U.S. $1,500,000,000
FIVE YEAR 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
The table of contents must be edited after it has been generated.
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 22
SECTION 1.03. Accounting Terms 22
SECTION 1.04. Currency Equivalents Generally 22
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Regular Advances 22
SECTION 2.02. Making the Regular Advances 23
SECTION 2.03. The Competitive Bid Advances 26
SECTION 2.04. Fees 30
SECTION 2.05. Termination or Reduction of the
Commitments 30
SECTION 2.06. Repayment of Regular Advances 30
SECTION 2.07. Interest on Regular Advances 30
SECTION 2.08. Interest Rate Determination 31
SECTION 2.09. Optional Conversion of Revolving
Credit Advances 32
SECTION 2.10. Prepayments of Regular Advances 33
SECTION 2.11. Increased Costs 34
SECTION 2.12. Illegality 34
SECTION 2.13. Payments and Computations 35
SECTION 2.14. Taxes 36
SECTION 2.15. Sharing of Payments, Etc. 38
SECTION 2.16. Letters of Credit 38
SECTION 2.17. Use of Proceeds 42
SECTION 2.18. Defaulting Lenders 43
SECTION 2.19. Evidence of Debt 45
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Initial
Extension of Credit 45
SECTION 3.02. Conditions Precedent to Each
Regular Borrowing and each
Issuance and Renewal of
Letters of Credit 47
SECTION 3.03. Conditions Precedent to Each
Competitive Bid Borrowing 48
SECTION 3.04. Determinations Under Section 3.01 48
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of
the Borrower 49
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants 51
SECTION 5.02. Negative Covenants 54
SECTION 5.03. Financial Covenants 57
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default 58
SECTION 6.02. Actions in Respect of the Letters
of Credit upon Event of Default 61
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action 64
SECTION 7.02. Agent's Reliance, Etc. 64
SECTION 7.03. Citibank, Chase and Affiliates 65
SECTION 7.04. Lender Credit Decision 65
SECTION 7.05. Indemnification 65
SECTION 7.06. Successor Agents 66
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. 67
SECTION 8.02. Notices, Etc. 68
SECTION 8.03. No Waiver; Remedies 68
SECTION 8.04. Costs and Expenses 68
SECTION 8.05. Right of Set-off 70
SECTION 8.06. Binding Effect 70
SECTION 8.07. Assignments, Designations and
Participations 70
SECTION 8.08. Confidentiality 74
SECTION 8.09. No Liability of the Issuing Banks 74
SECTION 8.10. Governing Law 75
SECTION 8.11. Execution in Counterparts 75
SECTION 8.13. Jurisdiction, Etc. 75
SECTION 8.14. Waiver of Jury Trial 76
Schedule I - List of Commitments and Applicable Lending Offices
Schedule 2.03(h) - Existing Competitive Bid Advances
Schedule 2.16(g) - Existing Letters of Credit
Schedule 4.01(c) - Required Authorizations, Approvals, Actions,
Notices and Filings
Schedule 5.02(a) - Existing Liens
Schedule 5.02(d) - Existing Debt
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Designation Agreement
Exhibit E - Form of Opinion of Counsel for the Borrower
FIVE YEAR CREDIT AGREEMENT
Dated as of 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 the Initial Issuing Banks (the "Initial
Issuing Banks"), and CITIBANK, N.A. ("Citibank"), as an
administrative agent (in such capacity, an "Administrative
Agent") for the Lender Parties (as hereinafter defined) and
as paying agent (in such capacity, the "Paying Agent") for
the Lender Parties, THE CHASE MANHATTAN BANK ("Chase"), as
an administrative agent (in such capacity, an
"Administrative Agent"; the Administrative Agents and the
Paying Agent being, collectively, the "Agents") for the
Lender Parties, 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, a
Competitive Bid Advance, a Swing Line Advance or a
Letter of Credit Advance.
"Affiliate" means, as to any Person, any other
Person that, directly or indirectly, controls, is
controlled by or is under common control with such
Person or is a director or officer of such Person. For
purposes of this definition, the term "control"
(including the terms "controlling", "controlled by" and
"under common control with") of a Person means the
possession, direct or indirect, of the power to vote 5%
or more of the Voting Stock of such Person or to direct
or cause the direction of the management and policies
of such Person, whether through the ownership of Voting
Stock, by contract or otherwise.
"Agent" has the meaning specified in the recital
of parties to this Agreement.
"Alternative Currency" means lawful money of
Austria, Belgium, the Federal Republic of Germany,
France, Italy, the Swiss Confederation, the United
Kingdom and such other lawful currencies other than
Dollars that are freely transferable and convertible
into Dollars as the Borrower, with the consent of the
Paying Agent and the applicable Issuing Bank, shall
designate.
"Applicable Lending Office" means, with respect to
each Lender Party, such Lender Party's Domestic Lending
Office in the case of a Base Rate Advance and such
Lender Party's Eurodollar Lending Office in the case of
a Eurodollar Rate Advance and, in the case of a
Competitive Bid Advance, the office of such Lender
Party notified by such Lender Party to the Paying Agent
as its Applicable Lending Office with respect to such
Competitive Bid Advance.
"Applicable Margin" means, as of any date of
determination, a percentage per annum determined by
reference to the Performance Level in effect on such
date as set forth below:
Performance Applicable Applicable Fees for Drawn Cost
Level Margin for Margin for Trade
Base Rate Eurodollar Letters of
Advances Rate Credit
Advances
Level 1 0.0000% 0.1225% 0.0875% 0.1875%
Level 2 0.0000% 0.1250% 0.1000% 0.2000%
Level 3 0.0000% 0.1650% 0.1250% 0.2500%
Level 4 0.0000% 0.2000% 0.1500% 0.3000%
Level 5 0.0000% 0.2250% 0.1875% 0.3500%
Level 6 0.0000% 0.3250% 0.2750% 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 Party and an
Eligible Assignee, and accepted by the Paying Agent, in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means,
at any time, the maximum amount available to be drawn
under such Letter of Credit at such time (assuming
compliance at such time with all conditions to
drawing), provided that with respect to any Letter of
Credit denominated in an Alternative Currency, such
maximum amount shall be calculated as the equivalent
Dollar amount, determined in accordance with Section
1.04, of the stated maximum amount.
"Base Rate" means a fluctuating interest rate per
annum in effect from time to time, which rate per annum
shall at all times be equal to the highest of:
(a) the rate of interest announced
publicly by Citibank in New York, New York, from
time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest
1/16 of 1% or, if there is no nearest 1/16 of 1%,
to the next higher 1/16 of 1%) of (i) 1/2 of 1%
per annum, plus (ii) the rate obtained by dividing
(A) the latest three-week moving average of
secondary market morning offering rates in the
United States for three-month certificates of
deposit of major United States money market banks,
such three-week moving average (adjusted to the
basis of a year of 360 days) being determined
weekly on each Monday (or, if such day is not a
Business Day, on the next succeeding Business Day)
for the three-week period ending on the previous
Friday by Citibank on the basis of such rates
reported by certificate of deposit dealers to and
published by the Federal Reserve Bank of New York
or, if such publication shall be suspended or
terminated, on the basis of quotations for such
rates received by Citibank from three New York
certificate of deposit dealers of recognized
standing selected by Citibank, by (B) a percentage
equal to 100% minus the average of the daily
percentages specified during such three-week
period by the Board of Governors of the Federal
Reserve System (or any successor) for determining
the maximum reserve requirement (including, but
not limited to, any emergency, supplemental or
other marginal reserve requirement) for Citibank
with respect to liabilities consisting of or
including (among other liabilities) three-month
U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such
three-week period of the annual assessment rates
estimated by Citibank for determining the then
current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of
Citibank in the United States; and
(c) 1/2 of one percent per annum above
the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing, a
Swing Line Borrowing or a Competitive Bid Borrowing.
"Business Day" means a day of the year on which
banks are not required or authorized by law to close in
New York City and, if the applicable Business Day
relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"Capitalized Leases" means all leases that have
been or should be, in accordance with GAAP, recorded as
capitalized leases.
"Chase" has the meaning specified in the recital
of parties to this Agreement.
"Citibank" has the meaning specified in the
recital of parties to this Agreement.
"Commercial Paper" means any unsecured promissory
note or notes issued by the Borrower pursuant to any
commercial paper program (whether rated or unrated)
with a maturity of not more than 270 days from the time
of issuance.
"Commercial Paper Set-Aside Amount" has the
meaning specified in Section 2.01(c).
"Commitment" means a Revolving Credit Commitment
or a Letter of Credit Commitment.
"Competitive Bid Advance" means an Existing
Competitive Bid Advance or an advance by a Lender to
the Borrower as part of a Competitive Bid Borrowing
resulting from the competitive bidding procedure
described in Section 2.03 and refers to a Fixed Rate
Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing
consisting of simultaneous Competitive Bid Advances
from each of the Lenders whose offer to make one or
more Competitive Bid Advances as part of such borrowing
has been accepted under the competitive bidding
procedure described in Section 2.03.
"Competitive Bid Note" means a promissory note of
the Borrower payable to the order of any Lender, in
substantially the form of Exhibit A-2 hereto,
evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by
such Lender.
"Confidential Information" means all information
about the Borrower and its Subsidiaries that has been
furnished by the Borrower or any of its Subsidiaries to
any Agent or any Lender Party whether furnished before
or after the date of this Agreement, and regardless of
the manner in which it is furnished, but does not
include any such information that (a) is or becomes
generally available to the public other than as a
result of a disclosure by such Agent or such Lender
Party not permitted by this Agreement, (b) was
available to such Agent or such Lender Party on a non-
confidential basis prior to its disclosure to such
Agent or such Lender Party or (c) becomes available to
such Agent or such Lender Party on a non-confidential
basis from a Person other than the Borrower or any of
its Subsidiaries that is not, to the best of such
Agent's or such Lender Party's knowledge, acting in
violation of a confidentiality agreement with the
Borrower or any of its Subsidiaries or is not otherwise
prohibited from disclosing the information to such
Agent or such Lender Party.
"Consolidated" refers to the consolidation of
accounts in accordance with GAAP.
"Convert", "Conversion" and "Converted" each
refers to a conversion of Revolving Credit Advances of
one Type into Revolving Credit Advances of the other
Type pursuant to Section 2.08 or 2.09.
"Debt" of any Person means, without duplication,
(a) all indebtedness of such Person for borrowed money,
(b) all Obligations of such Person for the deferred
purchase price of property or services (other than
Obligations for property (excluding real property,
capital stock and property subject to Capitalized
Leases) and services purchased, and expense accruals
and deferred compensation items arising in the ordinary
course of such Person's business), (c) all Obligations
of such Person evidenced by notes, bonds, debentures or
other similar instruments (other than performance,
surety and appeals bonds arising in the ordinary course
of business), (d) all payment Obligations of such
Person created or arising under any conditional sale or
other title retention agreement with respect to
property acquired by such Person (unless the rights and
remedies of the seller, lessor or lender under such
agreement in the event of default are limited to
repossession or sale of such property), (e) all
Obligations of such Person as lessee under Capitalized
Leases, (f) all Obligations, contingent or otherwise,
of such Person in respect of acceptances, letters of
credit or similar extensions of credit, (g) all
Obligations of such Person to purchase, redeem, retire,
defease or otherwise make any payment in respect of any
capital stock of or other ownership or profit interest
in such Person or any other Person or any warrants,
rights or options to acquire such capital stock (other
than Obligations of such Person with respect to
employee stock plans), valued, in the case of
Redeemable Preferred Stock, at the greater of its
involuntary liquidation preference plus accrued and
unpaid dividends, (h) all Obligations of such Person in
respect of Hedge Agreements, (i) all Debt of others
referred to in clauses (a) through (h) above or
clause (j) below guaranteed directly or indirectly in
any manner by such Person, or in effect guaranteed
directly or indirectly by such Person through an
agreement (1) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of
such Debt, (2) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services,
primarily for the purpose of enabling the debtor to
make payment of such Debt or to assure the holder of
such Debt against loss, (3) to supply funds to or in
any other manner invest in the debtor (including any
agreement to pay for property or services irrespective
of whether such property is received or such services
are rendered) or (4) otherwise to assure a creditor
against loss, and (j) all Debt referred to in
clauses (a) through (i) above secured by (or for which
the holder of such Debt has an existing right,
contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and
contract rights) owned by such Person, even though such
Person has not assumed or become liable for the payment
of such Debt, provided that the amount of Debt of the
type referred to in clauses (i) and (j) above will be
included within the definition of "Debt" only to the
extent of the amount of the obligations so guaranteed
or otherwise supported.
