn: Beth Kmiec Attn: Beth Kmiec
Phone: (215) 786-3838 Phone: (215) 786-3838
Fax: (215) 786 1877 Fax: (215) 786 1877
Administrative: Administrative:
201 South College 201 South College
Street Street
17th Floor 17th Floor
Charlotte, NC 28288- Charlotte, NC 28288-
1183 1183
Attn: Lisa VanNote Attn: Lisa VanNote
Phone: (704) 374-4282 Phone: (704) 374-4282
Fax: (704) 383-7999 Fax: (704) 383-7999
Firstar Bank, N.A. $63,750,000 Credit: Credit:
425 Walnut Street, 425 Walnut Street,
ML: 8160 ML: 8160
Cincinnati, OH 45202 Cincinnati, OH 45202
Attn: Derek Roudebush Attn: Derek Roudebush
Phone: (513) 632-4010 Phone: (513) 632-4010
Fax: (513) 762-2068 Fax: (513) 762-2068
Administrative: Administrative:
425 Walnut Street 425 Walnut Street
Cincinnati, OH 45202 Cincinnati, OH 45202
Attn: Patty Gambert Attn: Patty Gambert
Phone: (513) 632- Phone: (513) 632-
4034 4034
Fax: (513) 632-3099 Fax: (513) 632-3099
Fleet National Bank $108,750,000 Credit: Credit:
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) 434-5280 Phone: (617) 434-5280
Fax: (617) 434-6685 Fax: (617) 434-6685
Administrative: Administrative:
One Federal Street One Federal Street
MA De 10307L MA DE 10307L
Boston, MA 02110 Boston, MA 02110
Attn: Dwayne Nelson Attn: Dwayne Nelson
Phone: (617) 346- Phone: (617) 346-
4223 4223
Fax: (617) 346-0595 Fax: (617) 346-0595
Mellon Bank, N.A. $56,250,000 Credit: Credit:
One Mellon Bank One Mellon Bank
Center, Center,
Room 370 Room 370
Pittsburgh, PA 15258- Pittsburgh, PA 15258-
0001 0001
Attn: Louis Flori Attn: Louis Flori
Phone: (412) 234-7298 Phone: (412) 234-7298
Fax: (412) 236-1914 Fax: (412) 236-1914
Administrative: Administrative:
Three Mellon Bank Three Mellon Bank
Center, Center,
Room 1203 Room 1203
Pittsburgh, PA 15259-Pittsburgh, PA 15259-
0003 0003
Attn: Richard Attn: Richard
Bouchard Bouchard
Phone: (412) 234-5767 Phone: (412) 234-5767
Fax: (412) 209-6124 Fax: (412) 209-6124
PNC Bank, $63,750,000 Credit: Credit:
National Association 201 East 5th Street 201 East 5th Street
Cincinnati, OH 45202 Cincinnati, OH 45202
Attn: Joe Richardson Attn: Joe Richardson
Phone: (513) 651- Phone: (513) 651-8688
8688 Fax: (513) 651-8951
Fax: (513) 651-8951 Administrative:
Administrative: 201 E. 5th Street
201 E. 5th Street Cincinnati, OH 45202
Cincinnati, OH 45202 Attn: Sandy Wilson
Attn: Sandy Wilson Phone: (513) 651-
Phone:(513) 651-8984 8984
Fax: (513) 651- 8951 Fax: (513) 651-8951
Standard Chartered $18,750,000 Credit: Credit:
Bank 7 World Trade Center, 7 World Trade Center,
27th Fl. 27th Fl.
New York, NY 10048 New York, NY 10048
Attn: David Cutting Attn: David Cutting
Phone: (212) 667-0469 Phone: (212) 667-0469
Fax: (212) 667-0225 Fax: (212) 667-0225
Administrative: Administrative:
707 Wilshire Blvd., W-707 Wilshire Blvd., W-
8-33 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) 614-4270 Fax: (213) 614-4270
Sumitomo Mitsui $56,250,000 Credit: Credit:
Banking Corporation 233 South Wacker 233 South Wacker
Drive, Suite 4010 Drive, Suite 4010
Chicago, IL 60606 Chicago, IL 60606
Attn: John H. Kemper Attn: John H. Kemper
Phone: (312) 876-7797 Phone: (312) 876-7797
Fax: (312) 876-6436 Fax: (312) 876-6436
Administrative: Administrative:
277 Park Avenue 277 Park Avenue
New York, NY 10172 New York, NY 10172
Attn: Courtney L. Attn: Courtney L.
