U.S. $500,000,000
364-DAY CREDIT AGREEMENT
Dated as of July 28, 1997
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
BANKBOSTON, N.A.
as Syndication Agent
and
THE BANK OF AMERICA, NATIONAL TRUST & SAVINGS ASSOCIATION
as Documentation Agent
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 19
SECTION 1.03. Accounting Terms 19
SECTION 1.04. Currency Equivalents Generally 19
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances 19
SECTION 2.02 Making the Revolving Credit
Advances 20
SECTION 2.03. Fees 21
SECTION 2.04. Termination or Reduction of the
Commitments 21
SECTION 2.05. Repayment of Revolving Credit
Advances; Term Loan Election 21
SECTION 2.06. Interest on Revolving Credit
Advances 22
SECTION 2.07. Interest Rate Determination 23
SECTION 2.08. Optional Conversion of Revolving
Credit Advances 24
SECTION 2.09. Optional Prepayments of Revolving
Credit Advances 24
SECTION 2.10. Increased Costs 24
SECTION 2.11. Illegality 25
SECTION 2.12. Payments and Computations 25
SECTION 2.13. Taxes 27
SECTION 2.14. Sharing of Payments, Etc. 28
SECTION 2.16. Use of Proceeds 31
SECTION 2.17. Defaulting Lenders 31
SECTION 2.18. Evidence of Debt 33
SECTION 3.01. Conditions Precedent to 34
SECTION 3.02. Conditions Precedent to Each
Revolving Credit Borrowing 36
SECTION 3.03. Determinations Under Section 3.01 36
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of
the Borrower 37
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants 39
SECTION 5.02. Negative Covenants 42
SECTION 5.03. Financial Covenants 45
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default 46
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action 49
SECTION 7.02. Agent's Reliance, Etc. 49
SECTION 7.03. Citibank, Chase and Affiliates 50
SECTION 7.04. Lender Credit Decision 50
SECTION 7.05. Indemnification 50
SECTION 7.06. Successor Agents 51
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. 51
SECTION 8.02. Notices, Etc. 52
SECTION 8.03. No Waiver; Remedies 52
SECTION 8.04. Costs and Expenses 52
SECTION 8.05. Right of Set-off 54
SECTION 8.06. Binding Effect 54
SECTION 8.07. Assignments and Participations 55
SECTION 8.08. Confidentiality 57
SECTION 8.09. Governing Law 57
SECTION 8.10. Execution in Counterparts 57
SECTION 8.12. Jurisdiction, Etc. 58
SECTION 8.13. Waiver of Jury Trial 59
Schedule I - List of Commitments and Applicable Lending Offices
Schedule 4.01(c) - Required Authorizations, Approvals, Actions,
Notices and Filings
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
Exhibits
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Revolving Credit Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Opinion of Counsel for the Borrower
364-DAY CREDIT AGREEMENT
Dated as of July 28, 1997
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 CITIBANK, N.A. ("Citibank"), as an
administrative agent (in such capacity, an "Administrative
Agent") for the Lenders (as hereinafter defined) and as
paying agent (in such capacity, the "Paying Agent") for the
Lenders, THE CHASE MANHATTAN BANK ("Chase"), as an
administrative agent (in such capacity, an "Administrative
Agent"; the Administrative Agents and the Paying Agent
being, collectively, the "Agents") for the Lenders,
BankBoston, N.A., as syndication agent (the "Syndication
Agent") and The Bank of America, National Trust & Savings
Association, as documentation agent (the "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):
"Adjusted Debt" means, at any time, the amount by
which (a) Consolidated Debt (other than Debt of the
type referred to in clauses (f) and (h) in the
definition of "Debt") of the Borrower and its
Subsidiaries exceeds (b) to the extent otherwise
included in the calculation of Consolidated Debt under
clause (a) above, non-recourse Debt of Ridge Capital
Trust II outstanding under the May Note Monetization
Facility calculated on a Consolidated basis in
accordance with GAAP.
"Administrative Agent" has the meaning specified
in the recital of parties to this Agreement.
"Advance" means a Revolving 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, shall designate.
"Applicable Lending Office" means, with respect to
each Lender, such Lender's Domestic Lending Office in
the case of a Base Rate Advance and such Lender's
Eurodollar Lending Office in the case of a Eurodollar
Rate Advance.
"Applicable Margin" means, as of any date of
determination prior to the Term Loan Conversion Date, a
percentage per annum determined by reference to the
Performance Level in effect on such date as set forth
below:
Performanc Applicable Applicable Drawn Cost
e Margin for Margin for
Level Base Rate Eurodollar
Advances Rate
Advances
Level 1 0.0000% 0.1425% 0.1875%
Level 2 0.0000% 0.1500% 0.2000%
Level 3 0.0000% 0.1900% 0.2500%
Level 4 0.0000% 0.2250% 0.3000%
Level 5 0.0000% 0.2500% 0.3500%
Level 6 0.0000% 0.3750% 0.5000%
and, as of any date of determination on or after the
Term Loan Conversion Date, a percentage per annum
determined by reference to the Performance Level in
effect on such date as set forth below:
Performanc Applicable Applicable Drawn Cost
e Margin for Margin for
Level Base Rate Eurodollar
Advances Rate
Advances
Level 1 0.0000% 0.1875% 0.1875%
Level 2 0.0000% 0.2000% 0.2000%
Level 3 0.0000% 0.2500% 0.2500%
Level 4 0.0000% 0.3000% 0.3000%
Level 5 0.0000% 0.3500% 0.3500%
Level 6 0.0000% 0.5000% 0.5000%
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.
"Assignment and Acceptance" means an assignment
and acceptance entered into by a Lender and an Eligible
Assignee, and accepted by the Paying Agent, in
substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in
Section 2.15(c).
"Assumption Agreement" has the meaning specified
in Section 2.15(c).
"Base Rate" means a fluctuating interest rate per
annum in effect from time to time, which rate per annum
shall at all times be equal to the highest of:
(a) the rate of interest announced
publicly by Citibank in New York, New York, from
time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest
1/16 of 1% or, if there is no nearest 1/16 of 1%,
to the next higher 1/16 of 1%) of (i) 1/2 of 1%
per annum, plus (ii) the rate obtained by dividing
(A) the latest three-week moving average of
secondary market morning offering rates in the
United States for three-month certificates of
deposit of major United States money market banks,
such three-week moving average (adjusted to the
basis of a year of 360 days) being determined
weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day)
for the three-week period ending on the previous
Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York
or, if such publication shall be suspended or
terminated, on the basis of quotations for such
rates received by Citibank from three New York
certificate of deposit dealers of recognized
standing selected by Citibank, by (B) a percentage
equal to 100% minus the average of the daily
percentages specified during such three-week
period by the Board of Governors of the Federal
Reserve System (or any successor) for determining
the maximum reserve requirement (including, but
not limited to, any emergency, supplemental or
other marginal reserve requirement) for Citibank
with respect to liabilities consisting of or
including (among other liabilities) three-month
U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such
three-week period of the annual assessment rates
estimated by Citibank for determining the then
current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of
Citibank in the United States; and
(c) 1/2 of one percent per annum above
the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears
interest as provided in Section 2.06(a)(i).
"Borrowing" means a Revolving Credit Borrowing.
"Business Day" means a day of the year on which
banks are not required or authorized by law to close in
New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"Capitalized Leases" means all leases that have
been or should be, in accordance with GAAP, recorded as
capitalized leases.
"Chase" has the meaning specified in the recital
of parties to this Agreement.
"Citibank" has the meaning specified in the
recital of parties to this Agreement.
"Commercial Paper" means any unsecured promissory
note or notes issued by the Borrower pursuant to any
commercial paper program (whether rated or unrated)
with a maturity of not more than 270 days from the time
of issuance.
"Commercial Paper Set-Aside Amount" has the
meaning specified in Section 2.01(b).
"Commitment" means a Revolving Credit Commitment.
"Confidential Information" means all information
about the Borrower and its Subsidiaries that has been
furnished by the Borrower or any of its Subsidiaries to
any Agent or any Lender whether furnished before or
after the date of this Agreement, and regardless of the
manner in which it is furnished, but does not include
any such information that (a) is or becomes generally
available to the public other than as a result of a
disclosure by such Agent or such Lender not permitted
by this Agreement, (b) was available to such Agent or
such Lender on a non-confidential basis prior to its
disclosure to such Agent or such Lender or (c) becomes
available to such Agent or such Lender on a non-
confidential basis from a Person other than the
Borrower or any of its Subsidiaries that is not, to the
best of such Agent's or such Lender's knowledge, acting
in violation of a confidentiality agreement with the
Borrower or any of its Subsidiaries or is not otherwise
prohibited from disclosing the information to such
Agent or such Lender.
"Consenting Lender" has the meaning specified in
Section 2.15(b).
"Consolidated" refers to the consolidation of
accounts in accordance with GAAP.
"Convert", "Conversion" and "Converted" each
refers to a conversion of Revolving Credit Advances of
one Type into Revolving Credit Advances of the other
Type pursuant to Section 2.07 or 2.08.
"Debt" of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money,
(b) all Obligations of such Person for the deferred
purchase price of property or services (other than
Obligations for property (excluding real property,
capital stock and property subject to Capitalized
Leases) and services purchased, and expense accruals
and deferred compensation items arising in the ordinary
course of such Person's business), (c) all Obligations
of such Person evidenced by notes, bonds, debentures or
other similar instruments (other than performance,
surety and appeals bonds arising in the ordinary course
of business), (d) all payment Obligations of such
Person created or arising under any conditional sale or
other title retention agreement with respect to
property acquired by such Person (unless the rights and
remedies of the seller, lessor or lender under such
agreement in the event of default are limited to
repossession or sale of such property), (e) all
Obligations of such Person as lessee under Capitalized
Leases, (f) all Obligations, contingent or otherwise,
of such Person in respect of acceptances, letters of
credit or similar extensions of credit, (g) all
Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any
capital stock of or other ownership or profit interest
in such Person or any other Person or any warrants,
rights or options to acquire such capital stock (other
than Obligations of such Person with respect to
employee stock plans), valued, in the case of
Redeemable Preferred Stock, at the greater of its
involuntary liquidation preference plus accrued and
unpaid dividends, (h) all Obligations of such Person in
respect of Hedge Agreements, (i) all Debt of others
referred to in clauses (a) through (h) above or
clause (j) below guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an
agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of
such Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to
make payment of such Debt or to assure the holder of
such Debt against loss, (3) to supply funds to or in
any other manner invest in the debtor (including any
agreement to pay for property or services irrespective
of whether such property is received or such services
are rendered) or (4) otherwise to assure a creditor
against loss, and (j) all Debt referred to in
clauses (a) through (i) above secured by (or for which
the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and
contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment
of such Debt, provided that the amount of Debt of the
type referred to in clauses (i) and (j) above will be
included within the definition of "Debt" only to the
extent of the amount of the obligations so guaranteed
or otherwise supported.
"Default" means any Event of Default or any event
that would constitute an Event of Default but for the
requirement that notice be given or time elapse or
both.
"Defaulted Advance" means, with respect to any
Lender at any time, the portion of any Advance required
to be made by such Lender to the Borrower pursuant to
Section 2.01 or 2.02 at or prior to such time which has
not been made by such Lender or by the Paying Agent for
the account of such Lender pursuant to Section 2.02(d)
as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to
Section 2.17(a), the remaining portion of such
Defaulted Advance shall be considered a Defaulted
Advance originally required to be made pursuant to
Section 2.01 on the same date as the Defaulted Advance
so deemed made in part.
"Defaulted Amount" means, with respect to any
Lender at any time, any amount required to be paid by
such Lender to the Paying Agent or any other Lender
hereunder or under any other Loan Document at or prior
to such time which has not been so paid as of such
time, including, without limitation, any amount
required to be paid by such Lender to (a) the Paying
Agent pursuant to Section 2.02(d) to reimburse the
Paying Agent for the amount of any Advance made by the
Paying Agent for the account of such Lender, (b) any
other Lender pursuant to Section 2.14 to purchase any
participation in Advances owing to such other Lender
and (c) the Paying Agent pursuant to Section 7.05 to
reimburse the Paying Agent for such Lender's ratable
share of any amount required to be paid by the Lenders
to the Paying Agent as provided therein. In the event
that a portion of a Defaulted Amount shall be deemed
paid pursuant to Section 2.17(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).
"Dollars" and the sign "$" each means lawful money
of the United States.
"Documentary L/C" means any letter of credit that
is issued for the benefit of a supplier of inventory to
the Borrower or any of its Subsidiaries to effect
payment of such Inventory.
"Documentation Agent" has the meaning specified in
the recital of parties to this Agreement.
"Domestic Lending Office" means, with respect to
any Lender, the office of such Lender specified as its
"Domestic Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender, or such other
office of such Lender as such Lender may from time to
time specify to the Borrower and the Paying Agent.
"EBITDA" means, for any period, (i) the sum,
determined on a Consolidated basis, of (a) net income
(or net loss), (b) Net Interest Expense, (c) income tax
expense, (d) depreciation expense, (e) amortization
expense (including, without limitation, amortization of
(1) excess of cost over net assets acquired, (2)
reorganization value in excess of amounts allocable to
identifiable assets and (3) unearned restricted stock)
and (f) unusual and extraordinary losses less (ii)
unusual and extraordinary gains, in each case of the
Borrower and its Subsidiaries determined in accordance
with GAAP for such period.
"Effective Date" means the first date on which the
conditions set forth in Section 3.01 shall have been
satisfied.
"Eligible Assignee" means with respect to the
Revolving Credit Facility (i) a Lender; (ii) an
Affiliate of a Lender; and (iii) any other Person
approved by the Paying Agent and, unless an Event of
Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.07,
the Borrower, such approval not to be unreasonably
withheld or delayed; provided, however, that neither
the Borrower nor an Affiliate of the Borrower shall
qualify as an Eligible Assignee.
"Environmental Action" means any action, suit,
demand, demand letter, claim, notice of non-compliance
or violation, notice of liability or potential
liability, investigation, proceeding, consent order or
consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including,
without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and
(b) by any governmental or regulatory authority or any
third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state,
local or foreign statute, law, ordinance, rule,
regulation, code, order, judgment, decree or judicial
or agency interpretation, policy or guidance relating
to pollution or protection of the environment, health,
safety or natural resources, including, without
limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release
or discharge of Hazardous Materials.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and
the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for
purposes of Title IV of ERISA is a member of the
Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a
reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of
subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with
respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to
occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of the
Borrower or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the
withdrawal by the Borrower or any ERISA Affiliate from
a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for
the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the
adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the
PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event
or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning
assigned to that term in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect
from time to time.
"Eurodollar Lending Office" means, with respect to
any Lender, the office of such Lender specified as its
"Eurodollar Lending Office" opposite its name on
Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender (or, if no such
office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may
from time to time specify to the Borrower and the
Paying Agent.
"Eurodollar Rate" means, with respect to each day
during each Interest Period for a Eurodollar Rate
Advance comprising a Revolving Credit Borrowing, the
rate of interest per annum obtained by dividing (a) the
"Eurodollar Rate" determined (i) on the basis of the
rate for deposits in Dollars for a period equal to such
Interest Period appearing on Page 3750 of the Telerate
screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period, or if
such rate does not appear on Page 3750 of the Telerate
screen (or otherwise on such service), the rate per
annum (rounded upward to the nearest 1/16 of 1% per
annum) at which deposits are offered by another
publicly available service displaying eurodollar rates
as may be agreed upon by the Paying Agent and the
Borrower or (ii) in the absence of such appearance or
agreement, by reference to the average of the rate of
interest per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is
not such a multiple) at which deposits in Dollars are
offered by the principal office of each of the
Reference Banks in London, England, to prime banks in
the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest
Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance to be
outstanding during such Interest Period (or, if such
Reference Bank shall not have a Eurodollar Rate Advance
that is to be outstanding during such Interest Period,
in an amount equal to $1,000,000) and for a period
equal to such Interest Period by (b) a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. In the case of any
Eurodollar Rate determined pursuant to clause (a)(ii)
above, the Eurodollar Rate for any Interest Period for
each Eurodollar Rate Advance comprising such Revolving
Credit Borrowing shall be determined by the Paying
Agent on the basis of applicable rates received by the
Paying Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject,
however, to the provisions of Section 2.07.
"Eurodollar Rate Advance" means a Revolving Credit
Advance that bears interest as provided in
Section 2.06(a)(ii).
"Eurodollar Rate Reserve Percentage" for any
Interest Period for all Eurodollar 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 is determined) having a term
equal to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Existing Credit Agreement" means the
$2,800,000,000 Credit Agreement dated as of December
19, 1994, as amended through the date hereof, among the
Borrower, certain lenders party thereto, Citibank, as
administrative agent, Chemical Bank, as agent, Citicorp
Securities, Inc., as arranger and Chemical Securities,
Inc., as co-arranger.
"Extension Date" has the meaning specified in
Section 2.15(b).
"Facility" means the Revolving Credit Facility.
"Facility Fee Percentage" means, as of any date, a
percentage per annum determined by reference to the
Performance Level in effect on such date as set forth
below:
Performance Applicable
Level Percentage
Level 1 .0450%
Level 2 .0500%
Level 3 .0600%
Level 4 .0750%
Level 5 .1000%
Level 6 .1250%
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates
on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a
Business Day, the average of the quotations for such
day on such transactions received by the Paying Agent
from three Federal funds brokers of recognized standing
selected by it.
"Fiscal Year" means a fiscal year of the Borrower
and its Consolidated Subsidiaries ending on the
Saturday closest to January 31 in any calendar year.
"Five Year Credit Agreement" means the Five Year
Credit Agreement of even date herewith among the
Borrower, the lenders party thereto, Citibank, as
administrative agent and as paying agent, Chase, as
administrative agent, BankBoston, N.A., as syndication
agent, and The Bank of America, National Trust &
Savings Association, as documentation agent, as
amended, supplemented or otherwise modified from time
to time.
"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 July 1997 used by the Administrative
Agents in connection with the syndication of the
Commitments.
"Initial Lenders" has the meaning specified in the
recital of parties of this Agreement.
"Interest Coverage Ratio" means, at any date of
determination, the ratio of Consolidated EBITDA for the
Measurement Period then most recently ended to Net
Interest Expense for such Measurement Period determined
in accordance with GAAP.