"Default" means any Event of Default or any event
that would constitute an Event of Default but for the
requirement that notice be given or time elapse or
both.
"Defaulted Advance" means, with respect to any
Lender at any time, the portion of any Advance required
to be made by such Lender to the Borrower pursuant to
Section 2.01 or 2.02 at or prior to such time which has
not been made by such Lender or by the Paying Agent for
the account of such Lender pursuant to Section 2.02(e)
as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to
Section 2.18(a), the remaining portion of such
Defaulted Advance shall be considered a Defaulted
Advance originally required to be made pursuant to
Section 2.01 on the same date as the Defaulted Advance
so deemed made in part.
"Defaulted Amount" means, with respect to any
Lender at any time, any amount required to be paid by
such Lender to the Paying Agent or any other Lender
Party hereunder or under any other Loan Document at or
prior to such time which has not been so paid as of
such time, including, without limitation, any amount
required to be paid by such Lender to (a) any Swing
Line Bank pursuant to Section 2.02(b) to purchase a
portion of a Swing Line Advance made by such Swing Line
Bank, (b) any Issuing Bank pursuant to Section 2.16(c)
to purchase a portion of a Letter of Credit Advance
made by such Issuing Bank, (c) the Paying Agent
pursuant to Section 2.02(e) to reimburse the Paying
Agent for the amount of any Advance made by the Paying
Agent for the account of such Lender, (d) any other
Lender pursuant to Section 2.15 to purchase any
participation in Advances owing to such other Lender
Party and (e) the Paying Agent or any Issuing Bank
pursuant to Section 7.05 to reimburse the Paying Agent
or such Issuing Bank for such Lender's ratable share of
any amount required to be paid by the Lenders to the
Paying Agent or such Issuing Bank as provided therein.
In the event that a portion of a Defaulted Amount shall
be deemed paid pursuant to Section 2.18(b), the
remaining portion of such Defaulted Amount shall be
considered a Defaulted Amount originally required to be
paid hereunder or under any other Loan Document on the
same date as the Defaulted Amount so deemed paid in
part.
"Defaulting Lender" means, at any time, any Lender
that, at such time, (a) owes a Defaulted Advance or a
Defaulted Amount or (b) shall take any action or be the
subject of any action or proceeding of a type described
in Section 6.01(e).
"Designated Bidder" means (a) an Eligible Assignee
or (b) a special purpose corporation that is engaged in
making, purchasing or otherwise investing in commercial
loans in the ordinary course of its business and that
issues (or the parent of which issues) commercial paper
rated at least "Prime-1" (or the then equivalent grade)
by Moody's or "A-1" (or the then equivalent grade) by
S&P that, in the case of either clause (a) or (b), (i)
is organized under the laws of the United States or any
State thereof, (ii) shall have become a party hereto
pursuant to Sections 8.07(f), (g) and (h) and (iii) is
not otherwise a Lender.
"Designation Agreement" means a designation
agreement entered into by a Lender (other than a
Designated Bidder) and a Designated Bidder, and
accepted by the Paying Agent, in substantially the form
of Exhibit D hereto.
"Dollars" and the sign "$" each means lawful money
of the United States.
"Documentary L/C" means any Letter of Credit
(other than a Letter of Credit issued pursuant to this
Agreement) that is issued for the benefit of a supplier
of inventory to the Borrower or any of its Subsidiaries
to effect payment of such Inventory.
"Documentation Agent" has the meaning specified in
the recital of parties to this Agreement.
"Domestic Lending Office" means, with respect to
any Lender Party, the office of such Lender Party
specified as its "Domestic Lending Office" opposite its
name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party,
or such other office of such Lender Party as such
Lender Party may from time to time specify to the
Borrower and the Paying Agent.
"EBITDA" means, for any period, (i) the sum,
determined on a Consolidated basis, of (a) net income
(or net loss), (b) Net Interest Expense, (c) income tax
expense, (d) depreciation expense, (e) amortization
expense (including, without limitation, amortization of
(1) excess of cost over net assets acquired, (2)
reorganization value in excess of amounts allocable to
identifiable assets and (3) unearned restricted stock)
and (f) unusual and extraordinary losses less (ii)
unusual and extraordinary gains, in each case of the
Borrower and its Subsidiaries determined in accordance
with GAAP for such period.
"Effective Date" means the first date on which the
conditions set forth in Section 3.01 shall have been
satisfied.
"Electronic Issuing Bank" has the meaning
specified in Section 2.16(a).
"Electronic L/C" and "Electronic L/C Reserve" each
has the meaning specified in Section 2.16(a).
"Eligible Assignee" means (a) with respect to the
Revolving Credit Facility (i) a Lender; (ii) an
Affiliate of a Lender; and (iii) any other Person
approved by the Paying Agent and, unless an Event of
Default has occurred and is continuing at the time any
assignment is effected in accordance with Section 8.07,
the Borrower, such approval not to be unreasonably
withheld or delayed and (b) with respect to the Letter
of Credit Facility, any Person approved by the Paying
Agent and, so long as no Event of Default shall have
occurred and be continuing, the Borrower, such approval
not to be unreasonably withheld or delayed; provided,
however, that neither the Borrower nor an Affiliate of
the Borrower shall qualify as an Eligible Assignee.
"Eligible Securities" means (a) readily marketable
securities issued or guaranteed by the government of
the United States of America or any agency thereof
having a maturity at the time of issuance not exceeding
one year, (b) commercial paper rated at least A-1 by
S&P or P-1 by Moody's, in each case having a maturity
at the time of issuance not exceeding one year, and
(c) certificates of deposit of or time deposits with
any commercial bank, the long-term debt of which has
been assigned a rating of at least BBB by S&P or Baa2
by Moody's and which is a Lender and is organized and
existing under the laws of the United States of America
or any state thereof or the District of Columbia.
"Environmental Action" means any action, suit,
demand, demand letter, claim, notice of non-compliance
or violation, notice of liability or potential
liability, investigation, proceeding, consent order or
consent agreement relating in any way to any
Environmental Law, Environmental Permit or Hazardous
Materials or arising from alleged injury or threat of
injury to health, safety or the environment, including,
without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal,
response, remedial or other actions or damages and
(b) by any governmental or regulatory authority or any
third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state,
local or foreign statute, law, ordinance, rule,
regulation, code, order, judgment, decree or judicial
or agency interpretation, policy or guidance relating
to pollution or protection of the environment, health,
safety or natural resources, including, without
limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release
or discharge of Hazardous Materials.
"ERISA" means the Employee Retirement Income
Security Act of 1974, as amended from time to time, and
the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" means any Person that for
purposes of Title IV of ERISA is a member of the
Borrower's controlled group, or under common control
with the Borrower, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a) (i) the occurrence of a
reportable event, within the meaning of Section 4043 of
ERISA, with respect to any Plan unless the 30-day
notice requirement with respect to such event has been
waived by the PBGC, or (ii) the requirements of
subsection (1) of Section 4043(b) of ERISA (without
regard to subsection (2) of such Section) are met with
respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event
described in paragraph (9), (10), (11), (12) or (13) of
Section 4043(c) of ERISA is reasonably expected to
occur with respect to such Plan within the following 30
days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to
terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA);
(d) the cessation of operations at a facility of the
Borrower or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the
withdrawal by the Borrower or any ERISA Affiliate from
a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for
the imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the
adoption of an amendment to a Plan requiring the
provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the
PBGC of proceedings to terminate a Plan pursuant to
Section 4042 of ERISA, or the occurrence of any event
or condition described in Section 4042 of ERISA that
constitutes grounds for the termination of, or the
appointment of a trustee to administer, a Plan.
"Eurocurrency Liabilities" has the meaning
assigned to that term in Regulation D of the Board of
Governors of the Federal Reserve System, as in effect
from time to time.
"Eurodollar Lending Office" means, with respect to
any Lender Party, the office of such Lender Party
specified as its "Eurodollar Lending Office" opposite
its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic
Lending Office), or such other office of such Lender
Party as such Lender Party may from time to time
specify to the Borrower and the Paying Agent.
"Eurodollar Rate" means, with respect to each day
during each Interest Period for a Eurodollar Rate
Advance comprising a Revolving Credit Borrowing, the
rate of interest per annum obtained by dividing (a) the
"Eurodollar Rate" determined (i) on the basis of the
rate for deposits in Dollars for a period equal to such
Interest Period appearing on Page 3750 of the Telerate
screen as of 11:00 A.M., London time, two Business Days
prior to the beginning of such Interest Period, or if
such rate does not appear on Page 3750 of the Telerate
screen (or otherwise on such service), the rate per
annum (rounded upward to the nearest 1/16 of 1% per
annum) at which deposits are offered by another
publicly available service displaying eurodollar rates
as may be agreed upon by the Paying Agent and the
Borrower or (ii) in the absence of such appearance or
agreement, by reference to the average of the rate of
interest per annum (rounded upward to the nearest whole
multiple of 1/16 of 1% per annum, if such average is
not such a multiple) at which deposits in Dollars are
offered by the principal office of each of the
Reference Banks in London, England, to prime banks in
the London interbank market at 11:00 A.M. (London time)
two Business Days before the first day of such Interest
Period in an amount substantially equal to such
Reference Bank's Eurodollar Rate Advance to be
outstanding during such Interest Period (or, if such
Reference Bank shall not have a Eurodollar Rate Advance
that is to be outstanding during such Interest Period,
in an amount equal to $1,000,000) and for a period
equal to such Interest Period by (b) a percentage equal
to 100% minus the Eurodollar Rate Reserve Percentage
for such Interest Period. In the case of any
Eurodollar Rate determined pursuant to clause (a)(ii)
above, the Eurodollar Rate for any Interest Period for
each Eurodollar Rate Advance comprising such Revolving
Credit Borrowing shall be determined by the Paying
Agent on the basis of applicable rates received by the
Paying Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject,
however, to the provisions of Section 2.08.
"Eurodollar Rate Advance" means a Revolving Credit
Advance that bears interest as provided in
Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any
Interest Period for all Eurodollar Rate Advances or
LIBO Rate Advances comprising part of the same
Borrowing means the reserve percentage applicable two
Business Days before the first day of such Interest
Period under regulations issued from time to time by
the Board of Governors of the Federal Reserve System
(or any successor) for determining the maximum reserve
requirement (including, without limitation, any
emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or
assets consisting of or including Eurocurrency
Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to
which the interest rate on Eurodollar Rate Advances or
LIBO Rate Advances is determined) having a term equal
to such Interest Period.
"Events of Default" has the meaning specified in
Section 6.01.
"Existing Competitive Bid Advance" has the meaning
specified in Section 2.03(h).
"Existing Credit 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.
"Existing Letters of Credit" has the meaning
specified in Section 2.16(g).
"Facility" means the Revolving Credit Facility,
the Swing Line Facility or the Letter of Credit
Facility.
"Facility Fee Percentage" means, as of any date, a
percentage per annum determined by reference to the
Performance Level in effect on such date as set forth
below:
Performance Applicable
Level Percentage
Level 1 .0650%
Level 2 .0750%
Level 3 .0850%
Level 4 .1000%
Level 5 .1250%
Level 6 .1750%
"Federal Funds Rate" means, for any period, a
fluctuating interest rate per annum equal for each day
during such period to the weighted average of the rates
on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is
not a Business Day, for the next preceding Business
Day) by the Federal Reserve Bank of New York, or, if
such rate is not so published for any day that is a
Business Day, the average of the quotations for such
day on such transactions received by the Paying Agent
from three Federal funds brokers of recognized standing
selected by it.