Whitlock Whitlock
Phone: (212) 224-4335 Phone: (212) 224-4335
Fax (212) 224-5197 Fax (212) 224-5197
Wells Fargo Bank $37,500,000 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) 553-4783 Fax: (312) 553-4783
Administrative: Administrative:
201 Third Street 201 Third Street
MAC 0187-081 MAC 0187-081
San Francisco, CA San Francisco, CA
94103 94103
Attn: Ginnie Padgett Attn: Ginnie Padgett
Phone: (415) 477- Phone: (415) 477-
5374 5374
Fax: (415) 979-0675 Fax: (415) 979-0675
___________
TOTAL OF COMMITMENTS: $1,200,000,000
SCHEDULE 2.03(h)
Existing Competitive Bid Advances
None
Schedule 2.16 Existing Letters
(g) of Credit
Estimated as of
June 29, 2001
Standby Letters of
Credit
Expira
tion
Issuing bank Beneficiary Amount Date
Bank of New York National Union Insurance none
25,000,000
Bank of New York State of Rhode Island none
500,000
Bank of New York State of New York none
240,000
Bank of New York American Bankers Insurance of none
Florida 867,726
Bank of New York American Bankers Life Assurance of none
Florida 883,876
Bank of New York Bankers American Life Assurance none
83,249
Bank of New York Commonwealth of Virginia none
100,000
Bank of New York Travelers Indemnity none
Company 2,215,000
Citibank Cheesecake Factory Restaurants, 7/17/1
Inc. 14,526,000 5
Citibank Norwest Bank as trustee for
Gerald Knight
executive severance trust 9/30/0
1,997,695 2
Total
46,413,546
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
Termination 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 Five Year 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 Termination 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.$_______________ Dated:
_______________, ____
FOR VALUE RECEIVED, the undersigned, FEDERATED
DEPARTMENT STORES, INC., a Delaware corporation (the "Borrower"),
HEREBY PROMISES TO PAY to the order of _________________________
(the "Lender") for the account of its Applicable Lending Office
(as defined in the Five Year Credit Agreement dated as of June
29, 2001 among the Borrower, the Lender and certain other lender
parties party thereto, Citibank, N.A., as Administrative Agent
and as Paying Agent for the Lender and such other lenders, The
Chase Manhattan Bank, as Administrative Agent for the Lender and
such other lenders, Fleet National Bank, as Syndication Agent,
and Bank of America, N.A., The Bank of New York and Credit Suisse
First Boston, as Documentation Agents (as amended, supplemented
or otherwise modified from time to time, the "Credit Agreement";
the terms defined therein being used herein as therein defined)),
on _______________, ____, the principal amount of
U.S.$_______________.
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 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 Lender Parties party
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 Five Year 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 Lender Parties
party thereto, Citibank, N.A., as Paying Agent and as
Administrative Agent for said Lender Parties, The Chase Manhattan
Bank, as Administrative Agent for said 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, 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 Lender Parties party
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, Federated Department Stores, Inc., refers
to the Five Year Credit Agreement dated as of June 29, 2001 (as
amended, supplemented or otherwise modified from time to time,
the "Credit Agreement", the terms defined therein being used
herein as therein defined), among the undersigned, certain Lender
Parties party thereto, Citibank, N.A., as Paying Agent and as
Administrative Agent for said Lender Parties, The Chase Manhattan
Bank, as Administrative Agent for said 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, 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) ___________________ ________________________
(G) ___________________ ________________________
(H) ___________________ ________________________
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 Revolving Credit Commitments of the Lenders less the
Commercial Paper Set-Aside Amount.
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 Five Year 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, 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 "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 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 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 Party; 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 Five Year 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