"Interest Period" means, for each Eurodollar Rate
Advance comprising part of the same Revolving Credit
Borrowing, the period commencing on the date of such
Eurodollar 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 one,
two, three or six months, as the Borrower may, upon
notice received by the Paying Agent not later than
11:00 A.M. (New York City time) on the third Business
Day prior to the first day of such Interest Period,
select; provided, however, that:
(i) the Borrower may not select any
Interest Period that ends after the Revolver
Termination Date then in effect or, if the
Advances have been converted to a term loan
pursuant to Section 2.05 prior to such selection,
that ends after the Maturity Date;
(ii) Interest Periods commencing on the
same date for Eurodollar Rate Advances comprising
part of the same Revolving Credit Borrowing shall
be of the same duration;
(iii) whenever the last day of any
Interest Period would otherwise occur on a day
other than a Business Day, the last day of such
Interest Period shall be extended to occur on the
next succeeding Business Day, provided, however,
that, if such extension would cause the last day
of such Interest Period to occur in the next
following calendar month, the last day of such
Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any
Interest Period occurs on a day of an initial
calendar month for which there is no numerically
corresponding day in the calendar month that
succeeds such initial calendar month by the number
of months equal to the number of months in such
Interest Period, such Interest Period shall end on
the last Business Day of such succeeding calendar
month.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"Insufficiency" means, with respect to any Plan,
the amount, if any, of its unfunded benefit
liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Lenders" means the Initial Lenders, each Assuming
Lender that shall become a party hereto pursuant to
Section 2.15 and each Person that shall become a party
hereto pursuant to Section 8.07.
"Leverage Ratio" means, at any date of
determination, the ratio of Adjusted Debt to the sum of
Adjusted Debt plus Consolidated net worth of the
Borrower and its Subsidiaries calculated on a
Consolidated basis in accordance with GAAP.
"Lien" means any lien, security interest or other
charge or encumbrance of any kind, or any other type of
preferential arrangement, including, without
limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or
other encumbrance on title to real property.
"Loan Documents" means this Agreement and the
Notes, as each may be amended, supplemented or
otherwise modified from time to time.
"Material Adverse Change" means any material
adverse change in the business, condition (financial or
otherwise), operations, performance, properties or
prospects of the Borrower and its Subsidiaries, taken
as a whole.
"Material Adverse Effect" means an effect that
causes or results in or has a reasonable likelihood of
causing or resulting in any material adverse change in
(a) the business, condition (financial or otherwise),
operations, performance, properties or prospects of the
Borrower and its Subsidiaries, taken as a whole,
(b) the rights and remedies of any Agent or any Lender
under any Loan Document, (c) the ability of the
Borrower to perform its Obligations under any Loan
Document or (d) the legality, validity or
enforceability of any Loan Document.
"Material Subsidiary" of the Borrower means, at
any time, any Subsidiary of the Borrower having
(a) assets with a value of not less than 5% of the
total value of the assets of the Borrower and its
Consolidated Subsidiaries, taken as a whole, or
(b) Consolidated EBITDA not less than 5% of the
Consolidated EBITDA of the Borrower and its
Consolidated Subsidiaries, taken as a whole, in each
case as of the end of or for the most recently
completed Fiscal Year of the Borrower.
"Maturity Date" means the earlier of (a) the
second anniversary of the Term Loan Conversion Date and
(b) the date of termination in whole of the aggregate
Commitments pursuant to Section 2.04 or 6.01.
"May Note Monetization Facility" means the
monetization facility established July 26, 1988,
between the Borrower and a grantor trust of which the
Borrower is the beneficiary, pursuant to which such
grantor trust distributed approximately $352,000,000 to
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).
"Minor Subsidiary" means any Subsidiary of the
Borrower that is not a Material Subsidiary.
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan,
as defined in Section 4001(a)(3) of ERISA, to which the
Borrower or any ERISA Affiliate is making or accruing
an obligation to make contributions, or has within any
of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, that
(a) is maintained for employees of the Borrower or any
ERISA Affiliate and at least one Person other than the
Borrower and the ERISA Affiliates or (b) was so
maintained and in respect of which the Borrower or any
ERISA Affiliate could have liability under Section 4064
or 4069 of ERISA in the event such plan has been or
were to be terminated.
"Net Interest Expense" means, for any period, the
amount (if any) by which (a) interest payable on all
Debt (including, without limitation, the interest
component of Capitalized Leases) and amortization of
deferred financing fees and debt discount in respect of
all Debt exceeds (b) interest income, in each case of
the Borrower and its Subsidiaries for such period,
calculated on a Consolidated basis in accordance with
GAAP.
"Non-Consenting Lender" has the meaning specified
in Section 2.15(b).
"Note" means a Revolving Credit Note.
"Notice of Revolving Credit Borrowing" has the
meaning specified in Section 2.02(a).
"Obligation" means, with respect to any Person,
any payment, performance or other obligation of such
Person of any kind, including, without limitation, any
liability of such Person on any claim, whether or not
the right of any creditor to payment in respect of such
claim is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or
not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in
Section 6.01(e). Without limiting the generality of
the foregoing, the Obligations of the Borrower under
the Loan Documents include (a) the obligation to pay
principal, interest, charges, expenses, fees,
attorneys' fees and disbursements, indemnities and
other amounts payable by the Borrower under any Loan
Document and (b) the obligation of the Borrower to
reimburse any amount in respect of any of the foregoing
that any Lender, in its sole discretion, may elect to
pay or advance on behalf of the Borrower.
"Original Currency" has the meaning specified in
Section 8.12.
"Other Currency" has the meaning specified in
Section 8.12.
"Paying Agent" has the meaning specified in the
recital of parties to this Agreement.
"Paying Agent's Account" means the account of the
Paying Agent maintained by the Paying Agent with its
office at 399 Park Avenue, New York, New York 10043,
Account No. 36852248, Account Name: Medium Term
Finance/NAIB Agency, Reference: Federated.
"PBGC" means the Pension Benefit Guaranty
Corporation (or any successor).
"Performance Level" means, as of any date of
determination, the numerically lower level set forth
below as then in effect, as determined by reference to
the Public Debt Rating and Interest Coverage Ratio then
in effect, provided, however, that if the Level
established by reference to the Public Debt Rating and
the Level established by reference to the Interest
Coverage Ratio are more than one Level apart, the
Performance Level shall be the Level that is
numerically one below the numerically higher of the two
Levels so established:
Level 1 The Public Debt Rating is
greater than or equal to A2 or A or the
Interest Coverage Ratio is 6.25:1.00 or
greater;
Level 2 The Public Debt Rating is
A3 or A- or the Interest Coverage Ratio
is 5.75:1.00 or greater but less than
6.25:1.00;
Level 3 The Public Debt Rating is
Baa1 or BBB+ or the Interest Coverage
Ratio is 5.00:1.00 or greater but less
than 5.75:1.00;
Level 4 The Public Debt Rating is
Baa2 or BBB or the Interest Coverage
Ratio is 4.50:1.00 or greater but less
than 5.00:1.00;
Level 5 The Public Debt Rating is
Baa3 or BBB- or the Interest Coverage
Ratio is 3:75:1.00 or greater but less
than 4.50:1.00;
Level 6 The Public Debt Rating is
lower than Baa3 or BBB- and the Interest
Coverage Ratio is lower than 3.75:1.00;
"Permitted Liens" means such of the following as
to which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced:
(a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law,
such as materialmen's, mechanics', carriers', workmen's
and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations
that are not overdue for a period of more than 30 days
or that are being contested in good faith by
appropriate proceedings; (c) Liens (if any) arising by
operation of law and pledges or deposits made in the
ordinary course of business in connection with
liability insurance, workers' compensation,
unemployment insurance, old-age pensions and other
social security benefits, other than with respect to
employee benefit plans subject to ERISA; and (d) zoning
restrictions, easements, rights of way, reciprocal
easement agreements, operating agreements, covenants,
conditions or restrictions on the use of any real
property that do not interfere in any material respect
with the ordinary conduct of the business of the
Borrower and its Subsidiaries or do not materially
adversely affect the value of such property for the
purpose of such business.
"Person" means an individual, partnership,
corporation (including a business trust), joint stock
company, trust, unincorporated association, joint
venture, limited liability company or other entity, or
a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Preferred Stock" means, with respect to any
corporation, capital stock issued by such corporation
that is entitled to a preference or priority over any
other capital stock issued by such corporation upon any
distribution of such corporation's assets, whether by
dividend or upon liquidation.
"Pro Rata Share" of any amount means, with respect
to any Lender at any time, the product of such amount
times a fraction the numerator of which is the amount
of such Lender's Revolving Credit Commitment at such
time and the denominator of which is the Revolving
Credit Facility at such time.
"Public Debt Rating" means, as of any date, the
higher of (a) the lowest rating that has been most
recently announced by Moody's for any class of non-
credit enhanced long-term senior unsecured debt issued
by the Borrower and (b) the rating that has been most
recently announced by S&P as the Borrower's "Corporate
Credit Rating", provided, that if the ratings referred
to in clause (a) and (b) above are each referred to in
Performance Levels which are more than one Performance
Level apart, the Public Debt Rating shall be the Public
Debt Rating indicated within the Performance Level that
is numerically one below the numerically higher of the
two Performance Levels in which the ratings are so
referenced. For purposes of the foregoing, (i) if only
one of S&P and Moody's shall have in effect a Public
Debt Rating, the Applicable Margin and the Facility Fee
Percentage 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 and the Facility Fee Percentage will be
determined by reference to the Interest Coverage Ratio
then in effect; (iii) if any rating established by S&P
or Moody's shall be changed, such change shall be
effective as of five Business Days after the date on
which such change is demonstrated in a certificate of
the chief financial officer of the Borrower delivered
pursuant to Section 5.01(h)(vi); and (iv) if S&P or
Moody's shall change the basis on which ratings are
established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall
refer to the then equivalent rating by S&P or Moody's,
as the case may be.
"Receivables Financing Facility" means the
receivables financing facilities currently established
by the Borrower and any replacement thereof or other
receivables financing pursuant to which certain
Subsidiaries of the Borrower issue non-recourse Debt
and commercial paper secured by certain receivables of
the Borrower and its Subsidiaries.
"Redeemable" means, with respect to any capital
stock or other ownership or profit interest, Debt or
other right or Obligation, any such right or Obligation
that (a) the issuer has undertaken to redeem at a fixed
or determinable date or dates, whether by operation of
a sinking fund or otherwise, or upon the occurrence of
a condition not solely within the control of the issuer
or (b) is redeemable at the option of the holder.
"Reference Banks" means Citibank and Chase.
"Register" has the meaning specified in
Section 8.07(e).
"Reportable Event" has the meaning specified in
Section 4043 of ERISA, excluding any event with respect
to which the 30-day notice requirement has been waived.
"Required Lenders" means at any time Lenders owed
or holding at least a majority in interest of the sum
of (a) the then aggregate unpaid principal amount of
the Revolving Credit Advances owing to Lenders at such
time, and (b) the aggregate Unused Revolving Credit
Commitments at such time, provided, however, that if
any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of
Required Lenders at such time (i) the unpaid principal
amount of the Revolving Credit Advances made by such
Defaulting Lender and outstanding at such time and (b)
the Unused Revolving Credit Commitment of such
Defaulting Lender at such time.
"Responsible Officer" means any executive officer
of the Borrower or any of its Subsidiaries or any other
officer of the Borrower of any of its Subsidiaries
responsible for overseeing or reviewing compliance with
this Agreement or any other Loan Document.
"Revolver Termination Date" means the earlier of
July 27, 1998 (subject to the extension thereof
pursuant to Section 2.15) and the date of termination
in whole of the Revolving Credit Commitments pursuant
to Section 2.04 or 6.01; provided, however, that the
Revolver Termination Date of any Lender that is a Non-
Consenting Lender to any requested extension pursuant
to Section 2.15 shall be the Revolver Termination Date
in effect immediately prior to the applicable Extension
Date for all purposes of this Agreement and any Notes.
"Revolving Credit Advance" means an advance by a
Lender to the Borrower as part of a Revolving Credit
Borrowing and, if the Borrower has made the Term Loan
Election in accordance with Section 2.05, includes each
such Advance that remains outstanding after the Term
Loan Conversion Date, and refers to a Base Rate Advance
or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Revolving Credit Advances of
the same Type made by each of the Lenders pursuant to
Section 2.01.
"Revolving Credit Commitment" means, with respect
to any Revolving Credit Lender at any time, the amount
set forth opposite such Lender's name on Schedule I
hereto under the caption "Revolving Credit Commitment"
or, if such Lender has entered into one or more
Assignment and Acceptances, set forth for such Lender
in the Register maintained by the Paying Agent pursuant
to Section 8.07(e) as such Lender's "Revolving Credit
Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.04.
"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.
"Revolving Credit Note" means a promissory note of
the Borrower payable to the order of any Lender, in
substantially the form of Exhibit A hereto, evidencing
the aggregate indebtedness of the Borrower to such
Lender resulting from the Revolving Credit Advances
made by such Lender.
"S&P" means Standard & Poor's, a division of The
McGraw-Hill Companies, Inc.
"Single Employer Plan" means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, that
(a) is maintained for employees of the Borrower or any
ERISA Affiliate and no Person other than the Borrower
and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company,
trust or estate of which (or in which) more than 50% of
(a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board
of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or
classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited
liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is
at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its
other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Syndication Agent" has the meaning specified in
the recital of parties to this Agreement.
"Tangible Assets" means, with respect to any
Person as of any date of determination, the total
assets of such Person less the sum of (i) goodwill,
organizational expenses, research and development
expenses, trademarks, trade names, copyrights, patents,
patent applications, licenses and rights in any
thereof, and other similar intangibles, (ii) all
prepaid expenses, deferred charges or unamortized debt
discount and expense, (iii) all reserves carried and
not deducted from assets, (iv) any write-up in the book
value of any asset resulting from a revaluation thereof
subsequent to February 1, 1997, and (v) any items not
included in clauses (i) through (iv) above, in each
case of such Person and which are treated as
intangibles in conformity with GAAP.
"Term Loan Conversion Date" has the meaning
specified in Section 2.05.
"Term Loan Election" has the meaning specified in
Section 2.05.
"Unused Revolving Credit Commitment" means, with
respect to any Lender at any time, (a) such Lender's
Revolving Credit Commitment at such time minus (b) the
aggregate principal amount of all Revolving Credit
Advances made by such Lender and outstanding at such
time.
"Voting Stock" means capital stock issued by a
corporation, or equivalent interests in any other
Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the
election of directors (or persons performing similar
functions) of such Person, even if the right so to vote
has been suspended by the happening of such a
contingency.
"Withdrawal Liability" has the meaning specified
in Part 1 of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In
this Agreement in the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting
terms not specifically defined herein shall be construed in
accordance with GAAP.
SECTION 1.04. Currency Equivalents Generally.
For all purposes of this Agreement except as otherwise
specifically provided herein, the equivalent in any
Alternative Currency of an amount in Dollars shall be
determined at the rate of exchange quoted by Citibank in New
York City, at 9:00 A.M. (New York City time) on the date of
determination, to prime banks in New York City for the spot
purchase in the New York foreign exchange market of such
amount of Dollars with such Alternative Currency.
Citibank's determination of each spot rate of exchange
pursuant to this Agreement shall be final and conclusive
absent manifest error.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. (a)
The Revolving Credit Advances. Each Lender severally
agrees, on the terms and conditions hereinafter set forth,
to make Revolving Credit Advances to the Borrower from time
to time on any Business Day during the period from the
Effective Date until the earlier of the Revolver Termination
Date and the Term Loan Conversion Date in an amount for each
such Advance not to exceed an amount equal to such Lender's
Unused Revolving Credit Commitment less such Lender's Pro
Rata Share of the Commercial Paper Set-Aside Amount at such
time. Each Revolving Credit Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of
$1,000,000 in excess thereof, and shall consist of Revolving
Credit Advances of the same Type made on the same day by the
Lenders ratably according to their respective Revolving
Credit Commitments. Within the limits of each Lender's
Revolving Credit Commitment, the Borrower may borrow under
this Section 2.01, repay pursuant to Section 2.05(a), prepay
pursuant to Section 2.09 and reborrow under this
Section 2.01.
(b) Set-Aside of Commitments to Backstop
Commercial Paper. At any time during which the Borrower has
any Commercial Paper outstanding, a portion of the Unused
Revolving Credit Commitments in an aggregate amount equal to
the amount by which (i) the aggregate face amount of such
Commercial Paper outstanding at such time exceeds (ii) the
"Commercial Paper Set-Aside Amount" in effect under the Five
Year Credit Agreement at such time shall, without further
action on the part of any party, be deemed to be reserved
for use as support for the obligations of the Borrower under
such Commercial Paper; provided that the reservation of
Unused Revolving Credit Commitments described in this
Section 2.01(b) shall be increased or decreased accordingly
upon notice from the Borrower to the Paying Agent at any
time to reflect the Borrower's required liquidity reserves
for Commercial Paper. The amount of Revolving Credit
Commitments so reserved at any time pursuant to this
Section 2.01(b) is referred to herein as the "Commercial
Paper Set-Aside Amount".
SECTION 2.02. Making the Revolving Credit
Advances. Each Revolving Credit Borrowing shall be made on
notice, given not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Eurodollar Rate Advances, or the
first Business Day prior to the date of the proposed
Revolving Credit Borrowing in the case of a Revolving Credit
Borrowing consisting of Base Rate Advances, by the Borrower
to the Paying Agent, which shall give to each Lender prompt
notice thereof by telecopier or telex. Each such notice of
a Revolving Credit Borrowing (a "Notice of Revolving Credit
Borrowing") shall be by telephone, confirmed immediately in
writing, or telecopier or telex in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date
of such Revolving Credit Borrowing, (ii) Type of Advances
comprising such Revolving Credit Borrowing, (iii) aggregate
amount of such Revolving Credit Borrowing, and (iv) in the
case of a Revolving Credit Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each
such Revolving Credit Advance. Each Lender shall, before
11:00 A.M. (New York City time) on the date of such
Revolving Credit Borrowing, make available for the account
of its Applicable Lending Office to the Paying Agent at the
Paying Agent's Account, in same day funds, such Lender's
ratable portion of such Revolving Credit Borrowing. After
the Paying Agent's receipt of such funds and upon
fulfillment of the applicable conditions set forth in
Article III, the Paying Agent will make such funds available
to the Borrower at the Paying Agent's address referred to in
Section 8.02.