"Fiscal Year" means a fiscal year of the Borrower
and its Consolidated Subsidiaries ending on the
Saturday closest to January 31 in any calendar year.
"Fixed Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"Funded Debt" of any Person means Debt in respect
of the Advances, in the case of the Borrower, and all
other Debt of such Person that by its terms matures
more than one year after the date of its creation or
matures within one year from such date but is renewable
or extendible, at the option of such Person, to a date
more than one year after such date or arises under a
revolving credit or similar agreement that obligates
the lender or lenders to extend credit during a period
of more than one year after such date, including,
without limitation, all amounts of Funded Debt of such
Person required to be paid or prepaid within one year
after the date of determination.
"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 Extension of Credit" means the earlier to
occur of the initial Borrowing (other than a Borrowing
consisting of any Existing Competitive Bid Advances)
and the initial issuance of a Letter of Credit (other
than an Existing Letter of Credit) hereunder.
"Initial Lenders" has the meaning specified in the
recital of parties of this Agreement.
"Interest Coverage Ratio" means, at any date of
determination, the ratio of Consolidated EBITDA for the
Measurement Period then most recently ended to Net
Interest Expense for such Measurement Period determined
in accordance with GAAP.
"Interest Period" means, for each Eurodollar Rate
Advance comprising part of the same Revolving Credit
Borrowing and each LIBO Rate Advance comprising part of
the same Competitive Bid Borrowing, the period
commencing on the date of such Eurodollar Rate Advance
or LIBO Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance
and ending on the last day of the period selected by
the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurodollar Rate Advances,
each subsequent period commencing on the last day of
the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower
pursuant to the provisions below. The duration of each
such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by
the Paying Agent not later than 11:00 A.M. (New York
City time) on the third Business Day prior to the first
day of such Interest Period, select; provided, however,
that:
(i) the Borrower may not select any
Interest Period that ends after the Termination
Date;
(ii) Interest Periods commencing on the
same date for Eurodollar Rate Advances comprising
part of the same Revolving Credit Borrowing or for
LIBO Rate Advances comprising part of the same
Competitive Bid Borrowing shall be of the same
duration;
(iii) whenever the last day of any
Interest Period would otherwise occur on a day
other than a Business Day, the last day of such
Interest Period shall be extended to occur on the
next succeeding Business Day, provided, however,
that, if such extension would cause the last day
of such Interest Period to occur in the next
following calendar month, the last day of such
Interest Period shall occur on the next preceding
Business Day; and
(iv) whenever the first day of any
Interest Period occurs on a day of an initial
calendar month for which there is no numerically
corresponding day in the calendar month that
succeeds such initial calendar month by the number
of months equal to the number of months in such
Interest Period, such Interest Period shall end on
the last Business Day of such succeeding calendar
month.
"Internal Revenue Code" means the Internal Revenue
Code of 1986, as amended from time to time, and the
regulations promulgated and rulings issued thereunder.
"Insufficiency" means, with respect to any Plan,
the amount, if any, of its unfunded benefit
liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Issuing Bank" means Citibank, Chase, any other
Lender Party that has a Letter of Credit Commitment set
forth opposite its name on Schedule I hereto, any other
Lender Party approved as an Issuing Bank by the Paying
Agent and, so long as no Event of Default shall have
occurred and be continuing, the Borrower (such approval
not to be unreasonably withheld or delayed) and each
Eligible Assignee to which a Letter of Credit
Commitment hereunder has been assigned pursuant to
Section 8.07 so long as each such Lender Party or
Eligible Assignee expressly agrees to perform in
accordance with their terms all of the obligations that
by the terms of this Agreement are required to be
performed by it as an Issuing Bank and notifies the
Paying Agent of its Applicable Lending Office and the
amount of its Letter of Credit Commitment (which
information shall be recorded by the Paying Agent in
the Register).
"L/C Related Documents" has the meaning specified
in Section 2.16(e).
"Lender Party" means any Lender, any Swing Line
Bank or any Issuing Bank.
"Lenders" means the Initial Lenders and each
Person that shall become a party hereto pursuant to
Section 8.07 and, except when used in reference to a
Letter of Credit, a Regular Advance, a Regular
Borrowing, a Revolving Credit Note, a Commitment or a
related term, each Designated Bidder.
"Letter of Credit" has the meaning specified in
Section 2.16(a).
"Letter of Credit Advance" means an advance made
by any Issuing Bank or any Lender pursuant to
Section 2.16(c).
"Letter of Credit Agreement" has the meaning
specified in Section 2.16(b)(i).
"Letter of Credit Collateral" has the meaning
specified in Section 6.02(b).
"Letter of Credit Collateral Account" has the
meaning specified in Section 6.02(a).
"Letter of Credit Commitment" means, with respect
to any Issuing Bank at any time, the amount set forth
opposite such Issuing Bank's name on Schedule I hereto
under the caption "Letter of Credit Commitment" or, if
such Issuing Bank has entered into one or more
Assignments and Acceptances or if a Lender has
otherwise become an Issuing Bank, set forth for such
Issuing Bank in the Register maintained by the Paying
Agent pursuant to Section 8.07(i) as such Issuing
Bank's "Letter of Credit Commitment", as such amount
may be reduced at or prior to such time pursuant to
Section 2.05.
"Letter of Credit Facility" means, at any time, an
amount equal to the lesser of (a) the aggregate amount
of the Issuing Banks' Letter of Credit Commitments and
(b) $1,000,000,000, as such amount may be reduced at or
prior to such time pursuant to Section 2.05.
"Letter of Credit Obligations" means, at any time,
the sum of (a) the maximum aggregate amount then
available to be drawn under the Letters of Credit
outstanding at such time (the determination of such
maximum amount to assume the occurrence of, and
compliance with, all conditions for drawing referred to
therein) plus (b) the aggregate amount of the
Borrower's Obligations then outstanding under the Loan
Documents in respect of the Letters of Credit,
including all Advances resulting from drawings under
Letters of Credit and all fees and expenses in respect
of the Letters of Credit payable pursuant to
Section 2.16(f).
"Leverage Ratio" means, at any date of
determination, the ratio of 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.
"LIBO Rate" means, with respect to each day during
each Interest Period for a LIBO Rate Advance comprising
a Competitive Bid Borrowing, the rate of interest per
annum obtained by dividing (a) the "LIBO Rate"
determined (i) on a basis of the rate for deposits in
Dollars for a period equal to such Interest Period
appearing on page 3750 of the Telerate screen as of
11:00 A.M., London time, two Business Days prior to the
beginning of such Interest Period or, if such rate does
not appear on Page 3750 of the Telerate screen (or
otherwise on such service), the rate per annum (rounded
upward to the nearest 1/16 of 1% per annum) at which
deposits are offered by another publicly available
service displaying eurodollar rates as may be agreed
upon by the Paying Agent and the Borrower or (ii) in
the absence of such appearance or agreement, by
reference to the average of the rate of interest per
annum (rounded upward to the nearest whole multiple of
1/16 of 1% per annum, if such average is not such a
multiple) at which deposits in Dollars are offered by
the principal office of each of the Reference Banks in
London, England to prime banks in the London interbank
market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an
amount substantially equal to each of such Reference
Bank's LIBO Rate Advance to be outstanding during such
Interest Period (or, if any such Reference Bank shall
not have a LIBO Rate Advance that is to be outstanding
during such Interest Period, in an amount equal to
$1,000,000) and for a period equal to such Interest
Period by (b) a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest
Period. In the case of any LIBO Rate determined
pursuant to clause (a)(ii) above, the LIBO Rate for any
Interest Period for each LIBO Rate Advance comprising
such Competitive Bid Borrowing shall be determined by
the Paying Agent on the basis of applicable rates
received by the Paying Agent from the Reference Banks
two Business Days before the first day of such Interest
Period, subject, however, to the provisions of
Section 2.08.
"LIBO Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"Lien" means any lien, security interest or other
charge or encumbrance of any kind, or any other type of
preferential arrangement, including, without
limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or
other encumbrance on title to real property.
"Loan Documents" means this Agreement, the Notes
and each Letter of Credit Agreement, as each may be
amended, supplemented or otherwise modified from time
to time.
"Material Adverse Change" means any material
adverse change in the business, condition (financial or
otherwise), operations, performance, properties or
prospects of the Borrower and its Subsidiaries, taken
as a whole.
"Material Adverse Effect" means an effect that
causes or results in or has a reasonable likelihood of
causing or resulting in any material adverse change in
(a) the business, condition (financial or otherwise),
operations, performance, properties or prospects of the
Borrower and its Subsidiaries, taken as a whole,
(b) the rights and remedies of any Agent or any Lender
Party under any Loan Document, (c) the ability of the
Borrower to perform its Obligations under any Loan
Document or (d) the legality, validity or
enforceability of any Loan Document.
"Material Subsidiary" of the Borrower means, at
any time, any Subsidiary of the Borrower having
(a) assets with a value of not less than 5% of the
total value of the assets of the Borrower and its
Consolidated Subsidiaries, taken as a whole, or
(b) Consolidated EBITDA not less than 5% of the
Consolidated EBITDA of the Borrower and its
Consolidated Subsidiaries, taken as a whole, in each
case as of the end of or for the most recently
completed Fiscal Year of the Borrower.
"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.
"Note" means a Revolving Credit Note or a
Competitive Bid Note.
"Notice of Revolving Credit Borrowing" has the
meaning specified in Section 2.02(a).
"Notice of Competitive Bid Borrowing" has the
meaning specified in Section 2.03(a).
"Notice of Issuance" has the meaning specified in
Section 2.16(b)(i).
"Notice of Renewal" has the meaning specified in
Section 2.16(a).
"Notice of Swing Line Borrowing" has the meaning
specified in Section 2.02(b).
"Notice of Termination" has the meaning specified
in Section 2.16(a).
"Obligation" means, with respect to any Person,
any payment, performance or other obligation of such
Person of any kind, including, without limitation, any
liability of such Person on any claim, whether or not
the right of any creditor to payment in respect of such
claim is reduced to judgment, liquidated, unliquidated,
fixed, contingent, matured, disputed, undisputed,
legal, equitable, secured or unsecured, and whether or
not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in
Section 6.01(e). Without limiting the generality of
the foregoing, the Obligations of the Borrower under
the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions,
charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by
the Borrower under any Loan Document and (b) the
obligation of the Borrower to reimburse any amount in
respect of any of the foregoing that any Lender, in its
sole discretion, may elect to pay or advance on behalf
of the Borrower.
"Original Currency" has the meaning specified in
Section 8.12.
"Other Currency" has the meaning specified in
Section 8.12.
"Paying Agent" has the meaning specified in the
recital of parties to this Agreement.
"Paying Agent's Account" means the account of the
Paying Agent maintained by the Paying Agent with its
office at 399 Park Avenue, New York, New York 10043,
Account No. 36852248, Account Name: Medium Term
Finance/NAIB Agency, Reference: Federated.
"PBGC" means the Pension Benefit Guaranty
Corporation (or any successor).
"Performance Level" means, as of any date of
determination, the numerically lower level set forth
below as then in effect, as determined by reference to
the Public Debt Rating and Interest Coverage Ratio then
in effect, provided, however, that if the Level
established by reference to the Public Debt Rating and
the Level established by reference to the Interest
Coverage Ratio are more than one Level apart, the
Performance Level shall be the Level that is
numerically one below the numerically higher of the two
Levels so established:
Level 1 The Public Debt Rating is
greater than or equal to A2 or A or the
Interest Coverage Ratio is 6.25:1.00 or
greater;
Level 2 The Public Debt Rating is
A3 or A- or the Interest Coverage Ratio
is 5.75:1.00 or greater but less than
6.25:1.00;
Level 3 The Public Debt Rating is
Baa1 or BBB+ or the Interest Coverage
Ratio is 5.00:1.00 or greater but less
than 5.75:1.00;
Level 4 The Public Debt Rating is
Baa2 or BBB or the Interest Coverage
Ratio is 4.50:1.00 or greater but less
than 5.00:1.00;
Level 5 The Public Debt Rating is
Baa3 or BBB- or the Interest Coverage
Ratio is 3:75:1.00 or greater but less
than 4.50:1.00;
Level 6 The Public Debt Rating is
lower than Baa3 or BBB- and the Interest
Coverage Ratio is lower than 3.75:1.00;
"Permitted Liens" means such of the following as
to which no enforcement, collection, execution, levy or
foreclosure proceeding shall have been commenced:
(a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law,
such as materialmen's, mechanics', carriers', workmen's
and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations
that are not overdue for a period of more than 30 days
or that are being contested in good faith by
appropriate proceedings; (c) Liens (if any) arising by
operation of law and pledges or deposits made in the
ordinary course of business in connection with
liability insurance, workers' compensation,
unemployment insurance, old-age pensions and other
social security benefits, other than with respect to
employee benefit plans subject to ERISA; and (d) zoning
restrictions, easements, rights of way, reciprocal
easement agreements, operating agreements, covenants,
conditions or restrictions on the use of any real
property that do not interfere in any material respect
with the ordinary conduct of the business of the
Borrower and its Subsidiaries or do not materially
adversely affect the value of such property for the
purpose of such business.
"Person" means an individual, partnership,
corporation (including a business trust), joint stock
company, trust, unincorporated association, joint
venture, limited liability company or other entity, or
a government or any political subdivision or agency
thereof.
"Plan" means a Single Employer Plan or a Multiple
Employer Plan.
"Potential Defaulting Lender" has the meaning
specified in Section 2.01(b).
"Preferred Stock" means, with respect to any
corporation, capital stock issued by such corporation
that is entitled to a preference or priority over any
other capital stock issued by such corporation upon any
distribution of such corporation's assets, whether by
dividend or upon liquidation.
"Pro Rata Share" of any amount means, with respect
to any Lender at any time, the product of such amount
times a fraction the numerator of which is the amount
of such Lender's Revolving Credit Commitment at such
time and the denominator of which is the Revolving
Credit Facility at such time.
"Public Debt Rating" means, as of any date, the
higher of (a) the lowest rating that has been most
recently announced by Moody's for any class of non-
credit enhanced long-term senior unsecured debt issued
by the Borrower and (b) the rating that has been most
recently announced by S&P as the Borrower's "Corporate
Credit Rating", provided, that if the ratings referred
to in clause (a) and (b) above are each referred to in
Performance Levels which are more than one Performance
Level apart, the Public Debt Rating shall be the Public
Debt Rating indicated within the Performance Level that
is numerically one below the numerically higher of the
two Performance Levels in which the ratings are so
referenced. For purposes of the foregoing, (i) if only
one of S&P and Moody's shall have in effect a Public
Debt Rating, the Applicable Margin 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(i).
"Regular Advances" means any Advance other than a
Competitive Bid Advance.
"Regular Borrowing" means a Revolving Credit
Borrowing or a Swing Line Borrowing.
"Reportable Event" has the meaning specified in
Section 4043 of ERISA, excluding any event with respect
to which the 30-day notice requirement has been waived.
"Required Lenders" means at any time Lenders owed
or holding at least a majority in interest of the sum
of (a) the then aggregate unpaid principal amount of
the Revolving Credit Advances, Swing Line Advances and
Letter of Credit Advances owing to Lenders at such
time, (b) the aggregate Available Amount of all Letters
of Credit outstanding at such time and (c) the
aggregate Unused Revolving Credit Commitments at such
time, provided, however, that if any Lender shall be a
Defaulting Lender at such time, there shall be excluded
from the determination of Required Lenders at such time
(i) the unpaid principal amount of the Revolving Credit
Advances, Swing Line Advances and Letter of Credit
Advances made by such Defaulting Lender and outstanding
at such time, (b) if such Defaulting Lender shall be an
Issuing Bank, the Available Amount of all Letters of
Credit issued by such Defaulting Lender and outstanding
at such time and (c) the Unused Revolving Credit
Commitment of such Defaulting Lender at such time. For
purposes of this definition, the aggregate principal
amount of Swing Line Advances owing to any Swing Line
Bank and of Letter of Credit Advances owing to any
Issuing Bank and the Available Amount of each Letter of
Credit shall be considered to be owed to the Lenders
ratably in accordance with their respective Revolving
Credit Commitments.
"Responsible Officer" means any executive officer
of the Borrower or any of its Subsidiaries or any other
officer of the Borrower of any of its Subsidiaries
responsible for overseeing or reviewing compliance with
this Agreement or any other Loan Document.
"Revolving Credit Advance" means an advance by a
Lender to the Borrower as part of a Revolving Credit
Borrowing and refers to a Base Rate Advance or a
Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing
consisting of simultaneous Revolving Credit Advances of
the same Type made by each of the Lenders pursuant to
Section 2.01.
"Revolving Credit Commitment" means, with respect
to any Revolving Credit Lender at any time, the amount
set forth opposite such Lender's name on Schedule I
hereto under the caption "Revolving Credit Commitment"
or, if such Lender has entered into one or more
Assignment and Acceptances, set forth for such Lender
in the Register maintained by the Paying Agent pursuant
to Section 8.07(i) as such Lender's "Revolving Credit
Commitment", as such amount may be reduced at or prior
to such time pursuant to Section 2.05.
"Revolving Credit Facility" means, at any time,
the aggregate amount of the Revolving Credit Lenders'
Revolving Credit Commitments at such time.
"Revolving Credit Lender" means any Lender that
has a Revolving Credit Commitment and, except when used
in reference to a Regular Advance, a Regular Borrowing,
a Note (other than a Competitive Bid Note), a
Commitment or a related term, any Designated Bidder.
"Revolving Credit Note" means a promissory note of
the Borrower payable to the order of any Lender, in
substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower
to such Lender resulting from the Revolving Credit
Advances made by such Lender.
"S&P" means Standard & Poor's, a division of The
McGraw-Hill Companies, Inc.
"Single Employer Plan" means a single employer
plan, as defined in Section 4001(a)(15) of ERISA, that
(a) is maintained for employees of the Borrower or any
ERISA Affiliate and no Person other than the Borrower
and the ERISA Affiliates or (b) was so maintained and
in respect of which the Borrower or any ERISA Affiliate
could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"Standby Letter of Credit" means any Letter of
Credit issued under the Letter of Credit Facility,
other than a Trade Letter of Credit.
"Subsidiary" of any Person means any corporation,
partnership, joint venture, limited liability company,
trust or estate of which (or in which) more than 50% of
(a) the issued and outstanding capital stock having
ordinary voting power to elect a majority of the Board
of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or
classes of such corporation shall or might have voting
power upon the occurrence of any contingency), (b) the
interest in the capital or profits of such limited
liability company, partnership or joint venture or
(c) the beneficial interest in such trust or estate is
at the time directly or indirectly owned or controlled
by such Person, by such Person and one or more of its
other Subsidiaries or by one or more of such Person's
other Subsidiaries.
"Swing Line Advance" means an advance made by
(a) any Swing Line Bank pursuant to Section 2.01(b) or
(b) any Revolving Credit Lender pursuant to
Section 2.02(b).
"Swing Line Bank" means each of Citibank, Chase,
BankBoston, N.A. and up to three additional Revolving
Credit Lenders as may be designated by the Borrower
from time to time (with the consent of any Lender so
designated), provided that any of Citibank, Chase,
BankBoston, N.A. or any other Lender as shall have been
so designated may resign upon 30 days' prior written
notice to the Borrower and the Paying Agent.
"Swing Line Borrowing" means a borrowing
consisting of a Swing Line Advance made by any Swing
Line Bank.
"Swing Line Facility" has the meaning specified in
Section 2.01(b).
"Syndication Agent" has the meaning specified in
the recital of parties to this Agreement.
"Tangible Assets" means, with respect to any
Person as of any date of determination, the total
assets of such Person less the sum of (i) goodwill,
organizational expenses, research and development
expenses, trademarks, trade names, copyrights, patents,
patent applications, licenses and rights in any
thereof, and other similar intangibles, (ii) all
prepaid expenses, deferred charges or unamortized debt
discount and expense, (iii) all reserves carried and
not deducted from assets, (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.
"Termination Date" means the earlier of July 28,
2002 and the date of termination in whole of the
Revolving Credit Commitments, the Swing Line Facility
and the Letter of Credit Commitments pursuant to
Section 2.05 or 6.01.
"Trade Letter of Credit" means any Letter of
Credit that is issued under the Letter of Credit
Facility for the benefit of a supplier of inventory to
the Borrower or any of its Subsidiaries to effect
payment for such inventory, the conditions to drawing
under which include the presentation to the Issuing
Bank that issued such Letter of Credit of negotiable
bills of lading, invoices and related documents
sufficient, in the judgment of such Issuing Bank, to
create a valid and perfected lien on or security
interest in such inventory, bills of lading, invoices
and related documents in favor of such Issuing Bank.
"Unused Revolving Credit Commitment" means, with
respect to any Lender at any time, (a) such Lender's
Revolving Credit Commitment at such time minus (b) the
sum of (i) the aggregate principal amount of all
Revolving Credit Advances, Swing Line Advances and
Letter of Credit Advances made by such Lender, in each
case in its capacity as a Lender, and outstanding at
such time, and (ii) such Lender's Pro Rata Share of (A)
the aggregate Available Amount of all Letters of Credit
outstanding at such time, (B) the aggregate amount of
the Competitive Bid Advances outstanding at such time,
and (C) to the extent not included in clause (b)(i) of
this definition, the aggregate principal amount of all
Letter of Credit Advances made by the Issuing Banks
pursuant to Section 2.16(c) and outstanding at such
time and of all Swing Line Advances made by the Swing
Line Banks pursuant to Section 2.01(b) and outstanding
at such time.
"Voting Stock" means capital stock issued by a
corporation, or equivalent interests in any other
Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the
election of directors (or persons performing similar
functions) of such Person, even if the right so to vote
has been suspended by the happening of such a
contingency.
"Withdrawal Liability" has the meaning specified
in Part 1 of Subtitle E of Title IV of ERISA.
SECTION 1.02. Computation of Time Periods. In
this Agreement in the computation of periods of time from a
specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting
terms not specifically defined herein shall be construed in
accordance with GAAP.
SECTION 1.04. Currency Equivalents Generally.
For all purposes of this Agreement except as otherwise
specifically provided herein, the equivalent in any
Alternative Currency of an amount in Dollars shall be
determined at the rate of exchange quoted by Citibank in New
York City, at 9:00 A.M. (New York City time) on the date of
determination, to prime banks in New York City for the spot
purchase in the New York foreign exchange market of such
amount of Dollars with such Alternative Currency.
Citibank's determination of each spot rate of exchange
pursuant to this Agreement shall be final and conclusive
absent manifest error.
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES AND THE LETTERS OF CREDIT
SECTION 2.01. The Regular Advances. (a) The
Revolving Credit Advances. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrower from time to time
on any Business Day during the period from the Effective
Date until the Termination Date in an amount for each such
Advance not to exceed an amount equal to such Lender's
Unused Revolving Credit Commitment less such Lender's Pro
Rata Share of the Commercial Paper Set-Aside Amount at such
time. Each Revolving Credit Borrowing shall be in an
aggregate amount of $10,000,000 or an integral multiple of
$5,000,000 in excess thereof (other than a Borrowing the
proceeds of which shall be used solely to repay in full
outstanding Letter of Credit Advances made by any Issuing
Bank) or, if less, an aggregate amount equal to the amount
by which the aggregate amount of a proposed Competitive Bid
Borrowing requested by the Borrower exceeds the aggregate
amount of Competitive Bid Advances offered to be made by the
Lenders and accepted by the Borrower in respect of such
Competitive Bid Borrowing, if such Competitive Bid Borrowing
is made on the same date as such Revolving Credit Borrowing,
and shall consist of Revolving Credit Advances of the same
Type made on the same day by the Lenders ratably according
to their respective Revolving Credit Commitments. Within
the limits of each Lender's Revolving Credit Commitment, the
Borrower may borrow under this Section 2.01, repay pursuant
to Section 2.06(a), prepay pursuant to Section 2.10 and
reborrow under this Section 2.01.