(b) Anything in subsection (a) above to the
contrary notwithstanding, (i) the Borrower may not select
Eurodollar Rate Advances for any Revolving Credit Borrowing
if the aggregate amount of such Revolving Credit Borrowing
is less than $25,000,000 or if the obligation of the Lenders
to make Eurodollar Rate Advances shall then be suspended
pursuant to Section 2.07 or 2.11 and (ii) the Eurodollar
Rate Advances may not be outstanding as part of more than
ten separate Revolving Credit Borrowings.
(c) Each Notice of Revolving Credit Borrowing
shall be irrevocable and binding on the Borrower. In the
case of any Revolving Credit Borrowing that the related
Notice of Revolving Credit Borrowing specifies is to be
comprised of Eurodollar Rate Advances, the Borrower shall
indemnify each Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of
Revolving Credit Borrowing for such Revolving Credit
Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of
deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Revolving
Credit Borrowing when such Advance, as a result of such
failure, is not made on such date.
(d) Unless the Paying Agent shall have received
notice from a Lender prior to the date of any Revolving
Credit Borrowing that such Lender will not make available to
the Paying Agent such Lender's ratable portion of such
Revolving Credit Borrowing, the Paying Agent may assume that
such Lender has made such portion available to the Paying
Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Paying Agent
may, in reliance upon such assumption, make available to the
Borrower on such date a corresponding amount. If and to the
extent that such Lender shall not have so made such ratable
portion available to the Paying Agent, such Lender and the
Borrower severally agree to repay to the Paying Agent
forthwith on demand such corresponding amount together with
interest thereon, for each day from the date such amount is
made available to the Borrower until the date such amount is
repaid to the Paying Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to
Advances comprising such Borrowing and (ii) in the case of
such Lender, the Federal Funds Rate. If such Lender shall
repay to the Paying Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Advance as
part of such Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Advance
to be made by it as part of any Revolving Credit Borrowing
shall not relieve any other Lender of its obligation, if
any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the
failure of any other Lender to make the Advance to be made
by such other Lender on the date of any Borrowing.
SECTION 2.03. Fees. (a) Facility Fee. The
Borrower agrees to pay to the Paying Agent for the account
of each Lender a facility fee on the aggregate amount of
such Lender's Revolving Credit Commitment from the date
hereof in the case of each Initial Lender and from the
effective date specified in the Assignment and Acceptance
pursuant to which it became a Lender in the case of each
other Lender until the earlier of the Revolver Termination
Date and the Term Loan Conversion Date at a rate per annum
equal to the Facility Fee Percentage in effect from time to
time, payable in arrears quarterly on the last day of each
March, June, September and December, commencing September
30, 1997, and on the Revolver Termination Date or the Term
Loan Conversion Date, as the case may be; provided, however,
that any facility fee accrued with respect to the Revolving
Credit Commitment of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and
unpaid at such time shall not be payable by the Borrower so
long as such Lender shall be a Defaulting Lender except to
the extent that such facility fee shall otherwise have been
due and payable by the Borrower prior to such time; and
provided further that no facility fee shall accrue on the
Revolving Credit Commitment of a Defaulting Lender so long
as such Lender shall be a Defaulting Lender.
(b) Paying Agent's Fees. The Borrower shall pay
to the Paying Agent for its own account such fees as may
from time to time be agreed between the Borrower and the
Paying Agent.
SECTION 2.04. Termination or Reduction of the
Commitments. (a) If the Borrower has not made the Term
Loan Election on or prior to the Revolver Termination Date,
the Commitments shall be automatically terminated on the
Revolver Termination Date. If the Borrower has made the
Term Loan Election in accordance with Section 2.05, on the
Term Loan Conversion Date and from time to time thereafter
upon each prepayment of the Revolving Credit Advances, the
aggregate Commitments of the Lenders shall be automatically
and permanently reduced on a pro rata basis by an amount
equal to the aggregate Unused Revolving Credit Commitment in
effect immediately prior to such reduction.
(b) The Borrower shall have the right, upon at least
three Business Days' notice to the Paying Agent, to
terminate in whole or reduce ratably in part the Unused
Revolving Credit Commitments, provided that each partial
reduction shall be in the aggregate amount of $25,000,000 or
an integral multiple of $5,000,000 in excess thereof.
SECTION 2.05. Repayment of Revolving
Credit Advances; Term Loan Election. Subject to the next
succeeding sentence, the Borrower shall repay to the Paying
Agent for the ratable account of the Lenders on the Revolver
Termination Date the aggregate principal amount of the
Revolving Credit Advances then outstanding. The Borrower
may, so long as at the time of the giving of notice (and the
giving of such notice shall constitute a representation and
warranty by the Borrower that on such date such statements
are true) and on the Term Loan Conversion Date (i) no
Default has occurred and is continuing and (ii) the
representations and warranties contained in Section 4.01 are
correct on and as of such date, before and after giving
effect to such conversion, as though made on and as of such
date (other than any such representations or warranties
that, by their terms, refer to a specific date other than
the date of such conversion, in which case as of such
specific date) at any time prior to the Revolver Termination
Date and upon not less than 15 days' notice to the Paying
Agent, elect (the "Term Loan Election") to convert all of
the Revolving Credit Advances outstanding on the date
specified in such notice (the "Term Loan Conversion Date")
into a term loan which the Borrower shall repay in full to
the Paying Agent for the ratable account of the Lenders on
the Maturity Date.
SECTION 2.06. Interest on Revolving Credit
Advances. (a) Scheduled Interest. The Borrower shall pay
interest on the unpaid principal amount of each Revolving
Credit Advance owing to each Lender from the date of such
Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as
such Advance is a Base Rate Advance, a rate per annum
equal at all times to the sum of (x) the Base Rate in
effect from time to time plus (y) the Applicable Margin
in effect from time to time, 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, payable in arrears on the last day of
such Interest Period and, if such Interest Period has a
duration of more than three months, on each day that
occurs during such Interest Period every three months
from the first day of such Interest Period and on the
date such Eurodollar Rate Advance shall be Converted or
paid in full.
(b) Default Interest. Upon the occurrence and
during the continuance of an Event of Default, the Borrower
shall pay interest on (i) the unpaid principal amount of
each Revolving Credit Advance owing to each Lender, payable
in arrears on the dates referred to in clause (a)(i) or
(a)(ii) above, at a rate per annum equal at all times to 2%
per annum above the rate per annum required to be paid on
such Advance pursuant to clause (a)(i) or (a)(ii) above and
(ii) to the fullest extent permitted by law, the amount of
any interest, fee or other amount payable hereunder that is
not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above
the rate per annum required to be paid on Base Rate Advances
pursuant to clause (a)(i) above.
SECTION 2.07. Interest Rate Determination. (a)
Each Reference Bank agrees to furnish to the Paying Agent
timely information for the purpose of determining each
Eurodollar 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 2.06(a)(i) or (ii), and the rate, if
any, furnished by each Reference Bank for the purpose of
determining the interest rate under Section 2.06(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 $25,000,000, 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 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 for any Eurodollar Rate Advances,
(i) the Paying Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot
be determined for such Eurodollar Rate Advances.
(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 no longer
exist, and
(iii) the obligation of the Lenders to make
Eurodollar 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 2.08. Optional Conversion of Revolving
Credit Advances. The Borrower may, upon notice given to the
Paying Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the date of the proposed
Conversion and subject to the provisions of Sections 2.08
and 2.12, on any Business Day Convert all Revolving Credit
Advances of one Type comprising the same Borrowing into
Revolving Credit Advances of the other Type; provided,
however, that any Conversion of Eurodollar Rate Advances
into Base Rate Advances shall be made only on the last day
of an Interest Period for such Eurodollar Rate Advances, any
Conversion of Base Rate Advances into Eurodollar Rate
Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b) and no Conversion of any
Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under
Section 2.02(b). Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the
date of such Conversion, (ii) the Revolving Credit Advances
to be Converted, and (iii) if such Conversion is into
Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.09. Optional Prepayments of Revolving
Credit Advances. The Borrower may, upon at least three
Business Days' notice in the case of Eurodollar Rate
Advances and same day notice in the case of Base Rate
Advances, in each case to the Paying Agent stating the
proposed date and aggregate principal amount of the
prepayment, and if such notice is given the Borrower shall,
prepay the outstanding principal amount of the Revolving
Credit Advances comprising part of the same Borrowing in
whole or ratably in part, together with accrued interest to
the date of such prepayment on the principal amount prepaid;
provided, however, that (x) each partial prepayment shall be
in an aggregate principal amount of $10,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) in
the event of any such prepayment of a Eurodollar Rate
Advance, the Borrower shall be obligated to reimburse the
Lenders in respect thereof pursuant to Section 8.04(c).
SECTION 2.10. Increased Costs. (a) If, due to
either (i) the introduction of or any change in or in the
interpretation of any law or regulation or (ii) the
compliance with any guideline or request from any central
bank or other governmental authority (whether or not having
the force of law), there shall be any increase in the cost
to any Lender of agreeing to make or making, funding or
maintaining Eurodollar Rate Advances (excluding for purposes
of this Section 2.10 any such increased costs resulting from
(i) Taxes or Other Taxes (as to which Section 2.13 shall
govern) and (ii) changes in the basis of taxation of overall
net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which
such Lender is organized or has its Applicable Lending
Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender
(with a copy of such demand to the Paying Agent), pay to the
Paying Agent for the account of such Lender additional
amounts sufficient to compensate such Lender for such
increased cost; provided, however, that a Lender claiming
additional amounts under this Section 2.10(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 2.10(a), the
Borrower may, upon payment of such increased cost to such
Lender, replace such Lender with a Person that is an
Eligible Assignee in accordance with the terms of Section
8.07 (and the Lender being so replaced shall take all action
as may be necessary to assign its rights and obligations
under this Agreement to such Eligible Assignee).
(b) If any Lender determines that compliance with
any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount
of capital required or expected to be maintained by such
Lender or any corporation controlling such Lender and that
the amount of such capital is increased by or based upon the
existence of such Lender's commitment to lend hereunder and
other commitments of such type, then, upon demand by such
Lender (with a copy of such demand to the Paying Agent), the
Borrower shall pay to the Paying Agent for the account of
such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender or
such corporation in the light of such circumstances, to the
extent that such Lender reasonably determines such increase
in capital to be allocable to the existence of such Lender's
commitment to lend hereunder. A certificate as to such
amounts submitted to the Borrower and the Paying Agent by
such Lender shall be conclusive and binding for all
purposes, absent manifest error.
SECTION 2.11. 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 to fund or
maintain Eurodollar Rate Advances hereunder, (i) each
Eurodollar Rate Advance will automatically, upon such
demand, Convert into a Base Rate Advance or an Advance that
bears interest at the rate set forth in Section 2.06(a)(i),
as the case may be, and (ii) the obligation of the Lenders
to make Eurodollar 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 2.12. Payments and Computations. (a)
The Borrower shall make each payment hereunder and under the
Notes not later than 12:00 Noon (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 2.03(b), 2.10, 2.13, 8.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and
like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its
Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon any
Assuming Lender becoming a Lender hereunder as a result of
an extension of the Revolver Termination Date pursuant to
Section 2.15, and upon the Paying Agent's receipt of such
Lender's Assumption Agreement and recording of the
information contained therein in the Register, from and
after the applicable Extension Date, the Paying Agent shall
make all payments hereunder and under any Notes issued in
connection therewith in respect of the interest assumed
thereby to the Assuming Lender. Upon its acceptance of an
Assignment and Acceptance and recording of the information
contained therein in the Register pursuant to
Section 8.07(e), from and after the effective date specified
in such Assignment and Acceptance, the Paying Agent shall
make all payments hereunder and under the Notes in respect
of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender,
if and to the extent payment owed to such Lender is not made
when due hereunder or under the Note held by such Lender, to
charge from time to time against any or all of the
Borrower's accounts with such Lender any amount so due.
(c) All computations of interest and facility
fees shall be made by the Paying Agent on the basis of a
year of 360 days, in each case for the actual number of days
(including the first day but excluding the last day)
occurring in the period for which such interest, facility
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 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 2.13. Taxes. (a) Any and all payments
by the Borrower hereunder or under the Notes shall be made,
in accordance with Section 2.12, free and clear of and
without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding, in the case
of each Lender and any Agent, taxes imposed on its overall
net income, and franchise taxes imposed on it in lieu of net
income taxes, by the jurisdiction under the laws of which
such Lender or such Agent (as the case may be) is organized
or any political subdivision thereof and, in the case of
each Lender, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes,
by the jurisdiction of such Lender's Applicable Lending
Office or any political subdivision thereof (all such
non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments
hereunder or under the Notes being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to
deduct any Taxes from or in respect of any sum payable
hereunder or under any Note to any Lender or any Agent,
(i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 2.13) such Lender or such Agent (as the case may be)
receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or
other authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any
present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies that
arise from any payment made hereunder or under the Notes or
from the execution, delivery or registration of, performing
under, or otherwise with respect to, this Agreement or the
Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender and
each Agent for and hold it harmless against the full amount
of Taxes or Other Taxes (including, without limitation,
taxes of any kind imposed by any jurisdiction on amounts
payable under this Section 2.13) imposed on or paid by such
Lender or such Agent (as the case may be) and any liability
(including penalties, interest and expenses) arising
therefrom or with respect thereto. This indemnification
shall be made within 30 days from the date such Lender or
such Agent (as the case may be) makes written demand
therefor.
(d) Within 30 days after the date of any payment
of Taxes, the Borrower shall furnish to the Paying Agent, at
its address referred to in Section 8.02, the original or a
certified copy of a receipt evidencing such payment. In the
case of any payment hereunder or under the Notes by or on
behalf of the Borrower through an account or branch outside
the United States or by or on behalf of the Borrower by a
payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the
Borrower shall furnish, or shall cause such payor to
furnish, to the Paying Agent, at such address, an opinion of
counsel acceptable to the Paying Agent stating that such
payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified
in Section 7701 of the Internal Revenue Code.
(e) Each Lender organized under the laws of a
jurisdiction outside the United States, on or prior to the
date of its execution and delivery of this Agreement in the
case of each Initial Lender and on the date of the
Assignment and Acceptance pursuant to which it becomes a
Lender in the case of each other Lender, and from time to
time thereafter as requested in writing by the Borrower (but
only so long as such Lender remains lawfully able to do so),
shall provide each of the Paying Agent and the Borrower with
two original Internal Revenue Service forms 1001 or 4224, as
appropriate, or any successor or other form prescribed by
the Internal Revenue Service, certifying that such Lender is
exempt from or entitled to a reduced rate of United States
withholding tax on payments pursuant to this Agreement or
the Notes. If the form provided by a Lender at the time
such Lender first becomes a party to this Agreement
indicates a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender
provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only
shall be considered excluded from Taxes for periods governed
by such form; provided, however, that, if at the date of the
Assignment and Acceptance pursuant to which a Lender
assignee becomes a party to this Agreement, the Lender
assignor was entitled to payments under subsection (a) in
respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term
Taxes shall include (in addition to withholding taxes that
may be imposed in the future or other amounts otherwise
includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender assignee on such date.
If any form or document referred to in this subsection (e)
requires the disclosure of information, other than
information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue
Service form 1001 or 4224, that the Lender reasonably
considers to be confidential, the Lender shall give notice
thereof to the Borrower and shall not be obligated to
include in such form or document such confidential
information.
(f) For any period with respect to which a Lender
has failed to provide the Borrower with the appropriate form
described in Section 2.13(e) (other than if such failure is
due to a change in law occurring subsequent to the date on
which a form originally was required to be provided, or if
such form otherwise is not required under subsection (e)
above), such Lender shall not be entitled to indemnification
under Section 2.13(a) or (c) with respect to Taxes imposed
by the United States by reason of such failure; provided,
however, that should a Lender become subject to Taxes
because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as the Lender shall
reasonably request to assist the Lender to recover such
Taxes.
(g) Any Lender claiming any additional amounts
payable pursuant to this Section 2.13 agrees to use
reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making
of such a change would avoid the need for, or reduce the
amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
SECTION 2.14. 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 2.03(b), 2.10, 2.13 or 8.04) in
excess of its ratable share of payments on account of the
Revolving Credit Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances owing to
them as shall be necessary to cause such purchasing Lender
to share the excess payment ratably with each of them;
provided, however, that if all or any portion of such excess
payment is thereafter recovered from such purchasing Lender,
such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase
price to the extent of such recovery together with an amount
equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the
purchasing Lender) of any interest or other amount paid or
payable by the purchasing Lender in respect of the total
amount so recovered. The Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to
this Section 2.14 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 2.15. Extension of Termination Date. (a)
At least 30 days but not more than 60 days prior to the
Revolver Termination Date in effect at any time, the
Borrower, by written notice to the Paying Agent, may request
an extension of the Revolver Termination Date in effect at
such time for a period of 364 days from its then scheduled
expiration; provided, however, that the Borrower shall not
have made the Term Loan Election prior to the then scheduled
Revolver Termination Date. The Paying Agent shall promptly
notify each Lender of such request, and each Lender shall in
turn, in its sole discretion, not earlier than 30 days but
at least 25 days prior to such Revolver Termination Date,
notify the Borrower and the Paying Agent in writing as to
whether such Lender will consent to such extension. If any
Lender shall fail to notify the Paying Agent and the
Borrower in writing of its consent to any such request for
extension of the Revolver Termination Date at least 25 days
prior to the scheduled occurrence thereof at such time, such
Lender shall be deemed to be a Non-Consenting Lender with
respect to such request. The Paying Agent shall notify the
Borrower not later than 20 days prior to the scheduled
Revolver Termination Date in effect at such time of the
decision of the Lenders regarding the Borrower's request for
an extension of the Revolver Termination Date.
(b) If all of the Lenders consent in writing to
any such request in accordance with subsection (a) of this
Section 2.15, the Revolver Termination Date shall, effective
as at the Revolver Termination Date otherwise in effect at
such time (the "Extension Date"), be extended for a period
of 364 days from such Extension Date; provided that on each
Extension Date, no Default shall have occurred and be
continuing, or shall occur as a consequence thereof and the
giving of a request for extension shall constitute a
representation and warranty by the Borrower that the
representations and warranties contained in Section 4.01 are
correct in all material respects on and as of the date of
such notice and on such Extension Date, as though made on
and as of such dates. If Lenders holding at least a
majority in interest of the aggregate Commitments at such
time consent in writing to any such request in accordance
with subsection (a) of this Section 2.15, the Revolver
Termination Date in effect at such time shall, effective as
at the applicable Extension Date, be extended as to those
Lenders that so consented (each a "Consenting Lender") but
shall not be extended as to any other Lender (each a "Non-
Consenting Lender"). To the extent that the Revolver
Termination Date is not extended as to any Lender pursuant
to this Section 2.15 and the Commitment of such Lender is
not assumed in accordance with subsection (c) of this
Section 2.15 on or prior to the applicable Extension Date,
the Commitment of such Non-Consenting Lender shall
automatically terminate in whole on such unextended Revolver
Termination Date without any further notice or other action
by the Borrower, such Lender or any other Person; provided
that such Non-Consenting Lender's rights under Sections
2.11, 2.12 and 8.04, and its obligations under Section 7.05,
shall survive the Revolver Termination Date for such Lender
as to matters occurring prior to such date. It is
understood and agreed that no Lender shall have any
obligation whatsoever to agree to any request made by the
Borrower for any requested extension of the Revolver
Termination Date.