(b) The Swing Line Advances. Each Swing Line
Bank severally agrees, on the terms and conditions
hereinafter set forth, to make Swing Line Advances to the
Borrower from time to time on any Business Day during the
period from the date hereof until the Termination Date
(i) in an aggregate amount for all Swing Line Advances owing
to such Swing Line Bank (in its capacity as such) not to
exceed at any time outstanding $25,000,000, (ii) in an
aggregate amount owing to all Swing Line Banks not to exceed
at any time outstanding $50,000,000, as such amount may be
reduced from time to time pursuant to Section 2.05 (the
"Swing Line Facility") and (iii) in an amount for each such
Borrowing not to exceed an amount equal to the amount by
which the aggregate of the Unused Revolving Credit
Commitments of the Revolving Credit Lenders at such time
exceeds the Commercial Paper Set-Aside Amount at such time;
provided, however, that if at any time of receipt by any
Swing Line Bank of a Notice of Swing Line Borrowing, (x) any
Revolving Credit Lender shall be a Defaulting Lender or such
Swing Line Bank determines in good faith that any Lender is
reasonably likely to become a Defaulting Lender within the
next 30 days (a "Potential Defaulting Lender") and (y) the
sum of the aggregate Unused Revolving Credit Commitments of
the Revolving Credit Lenders (other than Revolving Credit
Lenders that are Defaulting Lenders or Potential Defaulting
Lenders) plus the Commercial Paper Set-Aside Amount at such
time shall be less than the amount of the requested Swing
Line Borrowing, such Swing Line Bank shall not be required
to, but may, if in its sole discretion it elects to do so,
make the Swing Line Advance requested in such Notice of
Swing Line Borrowing. No Swing Line Advance shall be used
for the purpose of funding the payment of principal of any
other Swing Line Advance. Each Swing Line Borrowing shall
be in an amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and shall be made as a Base
Rate Advance. Within the limits of the Swing Line Facility
and within the limits referred to in clauses (i) and (iii)
above (and if at the time of receipt by any Swing Line Bank
of a Notice of Swing Line Borrowing, any Lender shall be a
Defaulting Lender or a Potential Defaulting Lender, so long
as any Swing Line Bank, in its sole discretion, elects to
make Swing Line Advances), the Borrower may borrow under
this Section 2.01(b), repay pursuant to Section 2.06(b) or
prepay pursuant to Section 2.10 and reborrow under this
Section 2.01(b).
(c) Set-Aside of Commitments to Backstop
Commercial Paper. At any time during which the Borrower has
any Commercial Paper outstanding, a portion of the Unused
Revolving Credit Commitments in an aggregate amount equal to
the aggregate face amount of such Commercial Paper
outstanding at such time shall, without further action on
the part of any party, be deemed to be reserved for use as
support for the obligations of the Borrower under such
Commercial Paper; provided that the reservation of Unused
Revolving Credit Commitments described in this Section
2.01(c) shall be increased or decreased accordingly upon
notice from the Borrower to the Paying Agent at any time to
reflect the Borrower's required liquidity reserves for
Commercial Paper. The amount of Revolving Credit
Commitments so reserved at any time pursuant to this
Section 2.01(c) is referred to herein as the "Commercial
Paper Set-Aside Amount".
SECTION 2.02. Making the Regular Advances. (a)
Revolving Credit Advances. Except as otherwise provided in
Section 2.02(b) and Section 2.16, each Revolving Credit
Borrowing shall be made on notice, given not later than
11:00 A.M. (New York City time) on the third Business Day
prior to the date of the proposed Revolving Credit Borrowing
in the case of a Revolving Credit Borrowing consisting of
Eurodollar Rate Advances, or the 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-1 hereto,
specifying therein the requested (i) date of such Revolving
Credit Borrowing, (ii) Type of Advances comprising such
Revolving Credit Borrowing, (iii) aggregate amount of such
Revolving Credit Borrowing, and (iv) in the case of a
Revolving Credit Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Revolving
Credit Advance. Each Lender shall, before 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; provided,
however, that, in the case of any such Borrowing, the Paying
Agent shall first make a portion of such funds equal to the
aggregate principal amount of any Swing Line Advances and
Letter of Credit Advances made by any Swing Line Bank or any
Issuing Bank, as the case may be, and by any other Revolving
Credit Lender and outstanding on the date of such Revolving
Credit Borrowing, plus interest accrued and unpaid thereon
to and as of such date, available to such Swing Line Bank or
such Issuing Bank, as the case may be, and such other
Revolving Credit Lenders for repayment of such Swing Line
Advances and Letter of Credit Advances.
(b) Swing Line Advances. Each Swing Line
Borrowing shall be made on notice, given not later than
11:00 A.M. (New York City time) on the date of the proposed
Swing Line Borrowing, by the Borrower to any Swing Line Bank
and the Paying Agent. Each such notice of a Swing Line
Borrowing (a "Notice of Swing Line Borrowing") shall be by
telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (i) date of
such Borrowing, (ii) amount of such Borrowing and
(iii) maturity of such Borrowing (which maturity shall be no
later than the seventh day after the requested date of such
Borrowing). If, in accordance with Section 2.01(b), it
makes the requested Swing Line Advance, such Swing Line Bank
will make the amount thereof available to the Paying Agent
at the Paying Agent's Account, in same day funds. After the
Paying Agent's receipt of such funds and upon fulfillment of
the applicable conditions set forth in Article III, the
Paying Agent will make such funds available to the Borrower
at the Paying Agent's address referred to in Section 8.02.
Upon written demand by any Swing Line Bank with an
outstanding Swing Line Advance, with a copy of such demand
to the Paying Agent, each other Revolving Credit Lender
shall purchase from such Swing Line Bank, and such Swing
Line Bank shall sell and assign to each such other Revolving
Credit Lender, such other Lender's Pro Rata Share of such
outstanding Swing Line Advance as of the date of such
demand, by making available for the account of its
Applicable Lending Office to the Paying Agent for the
account of such Swing Line Bank, by deposit to the Paying
Agent's Account, in same day funds, an amount equal to the
portion of the outstanding principal amount of such Swing
Line Advance to be purchased by such Lender. The Borrower
hereby agrees to each such sale and assignment. Each
Revolving Credit Lender agrees to purchase its Pro Rata
Share of an outstanding Swing Line Advance on (i) the
Business Day on which demand therefor is made by the Swing
Line Bank that made such Advance, provided that notice of
such demand is given not later than 11:00 A.M. (New York
City time) on such Business Day or (ii) the first Business
Day next succeeding such demand if notice of such demand is
given after such time. Upon any such assignment by a Swing
Line Bank to any other Revolving Credit Lender of a portion
of a Swing Line Advance, such Swing Line Bank represents and
warrants to such other Lender that such Swing Line Bank is
the legal and beneficial owner of such interest being
assigned by it, but makes no other representation or
warranty and assumes no responsibility with respect to such
Swing Line Advance, the Loan Documents or the Borrower. If
and to the extent that any Revolving Credit Lender shall not
have so made the amount of such Swing Line Advance available
to the Paying Agent, such Revolving Credit Lender agrees to
pay to the Paying Agent forthwith on demand such amount
together with interest thereon, for each day from the date
of demand by such Swing Line Bank until the date such amount
is paid to the Paying Agent, at the Federal Funds Rate. If
such Lender shall pay to the Paying Agent such amount for
the account of such Swing Line Bank on any Business Day,
such amount so paid in respect of principal shall constitute
a Swing Line Advance made by such Lender on such Business
Day for purposes of this Agreement, and the outstanding
principal amount of the Swing Line Advance made by such
Swing Line Bank shall be reduced by such amount on such
Business Day.
(c) Anything in subsection (a) above to the
contrary notwithstanding, (i) the Borrower may not select
Eurodollar Rate Advances for any Revolving Credit Borrowing
if the aggregate amount of such Revolving Credit Borrowing
is less than $25,000,000 or if the obligation of the Lenders
to make Eurodollar Rate Advances shall then be suspended
pursuant to Section 2.08 or 2.12 and (ii) the Eurodollar
Rate Advances may not be outstanding as part of more than
ten separate Revolving Credit Borrowings.
(d) Each Notice of Revolving Credit Borrowing and
Notice of Swing Line Borrowing shall be irrevocable and
binding on the Borrower. In the case of any Revolving
Credit Borrowing that the related Notice of Revolving Credit
Borrowing specifies is to be comprised of Eurodollar Rate
Advances, the Borrower shall indemnify each Lender against
any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date
specified in such Notice of Revolving Credit Borrowing for
such Revolving Credit Borrowing the applicable conditions
set forth in Article III, including, without limitation, any
loss (excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part
of such Revolving Credit Borrowing when such Advance, as a
result of such failure, is not made on such date.
(e) Unless the Paying Agent shall have received
notice from a Lender prior to the date of any Regular
Borrowing that such Lender will not make available to the
Paying Agent such Lender's ratable portion of such Regular
Borrowing, the Paying Agent may assume that such Lender has
made such portion available to the Paying Agent on the date
of such Borrowing in accordance with subsection (a) or (b)
of this Section 2.02 and the Paying Agent may, in reliance
upon such assumption, make available to the Borrower on such
date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available
to the Paying Agent, such Lender and the Borrower severally
agree to repay to the Paying Agent forthwith on demand such
corresponding amount together with interest thereon, for
each day from the date such amount is made available to the
Borrower until the date such amount is repaid to the Paying
Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate.
If such Lender shall repay to the Paying Agent such
corresponding amount, such amount so repaid shall constitute
such Lender's Advance as part of such Borrowing for purposes
of this Agreement.
(f) The failure of any Lender to make the Advance
to be made by it as part of any Regular Borrowing shall not
relieve any other Lender of its obligation, if any,
hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any
other Lender to make the Advance to be made by such other
Lender on the date of any Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a)
Each Lender severally agrees that the Borrower may make
Competitive Bid Borrowings under this Section 2.03 from time
to time on any Business Day during the period from the
Effective Date until the date occurring 30 days prior to the
Termination Date in the manner set forth below; provided
that (x) such Competitive Bid Borrowing shall not exceed an
amount equal to the amount by which the aggregate Unused
Revolving Credit Commitments of the Lenders in effect
immediately prior to giving effect to such Competitive Bid
Borrowing exceeds the Commercial Paper Set-Aside Amount at
such time and (y) following the making of each Competitive
Bid Borrowing, the aggregate amount of the Competitive Bid
Advances of all Lenders then outstanding shall not exceed
$1,500,000,000:
(i) The Borrower may request a Competitive Bid
Borrowing under this Section 2.03 by delivering to the
Paying Agent, by telecopier or telex, a notice of a
Competitive Bid Borrowing (a "Notice of Competitive Bid
Borrowing"), in substantially the form of Exhibit B-2
hereto, specifying therein the requested (v) date of
such proposed Competitive Bid Borrowing, (w) aggregate
amount of such proposed Competitive Bid Borrowing,
(x) in the case of a Competitive Bid Borrowing
consisting of LIBO Rate Advances, Interest Period, or
in the case of a Competitive Bid Borrowing consisting
of Fixed Rate Advances, maturity date for repayment of
each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not
be earlier than the date occurring 7 days after the
date of such Competitive Bid Borrowing or later than
the earlier of (I) 180 days after the date of such
Competitive Bid Borrowing and (II) the Termination
Date), (y) interest payment date or dates relating
thereto, and (z) other terms (if any) to be applicable
to such Competitive Bid Borrowing, not later than
10:00 A.M. (New York City time) (A) at least one
Business Day prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall
specify in the Notice of Competitive Bid Borrowing that
the rates of interest to be offered by the Lenders
shall be fixed rates per annum (the Advances comprising
any such Competitive Bid Borrowing being referred to
herein as "Fixed Rate Advances") and (B) at least four
Business Days prior to the date of the proposed
Competitive Bid Borrowing, if the Borrower shall
instead specify in the Notice of Competitive Bid
Borrowing that the rates of interest be offered by the
Lenders are to be based on the LIBO Rate (the Advances
comprising such Competitive Bid Borrowing being
referred to herein as "LIBO Rate Advances"). Each
Notice of Competitive Bid Borrowing shall be
irrevocable and binding on the Borrower. The Paying
Agent shall in turn promptly notify each Lender of each
request for a Competitive Bid Borrowing received by it
from the Borrower by sending such Lender a copy of the
related Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion,
it elects to do so, irrevocably offer to make one or
more Competitive Bid Advances to the Borrower as part
of such proposed Competitive Bid Borrowing at a rate or
rates of interest specified by such Lender in its sole
discretion, by notifying the Paying Agent (which shall
give prompt notice thereof to the Borrower), before
10:00 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 10:00 A.M. (New York City time)
three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances, of the
minimum amount and maximum amount of each Competitive
Bid Advance which such Lender would be willing to make
as part of such proposed Competitive Bid Borrowing
(which amounts may, subject to the proviso to the first
sentence of this Section 2.03(a), exceed such Lender's
Revolving Credit Commitment, if any), the rate or rates
of interest therefor and such Lender's Applicable
Lending Office with respect to such Competitive Bid
Advance; provided that if the Paying Agent in its
capacity as a Lender shall, in its sole discretion,
elect to make any such offer, it shall notify the
Borrower of such offer before 9:00 A.M. (New York City
time) on the date on which notice of such election is
to be given to the Paying Agent by the other Lenders.