(c) If Lenders holding at least a majority in
interest of the aggregate Commitments at any time consent to
any such request pursuant to subsection (a) of this
Section 2.15, the Borrower may arrange for one or more
Consenting Lenders or other Eligible Assignees (each such
Consenting Lender or Eligible Assignee that accepts an offer
to assume a Non-Consenting Lender's Commitment as of the
applicable Extension Date being an "Assuming Lender") to
assume, effective as of the Extension Date, any Non-
Consenting Lender's Commitment and all of the obligations of
such Non-Consenting Lender under this Agreement thereafter
arising, without recourse to or warranty by, or expense to,
such Non-Consenting Lender; provided, however, that the
amount of the Commitment of any such Assuming Lender as a
result of such substitution shall in no event be less than
$10,000,000 unless the amount of the Commitment of such Non-
Consenting Lender is less than $10,000,000, in which case
such Assuming Lender shall assume all of such lesser amount;
and provided further that:
(i) any such Consenting Lender or Assuming Lender
shall have paid to such Non-Consenting Lender (A) the
aggregate principal amount of, and any interest accrued
and unpaid to the effective date of the assignment on,
the outstanding Revolving Credit Advances, if any, of
such Non-Consenting Lender plus (B) any accrued but
unpaid facility fees owing to such Non-Consenting
Lender as of the effective date of such assignment;
(ii) all additional costs, reimbursements, expense
reimbursements and indemnities payable to such Non-
Consenting Lender, and all other accrued and unpaid
amounts owing to such Non-Consenting Lender hereunder,
as of the effective date of such assignment shall have
been paid to such Non-Consenting Lender; and
(iii) with respect to any such Assuming
Lender, the applicable processing and recordation fee
required under Section 8.07(a) for such assignment
shall have been paid;
provided further that such Non-Consenting Lender's rights
under Sections 2.10, 2.13 and 8.03, and its obligations
under Section 7.05, shall survive such substitution as to
matters occurring prior to the date of substitution. At
least three Business Days prior to any Extension Date, (A)
each such Assuming Lender, if any, shall have delivered to
the Borrower and the Paying Agent an assumption agreement,
in form and substance satisfactory to the Borrower and the
Paying Agent (an "Assumption Agreement"), duly executed by
such Assuming Lender, such Non-Consenting Lender, the
Borrower and the Paying Agent, (B) any such Consenting
Lender shall have delivered confirmation in writing
satisfactory to the Borrower and the Paying Agent as to the
increase in the amount of its Commitment and (C) each Non-
Consenting Lender being replaced pursuant to this Section
2.15 shall have delivered to the Paying Agent any Note or
Notes held by such Non-Consenting Lender. Upon the payment
or prepayment of all amounts referred to in clauses (i),
(ii) and (iii) of the immediately preceding sentence, each
such Assuming Lender, as of the Extension Date, will be
substituted for such Non-Consenting Lender under this
Agreement and shall be a Lender for all purposes of this
Agreement, without any further acknowledgment by or the
consent of the other Lenders, and the obligations of each
such Non-Consenting Lender hereunder shall, by the
provisions hereof, be released and discharged.
(d) If Lenders holding a majority in interest of
the aggregate Commitments (after giving effect to any
assumptions pursuant to subsection (c) of this Section 2.15)
consent in writing to a requested extension (whether by
execution or delivery of an Assumption Agreement or
otherwise) not later than one Business Day prior to such
Extension Date, the Paying Agent shall so notify the
Borrower, and, so long as no Default shall have occurred and
be continuing as of such Extension Date, or shall occur as a
consequence thereof, the Revolver Termination Date then in
effect with respect to the Commitments of such Consenting
Lenders and Assuming Lenders shall be extended for the 364-
day period described in subsection (a) of this Section 2.15,
and all references in this Agreement, and in the Notes, if
any, to the "Revolver Termination Date" shall, with respect
to each Consenting Lender and each Assuming Lender for such
Extension Date, refer to the Revolver Termination Date as so
extended, provided, however, that after giving effect to
such extension the aggregate Commitments of the Consenting
Lenders are greater than or equal to $250,000,001. Promptly
following each Extension Date, the Paying Agent shall notify
the Lenders (including, without limitation, each Assuming
Lender) of the extension of the scheduled Revolver
Termination Date in effect immediately prior thereto and
shall thereupon record in the Register the relevant
information with respect to each such Consenting Lender and
each such Assuming Lender.
SECTION 2.16. 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 2.17. 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 2.17.
(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 2.17.
(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 2.17 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 2.18. Evidence of Debt. (a) Each Lender
shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Advance owing to
such Lender from time to time, including the amounts of
principal and interest payable and paid to such Lender from
time to time hereunder. The Borrower agrees that upon
notice by any Lender to the Borrower (with a copy of such
notice to the Paying Agent) to the effect that a promissory
note or other evidence of indebtedness is required or
appropriate in order for such Lender to evidence (whether
for purposes of pledge, enforcement or otherwise) the
Advances owing to, or to be made by, such Lender, the
Borrower shall promptly execute and deliver to such Lender a
Note, payable to the order of such Lender in a principal
amount equal to the Commitment of such Lender.
(b) The Register maintained by the Paying Agent
pursuant to Section 8.07 shall include a control account,
and a subsidiary account for each Lender, in which accounts
(taken together) shall be recorded (i) the date and amount
of each Borrowing made hereunder, the type of Advances
comprising such Borrowing and, if appropriate, the Interest
Period applicable thereto, (ii) the terms of each Assignment
and Acceptance delivered to and accepted by it, (iii) the
amount of any principal or interest due and payable or to
become due and payable from the Borrower to each Lender
hereunder, and (iv) the amount of any sum received by the
Paying Agent from the Borrower hereunder and each Lender's
share thereof.
(c) Notwithstanding anything to the contrary contained
in this Agreement, entries made in good faith by the Paying
Agent in the Register pursuant to subsection (b) above, and
by each Lender in its account or accounts pursuant to
subsection (a) above, shall be prima facie evidence of the
amount of principal and interest due and payable or to
become due and payable from the Borrower to, in the case of
the Register, each Lender and, in the case of such account
or accounts, such Lender, under this Agreement, absent
manifest error; provided, however, that the failure of the
Paying Agent or such Lender to make an entry, or any finding
that an entry is incorrect, in the Register or such account
or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement.
(d) References herein to Notes shall mean and be
references to Revolving Credit Notes to the extent issued
hereunder.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of
Section 2.01. Section 2.01 of this Agreement shall become
effective on and as of the first date (the "Effective Date") on
which the following conditions precedent have been satisfied:
(a) There shall have occurred no Material Adverse
Change since February 1, 1997. 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
Agreement shall have been paid in full in cash (or otherwise
satisfied in accordance with the terms of the Five Year
Credit Agreement) and all Commitments (as defined in the
Existing Credit Agreement) shall have been terminated.
(d) All governmental and third party consents and
approvals necessary in connection with the transactions
contemplated hereby shall have been obtained (without the
imposition of any conditions that are not acceptable to the
Lenders) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of
the Lenders that restrains, prevents or imposes materially
adverse conditions upon the transactions contemplated
hereby.
(e) The Borrower shall have paid all accrued fees and
expenses of the Agents and the Lenders (including the
reasonable accrued fees and expenses of counsel to the
Agents).
(f) On the Effective Date, the following statements
shall be true and the Paying Agent shall have received for
the account of each Lender a certificate signed by a duly
authorized officer of the Borrower, dated the Effective
Date, stating that:
(i) The representations and warranties
contained in Section 4.01 are correct on and as of the
Effective Date, and
(ii) No event has occurred and is continuing
that constitutes a Default.
(g) The Paying Agent shall have received on or before
the Effective Date the following, each dated such day, in
form and substance satisfactory to the Paying Agent and
(except for the Revolving Credit Notes) in sufficient copies
for each Lender:
(i) The Revolving Credit Notes to the order
of each of the Lenders that have requested Revolving
Credit Notes prior to the Effective Date.
(ii) Certified copies of the resolutions of
the Board of Directors of the Borrower approving this
Agreement and the Notes, and of all documents
(including, without limitation, charters and bylaws)
evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Agreement and the Notes.
(iii) A certificate of the Secretary or
an Assistant Secretary of the Borrower certifying the
names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered
hereunder.
(iv) A favorable opinion of Jones, Day,
Reavis & Pogue, counsel for the Borrower, substantially
in the form of Exhibit D hereto and as to such other
matters as any Lender through the Paying Agent may
reasonably request.
(v) A favorable opinion of Dennis J.
Broderick, General Counsel for the Borrower, in form
and substance satisfactory to the Paying Agent.
(vi) A favorable opinion of Shearman &
Sterling, counsel for the Agents, in form and substance
satisfactory to the Agents.
SECTION 3.02. Conditions Precedent to Each Revolving
Credit Borrowing. The obligation of each Lender to make a
Revolving Credit Advance on the occasion of each Revolving Credit
Borrowing (including the initial Borrowing) 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
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Revolving Credit Borrowing and
the acceptance by the Borrower of the proceeds of such Borrowing
shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the date of such
Borrowing, before and after giving effect to such 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
(ii) no event has occurred and is continuing, or would
result from such Borrowing 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. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified
in Section 3.01, each Lender shall be deemed to have consented
to, approved or accepted or to be satisfied with each document or
other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to the Lenders unless an officer
of the Agent responsible for the transactions contemplated by the
Loan Documents shall have received notice from such Lender prior
to the date that the Borrower, by notice to the Lenders,
designates as the proposed Effective Date, specifying its
objection thereto. The Paying Agent shall promptly notify the
Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) The execution, delivery and performance by the
Borrower of this Agreement and the other Loan Documents, and
the consummation of the transactions contemplated hereby and
thereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and
do not contravene (i) the Borrower's charter or by-laws or
(ii) law or any contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body or any other third party is required for
the due execution, delivery and performance by the Borrower
of this Agreement or any other Loan Document except for the
authorizations, approvals, actions, notices and filings
listed on Schedule 4.01(c) hereto, all of which have been
duly obtained, taken, given or made and are in full force
and effect.
(d) This Agreement has been, and each of the other
Loan Documents when delivered hereunder will have been, duly
executed and delivered by the Borrower. This Agreement is,
and each of the other Loan Documents when delivered
hereunder will be, the legal, valid and binding obligation
of the Borrower enforceable against the Borrower in
accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and
its Subsidiaries as at February 1, 1997, 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 3,
1997, and the related Consolidated statements of income and
cash flows of the Borrower and its Subsidiaries for the
three months then ended, duly certified by the chief
financial officer of the Borrower, copies of which have been
furnished to each Lender, fairly present, subject, in the
case of said balance sheet as at May 3, 1997, 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 1, 1997, 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.
(h) The Borrower is not (i) an "investment company",
within the meaning of the Investment Company Act of 1940, as
amended or (ii) a "holding company", as defined in, or
subject to regulation under, the Public Utility Holding
Company Act of 1935, as amended.
(i) No ERISA Event has occurred or is reasonably
expected to occur with respect to any Plan that has resulted
in or is reasonably expected to result in a material
liability to the Borrower or any ERISA Affiliate.
(j) As of the last annual actuarial valuation date,
the funded current liability percentage, as defined in
Section 302(d)(8) of ERISA, of each Plan exceeds 90% and
there has been no material adverse change in the funding
status of any such Plan since such date.
(k) Neither the Borrower nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal
Liability to any Multiemployer Plan that could be reasonably
expected to result in a material liability of the Borrower
or any ERISA Affiliate.
(l) Neither the Borrower nor any ERISA Affiliate has
been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA which
reorganization or termination could be reasonably expected
to result in a material liability of the Borrower or any
ERISA Affiliate, and no such Multiemployer Plan is
reasonably expected to be in reorganization or to be
terminated, within the meaning of Title IV of ERISA which
reorganization or termination could be reasonably expected
to result in a material liability of the Borrower or any
ERISA Affiliate.
(m) Except as set forth in the financial statements
referred to in this Section 4.01 and in Section 5.01(h), the
Borrower and its Subsidiaries have no material liability
with respect to "expected post retirement benefit
obligations" within the meaning of Statement of Financial
Accounting Standards No. 106.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects,
with all applicable laws, rules, regulations and orders,
such to include, without limitation, compliance with ERISA
and Environmental Laws except, in any case, where the
failure so to comply, either individually or in the
aggregate, could not be reasonably expected to have a
Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before
the same shall become delinquent, (i) all taxes, assessments
and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property; provided,
however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim (x) that is being contested
in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until
any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors and (y) if
such non-payments, either individually or in the aggregate,
could not be reasonably expected to have a Material Adverse
Effect.
(c) Maintenance of Insurance. Maintain, and cause
each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates except where
failure to maintain such insurance could not be reasonably
expected to have a Material Adverse Effect.
(d) Preservation of Corporate Existence, Etc.
Preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence, rights
(charter and statutory), permits, licenses, approvals,
privileges and franchises, except, with respect to such
rights, permits, licenses, approvals, and privileges, where
the failure to do so could not be reasonably expected to
have a Material Adverse Effect; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or
consolidation permitted under Section 5.02(b) and provided
further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve or maintain
(i) the corporate existence of any Minor Subsidiary if the
Board of Directors of the parent of such Minor Subsidiary,
or an executive officer of such parent to whom such Board of
Directors has delegated the requisite authority, shall
determine that the preservation and maintenance thereof is
no longer desirable in the conduct of the business of such
parent and that the loss thereof is not disadvantageous in
any material respect to the Borrower, such parent, the
Agents or the Lenders or (ii) any right, permit, license,
approval or franchise if the Board of Directors of the
Borrower or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct
of the business of the Borrower or such Subsidiary, as the
case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower,
such Subsidiary, the Agents or the Lenders.
(e) Visitation Rights. At any reasonable time and
from time to time, (i) permit any Agent or any of the
Lenders or any agents or representatives thereof, (x) to
examine and make copies of and abstracts from the records
and books of account of, and visit the properties of, the
Borrower and any of its Subsidiaries, and (y) to discuss the
affairs, finances and accounts of the Borrower and any of
its Subsidiaries with any of their officers or directors and
with their independent certified public accountants,
provided, however, that with respect to the Lenders and
their rights described in clause (x) above, so long as no
Event of Default shall have occurred and be continuing, such
Lenders shall exercise rights at the same time (such time to
be arranged by the Paying Agent with the Borrower) and (ii)
take such action as may be necessary to authorize its
independent certified public accountants to disclose to the
Persons described in clause (i) above any and all financial
statements and other information of any kind, including,
without limitation, copies of any management letter, or the
substance of any information that such accountants may have
with respect to the business, financial condition or results
of operations of the Borrower or any of its Subsidiaries.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in
which full and correct entries shall be made of all
financial transactions and the assets and business of the
Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time
to time.
(g) Maintenance of Properties, Etc. Except as
otherwise permitted pursuant to Section 5.02(e), or where
the failure to do so, either individually or in the
aggregate, could not be reasonably expected to have a
Material Adverse Effect, maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of
its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear
and tear excepted.
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event
within 45 days after the end of each of the first three
quarters of each Fiscal Year, Consolidated balance
sheet of the Borrower and its Subsidiaries as of the
end of such quarter and Consolidated statements of
income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of
the previous Fiscal Year and ending with the end of
such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the
Borrower as having been prepared in accordance with
generally accepted accounting principles and
certificates of the chief financial officer of the
Borrower as to compliance with the terms of this
Agreement and setting forth in reasonable detail the
then applicable Public Debt Ratings and Interest
Coverage Ratio and the calculations necessary to
demonstrate compliance with Section 5.03, provided that
in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower
shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to
GAAP;
(ii) as soon as available and in any event
within 90 days after the end of each Fiscal Year, a
copy of the annual audit report for such year for the
Borrower and its Subsidiaries, containing a
Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and
Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such Fiscal Year, in
each case accompanied by an opinion acceptable to the
Required Lenders by KPMG Peat Marwick LLP or other
independent public accountants acceptable to the
Required Lenders and certificates of the chief
financial officer of the Borrower as to compliance with
the terms of this Agreement and setting forth in
reasonable detail the then applicable Public Debt
Ratings and Interest Coverage Ratio and the
calculations necessary to demonstrate compliance with
Section 5.03, provided that in the event of any change
in GAAP used in the preparation of such financial
statements, the Borrower shall also provide, if
necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP;
(iii) as soon as possible and in any
event within five days after any Responsible Officer
becomes aware of the occurrence of each Default and
each event, development or circumstance that has or
could reasonably be expected to have a Material Adverse
Effect in each case continuing on the date of such
statement, a statement of the chief financial officer
of the Borrower setting forth details of such Default,
event, development or other circumstance (including,
without limitation, the anticipated effect thereof) and
the action that the Borrower has taken and proposes to
take with respect thereto;
(iv) promptly after the sending or filing
thereof, copies of all reports that the Borrower sends
to any of the holders of any class of its outstanding
securities, and copies of all reports and registration
statements (in the form in which such registration
statements become effective), other than registration
statements on Form S-8 or any successor form thereto,
that the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national
securities exchange;
(v) promptly after the commencement thereof,
notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type
described in Section 4.01(f);
(vi) as soon as possible, and in any event
within five Business Days after any change in the then
applicable Public Debt Rating, a certificate of the
chief financial officer of the Borrower setting forth
such Public Debt Rating; and
(vii) such other information respecting
the business, condition (financial or otherwise),
operations, properties or prospects of Borrower or any
of its Subsidiaries as any Lender through either
Administrative Agent may from time to time reasonably
request.
(i) Transactions with Affiliates. Conduct, and cause
each of its Subsidiaries to conduct, all transactions
otherwise permitted under this Agreement with any of their
Affiliates on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would
obtain in a comparable arm's-length transaction with a
Person not an Affiliate, other than, so long as no Default
has occurred and is continuing, transactions in the ordinary
course of business between or among the Borrower and any of
its Subsidiaries if such transaction could not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.02. Negative Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any Lien on or with respect to
any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter
acquired, or sign or file, or permit any of its Subsidiaries
to sign or file, under the Uniform Commercial Code of any
jurisdiction, a financing statement that names the Borrower
or any of its Subsidiaries as debtor, or sign, or permit any
of its Subsidiaries to sign, any security agreement
authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to
receive income, excluding, however, from the operation of
the foregoing restrictions the following:
(i) Liens created under the Five Year
Credit Agreement;
(ii) Permitted Liens;
(iii) the Liens existing on the date
hereof and described on Schedule 5.02(a) hereto;
(iv) purchase money Liens upon or in real
property or equipment acquired or held by the Borrower
or any of its Subsidiaries in the ordinary course of
business to secure the purchase price of such property
or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition, construction or
improvement of any such property or equipment to be
subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other
than any such Liens created in contemplation of such
acquisition that were not incurred to finance the
acquisition of such property or equipment), or
extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; provided,
however, that no such Lien shall extend to or cover any
properties of any character other than the real
property or equipment being acquired, constructed or
improved (except that Liens incurred in connection with
the construction or improvement of real property may
extend to additional real property immediately
contiguous to such property being constructed or
improved) and no such extension, renewal or replacement
shall extend to or cover any such properties not
theretofore subject to the Lien being extended, renewed
or replaced;
(v) Liens arising in connection with
Capitalized Leases permitted under Section
5.02(d)(vii); provided that no such Lien shall extend
to or cover any assets other than the assets subject to
such Capitalized Leases;
(vi) Liens on property of a Person existing
at the time such Person is merged into or consolidated
with the Borrower or any Subsidiary of the Borrower or
becomes a Subsidiary of the Borrower; provided that
such Liens (other than replacement Liens permitted
under clause (xi) below) were not created in
contemplation of such merger, consolidation or
investment and do not extend to any assets other than
those of the Person merged into or consolidated with
the Borrower or such Subsidiary or acquired by the
Borrower or such Subsidiary;
(vii) Liens on accounts receivable and
other related assets arising solely in connection with
the sale or other disposition of such accounts
receivable pursuant to Section 5.02(e)(ii);
(viii) Liens securing Documentary L/Cs;
provided that no such Lien shall extend to or cover any
assets of the Borrower or any of its Subsidiaries other
than the inventory (and bills of lading and other
documents related thereto) being financed by any such
Documentary L/C;
(ix) Liens in respect of goods consigned to
the Borrower or any of its Subsidiaries in the ordinary
course of business; provided that such Liens are
limited to the goods so consigned;
(x) financing statements filed in the
ordinary course of business solely for notice purposes
in respect of operating leases and in-store retail
licensing arrangements entered into in the ordinary
course of business;
(xi) Liens securing Debt incurred by the
Borrower or its Subsidiaries, in an aggregate amount at
any time outstanding not to exceed $250,000,000; and
(xii) the replacement, extension or
renewal of any Lien permitted by clause (iii), (v) or
(vi) above upon or in the same property theretofore
subject thereto or, in the case of Liens on real
property and related personal property of the Borrower
or any of its Subsidiaries, upon or in substitute
property of like kind of the Borrower or such
Subsidiary, as the case may be, determined in good
faith by the Board of Directors of the Borrower or such
Subsidiary to be of the same or lesser value than the
property theretofore subject thereto, or the
replacement, extension or renewal (without increase in
the amount or change in any direct or contingent
obligor) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into
any Person, or permit any of its Material Subsidiaries to do
so, except that (i) any Subsidiary of the Borrower may merge
or consolidate with or into any other Subsidiary of the
Borrower, (ii) any Subsidiary of the Borrower may merge into
the Borrower and the Borrower may merge with any other
Person so long as the Borrower is the surviving corporation
and (iii) in connection with any acquisition, any Subsidiary
of the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or
consolidate with it, so long as the Person surviving such
merger shall be a Subsidiary of the Borrower, provided, in
each case, that no Event of Default shall have occurred and
be continuing at the time of such proposed transaction or
would result therefrom.
(c) Accounting Changes. Make or permit, or permit any
of its Subsidiaries to make or permit, any change in
accounting policies or reporting practices, except as
required or permitted by generally accepted accounting
principles.
(d) Subsidiary Debt. Permit any of its Subsidiaries
to create, assume or suffer to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly
owned Subsidiary of the Borrower;
(ii) in the case of FDS National Bank, Debt
owed to the Borrower and incurred in connection with
the financing of accounts receivable in an aggregate
principal amount not to exceed $200,000,000 at any time
outstanding;
(iii) Debt existing on the Effective Date
and described on Schedule 5.02(d) hereto (the "Existing
Debt"), and any Debt extending the maturity of, or
refunding or refinancing, in whole or in part, the
Existing Debt, provided that the principal amount of
such Existing Debt shall not be increased above the
principal amount thereof outstanding immediately prior
to such extension, refunding or refinancing, and the
direct and contingent obligors therefor shall not be
changed, as a result of or in connection with such
extension, refunding or refinancing;
(iv) Debt secured by Liens permitted by
Section 5.02(a)(iv) aggregating not more than
$75,000,000 at any one time outstanding;
(v) unsecured Debt incurred in the ordinary
course of business aggregating for all of the
Borrower's Subsidiaries not more than $150,000,000 at
any one time outstanding;
(vi) indorsement of negotiable instruments
for deposit or collection or similar transactions in
the ordinary course of business;
(vii) Capitalized Leases not to exceed in
the aggregate $100,000,000 at any time outstanding;
(viii) Debt secured by Liens permitted
pursuant to Section 5.02(a)(xi);
(ix) Debt incurred in connection with the
sale or other disposition of accounts receivable
pursuant to Section 5.02(e)(ii) arising in connection
with the Receivables Financing Facility, including,
without limitation, Debt consisting of indemnification
obligations of the Borrower's Subsidiaries and the
Borrower's guaranty thereof and Debt in respect of
Hedge Agreements, provided that such Hedge Agreements
shall be non-speculative in nature (including, without
limitation, with respect to the term and purpose
thereof);
(x) Debt in respect of Documentary L/Cs in
an aggregate face amount not to exceed $250,000,000 at
any time; and
(xi) Debt of any Person that becomes a
Subsidiary of the Borrower after the date hereof that
is existing at the time such Person becomes a
Subsidiary of the Borrower (other than Debt incurred
solely in contemplation of such Person becoming a
Subsidiary of the Borrower) and any Debt extending the
maturity of, or refunding or refinancing, such Debt, in
whole or in part, provided that the principal amount of
such Debt shall not be increased above the principal
amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and
contingent obligors therefor shall not be changed, as a
result of or in connection with such extension,
refunding or refinancing.
(e) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries to
sell, lease, transfer or otherwise dispose of, any assets or
grant any option or other right to purchase, lease or
otherwise acquire any assets, except (i) sales of assets for
fair value, provided that the aggregate value of assets
sold, leased, transferred or otherwise disposed of pursuant
to this clause during the term of this Agreement shall not
be greater than 20% of the value of the total Tangible
Assets of the Borrower and its Subsidiaries on a
Consolidated basis as of February 1, 1997 (as shown on the
Consolidated balance sheet of the Borrower and its
Subsidiaries on such date), and (ii) the sale or other
disposition of accounts receivable and related charge
accounts in the ordinary course of business of the Borrower
and its Subsidiaries pursuant to the Receivables Financing
Facility and the sale of certain accounts receivable to
General Electric Capital Corporation.
(f) Change in Nature of Business. Make, or permit any
of its Subsidiaries to make, any material change in the
nature of its business as carried on at the date hereof,
except where such change could not be reasonably expected to
have a Material Adverse Effect.
SECTION 5.03. Financial Covenants. So long as any
Advance shall remain unpaid or any Lender shall have any
Commitment hereunder, the Borrower will:
(a) Leverage Ratio. Maintain at the end of each
Measurement Period a Leverage Ratio not greater than 0.62 to
1.0.
(b) Interest Coverage Ratio. Maintain at the end of
each Measurement Period an Interest Coverage Ratio of at
least 3.25 to 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable; or the
Borrower shall fail to pay any interest on any Advance or
make any other payment of fees or other amounts payable
under any Loan Document within three Business Days after the
same becomes due and payable; or
(b) Any representation or warranty made by the
Borrower herein (or any of its officers) in connection with
this Agreement shall prove to have been incorrect in any
material respect when made; or
(c) (i) The Borrower shall fail to perform or observe
any term, covenant or agreement contained in
Section 5.01(d), (e), (h) or (i), 5.02 (other than, with
respect to Section 5.01(h) and 5.02(a), to the extent
described in clause (ii) below) or 5.03, or (ii) the
Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 5.02(a) (solely with
respect to the imposition of non-consensual Liens) or
Section 5.01(h)(i) or (ii) if such failure shall remain
unremedied for 10 days or (iii) the Borrower shall fail to
perform any other term, covenant or agreement contained in
any Loan Document on its part to be performed or observed if
such failure shall remain unremedied for 20 days after the
earlier of the date on which (A) a Responsible Officer of
the Borrower becomes aware of such failure or (B) written
notice thereof shall have been given to the Borrower by the
Paying Agent or any Lender; or
(d) The Borrower or any of its Subsidiaries shall fail
to pay any principal of or premium or interest on any Debt
that is outstanding in a principal or notional amount of at
least $30,000,000 (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 $30,000,000 (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 $30,000,000 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 $30,000,000;
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 $30,000,000 or
requires payments exceeding $5,000,000 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
$5,000,000; or
(l) any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 shall for any reason cease
to be valid and binding on or enforceable against the
Borrower, or the Borrower shall so state in writing;
then, and in any such event, the Paying Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by
notice to the Borrower, declare the obligation of each Lender to
make Advances to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided, however, that
in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the United States Bankruptcy
Code, (A) the obligation of each Lender to make Advances shall
automatically be terminated and (B) the Notes, all such interest
and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by the
Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender
hereby appoints and authorizes each Agent to take such action as
agent on its behalf and to exercise such powers and discretion
under this Agreement and the other Loan Documents as are
delegated to such Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto. As
to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the
Notes), no Agent shall be required to exercise any discretion or
take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders, and
such instructions shall be binding upon all Lenders and all
holders of Notes; provided, however, that no Agent shall be
required to take any action that exposes such Agent to personal
liability or that is contrary to this Agreement or applicable
law. Each Agent agrees to give to each Lender prompt notice of
each notice given to it by the Borrower pursuant to the terms of
this Agreement.
SECTION 7.02. Agent's Reliance, Etc. No Agent nor any
of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their
own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, each Agent: (i) may treat
the payee of any Note as the holder thereof until the Paying
Agent receives and accepts an Assumption Agreement entered into
by an Assuming Lender as provided in Section 2.15, or an
Assignment and Acceptance entered into by the Lender that is the
payee of such Note, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 8.07; (ii) may consult with
legal counsel (including counsel for the Borrower), independent
public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel,
accountants or experts; (iii) makes no warranty or representation
to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations (whether written or
oral) made in or in connection with the Loan Documents;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of the Borrower or to
inspect the property (including the books and records) of the
Borrower; (v) shall not be responsible to any Lender for the due
execution, legality, validity, enforceability, genuineness,
sufficiency or value of, or the perfection or priority of any
lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other
instrument or document furnished pursuant hereto; and (vi) shall
incur no liability under or in respect of any Loan Document by
acting upon any notice, consent, certificate or other instrument
or writing (which may be by telecopier, telegram or telex)
believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 7.03. Citibank, Chase and Affiliates. With
respect to their Commitments, the Advances made by them and the
Note issued to them, Citibank and Chase shall have the same
rights and powers under the Loan Documents as any other Lender
and may exercise the same as though they were not the Agents; and
the terms "Lender" or "Lenders" and "Lender" or "Lenders" shall,
unless otherwise expressly indicated, include Citibank and Chase
in their individual capacities. Citibank, Chase and their
Affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business
with, the Borrower, any of its Subsidiaries and any Person who
may do business with or own securities of the Borrower or any
such Subsidiary, all as if Citibank and Chase were not the Agents
and without any duty to account therefor to the Lenders.
SECTION 7.04. Lender Credit Decision. Each Lender
acknowledges that it has, independently and without reliance upon
any Agent or any other Lender and based on the financial
statements referred to in Section 4.01 and such other documents
and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without
reliance upon any Agent or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement.
SECTION 7.05. Indemnification. Each Lender severally
agrees to indemnify the Agents, the Syndication Agent and the
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 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 or Documentation Agent, as the case may be, under the
Loan Documents; provided, however, that no Lender shall be liable
for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
or disbursements resulting from the gross negligence or willful
misconduct of any Agent, Syndication or Documentation Agent, as
the case may be. Without limitation of the foregoing, each
Lender agrees to reimburse each Agent, the Syndication Agent and
the Documentation Agent 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 or Documentation Agent, as the case may be, is not
promptly reimbursed for such costs and expenses by the Borrower.
For purposes of this Section 7.05(a), the Lender Parties'
respective ratable shares of any amount shall be determined, at
any time, according to the sum of (a) the aggregate principal
amount of the Advances outstanding at such time and owing to the
respective Lenders, and (b) their respective Unused Revolving
Credit Commitments at such time. In the event that any Defaulted
Advance shall be owing by any Defaulting Lender at any time, such
Lender's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be
considered to be unused for purposes of this Section 7.05(a) to
the extent of the amount of such Defaulted Advance. The failure
of any Lender to reimburse any Agent, Syndication or
Documentation Agent, as the case may be, promptly upon demand for
its ratable share of any amount required to be paid by the
Lenders to any Agent, Syndication or Documentation Agent, as the
case may be, as provided herein shall not relieve any other
Lender of its obligation hereunder to reimburse such Agent,
Syndication or Documentation Agent, as the case may be, for its
ratable share of such amount, but no Lender shall be responsible
for the failure of any other Lender to reimburse such Agent,
Syndication or Documentation Agent, as the case may be, for such
other Lender's ratable share of such amount. Without prejudice
to the survival of any other agreement of any Lender hereunder,
the agreement and obligations of each Lender contained in this
Section 7.05(a) shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the
other Loan Documents.
SECTION 7.06. Successor Agents. Either Administrative
Agent or the Paying Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower and may be
removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor
Administrative Agent or Paying Agent, as the case may be,
subject, so long as no Default shall have occurred and be
continuing, to the consent of the Borrower (which consent shall
not be unreasonably withheld or delayed). If no successor
Administrative Agent or Paying Agent shall have been so appointed
by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative
Agent's or Paying Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent or
Paying Agent, then the retiring Administrative Agent or Paying
Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent or Paying Agent, which shall be a commercial
bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of
at least $1,000,000,000. Upon the acceptance of any appointment
as Administrative Agent or Paying Agent hereunder by a successor
Administrative Agent or Paying Agent, such successor
Administrative Agent or Paying Agent shall thereupon succeed to
and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent or
Paying Agent, and the retiring Administrative Agent or Paying
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's or
Paying Agent's resignation or removal hereunder as Administrative
Agent or Paying Agent, the provisions of this Article VII shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent or Paying Agent
under this Agreement.
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 any Lender that is, at such time,
a Defaulting Lender), do any of the following: (a) waive any of
the conditions specified in Section 3.01, (b) increase the
Commitments of the Lenders or subject the Lenders to any
additional obligations, (c) reduce the principal of, or interest
on, the Revolving Credit Notes or any fees or other amounts
payable hereunder, (d) postpone any date fixed for any payment of
principal of, or interest on, the Revolving Credit Notes or any
fees or other amounts payable hereunder, (e) change the
percentage of the Commitments or of the aggregate unpaid
principal amount of the Revolving Credit Notes, or the number of
Lenders, that shall be required for the Lenders or any of them to
take any action hereunder or (f) amend this Section 8.01; and
provided, however, that no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agents or the
Paying Agent, as the case may be, in addition to the Lenders
required above to take such action, affect the rights or duties
of the Administrative Agents or Paying Agent, as the case may be,
under this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic or telex communication) and
mailed, telecopied, telegraphed, telexed or delivered, if to the
Borrower, at its address at 7 West Seventh Street, Cincinnati,
Ohio 45202, Attention: Chief Financial Officer, with a copy to
General Counsel; if to any Initial Lender, at its Domestic
Lending Office specified opposite its name on Schedule I hereto;
if to any other Lender, at its Domestic Lending Office specified
in the Assignment and Acceptance pursuant to which it became a
Lender; and if Citibank in its capacity as Paying Agent or
Administrative Agent, at its address at 2 Penns Way, Suite 200,
New Castle, Delaware 19720, Attention: Leonard Sarcona, Loan
Syndications, with a copy to 399 Park Avenue, New York, New York
10043 Attention: Allen Fisher; or, as to the Borrower, the
Paying Agent or such Administrative Agent, at such other address
as shall be designated by such party in a written notice to the
other parties and, as to each other party, at such other address
as shall be designated by such party in a written notice to the
Borrower and the Paying Agent. All such notices and
communications shall, (a) when mailed, be effective three
Business Days after the same is deposited in the mails, (b) when
mailed for next day delivery by a reputable freight company or
reputable overnight courier service, be effective one Business
Day thereafter, and (c) when sent by telegraph, telecopier or
telex, be effective when the same is confirmed by telephone,
telecopier confirmation or return telecopy or telex answerback,
respectively, except that notices and communications to the
Paying Agent pursuant to Article II, III or VII shall not be
effective until received by the Paying Agent. Delivery by
telecopier of an executed counterpart of any amendment or waiver
of any provision of this Agreement or the Notes or of any Exhibit
hereto to be executed and delivered hereunder shall be effective
as delivery of a manually executed counterpart thereof.