If any Lender shall elect not to make such an offer,
such Lender shall so notify the Paying Agent, before
10:00 A.M. (New York City time) on the date on which
notice of such election is to be given to the Paying
Agent by the other Lenders, and such Lender shall not
be obligated to, and shall not, make any Competitive
Bid Advance as part of such Competitive Bid Borrowing;
provided that the failure by any Lender to give such
notice shall not cause such Lender to be obligated to
make any Competitive Bid Advance as part of such
proposed Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, before
11:00 A.M. (New York City time) on the date of such
proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate
Advances and before 1:00 P.M. (New York City time)
three Business Days before the date of such proposed
Competitive Bid Borrowing, in the case of a Competitive
Bid Borrowing consisting of LIBO Rate Advances, either:
(x) cancel such Competitive Bid
Borrowing by giving the Paying Agent notice to
that effect, or
(y) accept one or more of the offers
made by any Lender or Lenders pursuant to
paragraph (ii) above, in its sole discretion, by
giving notice to the Paying Agent of the amount of
each Competitive Bid Advance (which amount shall
be equal to or greater than the minimum amount,
and equal to or less than the maximum amount,
notified to the Borrower by the Paying Agent on
behalf of such Lender for such Competitive Bid
Advance pursuant to paragraph (ii) above) to be
made by each Lender as part of such Competitive
Bid Borrowing, and reject any remaining offers
made by Lenders pursuant to paragraph (ii) above
by giving the Paying Agent notice to that effect.
The Borrower shall accept the offers made by any
Lender or Lenders to make Competitive Bid Advances
in order of the lowest to the highest rates of
interest offered by such Lenders. If two or more
Lenders have offered the same interest rate, the
amount to be borrowed at such interest rate will
be allocated among such Lenders in proportion to
the amount that each such Lender offered at such
interest rate.
(iv) If the Borrower notifies the Paying Agent
that such Competitive Bid Borrowing is cancelled
pursuant to paragraph (iii)(x) above, the Paying Agent
shall give prompt notice thereof to the Lenders and
such Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the
offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, the Paying Agent shall in
turn promptly notify (A) each Lender that has made an
offer as described in paragraph (ii) above, of the date
and aggregate amount of such Competitive Bid Borrowing
and whether or not any offer or offers made by such
Lender pursuant to paragraph (ii) above have been
accepted by the Borrower, (B) each Lender that is to
make a Competitive Bid Advance as part of such
Competitive Bid Borrowing, of the amount of each
Competitive Bid Advance to be made by such Lender as
part of such Competitive Bid Borrowing, and (C) each
Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing, upon receipt,
that the Paying Agent has received forms of documents
appearing to fulfill the applicable conditions set
forth in Article III. Each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid
Borrowing shall, before 12:00 noon (New York City time)
on the date of such Competitive Bid Borrowing specified
in the notice received from the Paying Agent pursuant
to clause (A) of the preceding sentence or any later
time when such Lender shall have received notice from
the Paying Agent pursuant to clause (C) of the
preceding sentence, make available for the account of
its Applicable Lending Office to the Paying Agent at
the Paying Agent's Account, in same day funds, such
Lender's portion of such Competitive Bid Borrowing.
Upon fulfillment of the applicable conditions set forth
in Article III and after receipt by the Paying Agent of
such funds, the Paying Agent will make such funds
available to the Borrower at the Paying Agent's address
referred to in Section 8.02. Promptly after each
Competitive Bid Borrowing the Paying Agent will notify
each Lender of the amount and maturity of the
Competitive Bid Borrowing and the aggregate amount of
the Competitive Bid Advances outstanding immediately
after giving effect to such Competitive Bid Borrowing.
(vi) If the Borrower notifies the Paying Agent
that it accepts one or more of the offers made by any
Lender or Lenders pursuant to paragraph (iii)(y) above,
such notice of acceptance shall be irrevocable and
binding on the Borrower. The Borrower shall indemnify
each Lender against any loss, cost or expense incurred
by such Lender as a result of any failure to fulfill on
or before the date specified in the related Notice of
Competitive Bid Borrowing for such Competitive Bid
Borrowing the applicable conditions set forth in
Article III, including, without limitation, any loss
(excluding loss of anticipated profits), cost or
expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by
such Lender to fund the Competitive Bid Advance to be
made by such Lender as part of such Competitive Bid
Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an
aggregate amount of $25,000,000 or an integral multiple of
$1,000,000 in excess thereof and, following the making of
each Competitive Bid Borrowing, the Borrower and each Lender
shall be in compliance with the limitations set forth in the
proviso to the first sentence of subsection (a) above.
(c) Within the limits and on the conditions set
forth in this Section 2.03, the Borrower may from time to
time borrow under this Section 2.03, repay or prepay
pursuant to subsection (d) below, and reborrow under this
Section 2.03, provided that a Competitive Bid Borrowing
shall not be made within two Business Days of the date of
any other Competitive Bid Borrowing.
(d) The Borrower shall repay to the Paying Agent
for the account of each Lender that has made a Competitive
Bid Advance, on the maturity date of each Competitive Bid
Advance (such maturity date being that specified by the
Borrower for repayment of such Competitive Bid Advance in
the related Notice of Competitive Bid Borrowing delivered
pursuant to subsection (a)(i) above and provided in the
Competitive Bid Note evidencing such Competitive Bid
Advance), the then unpaid principal amount of such
Competitive Bid Advance. The Borrower shall have no right
to prepay any principal amount of any Competitive Bid
Advance unless, and then only on the terms, specified by the
Borrower for such Competitive Bid Advance in the related
Notice of Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above and set forth in the Competitive Bid
Note evidencing such Competitive Bid Advance.
(e) The Borrower shall pay interest on the unpaid
principal amount of each Competitive Bid Advance from the
date of such Competitive Bid Advance to the date the
principal amount of such Competitive Bid Advance is repaid
in full, at the rate of interest for such Competitive Bid
Advance specified by the Lender making such Competitive Bid
Advance in its notice with respect thereto delivered
pursuant to subsection (a)(ii) above, payable on the
interest payment date or dates specified by the Borrower for
such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to
subsection (a)(i) above, as provided in the Competitive Bid
Note evidencing such Competitive Bid Advance. Upon the
occurrence and during the continuance of an Event of
Default, the Borrower shall pay interest on the amount of
unpaid principal of and interest on each Competitive Bid
Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal
at all times to 2% per annum above the rate per annum
required to be paid on such Competitive Bid Advance under
the terms of the Competitive Bid Note evidencing such
Competitive Bid Advance unless otherwise agreed in such
Competitive Bid Note.
(f) The indebtedness of the Borrower resulting
from each Competitive Bid Advance made to the Borrower as
part of a Competitive Bid Borrowing shall, upon the request
of the Lender making such Competitive Bid Advance, be
evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive
Bid Advance, which Competitive Bid Note shall be delivered
by the Borrower to the Paying Agent promptly following the
making of such Competitive Bid Advance in a principal amount
equal to the principal amount of such Competitive Bid
Advance.
(g) Upon delivery of each Notice of Competitive
Bid Borrowing, the Borrower shall pay a non-refundable fee
of $2,000 to the Paying Agent for its own account.
(h) Effective as of the Effective Date, (i) the
competitive bid advances made to the Borrower prior to such
date by Persons that are Lenders hereunder and set forth on
Schedule 2.03(h) hereto (each such competitive bid advance
being an "Existing Competitive Bid Advance") in an aggregate
principal amount not exceeding the total amount set forth on
such Schedule will be deemed to have been made as, and be,
Competitive Bid Advances hereunder and (ii) the Obligations
of the Borrower in respect of the Existing Competitive Bid
Advances shall be Obligations of the Borrower hereunder and
shall no longer be Obligations under the documents pursuant
to which such Existing Competitive Bid Advances were
initially made.
SECTION 2.04. Fees. (a) Facility Fee. The
Borrower agrees to pay to the Paying Agent for the account
of each Lender (other than the Designated Bidders) a
facility fee on the aggregate amount of such Lender's
Revolving Credit Commitment from the date hereof in the case
of each Initial Lender and from the effective date specified
in the Assignment and Acceptance pursuant to which it became
a Lender in the case of each other Lender until the
Termination Date at a rate per annum equal to the Facility
Fee Percentage in effect from time to time, payable in
arrears quarterly on the last day of each March, June,
September and December, commencing September 30, 1997, and
on the Termination Date; provided, however, that any
facility fee accrued with respect to the Revolving Credit
Commitment of a Defaulting Lender during the period prior to
the time such Lender became a Defaulting Lender and unpaid
at such time shall not be payable by the Borrower so long as
such Lender shall be a Defaulting Lender except to the
extent that such facility fee shall otherwise have been due
and payable by the Borrower prior to such time; and provided
further that no facility fee shall accrue on the Revolving
Credit Commitment of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender.
(b) Paying Agent's Fees. The Borrower shall pay
to the Paying Agent for its own account such fees as may
from time to time be agreed between the Borrower and the
Paying Agent.
SECTION 2.05. Termination or Reduction of the
Commitments. The Borrower shall have the right, upon at
least three Business Days' notice to the Paying Agent, to
terminate in whole or reduce ratably in part the unused
portion of the Swing Line Facility and the Letter of Credit
Facility and the Unused Revolving Credit Commitments,
provided that each partial reduction shall be in the
aggregate amount of $25,000,000 or an integral multiple of
$10,000,000 in excess thereof. The Swing Line Facility and
the Letter of Credit Facility shall be permanently reduced
from time to time on the date of each reduction in the
Revolving Credit Facility by the amount, if any, by which
the aggregate amount of the Swing Line Facility and the
Letter of Credit Facility, respectively, exceed the
Revolving Credit Facility after giving effect to such
reduction of the Revolving Credit Facility.
SECTION 2.06. Repayment of Regular Advances. (a)
Revolving Credit Advances. The Borrower shall repay to the
Paying Agent for the ratable account of the Lenders on the
Termination Date the aggregate principal amount of the
Revolving Credit Advances then outstanding.
(b) Swing Line Advances. The Borrower shall
repay to the Paying Agent for the account of each Swing Line
Bank and each other Revolving Lender that has made a Swing
Line Advance the outstanding principal amount of each Swing
Line Advance made by each of them on the earlier of the
maturity date specified in the applicable Notice of Swing
Line Borrowing (which maturity shall be no later than the
seventh day after the requested date of such Borrowing) and
the Termination Date.
(c) Letter of Credit Advances. The Borrower
shall repay to the Paying Agent for the account of each
Issuing Bank and each other Revolving Credit Lender that has
made a Letter of Credit Advance the outstanding principal
amount of each Letter of Credit Advance made by each of them
on demand.