SECTION 8.03. No Waiver; Remedies. No failure on the
part of any Lender or any Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate
as a waiver thereof; nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or
the exercise of any other right. The remedies herein provided
are cumulative and not exclusive of any remedies provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower
agrees to pay on demand all costs and expenses of the Paying
Agent and the Administrative Agents in connection with the
preparation, execution, delivery, administration, modification
and amendment of the Loan Documents and the other documents to be
delivered hereunder, including, without limitation, (A) all due
diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal,
consultant, and audit expenses and (B) the reasonable fees and
expenses of counsel for the Paying Agent and the Administrative
Agents with respect thereto and with respect to advising the
Paying Agent and the Administrative Agents as to their rights and
responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses of the Paying
Agent, the Administrative Agents and the Lenders, if any
(including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of the Loan
Documents and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of
counsel for the Paying Agent, the Administrative Agents and each
Lender in connection with the enforcement of rights under this
Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless
the Agents and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Loan Documents, any of
the transactions contemplated thereby or the actual or proposed
use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower
or any of its Subsidiaries or any Environmental Action relating
in any way to the Borrower or any of its Subsidiaries, except to
the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the
indemnity in this Section 8.04(b) applies, such indemnity shall
be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors,
shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are
consummated, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. The
Borrower also agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or
otherwise) to the Borrower or any of its security holders or
creditors arising out of, related to or in connection with the
Facilities, the actual or proposed use of the Advances, the Loan
Documents or any of the transactions contemplated thereby, except
(a) to the extent that such liability is found in a final
non-appealable judgment by a court of competent jurisdiction to
have resulted from such Indemnified Party's gross negligence or
willful misconduct and (b) for direct, as opposed to
consequential, damages for breach of the Indemnified Parties'
obligations hereunder.
(c) If any payment of principal of, or Conversion of,
any Eurodollar Rate Advance is made by the Borrower to or for the
account of a Lender other than on the last day of the Interest
Period for such Advance, as a result of a payment or Conversion
pursuant to Section 2.07(d) or (e), 2.09 or 2.11, acceleration of
the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender other than
on the last day of the Interest Period for such Advance upon an
assignment of rights and obligations under this Agreement
pursuant to Section 8.07 as a result of a demand by the Borrower
pursuant to Section 8.07(a), the Borrower shall, upon demand by
such Lender (with a copy of such demand to the Paying Agent), pay
to the Paying Agent for the account of such Lender any amounts
required to compensate such Lender for any additional losses,
costs or expenses that it may reasonably incur as a result of
such payment or Conversion, including, without limitation, any
loss (excluding loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits
or other funds acquired by any Lender to fund or maintain such
Advance.
(d) If the Borrower fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document,
including, without limitation, reasonable fees and expenses of
counsel and indemnities, such amount may be paid on behalf of the
Borrower by the Paying Agent or any Lender, in its sole
discretion.
(e) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in Sections 2.11, 2.14 and
8.04 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Agents to declare the
Notes due and payable pursuant to the provisions of Section 6.01,
each Lender and each of its Affiliates is hereby authorized at
any time and from time to time, to the fullest extent permitted
by law, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held
and other indebtedness at any time owing by such Lender or such
Affiliate to or for the credit or the account of the Borrower
against any and all of the obligations of the Borrower now or
hereafter existing under this Agreement and the Note held by such
Lender, whether or not such Lender shall have made any demand
under this Agreement or such Note and although such obligations
may be unmatured. Each Lender agrees promptly to notify the
Borrower after any such set-off and application, provided that
the failure to give such notice shall not affect the validity of
such set-off and application. The rights of each Lender and its
Affiliates under this Section are in addition to other rights and
remedies (including, without limitation, other rights of set-off)
that such Lender and its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall
become effective (other than Sections 2.01 and 2.03, which shall
only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Agents and when the Paying Agent
shall have been notified by each Initial Lender that such Initial
Lender has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Agents and each Lender
and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the
Lenders.
SECTION 8.07. Assignments and Participations. (a)
Each Lender may, and if demanded by the Borrower (following a
demand by such Lender pursuant to Section 2.10) 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, (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 $3,000.
(b) Upon the execution, delivery, acceptance and
recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the
extent that rights and obligations hereunder have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its
rights and be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and
obligations under this Agreement, such Lender shall cease to be a
party hereto).
(c) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with any Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in
connection with, any Loan Document or any other instrument or
document furnished pursuant hereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning
Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the
Agents to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated
to the Agents by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that
it is an Eligible Assignee, together with any Revolving Credit
Note or Notes, if any, subject to such assignment, the Paying
Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its
receipt of such notice and if so requested by the assignee, the
Borrower, at its own expense, shall execute and deliver to the
Paying Agent in exchange for the surrendered Revolving Credit
Note a new Note to the order of such assignee in an amount equal
to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment
hereunder and so requests, a new Revolving Credit Note to the
order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Revolving Credit
Note or Notes, if any, shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered
Revolving Credit Note or Notes, if any, shall be dated the
effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A hereto.
(e) The Paying Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and
Acceptance delivered to and accepted by it and a register for the
recordation of the names and addresses of the Lenders and 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.
(f) 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.
(g) 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.
(h) Notwithstanding any other provision set forth in
this Agreement, any Lender may at any time create a security
interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. None of the Agents or
any Lender shall disclose any Confidential Information to any
Person without the written consent of the Borrower, other than
(a) to such Agent's or such Lender's Affiliates to whom
disclosure is required to enable any such Agent or Lender to
perform its obligations under this Agreement or in connection
with the administration or monitoring of the Loan Documents by
such Agent or Lender and their officers, directors, employees,
agents, representatives and advisors and to actual or prospective
Eligible Assignees and participants, and that, in each case, are
advised of the confidential nature of such Confidential
Information, (b) as required by any law, rule or regulation or
judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or
banking.
SECTION 8.09. Governing Law. This Agreement and the
Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 8.10. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 8.11. Judgment. (a) If for the purposes of
obtaining judgment in any court it is necessary to convert a sum
due hereunder or under the Notes in any currency (the "Original
Currency") into another currency (the "Other Currency") the
parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Paying
Agent could purchase the Original Currency with the Other
Currency at 9:00 A.M. (New York City time) on the first Business
Day preceding that on which final judgment is given.
(b) The obligation of the Borrower in respect of any
sum due in the Original Currency from it to any Lender or the
Paying Agent hereunder shall, notwithstanding any judgment in any
Other Currency, be discharged only to the extent that on the
Business Day following receipt by such Lender or the Paying Agent
(as the case may be) of any sum adjudged to be so due in such
Other Currency such Lender or the Paying Agent (as the case may
be) may in accordance with normal banking procedures purchase
Dollars with such Other Currency; if the amount of the Original
Currency so purchased is less than the sum originally due to such
Lender or the Paying Agent (as the case may be) in the Original
Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify such Lender or
the Paying Agent (as the case may be) against such loss, and if
the amount of the Original Currency so purchased exceeds the sum
originally due to any Lender or the Paying Agent (as the case may
be) in the Original Currency, such Lender or the Paying Agent (as
the case may be) agrees to remit to the Borrower such excess.
SECTION 8.12. Jurisdiction, Etc. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of
any New York State court or federal court of the United States of
America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent
permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts
of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the Notes in any
New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
SECTION 8.13. Waiver of Jury Trial. Each of the
Borrower, the Agents and the Lenders hereby irrevocably waives
all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the
actions of any Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
FEDERATED DEPARTMENT STORES, INC.,
as Borrower
By: /s/ Ronald W. Tysoe
Title: Vice Chairman and Chief
Financial Officer
CITIBANK, N.A.,
as Paying Agent, as Administrative
Agent, as Initial Lender and as
Initial Issuing Bank
By: /s/ Allen Fisher
Title: Vice President - Attorney-in-Fact
THE CHASE MANHATTAN BANK,
as Administrative Agent, as Initial
Lender and as Initial Issuing Bank
By: /s/ Ellen Gertz
Title: Vice President
BANKBOSTON, N.A.,
as Syndication Agent and as
Initial Lender
By: /s/ Judith C E Kelly
Title: Vice President
THE BANK OF AMERICA, National Trust
& Savings Association, as
Documentation Agent and as
Initial Lender
By: /s/ Sandra S. Ober
Title: Vice President
Additional Initial Lenders
ARAB BANK PLC, GRAND CAYMAN
By: /s/ Backer Ali
Name: Backer Ali
Title: Vice President
and Controller
THE ASAHI BANK, LTD.
By: /s/ Douglas E. Price
Name: Douglas E. Price
Title: Senior Vice
President
PT. BANK NEGARA INDONESIA (PERSERO)
By: /s/ Dewa Suthapa
Name: Dewa Suthapa
Title: General Manager
BANK OF MONTREAL
By: /s/ DW Rourke
Name: DW Rourke
Title: Director
THE BANK OF NEW YORK
By: /s/ Paula M. DiPonzio
Name: Paula M. DiPonzio
Title: Vice President
BANK ONE, N.A.
By: /s/ Kevin T. McConnell
Name: Kevin T. McConnell
Title: Vice President
THE BANK OF TOKYO - MITSUBISHI LTD.,
CHICAGO BRANCH
By: /s/ Hajime Watanabe
Name: Hajime Watanabe
Title: Deputy General
Manager
BANQUE PARIBAS
By: /s/ Mary T. Finnegan
Name: Mary T. Finnegan
Title: Group Vice
President
By: /s/ John J. McCormick
Name: John J. McCormick, III
Title: Vice President
BARNETT BANK
By: /s/ Diane L. McLaughlin
Name: Diane L. McLaughlin
Title: Senior Vice President
CAISSE NATIONALE DE CREDIT AGRICOLE
By: /s/ Dean Balice
Name: Dean Balice
Title: Senior Vice President
Branch Manager
COMERICA BANK
By: /s/ Hugh G. Porter
Name: Hugh G. Porter
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Chris T. Horgan
Name: Chris T. Horgan
Title: Vice President
By: /s/ Edward E. Barr
Name: Edward E. Barr
Title: Associate
THE FIFTH THIRD BANK
By: /s/ Andrew K. Havck
Name: Andrew K. Havck
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Vincent R. Henchek
Name: Vincent R. Henchek
Title: Vice President
THE FIRST NATIONAL BANK OF MARYLAND
By: /s/ Carol A. Dalton
Name: Carol A. Dalton
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Richard Seufert
Name: Richard Seufert
Title: Vice President
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Penelope J. B. Cox
Name: Penelope J. B. Cox
Title: Vice President
MELLON BANK, N.A.
By: /s/ Joan W. Bird
Name: Joan W. Bird
Title: Vice President
THE MITSUI TRUST & BANKING COMPANY, LTD.
By: /s/ Margaret Holloway
Name: Margaret Holloway
Title: Vice President and Manager
NATIONAL BANK OF KUWAIT
By: /s/ Muhamnad Kamal
Name: Muhamnad Kamal
Title: Executive Manager
By: /s/ Robert J. McNeill
Name: Robert J. McNeill
Title: Deputy Division Manager
PNC BANK, OHIO, NATIONAL ASSOCIATION
By: /s/ Bruce A. Kintner
Name: Bruce A. Kintner
Title: Vice President
THE SANWA BANK, LIMITED, NEW YORK BRANCH
By: /s/ Jean-Michel Fatovic
Name: Jean-Michel Fatovic
Title: Vice President
SOCIETE GENERALE, CHICAGO BRANCH
By: /s/ Paul Dalle Molle
Name: Paul Dalle Molle
Title: Regional Manager - Midwest
STANDARD CHARTERED BANK, N.A.
By: /s/ Kristina McDavid
Name: Kristian McDavid
Title: Vice President
By: /s/ David D. Cutting
Name: David D. Cutting
Title: Senior Vice President
STAR BANK, N.A.
By: /s/ Jane L. Lewis
Name: Jane L. Lewis
Title: Assistant Vice President
THE SUMITOMO BANK, LTD. NEW YORK BRANCH
By: /s/ Kazuyoshi Ogawa
Name: Kazuyoshi Ogawa
Title: Joint General Manager
SUNTRUST BANK CENTRAL FLORIDA, N.A.
By: /s/ Ronald K. Rueve
Name: Ronald K. Rueve
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Timothy P. Sterb
Name: Timothy P. Sterb
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ Holger B. Ebert
Name: Holger B. Ebert
Title: Vice President
SCHEDULE I
FEDERATED DEPARTMENT STORES, INC. 364-DAY CREDIT AGREEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
Name of Initial Revolving Domestic Lending Eurodollar Lending
Lender Credit Office Office
Commitment
Citibank, N.A. $46,875,000 Credit: Credit:
399 Park Avenue 399 Park Avenue
New York, NY 10043 New York, NY 10043
Attn: Allen Fisher Attn: Allen Fisher
Phone: (212) 559- Phone: (212) 559-
0293 0293
Fax: (212) 793-3963 Fax: (212) 793-3963
Administrative: Administrative:
2 Penns Plaza 2 Penns Plaza
Suite 200 Suite 200
New Castle, DE New Castle, DE 19720
19720 Attn: Leonard
Attn: Leonard Sarcona
Sarcona Phone: (718) 248-
Phone: (718) 248- 4536
4536 Fax: (718) 248-4844
Fax: (718) 248-4844
The Chase $46,875,000 Credit: Credit:
Manhattan Bank 270 Park Avenue, 270 Park Avenue,
48th Fl. 48th Fl.
New York, NY New York, NY 10017
10017 Attn: Ellen Gertzog
Attn: Ellen Phone: (212) 270-
Gertzog 1539
Phone: (212) 270- Fax: (212) 270-5646
1539 Administrative:
Fax: (212) 270- One Chase Manhattan
5646 Plaza 8th Floor
Administrative: New York, NY 10081
One Chase Attn: Amy Labinger
Manhattan Plaza Phone: (212) 552-
8th Floor 4025
New York, NY 10081 Fax: (212) 552-7500
Attn: Amy Labinger
Phone: (212) 552-
4025
Fax: (212) 552-
7500
BankBoston, N.A. $35,000,000 Credit: Credit:
100 Federal Street 100 Federal Street
Mail Stop 01-09-05 Mail Stop 01-09-05
Boston, MA 02106 Boston, MA 02106
Attn: Judy Kelly Attn: Judy Kelly
Phone: (617) 434- Phone: (617) 434-
5280 5280
Fax: (617) 434- Fax: (617) 434-6685
6685 Administrative:
Administrative: 100 Federal Street
100 Federal Street Mail Stop 01-21-
Mail Stop 01-21- 01
01 Boston, MA 02110
Boston, MA Attn: Michelle
02110 Taglione
Attn: Michelle Phone: (617) 434-
Taglione 4039
Phone: (617) Fax: (617) 434-
434-4039 6685
Fax: (617) 434-
6685
The Bank of $35,000,000 Credit: Credit:
America, NT & SA 231 South LaSalle 231 South LaSalle
Street Street
Chicago, IL 60697 Chicago, IL 60697
Attn: Sandy Ober Attn: Sandy Ober
Phone: (312) 828- Phone: (312) 828-
1307 1307
Fax: (312) 987- Fax: (312) 987-0303
0303 Administrative:
Administrative: 231 So. LaSalle
231 South LaSalle Street
Street Chicago, IL
Chicago, IL 60697
60697 Attn: Sandra
Attn: Sandra Kramer
Kramer Phone: (312) 828-
Phone: (312) 6645
828-6645 Fax: (312) 987-
Fax: (312) 987- 5833
5833
The Bank of New $20,000,000 Credit: Credit:
York One Wall Street, One Wall Street,
22nd Floor 22nd Floor
New York, NY New York, NY 10286
10286 Attn: Paula DiPonzo
Attn: Paula Phone: (212) 635-
DiPonzo 7867
Phone: (212) 635- Fax: (212) 635-1483
7867 Administrative:
Fax: (212) 635- One Wall Street,
1483 22nd Floor
Administrative: New York, NY
One Wall Street, 10286
22nd Floor Attn: Susan
New York, NY Baratta
10286 Phone: (212) 635-
Attn: Susan 6761
Baratta Fax: (212) 635-
Phone: (212) 6397
635-6761
Fax: (212) 635-
6397
Credit Suisse $20,000,000 Credit: Credit:
First Boston 11 Madison Ave., 11 Madison Ave.,
21st Floor 21st Floor
New York, NY New York, NY 10010
10010 Attn: Chris Horgan
Attn: Chris Horgan Phone: (212) 325-
Phone: (212) 325- 9157
9157 Fax: (212) 325-8309
Fax: (212) 325- Administrative:
8309 11 Madison Ave.
Administrative: New York, NY 10010
11 Madison Ave. Attn: Yvette
New York, NY McQueen
10010 Phone: (212)
Attn: Yvette Fax: (212)
McQueen
Phone: (212)
Fax: (212)
Fleet National $20,000,000 Credit: Credit:
Bank One Federal Street One Federal Street
MA OF 0320 MA OF 0320
Boston, MA 02110 Boston, MA 02110
Attn: Richard Attn: Richard
Seufert Seufert
Phone: (617) 346- Phone: (617) 346-
0611 0611
Fax: (617) 346- Fax: (617) 346-0689
0689 Administrative:
Administrative: One Federal Street
One Federal Street MA OF 0308
MA OF 0308 Boston, MA 02110
Boston, MA 02110 Attn: Michael
Attn: Michael Araujo
Araujo Phone: (617) 346-
Phone: (617) 346- 0601
0601 Fax: (617) 346-0595
Fax: (617) 346-
0595
PNC Bank $20,000,000 Credit: Credit:
201 East 5th 201 East 5th Street
Street Cincinnati, OH
Cincinnati, OH 45202
45202 Attn: John Taylor
Attn: John Taylor Phone: (513) 651-
Phone: (513) 651- 8688
8688 Fax: (513) 651-8952
Fax: (513) 651- Administrative:
8952 201 E. 5th Street
Administrative: Cincinnati, OH
201 E. 5th Street 45202
Cincinnati, OH Attn: Sandy
45202 Wilson
Attn: Sandy Phone:(513) 651-
Wilson 8984
Phone:(513) 651- Fax: (513) 651-
8984 8952
Fax: (513) 651-
8952
Societe General $20,000,000 Credit: Credit:
181 West Madison 181 West Madison
Street Street
Suite 3400 Suite 3400
Chicago, IL 60602 Chicago, IL 60602
Attn: Eric Attn: Eric
Bellaiche Bellaiche
Phone: (312) 578- Phone: (312) 578-
5015 5015
Fax: (312) 578- Fax: (312) 578-5099
5099 Administrative:
Administrative: 181 West Madison
181 West Madison Street
Street Suite 3400
Suite 3400 Chicago, IL 60602
Chicago, IL 60602 Attn: Donna Benson
Attn: Donna Benson Phone: (312) 578-
Phone: (312) 578- 5112
5112 Fax: (312) 578-5099
Fax: (312) 578-
5099
Sumitomo Bank $20,000,000 Credit: Credit:
U.S. Corporate U.S. Corporate
Dept. Dept.
277 Park Avenue, 277 Park Avenue,
6th Floor 6th Floor
New York, NY New York, NY 10172
10172 Attn: Toivo Kiiver
Attn: Toivo Kiiver Phone: (212) 224-
Phone: (212) 224- 4119
4119 Fax (212) 224-5188
Fax (212) 224-5188 Administrative:
Administrative: International
International Finance Dept.
Finance Dept. 277 Park Avenue,
277 Park Avenue, 6th Floor
6th Floor New York, NY 10172
New York, NY Attn: Daria Soriano
10172 Phone: (212) 224-
Attn: Daria 4061
Soriano Fax (212) 224-5192
Phone: (212) 224-
4061
Fax (212) 224-5192
The Bank of $16,250,000 Credit: Credit:
Montreal 115 South LaSalle 115 South LaSalle
Street Street
13 West 13 West
Chicago, IL 60603 Chicago, IL 60603
Attn: Julia Attn: Julia Buthman
Buthman Phone: (312) 750-
Phone: (312) 750- 3491
3491 Fax: (312) 750-1789
Fax: (312) 750- Administrative:
1789 115 South LaSalle
Administrative: Street
115 South LaSalle 11th Floor West
Street Chicago, IL 60603
11th Floor West Attn: Neelan Duss
Chicago, IL 60603 Phone: (312) 750-
Attn: Neelan Duss 3852
Phone: (312) 750- Fax: (312) 750-6061
3852
Fax: (312) 750-
6061
The Bank of Tokyo- $16,250,000 Credit: Credit:
Mitsubishi, Ltd., 227 W. Monroe 227 W. Monroe Street
Chicago Branch Street Suite 2300
Suite 2300 Chicago, IL 60606
Chicago, IL 60606 Attn: William J.
Attn: William J. Murray
Murray Phone: (312) 696-
Phone: (312) 696- 4553
4553 Fax: (312) 696-4535
Fax: (312) 696-4535 Administrative:
Administrative: 227 W. Monroe Street
227 W. Monroe Suite 2300
Street Chicago, IL 60606
Suite 2300 Attn: Julie Galligan
Chicago, IL 60606 Phone: (312) 696-
Attn: Julie 4711
Galligan Fax: (312) 696-4532
Phone: (312) 696-
4711
Fax: (312) 696-4532
Banque Paribas $16,250,000 Credit: Credit:
787 Seventh Avenue 787 Seventh Avenue
New York, NY New York, NY 10019
10019 Attn: Mary Finnegan
Attn: Mary Phone: (212) 841-
Finnegan 2551
Phone: (212) 841- Fax: (212) 841-2333
2551 Administrative:
Fax: (212) 841- 787 Seventh Avenue
2333 New York, NY
Administrative: 10019
787 Seventh Avenue Attn: Terri
New York, NY Knuth
10019 Phone: (212) 841-
Attn: Terri 2229
Knuth Fax: (212) 841-
Phone: (212) 2217
841-2229
Fax: (212) 841-
2217
Mellon Bank, N.A. $16,250,000 Credit: Credit:
One Mellon Bank One Mellon Bank
Center, Room 4535 Center, Room 4535
Pittsburgh, PA Pittsburgh, PA
15258-0001 15258-0001
Attn: Joan Bird Attn: Joan Bird
Phone: (412) 234- Phone: (412) 234-
7172 7172
Fax: (412) 236-1914 Fax: (412) 236-1914
Administrative: Administrative:
Three Mellon Bank Three Mellon Bank
Center, Room 2305 Center, Room 2305
Pittsburgh, PA Pittsburgh, PA
15259-0003 15259-0003
Attn: Greg Klino Attn: Greg Klino
Phone: (412) 234- Phone: (412) 234-
1867 1867
Fax: (412) 234-5049 Fax: (412) 234-5049
Sanwa Bank $16,250,000 Credit: Credit:
55 East 52nd 55 East 52nd Street
Street New York, NY 10055
New York, NY Attn: Jean-Michel
10055 Fatovic
Attn: Jean-Michel Phone: (212) 339-
Fatovic 6397
Phone: (212) 339- Fax: (212) 754-1304
6397 Administrative:
Fax: (212) 754- 55 East 52nd Street
1304 New York, NY 10055
Administrative: Attn: Marlin Chin
55 East 52nd Street Phone: (212)
New York, NY 10055 339-6592
Attn: Marlin Chin Fax: (212) 754-2368
Phone: (212)
339-65
Fax: (212)
754-2368
Caisse Nationale $12,500,000 Credit: Credit:
de Credit Agricole 55 E. Monroe 55 E. Monroe
Street Street
Suite 4700 Suite 4700
Chicago, IL Chicago, IL
60603 60603
Attn: Ray Attn: Ray
Falkenberg Falkenberg
Phone: (312) Phone: (312) 917-
917-7426 7426
Fax: (312) 372- Fax: (312) 372-
3724 3724
Administrative: Administrative:
55 E. Monroe 55 E. Monroe
Street Street
Suite 4700 Suite 4700
Chicago, IL Chicago, IL
60603 60603
Attn: James Attn: James
Barrett Barrett
Phone: (312) Phone: (312) 917-
917-7429 7429
Fax: (312) 372- Fax: (312) 372-
4421 4421
First Chicago Bank $12,500,000 Credit: Credit:
One First One First
National Plaza National Plaza
Chicago, IL Chicago, IL
60670 60670
Attn: Paul E. Attn: Paul E.
Rigby Rigby
Phone: (312) Phone: (312) 732-
732-6132 6132
Fax: (312) 732- Fax: (312) 732-
8587 8587
Administrative: Administrative:
One First One First
National Plaza National Plaza
Chicago, IL Chicago, IL
60670 60670
Attn: Mary Hart Attn: Mary Hart
Phone: (312) Phone: (312) 732-
732-6137 6137
Fax: (312) 732- Fax: (312) 732-
2715 2715
Morgan Guaranty $12,500,000 Credit: Credit:
Trust Company of 60 Wall Street 60 Wall Street
New York New York, NY New York, NY 10260-
10260-0060 0060
Attn: Deborah Attn: Deborah
Brodheim Brodheim
Phone: (212) 648- Phone: (212) 648-
8063 8063
Fax: (212) 648- Fax: (212) 648-5018
5018 Administrative:
Administrative: 500 Stanton
500 Stanton Christiana Ctr.
Christiana Ctr. Newark, DE 19713-
Newark, DE 19713- 2107
2107 Attn: Vickie Fedele
Attn: Vickie Phone: (302) 634-
Fedele 4225
Phone: (302) 634- Fax: (302) 634-1852
4225
Fax: (302) 634-
1852
Standard Chartered $12,500,000 Credit: Credit:
Bank 7 World Trade 7 World Trade
Center Center
27th Floor 27th Floor
New York, NY New York, NY 10048
10048 Attn: David Cutting
Attn: David Phone: (212) 667-
Cutting 0469
Phone: (212) 667- Fax: (212) 667-0225
0469 Administrative:
Fax: (212) 667- 707 Wilshire Blvd.,
0225 W-8-33
Administrative: Los Angeles, CA
707 Wilshire 90017
Blvd., W-8-33 Attn: Qustanti
Los Angeles, CA Shiber
90017 Phone: (213) 614-
Attn: Qustanti 5037
Shiber Fax: (213) 614-4270
Phone: (213) 614-
5037
Fax: (213) 614-
4270
Wachovia Bank $8,750,000 Credit: Credit:
191 Peachtree 191 Peachtree
Street, N.E. Street, N.E.
28th Floor, GA- 28th Floor, GA-
370 370
Atlanta, GA Atlanta, GA
30303 30303
Attn: Michael Attn: Michael
Ripps Ripps
Phone: (404) Phone: (404) 332-
332-5283 5283
Fax: (404) 332- Fax: (404) 332-
6898 6898
Administrative: Administrative:
191 Peachtree 191 Peachtree
Street, N.E. Street, N.E.
28th Floor, GA- 28th Floor, GA-
370 370
Atlanta, GA Atlanta, GA
30303 30303
Attn: Renee Attn: Renee
Rhone Rhone
Phone: (404) Phone: (404) 332-
332-6261 6261
Fax: (404) 332- Fax: (404) 332-
6898 6898
Comerica Bank $7,500,000 Credit: Credit:
500 Woodward Ave. 500 Woodward Ave.
MC 3268 MC 3268
Detroit, MI 48226 Detroit, MI 48226
Attn: Hugh Porter Attn: Hugh Porter
Phone (313) 222- Phone (313) 222-
6192 6192
Fax: (312) 222- Fax: (312) 222-9514
9514 Administrative:
Administrative: 500 Woodward Ave.
500 Woodward Ave. MC 3268
MC 3268 Detroit, MI 48226
Detroit, MI 48226 Attn: Beverly Jones
Attn: Beverly Phone (313) 222-
Jones 3805
Phone (313) 222- Fax: (312) 222-3351
3805
Fax: (312) 222-
3351
National Bank of $7,500,000 Credit: Credit:
Kuwait 299 Park Avenue 299 Park Avenue
New York, NY New York, NY 10171-
10171-0023 0023
Attn: Muhanned Attn: Muhanned
Kamal Kamal
Phone: (212) 303- Phone: (212) 303-
9828 9828
Fax: (212) 888- Fax: (212) 888-2958
2958 Administrative:
Administrative: 299 Park Avenue
299 Park Avenue New York, NY 10171-
New York, NY 0023
10171-0023 Attn: Jeff Ganter
Attn: Jeff Ganter (212) 303-9868
(212) 303-9868 (212) 888-2958
(212) 888-2958
Arab Bank PLC $6,250,000 Credit: Credit:
520 Madison Ave. 520 Madison Ave.
New York, NY New York, NY 10022
10022 Attn: Khanh Vuong
Attn: Khanh Vuong Phone: (212) 715-
Phone: (212) 715- 9717
9717 Fax: (212) 593-4632
Fax: (212) 593- Administrative:
4632 520 Madison Ave.
Administrative: New York, NY 10022
520 Madison Ave. Attn: Justo Huapaya
New York, NY Phone: (212) 715-
10022 9713
Attn: Justo Huapaya Fax: (212) 593-4632
Phone: (212) 715-
9713
Fax: (212) 593-
4632
The Asahi Bank $6,250,000 Credit: Credit:
One World Trade One World Trade
Center Center
60th Floor 60th Floor
New York, NY New York, NY
10048 10048
Attn: Wit Derby Attn: Wit Derby
Phone: (212) Phone: (212) 912-
912-7038 7038
Fax: (212) 432- Fax: (212) 432-
1135 1135
Administrative: Administrative:
One World Trade One World Trade
Center Center
60th Floor 60th Floor
New York, NY New York, NY
10048 10048
Attn: Lily Chan Attn: Lily Chan
Phone: (212) Phone: (212) 912-
912-7022 7022
Fax: (212) 432- Fax: (212) 432-
1135 1135
Bank One, N.A. $6,250,000 Credit: Credit:
8044 Montgomery 8044 Montgomery
Road Road
Suite 350 Suite 350
Cincinnati, OH Cincinnati, OH
45236-5800 45236-5800
Attn: Kevin Attn: Kevin
McConnell McConnell
Phone: (513) 985- Phone: (513) 985-
5017 5017
Fax: (513) 985- Fax: (513) 985-5030
5030 Administrative:
Administrative: P.O. Box 710209
P.O. Box 710209 Columbus, OH 43271-
Columbus, OH 0209
43271-0209 Attn: Jim Zook
Attn: Jim Zook Phone: (614) 248-
Phone: (614) 248- 6187
6187 Fax: (614) 248-5518
Fax: (614) 248-
5518
Barnett Bank $6,250,000 Credit: Credit:
50 N. Laurel 50 N. Laurel Street
Street 17th Floor
17th Floor Jacksonville, FL
Jacksonville, FL 32202
32202 Attn: Brad Harrell
Attn: Brad Harrell Phone: (904) 791-
Phone: (904) 791- 5428
5428 Fax: (904) 791-7963
Fax: (904) 791- Administrative:
7963 100 Laura St., 5th
Administrative: Floor
100 Laura St., 5th Jacksonville, FL
Floor 32202
Jacksonville, FL Attn: Joyce Terrell
32202 Phone: (904) 791-
Attn: Joyce 7940
Terrell Fax: (904) 791-7737
Phone: (904) 791-
7940
Fax: (904) 791-
7737
The Fifth-Third $6,250,000 Credit: Credit:
Bank 38 Fountain 38 Fountain
Square Plaza Square Plaza
Cincinnati, OH Cincinnati, OH
45263 45263
Attn: Andy Attn: Andy Hauck
Hauck Phone: (513) 579-
Phone: (513) 4178
579-4178 Fax: (513) 579-
Fax: (513) 579- 5226
5226 Administrative:
Administrative: 38 Fountain
38 Fountain Square Plaza
Square Plaza Cincinnati, OH
Cincinnati, OH 45263
45263 Attn: Daniel
Attn: Danial Mullen
Mullen Phone: (513) 579-
Phone: (513) 4104
579-4104 Fax: (513) 579-
Fax: (513) 579- 4226
4226
First National $6,250,000 Credit: Credit:
Bank of Maryland 25 S. Charles 25 S. Charles
Street Street
Baltimore, MD Baltimore, MD
21201 21201
Attn: Andy Fish Attn: Andy Fish
Phone: (410) Phone: (410) 244-
244-4217 4217
Fax: (410) 244- Fax: (410) 244-
4294 4294
Administrative: Administrative:
25 S. Charles 25 S. Charles
Street Street
Baltimore, MD Baltimore, MD
21201 21201
Attn: Emilia Attn: Emilia
Schwartz Schwartz
Phone: (410) Phone: (410) 244-
244-4201 4201
Fax: (410) 244- Fax: (410) 244-
4294 4294
Star Bank $6,250,000 Credit: Credit:
425 Walnut Street 425 Walnut Street
Cincinnati, OH Cincinnati, OH
45202 45202
Attn: Bill Goodwin Attn: Bill Goodwin
Phone: (513) 762- Phone: (513) 762-
8973 8973
Fax: (513) 762- Fax: (513) 762-2068
2068 Administrative:
Administrative: 425 Walnut Street
425 Walnut Street Cincinnati, OH
Cincinnati, OH 45202
45202 Attn: Tracy
Attn: Tracy Briede
Briede Phone: (513) 632-
Phone: (513) 4034
632-4034 Fax: (513) 632-
Fax: (513) 632- 3099
3099
SunTrust Bank, $6,250,000 Credit: Credit:
Central Florida, 200 S. Orange Ave. 200 S. Orange Ave.
National MC 0-1043 MC 0-1043
Association Orlando, FL 32801 Orlando, FL 32801
Attn: Stephen L. Attn: Stephen L.
Leister Leister
Phone: (407) 237- Phone: (407) 237-
4705 4705
Fax: (407) 237-6894 Fax: (407) 237-6894
Administrative: Administrative:
200 S. Orange Ave. 200 S. Orange Ave.
MC 0-1043 MC 0-1043
Orlando, FL 32801 Orlando, FL 32801
Attn: Lois Keezel Attn: Lois Keezel
Phone: (407) 237- Phone: (407) 237-
4855 4855
Fax: (407) 237-6894 Fax: (407) 237-6894
Union Bank of $6,250,000 Credit: Credit:
California, N.A. 350 California St., 350 California St.,
11th Fl. 11th Fl.
San Francisco, CA San Francisco, CA
94104 94104
Attn: Timothy P. Attn: Timothy P.
Streb, VP Streb, VP
Phone: (415) 705- Phone: (415) 705-
7021 7021
Fax: (415) 705-7085 Fax: (415) 705-7085
Administrative: Administrative:
350 California St., 350 California St.,
11th Fl. 11th Fl.
San Francisco, CA San Francisco, CA
94104 94104
Attn: Richard A. Attn: Richard A.
Sutter, VP Sutter, VP
Phone: (415) 705- Phone: (415) 705-
7090 7090
Fax: (415) 705-7085 Fax: (415) 705-7085
PT Bank Negara $2,500,000 Credit: Credit:
Indonesia 55 Broadway 55 Broadway
New York, NY New York, NY 10006
10006 Attn: Muhamed El-
Attn: Muhamed El- Shazay
Shazay Phone: (212) 943-
Phone: (212) 943- 4750
4750 Fax: (212) 344-5723
Fax: (212) 344- Administrative:
5723 55 Broadway
Administrative: New York, NY 10006
55 Broadway Attn: Monica
New York, NY Baccari
10006 Phone: (212) 943-
Attn: Monica 4750
Baccari Fax: (212) 344-5723
Phone: (212) 943-
4750
Fax: (212) 344-
5723
The Mitsui Trust $2,500,000 Credit: Credit:
Banking Company, 190 South LaSalle 190 South LaSalle
Limited Street Street
Suite 1000 Suite 1000
Chicago, IL 60603 Chicago, IL 60603
Attn: Koichi Attn: Koichi
Yokoyama Yokoyama
Phone: (312) 201- Phone: (312) 201-
4704 4704
Fax: (312) 201-0593 Fax: (312) 201-0593
Administrative: Administrative:
1251 Ave. of the 1251 Ave. of the
Americas Americas
39th Floor 39th Floor
New York, NY 10281 New York, NY 10281
Attn: Edward Simnor Attn: Edward Simnor
Phone: (212) 790- Phone: (212) 790-
5361 5361
Fax: (212) 768-3100 Fax: (212) 768-3100
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
Note $400 million May Note
Monetization Promissory Note of
Facility May Department
Stores dated May 3,
1988 ("May Note").
Horne's Mortgage dated May Lazarus (formerly Horne's)
Mortgage 25, 1994 between Pittsburgh, PA
Joseph Horne Co., Greengate Mall, Greensburg,
Inc., Mortgagor (now PA
known as Lazarus PA, Millcreek Mall, Erie, PA
Inc.) and PNC Bank, Monroeville Mall,
Ohio, National Monroeville, PA
Association, South Hills Village,
Mortgagee. Pittsburgh, PA
Capitalized Miscellaneous leases Miscellaneous real and
Leases regarding real and personal property leased by
personal property Borrower and its
leased by Borrower subsidiaries.
and its
subsidiaries, which
leases meet certain
accounting criteria
that requires that
they be capitalized
for accounting
purposes only.
Accounts Amended and Restated Proprietary credit card
Receivable Pooling and receivables arising out of
Facility Servicing Agreement, the sale of merchandise and
dated as of December services by department store
15, 1992 among Prime subsidiaries of Federated
Receivables that are transferred to
Corporation, as Prime Credit Card Master
Transferor, FDS Trust.