SECTION 2.07. Interest on Regular Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the
unpaid principal amount of each Regular Advance owing to
each Lender from the date of such Advance until such
principal amount shall be paid in full, at the following
rates per annum:
(i) Base Rate Advances. During such periods as
such Advance is a Base Rate Advance, a rate per annum
equal at all times to the sum of (x) the Base Rate in
effect from time to time plus (y) the Applicable Margin
in effect from time to time, 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 Regular Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii)
above, at a rate per annum equal at all times to 2% per
annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and
(ii) to the fullest extent permitted by law, the amount of
any interest, fee or other amount payable hereunder that is
not paid when due, from the date such amount shall be due
until such amount shall be paid in full, payable in arrears
on the date such amount shall be paid in full and on demand,
at a rate per annum equal at all times to 2% per annum above
the rate per annum required to be paid on Base Rate Advances
pursuant to clause (a)(i) above.
SECTION 2.08. Interest Rate Determination. (a)
Each Reference Bank agrees to furnish to the Paying Agent
timely information for the purpose of determining each
Eurodollar Rate and each LIBO Rate when necessary. If any
one or more of the Reference Banks shall not furnish such
timely information to the Paying Agent for the purpose of
determining any such interest rate, the Paying Agent shall
determine such interest rate on the basis of timely
information furnished by the remaining Reference Banks. The
Paying Agent shall give prompt notice to the Borrower and
the Lenders of the applicable interest rate determined by
the Paying Agent for purposes of Section 2.07(a)(i) or (ii),
and the rate, if any, furnished by each Reference Bank for
the purpose of determining the interest rate under
Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate
Advances, the Required Lenders notify the Paying Agent that
the Eurodollar Rate for any Interest Period for such
Advances will not adequately reflect the cost to such
Required Lenders of making, funding or maintaining their
respective Eurodollar Rate Advances for such Interest
Period, the Paying Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each Eurodollar Rate
Advance will automatically, on the last day of the then
existing Interest Period therefor, Convert into a Base Rate
Advance, and (ii) the obligation of the Lenders to make, or
to Convert Revolving Credit Advances into, Eurodollar Rate
Advances shall be suspended until the Paying Agent shall
notify the Borrower and the Lenders that the circumstances
causing such suspension no longer exist.
(c) If the Borrower shall fail to select the
duration of any Interest Period for any Eurodollar Rate
Advances in accordance with the provisions contained in the
definition of "Interest Period" in Section 1.01, the Paying
Agent will forthwith so notify the Borrower and the Lenders
and such Advances will automatically, on the last day of the
then existing Interest Period therefor, Convert into Base
Rate Advances.
(d) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any
Borrowing shall be reduced, by payment or prepayment or
otherwise, to less than $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 or
the LIBO Rate, as the case may be, is determined by clause
(a)(ii) of the definition thereof, respectively, if neither
Reference Bank furnishes timely information to the Paying
Agent for determining the Eurodollar Rate or LIBO Rate for
any Eurodollar Rate Advances or LIBO Rate Advances, as the
case may be,
(i) the Paying Agent shall forthwith notify the
Borrower and the Lenders that the interest rate cannot
be determined for such Eurodollar Rate Advances or LIBO
Rate Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances,
each such Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert
into a Base Rate Advance (or if such Advance is then a
Base Rate Advance, will continue as a Base Rate
Advance) until the Paying Agent shall notify the
Borrower and the Lenders that the circumstances causing
the suspension of Eurodollar Rate Advances or LIBO Rate
Advances no longer exist, and
(iii) the obligation of the Lenders to make
Eurodollar Rate Advances or LIBO Rate Advances or to
Convert Advances into Eurodollar Rate Advances shall be
suspended until the Paying Agent shall notify the
Borrower and the Lenders that the circumstances causing
such suspension no longer exist.
SECTION 2.09. Optional Conversion of Revolving Credit
Advances. The Borrower may, upon notice given to the Paying
Agent not later than 11:00 A.M. (New York City time) on the third
Business Day prior to the date of the proposed Conversion and
subject to the provisions of Sections 2.08 and 2.12, on any
Business Day Convert all Revolving Credit Advances of one Type
comprising the same Borrowing into Revolving Credit Advances of
the other Type; provided, however, that any Conversion of
Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar
Rate Advances, any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the
minimum amount specified in Section 2.02(c) and no Conversion of
any Revolving Credit Advances shall result in more separate
Revolving Credit Borrowings than permitted under Section 2.02(c).
Each such notice of a Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion,
(ii) the Revolving Credit Advances to be Converted, and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of
the initial Interest Period for each such Advance. Each notice
of Conversion shall be irrevocable and binding on the Borrower.
SECTION 2.10. Prepayments of Regular Advances. (a)
Optional. The Borrower may, upon at least three Business Days'
notice in the case of Eurodollar Rate Advances and same day
notice in the case of Base Rate Advances, in each case to the
Paying Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding principal amount of the
Regular Advances comprising part of the same Borrowing in whole
or ratably in part, together with accrued interest to the date of
such prepayment on the principal amount prepaid; provided,
however, that (x) each partial prepayment shall be in an
aggregate principal amount of $10,000,000 or an integral multiple
of $1,000,000 in excess thereof and (y) in the event of any such
prepayment of a Eurodollar Rate Advance, the Borrower shall be
obligated to reimburse the Lenders in respect thereof pursuant to
Section 8.04(c).
(b) Mandatory. (i) (A) The Borrower shall, on each
Business Day, prepay an aggregate principal amount of the
Revolving Credit Advances comprising part of the same Borrowings,
the Swing Line Advances and the Letter of Credit Advances equal
to the amount by which (1) the sum of the aggregate principal
amount of (w) the Revolving Credit Advances, (x) the Swing Line
Advances, (y) the Letter of Credit Advances and (z) the
Competitive Bid Advances then outstanding plus the aggregate
Available Amount of all Letters of Credit then outstanding
exceeds (2) the amount by which (I) the Revolving Credit Facility
exceeds (II) the Commercial Paper Set-Aside Amount on such
Business Day. Such prepayments of the Revolving Credit Facility
shall be first applied to prepay Letter of Credit Advances then
outstanding until such Advances are paid in full, second applied
to prepay Swing Line Advances then outstanding until such
Advances are paid in full and third applied to prepay Revolving
Credit Advances then outstanding comprising part of the same
Borrowings until such Advances are paid in full.
(B) The Borrower shall, on each Business Day and on
the Termination Date, pay to the Paying Agent for deposit in the
Letter of Credit Collateral Account an amount sufficient to cause
the aggregate amount on deposit in such account to equal the
amount by which the aggregate Available Amount of all Letters of
Credit then outstanding exceeds the Letter of Credit Facility on
such Business Day or the Termination Date, as the case may be,
provided that with respect to any payment to be made under this
clause (B) on the Termination Date, the Borrower shall make such
payment or, at its option, provide a "back-to-back" letter of
credit to the Issuing Banks that issued the Letters of Credit
outstanding at such time in a form satisfactory to such Issuing
Banks and the Paying Agent in their sole discretion, issued by a
bank satisfactory to such Issuing Banks and the Paying Agent in
their sole discretion, in an amount equal to the aggregate
Available Amount of the Letters of Credit then outstanding.
(ii) All prepayments under this subsection (b)
shall be made together with accrued interest to the date of such
prepayment on the principal amount prepaid.
SECTION 2.11. Increased Costs. (a) If, due to either
(i) the introduction of or any change in or in the interpretation
of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental
authority (whether or not having the force of law), there shall
be any increase in the cost to any Lender Party of agreeing to
make or making, funding or maintaining Eurodollar Rate Advances
or LIBO Rate Advances or of agreeing to issue or of issuing or
maintaining Letters of Credit (excluding for purposes of this
Section 2.11 any such increased costs resulting from (i) Taxes or
Other Taxes (as to which Section 2.14 shall govern) and (ii)
changes in the basis of taxation of overall net income or overall
gross income by the United States or by the foreign jurisdiction
or state under the laws of which such Lender Party is organized
or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand
by such Lender Party (with a copy of such demand to the Paying
Agent), pay to the Paying Agent for the account of such Lender
Party additional amounts sufficient to compensate such Lender
Party for such increased cost; provided, however, that a Lender
claiming additional amounts under this Section 2.11(a) agrees to
use reasonable efforts (consistent with its internal policy and
legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such a designation
would avoid the need for, or reduce the amount of, such increased
cost that may thereafter accrue and would not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate as to the amount of such increased cost,
submitted to the Borrower by such Lender, shall be conclusive and
binding for all purposes, absent manifest error. If the Borrower
so notifies the Paying Agent within ten Business Days after any
Lender notifies the Borrower of any increased cost pursuant to
the foregoing provisions of this Section 2.11(a), the Borrower
may, upon payment of such increased cost to such Lender, replace
such Lender with a Person that is an Eligible Assignee in
accordance with the terms of Section 8.07 (and the Lender being
so replaced shall take all action as may be necessary to assign
its rights and obligations under this Agreement to such Eligible
Assignee).
(b) If any Lender Party determines that compliance
with any law or regulation or any guideline or request from any
central bank or other governmental authority (whether or not
having the force of law) affects or would affect the amount of
capital required or expected to be maintained by such Lender
Party or any corporation controlling such Lender Party and that
the amount of such capital is increased by or based upon the
existence of such Lender Party's commitment to lend or to issue
Letters of Credit hereunder and other commitments of such type or
the issuance or maintenance of the Letters of Credit (or similar
contingent obligations), then, upon demand by such Lender Party
(with a copy of such demand to the Paying Agent), the Borrower
shall pay to the Paying Agent for the account of such Lender
Party, from time to time as specified by such Lender Party,
additional amounts sufficient to compensate such Lender Party or
such corporation in the light of such circumstances, to the
extent that such Lender Party reasonably determines such increase
in capital to be allocable to the existence of such Lender
Party's commitment to lend or to issue Letters of Credit
hereunder or the issuance or maintenance of the Letters of Credit
(or similar contingent obligations). A certificate as to such
amounts submitted to the Borrower and the Paying Agent by such
Lender Party shall be conclusive and binding for all purposes,
absent manifest error.
SECTION 2.12. Illegality. Notwithstanding any other
provision of this Agreement, if any Lender shall notify the
Paying Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any
central bank or other governmental authority asserts that it is
unlawful, for any Lender or its Eurodollar Lending Office to
perform its obligations hereunder to make Eurodollar Rate
Advances or LIBO Rate Advances or to fund or maintain Eurodollar
Rate Advances or LIBO Rate Advances hereunder, (i) each
Eurodollar Rate Advance or LIBO Rate Advance, as the case may be,
will automatically, upon such demand, Convert into a Base Rate
Advance or an Advance that bears interest at the rate set forth
in Section 2.07(a)(i), as the case may be, and (ii) the
obligation of the Lenders to make Eurodollar Rate Advances or
LIBO Rate Advances or to Convert Revolving Credit Advances into
Eurodollar Rate Advances shall be suspended until the Paying
Agent shall notify the Borrower and the Lenders that the
circumstances causing such suspension no longer exist.
SECTION 2.13. Payments and Computations. (a) The
Borrower shall make each payment hereunder and under the Notes
not later than 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 2.04(b), 2.11, 2.14,
8.04(c)) to the Lenders for the account of their respective
Applicable Lending Offices, and like funds relating to the
payment of any other amount payable to any Lender Party to such
Lender Party for the account of its Applicable Lending Office, in
each case to be applied in accordance with the terms of this
Agreement. Upon its acceptance of an Assignment and Acceptance
and recording of the information contained therein in the
Register pursuant to Section 8.07(i), from and after the
effective date specified in such Assignment and Acceptance, the
Paying Agent shall make all payments hereunder and under the
Notes in respect of the interest assigned thereby to the Lender
Party assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly
between themselves.
(b) The Borrower hereby authorizes each Lender Party,
if and to the extent payment owed to such Lender Party is not
made when due hereunder or under the Note held by such Lender
Party, to charge from time to time against any or all of the
Borrower's accounts with such Lender Party any amount so due.