National Bank, as
Servicer, and
Chemical Bank as
Trustee of Prime
Credit Card Master
Trust.
DEBT PROPERTY ENCUMBERED
Loan from New York Life Deptford Mall, Almonesson-
Insurance Company to Macy's Westville Road and Clements
Secondary Real Estate, Inc. Bridge Road, New Jersey
(First Mortgage)
Loan from Pearl Street to 100 Route 46, Wayne, New Jersey
Macy's Secondary Real Estate, (First Mortgage)
Inc.
Loan from CALPERS to Sanstoff 120 Stockton Street, San
East Properties Corp. Francisco, California (First
Mortgage)
Loan from Connecticut General Northridge Center, Salinas,
Life Insurance Company to California store
Broadway Stores, Inc. (First Mortgage)
Loan from Arizona State 1524 West 14th Street, Tempe,
Retirement System to Broadway Arizona distribution center
Stores, Inc. (First Mortgage)
Loan from Bank of America to 3634 Maryland Parkway
Broadway Stores, Inc. Boulevard Mall, Las Vegas,
Nevada store (First Mortgage)
675 Inland Center Drive, Inland
Center, San Bernardino,
California store (First
Mortgage)
275 Fashion Valley Center, San
Diego, California store (First
Mortgage)
Loan from Principal Mutual 1600 North Kraemer Boulevard,
Life Insurance Company to Anaheim, California service
Broadway Stores, Inc. building (First Mortgage)
$550,926,100.00 Loan to Macy's 151 Broad Street, Stamford,
Primary Real Estate, Inc. from Connecticut
Federated Noteholding
Corporation.
Christiana Mall, Newark,
Delaware
19501 Biscayne Boulevard, North
Miami, Florida
Georgia Square Mall, 3700
Atlanta Highway, Athens Georgia
Augusta Mall, Wrightsboro Road
and Bobby Jones Expressway,
Augusta, Georgia
1200 Cumberland Mall, Atlanta,
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
150 Carnegie Way, N.W., Atlanta,
Georgia (Second Mortgage)
Perimeter Mall, 4400 Ashford-
Dunwoodie Road, Atlanta, Georgia
400 Shannon Mall, Union City,
Georgia
Southlake Mall, Morrow
Industrial Boulevard and
Jonesboro Road, Morrow, Georgia
White Marsh Mall, 8200 Perry
Hall Boulevard, Parksville,
Maryland
Cherry Hill Center, 514 Cherry
Hill, Cherry Hill, New Jersey
Deptford Mall, Almonesson-
Westville Road and Clements
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
Rockaway Town Square, Rockaway
Township, New Jersey
100 Route 46, Wayne, New Jersey
(Second Mortgage)
Herald Square, 151 West 34th
Street, New York, New York
Colonie Shopping Center, Wolf
Road and Route 5, Colonie, New
York
Kings Plaza Store, 5400 Avenue
U, Brooklyn, New York (Second
Mortgage)
400 Sunrise Mall, Massapequa,
New York
200 Nanuet Center, Nanuet, New
York
88-01 Queens Boulevard,
Elmhurst, New York
Roosevelt Field Shopping Center,
Garden Center, New York (Second
Mortgage)
100 Richmond Hill Road, Staten
Island, New York
Westchester County, 220 and 222
Main Street, New York
The Court at King of Prussia,
680 West DeKalb Pike, King of
Prussia, Pennsylvania
US Route 22 and McArthur Road,
Whitehall, Pennsylvania
Montgomeryville Mall, Route 309
and Route 202, North Wales,
Pennsylvania
2300 East Lincoln Highway,
Langhorne, Pennsylvania (Second
Mortgage)
Baltimore Pike and Sproul Road
Springfield, Pennsylvania
120 Stockton Street, San
Francisco, California (Mainstore
- East)
(Second Mortgage)
5832 Sunrise Boulevard, Citrus
Heights, California (Second
Mortgage)
Coddington Center, 900
Coddington Center, Santa Rosa,
California
Sunvalley Shopping Center, 1555
Willow Pass Road, Concord,
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
Fresno Fashion Square Shopping
Center, 4888 North Fresno
Street, Fresno, California
115 Hillsdale Mall, San Mateo,
California
2200 Hilltop Drive, Richmond,
California
500 Vintage Faire, Modesto,
California
100 Del Monte Shopping Center,
Monteray, California
200 Newpark Mall, Newark,
California
5140 Thornwood Drive, San Jose,
California
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
2801 Stevens Creek Road, San
Jose, California
Meadowood Mall Circle, 5100
Meadowood Circle, Reno, Nevada
Dallas Galleria, 13350 Dallas
Parkway, Dallas, Texas
2201 John Glenn Drive, Concord,
California
2838 South El Camino, San Mateo,
California
Schedule 5.02 (d) Existing Debt
($000) (estimated at July 28, 1997)
Receivables Backed Notes 1,894,800
PNC Mortgage (re: Horne's) 32,498
Tax Notes - Federated Ch. 11 3,408
Tax Notes - Macy Ch. 11 -- IRS 70,301
Non-IRS 20,705
Note Monitization debt 176,000
Other Real Estate Mortgages:
Pearl Street 250 (A)
New York Life 3,941 (A)
CalPERS 9,622 (A)
Principal Mutual Life 8,630
Arizona State Retirement System 1,494 (A)
Connecticut General 1,764 (A)
Bank of America 19,865 (A)
Capitalized Leases 76,372
Total 2,319,650
(A) Scheduled for 100% prepayment August 1, 1997.
EXHIBIT A - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated:
_______________, ____
FOR VALUE RECEIVED, the undersigned,
FEDERATED DEPARTMENT STORES, INC., a Delaware
corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of ___________________ (the "Lender") for the
account of its Applicable Lending Office on the
Revolver Termination Date, or if the Borrower has made
a Term Loan Election pursuant to Section 2.05 of the
Credit Agreement, on the Maturity Date (each as defined
in the Credit Agreement referred to below) the
aggregate principal amount of the Revolving Credit
Advances (as defined below) owing to the Lender by the
Borrower pursuant to the 364-Day Credit Agreement dated
as of July 28, 1997 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, BankBoston, N.A., as Syndication Agent,
and The Bank of America, National Trust & Savings
Association, as Documentation Agent (as amended,
supplemented or otherwise modified from time to time,
the "Credit Agreement"; the terms defined therein being
used herein as therein defined) outstanding on the
Revolver Termination Date, or if the Borrower has made
a Term Loan Election pursuant to Section 2.05 of the
Credit Agreement, on the Maturity Date.
The Borrower promises to pay interest on the
unpaid principal amount of each Revolving Credit
Advance from the date of such Revolving Credit Advance
until such principal amount is paid in full, at such
interest rates, and payable at such times, as are
specified in the Credit Agreement.
Both principal and interest are payable in
lawful money of the United States of America to
Citibank, N.A., as Paying Agent, at 399 Park Avenue,
New York, NY 10043, in same day funds. Each Revolving
Credit Advance owing to the Lender by the Borrower
pursuant to the Credit Agreement, and all payments made
on account of principal thereof, shall be recorded by
the Lender and, prior to any transfer hereof, endorsed
on the grid attached hereto which is part of this
Promissory Note.
This Promissory Note is one of the Revolving
Credit Notes referred to in, and is entitled to the
benefits of, the Credit Agreement. The Credit
Agreement, among other things, (i) provides for the
making of Revolving Credit Advances by the Lender to
the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the U.S. dollar
amount first above mentioned, the indebtedness of the
Borrower resulting from each such Revolving Credit
Advance being evidenced by this Promissory Note, and
(ii) contains provisions for acceleration of the
maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal
hereof prior to the maturity hereof upon the terms and
conditions therein specified.
FEDERATED DEPARTMENT STORES, INC.
By
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Notation
Date Advance or Prepaid Principal Made By
Balance
EXHIBIT B - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Paying Agent
for the Lenders party
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: Leonard Sarcona
Ladies and Gentlemen:
The undersigned, Federated Department Stores,
Inc., refers to the 364-Day Credit Agreement dated as
of July 28, 1997 (as amended or modified from time to
time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the
undersigned, certain Lenders party thereto, Citibank,
N.A., as Paying Agent and as Administrative Agent for
said Lenders, The Chase Manhattan Bank, as
Administrative Agent for said Lenders, BankBoston,
N.A., as Syndication Agent and The Bank of America,
National Trust & Savings Association, as Documentation
Agent, 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 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 C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the 364-Day Credit
Agreement dated as of July 28, 1997 (as amended,
supplemented or otherwise modified from time to time,
the "Credit Agreement") among Federated Department
Stores, Inc., a Delaware corporation (the "Borrower"),
the Lenders (as defined in the Credit Agreement) party
thereto, Citibank, N.A., as an administrative agent for
the Lenders (in such capacity, an "Administrative
Agent") and paying agent (in such capacity, the "Paying
Agent") for the Lenders, The Chase Manhattan Bank, as
an administrative agent (in such capacity, an
"Administrative Agent"; the Administrative Agents and
the Paying Agent being, collectively, the "Agents") for
the Lenders, BankBoston, N.A., as syndication agent and
The Bank of America, National Trust & Savings
Association, as documentation agent. 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 equal to the percentage interest specified
on Schedule 1 hereto of all outstanding rights and
obligations under the Credit Agreement. After giving
effect to such sale and assignment, the Assignee's
Commitment and the amount of the Advances owing to the
Assignee will be as set forth on Schedule 1 hereto.
2. The Assignor (i) represents and warrants
that it is the legal and beneficial owner of the
interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim;
(ii) makes no representation or warranty and assumes no
responsibility with respect to any statements,
warranties or representations made in or in connection
with the Credit Agreement or the execution, legality,
validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or
security interest created or purported to be created
under or in connection with, any Loan Document or any
other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and
assumes no responsibility with respect to the financial
condition of the Borrower or the performance or
observance by the Borrower of any of its obligations
under any Loan Document or any other instrument or
document furnished pursuant thereto; and (iv) attaches
the Revolving Credit Note held by the Assignor and
requests that the Administrative Agent exchange such
Revolving Credit Note for a new Revolving Credit Note
payable to the order of the Assignee in an amount equal
to the Commitment assumed by the Assignee pursuant
hereto or new Revolving Credit Notes payable to the
order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto and
the Assignor in an amount equal to the Commitment
retained by the Assignor under the Credit Agreement,
respectively, as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has
received a copy of the Credit Agreement, together with
copies of the financial statements referred to in
Section 4.01 thereof and such other documents and
information as it has deemed appropriate to make its
own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon any Agent, the
Assignor or any other Lender and based on such
documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions
in taking or not taking action under the Credit
Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes each Agent to
take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as
are delegated to such Agent by the terms thereof,
together with such powers and discretion as are
reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement
are required to be performed by it as a Lender; and
(vi) attaches any U.S. Internal Revenue Service forms
required under Section 2.13 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]
________________________
* 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.
Accepted [and Approved]* this
__________ day of _______________, ____
CITIBANK, N.A., as Paying Agent
By
Title:
[Approved this __________ day
of _______________, ____
FEDERATED DEPARTMENT STORES, INC.
By ]*
Title:
________________________
* Required if the Assignees is an Eligible Assignee soley by reason
of clause (iii) of teh definition of "Eligible Assignee".
EXHIBIT D - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
July 28, 1997
To: The Lender Parties party to each Credit Agreement
referred to below and to Citibank, N.A., as
Administrative Agent and Paying Agent, The Chase
Manhattan Bank, as Administrative Agent, BankBoston,
N.A.,
as Syndication Agent, and Bank of America National
Trust and Savings Association, as Documentation Agent
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 July 28, 1997 (collectively, the "Credit Agreements"),
among the Borrower, the Lender Parties (as defined in the
Credit Agreements), Citibank, N.A., as administrative agent
and paying agent for the Lender Parties, The Chase Manhattan
Bank, as administrative agent for the Lender Parties,
BankBoston, N.A., as syndication agent, and Bank of America
National Trust and Savings Association, as documentation
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:
(a) an executed copy of the Credit
Agreements;
(b) 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
(c) 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:
1. The Borrower is a corporation duly
incorporated, validly existing and in good
standing under the laws of the State of Delaware.
2. The Borrower has the corporate power and
authority to enter into and to perform its obligations under
the Credit Agreements and the Notes.
3. 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).
4. 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.
5. 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.
6. 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 X of the Board of Governors of the
Federal Reserve System.
The opinions set forth above are subject to the
following qualifications:
(A) 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.
(B) We express no opinion as to the
enforceability of any provision in the Credit Agreements:
(i) 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;
(ii) 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;
(iii) 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;
(iv) relating to forum selection to the extent
the forum is a federal court;
(v) 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;
(vi) 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;
(vii) waiving any rights to trial by jury;
and
(viii) 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.
(C) 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.
(D) 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).
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.
Very truly yours,
JONES, DAY, REAVIS & POGUE
ANNEX A
FEDERATED DEPARTMENT STORES, INC.
OFFICER'S CERTIFICATE
Reference is made to the opinion letter of Jones, Day,
Reavis & Pogue (the "Opinion") delivered in connection with each
Credit Agreement dated as of July 28, 1997 (collectively, the
"Credit Agreements"), among Federated Department Stores, Inc.
(the "Borrower"), the Lender Parties (as defined in the Credit
Agreements), Citibank, N.A., as administrative agent and paying
agent for the Lender Parties, The Chase Manhattan Bank, as
administrative agent for the Lender Parties, BankBoston, N.A., as
syndication agent, and Bank of America National Trust and Savings
Association, as documentation agent. Capitalized terms used in
this certificate and not otherwise defined have the meanings
assigned to such terms in the Opinion.
The undersigned officer of the Borrower certifies, in
connection with the execution, delivery and performance by the
Borrower of the Credit Agreements, the consummation of the
transactions contemplated by the Credit Agreements and the
Opinion, that attached as Schedule I is a list of (i) all
indentures, mortgages, deeds of trust, security or pledge
agreements, guarantees, loan or credit agreements and other
agreements or instruments and (ii) all decrees and orders, in
each case in clause (i) and (ii) above, to which the Borrower is
a party or that are otherwise binding upon the Borrower or any of
its assets or property and that contain financial or other
covenants or provisions for defaults or events of default or
similar events or occurrences or that otherwise would or could
have the effect of (a) restricting the types of provisions that
any other agreement to which the Borrower becomes a party may
contain, (b) restricting the conduct of the Borrower's business,
the incurrence of indebtedness, guarantees or other liabilities
or obligations, the creation of liens upon any of the Borrower's
property or assets or otherwise restricting the execution,
delivery, and performance of, or the consummation of the
transactions contemplated by, the Credit Agreements or (c)
resulting in, or requiring the creation or imposition of, any
lien upon any of the Borrower's assets or property as a result of
the execution, delivery or performance of, or the consummation of
the transactions contemplated by, the Credit Agreements. A true
and complete copy of each of the above agreements, instruments,
documents, decrees and orders has been previously furnished to
Jones, Day, Reavis & Pogue. No default or event of default or
violation of any such agreements, instruments, decrees or orders
exists or, immediately after giving effect to entry into the
Credit Agreements or consummation of any of the transactions
contemplated by the Credit Agreements, will exist.
Delivered as of this 28th day of July, 1997.
Name:
Title:
SCHEDULE I
TO OFFICER'S CERTIFICATE
Debt Agreements:
1. Amended and Restated Pooling and Servicing Agreement dated
as of December 15, 1992 (the "Pooling and Servicing
Agreement"), among the Borrower, Prime Receivables
Corporation, and Chemical Bank, as trustee, as amended by
the First Amendment, dated as of December 1, 1993, as
further amended by the Second Amendment, dated as of
February 28, 1994, as further amended by the Third Amendment
dated as of May 31, 1994, as further amended by the Fourth
Amendment dated as of January 18, 1995, as further amended
by Fifth Amendment dated as of April 30, 1995, as further
amended by the Sixth Amendment dated as of July 27, 1995,
and as further amended by the Seventh Amendment dated as of
May 14, 1996.
2. Assumption Agreement under the Pooling and Servicing
Agreement dated as of September 15, 1993.
3. Series 1992-1 Supplement dated as of December 15, 1992, to
the Pooling and Servicing Agreement.
4. Series 1992-2 Supplement dated as of December 15, 1992, to
the Pooling and Servicing Agreement.
5. Series 1992-3 Variable Funding Supplement dated as of
January 5, 1993, to the Pooling and Servicing Agreement.
6. Series 1995-1 Supplement dated as of July 27, 1995, to the
Pooling and Servicing Agreement.
7. Series 1996-1 Supplement dated as of May 14, 1996, to the
Pooling an Servicing Agreement.
8. Liquidity Agreement dated as of December 31, 1992, among
Seven Hills Funding Corporation, the Borrower, the financial
institutions named therein, Chemical Bank, as depositary and
collateral agent, and Credit Suisse, New York Branch as the
liquidity agent.
9. Indenture dated as of December 15, 1994 (the "1994
Indenture"), between the Borrower and State Street Bank and
Trust Company, as trustee.
10. Third Supplemental Indenture dated as of January 23, 1995,
to the 1994 Indenture.
11. Fourth Supplemental Indenture dated as of September 27,
1995, to the 1994 Indenture.
12. Fifth Supplemental Indenture dated as of October 6, 1995, to
the 1994 Indenture.
13. Sixth Supplemental Indenture dated as of February 1, 1996,
to the 1994 Indenture.
14. Seventh Supplemental Indenture dated as of May 22, 1996, to
the 1994 Indenture.
15. Eighth Supplemental Indenture dated as of July 14, 1997, to
the 1994 Indenture.
16. Ninth Supplemental Indenture dated as of July 14, 1997, to
the 1994 Indenture.
17. Guaranty Agreement dated as of May 26, 1994, made by the
Borrower in favor of the banks listed therein and PNC Bank,
Ohio, National Association, as agent, as amended by
Amendment #1 to Guaranty Agreement dated as of February 28,
1995.
18. Commercial Paper Dealer Agreement dated as of January 30,
1997, between the Borrower and Citicorp Securities, Inc.
19. Commercial Paper Dealer Agreement dated as of January 30,
1997, between the Borrower and Citibank, N.A.
20. Commercial Paper Dealer Agreement dated as of January 30,
1997, between the Borrower and Lehman Brothers, Inc.
Decrees and Orders:
None.