(c) All computations of interest, facility fees and
Letter of Credit commissions shall be made by the Paying Agent on
the basis of a year of 360 days, in each case for the actual
number of days (including the first day but excluding the last
day) occurring in the period for which such interest, 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
or LIBO Rate Advances to be made in the next following calendar
month, such payment shall be made on the next preceding Business
Day.
(e) Unless the Paying Agent shall have received notice
from the Borrower prior to the date on which any payment is due
to the Lenders hereunder that the Borrower will not make such
payment in full, the Paying Agent may assume that the Borrower
has made such payment in full to the Paying Agent on such date
and the Paying Agent may, in reliance upon such assumption, cause
to be distributed to each Lender on such due date an amount equal
to the amount then due such Lender. If and to the extent the
Borrower shall not have so made such payment in full to the
Paying Agent, each Lender shall repay to the Paying Agent
forthwith on demand such amount distributed to such Lender
together with interest thereon, for each day from the date such
amount is distributed to such Lender until the date such Lender
repays such amount to the Paying Agent, at the Federal Funds
Rate.
SECTION 2.14. Taxes. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in
accordance with Section 2.13, free and clear of and without
deduction for any and all present or future taxes, levies,
imposts, deductions, charges or withholdings, and all liabilities
with respect thereto, excluding, in the case of each Lender Party
and any Agent, taxes imposed on its overall net income, and
franchise taxes imposed on it in lieu of net income taxes, by the
jurisdiction under the laws of which such Lender Party or such
Agent (as the case may be) is organized or any political
subdivision thereof and, in the case of each Lender Party, taxes
imposed on its overall net income, and franchise taxes imposed on
it in lieu of net income taxes, by the jurisdiction of such
Lender Party's Applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being
hereinafter referred to as "Taxes"). If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under any Note to any Lender Party or any
Agent, (i) the sum payable shall be increased as may be necessary
so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section 2.14) such Lender Party or such Agent (as the case may
be) receives an amount equal to the sum it would have received
had no such deductions been made, (ii) the Borrower shall make
such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any present or
future stamp or documentary taxes or any other excise or property
taxes, charges or similar levies that arise from any payment made
hereunder or under the Notes or from the execution, delivery or
registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower shall indemnify each Lender Party and
each Agent for and hold it harmless against the full amount of
Taxes or Other Taxes (including, without limitation, taxes of any
kind imposed by any jurisdiction on amounts payable under this
Section 2.14) imposed on or paid by such Lender Party or such
Agent (as the case may be) and any liability (including
penalties, interest and expenses) arising therefrom or with
respect thereto. This indemnification shall be made within 30
days from the date such Lender Party or such Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Paying Agent, at its
address referred to in Section 8.02, the original or a certified
copy of a receipt evidencing such payment. In the case of any
payment hereunder or under the Notes by or on behalf of the
Borrower through an account or branch outside the United States
or by or on behalf of the Borrower by a payor that is not a
United States person, if the Borrower determines that no Taxes
are payable in respect thereof, the Borrower shall furnish, or
shall cause such payor to furnish, to the Paying Agent, at such
address, an opinion of counsel acceptable to the Paying Agent
stating that such payment is exempt from Taxes. For purposes of
this subsection (d) and subsection (e), the terms "United States"
and "United States person" shall have the meanings specified in
Section 7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States, on or prior to the date
of its execution and delivery of this Agreement in the case of
each Initial Lender or Initial Issuing Bank, as the case may be,
and on the date of the Assignment and Acceptance pursuant to
which it becomes a Lender Party in the case of each other Lender
Party, and from time to time thereafter as requested in writing
by the Borrower (but only so long as such Lender Party remains
lawfully able to do so), shall provide each of the Paying Agent
and the Borrower with two original Internal Revenue Service
forms 1001 or 4224, as appropriate, or any successor or other
form prescribed by the Internal Revenue Service, certifying that
such Lender Party is exempt from or entitled to a reduced rate of
United States withholding tax on payments pursuant to this
Agreement or the Notes. If the form provided by a Lender Party
at the time such Lender Party first becomes a party to this
Agreement indicates a United States interest withholding tax rate
in excess of zero, withholding tax at such rate shall be
considered excluded from Taxes unless and until such Lender Party
provides the appropriate forms certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall
be considered excluded from Taxes for periods governed by such
form; provided, however, that, if at the date of the Assignment
and Acceptance pursuant to which a Lender Party assignee becomes
a party to this Agreement, the Lender Party assignor was entitled
to payments under subsection (a) in respect of United States
withholding tax with respect to interest paid at such date, then,
to such extent, the term Taxes shall include (in addition to
withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee
on such date. If any form or document referred to in this
subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information
required on the date hereof by Internal Revenue Service form 1001
or 4224, that the Lender Party reasonably considers to be
confidential, the Lender Party shall give notice thereof to the
Borrower and shall not be obligated to include in such form or
document such confidential information.
(f) For any period with respect to which a Lender
Party has failed to provide the Borrower with the appropriate
form described in Section 2.14(e) (other than if such failure is
due to a change in law occurring subsequent to the date on which
a form originally was required to be provided, or if such form
otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under
Section 2.14(a) or (c) with respect to Taxes imposed by the
United States by reason of such failure; provided, however, that
should a Lender Party become subject to Taxes because of its
failure to deliver a form required hereunder, the Borrower shall
take such steps as the Lender Party shall reasonably request to
assist the Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts
payable pursuant to this Section 2.14 agrees to use reasonable
efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its
Eurodollar Lending Office if the making of such a change would
avoid the need for, or reduce the amount of, any such additional
amounts that may thereafter accrue and would not, in the
reasonable judgment of such Lender Party, be otherwise
disadvantageous to such Lender Party.
SECTION 2.15. Sharing of Payments, Etc. If any Lender
shall obtain any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) on account of
the Advances owing to it (other than pursuant to Section 2.04(b),
2.11, 2.14 or 8.04) in excess of its ratable share of payments on
account of the Revolving Credit Advances, Swing Line Advances or
Letter of Credit Advances obtained by all the Lenders, such
Lender shall forthwith purchase from the other Lenders such
participations in the Revolving Credit Advances, Swing Line
Advances or Letter of Credit Advances owing to them as shall be
necessary to cause such purchasing Lender to share the excess
payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered
from such purchasing Lender, such purchase from each Lender shall
be rescinded and such Lender shall repay to the purchasing Lender
the purchase price to the extent of such recovery together with
an amount equal to such Lender's ratable share (according to the
proportion of (i) the amount of such Lender's required repayment
to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing
Lender in respect of the total amount so recovered. The Borrower
agrees that any Lender so purchasing a participation from another
Lender pursuant to this Section 2.15 may, to the fullest extent
permitted by law, exercise all its rights of payment (including
the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of the Borrower in the
amount of such participation.
SECTION 2.16. Letters of Credit. (a) The Letter of
Credit Facility. Each Issuing Bank severally agrees, on the
terms and conditions hereinafter set forth, to issue letters of
credit (together with the Existing Letters of Credit, the
"Letters of Credit") for the account of the Borrower specified by
the Borrower from time to time on any Business Day during the
period from the date hereof until 10 days before the Termination
Date (i) in an aggregate Available Amount for all Letters of
Credit issued by such Issuing Bank not to exceed at any time such
Issuing Bank's Letter of Credit Commitment (or such greater
amount as such Issuing Bank shall agree) and (ii) in an Available
Amount for each such Letter of Credit not to exceed an amount
equal to (1) the lesser of (x) the Letter of Credit Facility at
such time and (y) an amount equal to the Unused Revolving Credit
Commitments of the Revolving Credit Lenders at such time less (2)
the sum of the Commercial Paper Set-Aside Amount and the
Electronic L/C Reserve then in effect, provided that no Standby
Letters of Credit shall be denominated in an Alternative Currency
and no Trade Letter of Credit denominated in an Alternative
Currency shall be issued if the aggregate Available Amount of all
outstanding Letters of Credit denominated in Alternative
Currencies shall exceed the equivalent Dollar amount, determined
in accordance with Section 1.04, of $25,000,000. No Letter of
Credit shall have an expiration date (including all rights of the
Borrower or the beneficiary to require renewal) later than the
earlier of (A) in the case of a Letter of Credit denominated in
an Alternative Currency, 60 days before the Termination Date, and
in all other cases, 10 days before the Termination Date and (B)
(1) in the case of a Standby Letter of Credit, one year after the
date of issuance thereof (but such Standby Letter of Credit may
by its terms be automatically renewable annually upon notice (a
"Notice of Renewal") given to the Issuing Bank that issued such
Standby Letter of Credit and the Paying Agent on or prior to any
date for notice of renewal set forth in such Letter of Credit but
in any event at least three Business Days prior to the date of
the proposed renewal of such Standby Letter of Credit and upon
fulfillment of the applicable conditions set forth in Article III
unless such Issuing Bank has notified the Borrower (with a copy
to the Paying Agent) on or prior to the date for notice of
termination set forth in such Letter of Credit but in any event
at least 30 Business Days prior to the date of automatic renewal
of its election not to renew such Standby Letter of Credit (a
"Notice of Termination")) and (2) in the case of a Trade Letter
of Credit, one year after the date of issuance thereof; provided
that the terms of each Standby Letter of Credit that is
automatically renewable annually shall (x) require the Issuing
Bank that issued such Standby Letter of Credit to give the
beneficiary named in such Standby Letter of Credit notice of any
Notice of Termination, (y) permit such beneficiary, upon receipt
of such notice, to draw under such Standby Letter of Credit prior
to the date such Standby Letter of Credit otherwise would have
been automatically renewed and (z) not permit the expiration date
(after giving effect to any renewal) of such Standby Letter of
Credit in any event to be extended to a date after the dates
referred to in clause (A) above. If either a Notice of Renewal
is not given by the Borrower or a Notice of Termination is given
by the relevant Issuing Bank pursuant to the immediately
preceding sentence, such Standby Letter of Credit shall expire on
the date on which it otherwise would have been automatically
renewed; provided, however, that even in the absence of receipt
of a Notice of Renewal the relevant Issuing Bank may in its
discretion, unless instructed to the contrary by the Paying Agent
or the Borrower, deem that a Notice of Renewal had been timely
delivered and in such case, a Notice of Renewal shall be deemed
to have been so delivered for all purposes under this Agreement.
Within the limits of the Letter of Credit Facility, and subject
to the limits referred to above, the Borrower may request the
issuance of Letters of Credit under this Section 2.16(a), repay
any Letter of Credit Advances resulting from drawings thereunder
pursuant to Section 2.16(c) and request the issuance of
additional Letters of Credit under this Section 2.16(a). The
Borrower and any one Issuing Bank (the "Electronic Issuing Bank")
may from time to time agree to reserve under the Letter of Credit
Facility an amount (the "Electronic L/C Reserve") not to exceed
the Letter of Credit Facility, which reserve shall (A) be
available solely for electronically issued Trade Letters of
Credit from time to time in accordance with customary procedures
applicable thereto and each such electronically issued Letter of
Credit (an "Electronic L/C") shall be considered a Letter of
Credit for all purposes under this Agreement and (B) be
established or revised upon not less than 2 Business Days' prior
written notice thereof from the Borrower to the Paying Agent,
provided that, upon the occurrence and during the continuance of
an Event of Default, the ability to establish and maintain the
Electronic L/C Reserve and the ability of an Issuing Bank to
electronically issue Trade Letters of Credit under this Agreement
shall be suspended.
(b) Request for Issuance. (i) Each Letter of Credit
shall be issued upon notice, given not later than 11:00 A.M.
(New York City time) on the second Business Day prior to the date
of the proposed issuance of such Letter of Credit, by the
Borrower to any Issuing Bank or by such later date as may be
agreed by the Borrower and such Issuing Bank (subject to the
proviso to the last sentence in Section 2.16(a)), which shall
give to the Paying Agent and each Revolving Credit Lender prompt
notice thereof by telex or telecopier); provided, however, that
the Borrower may request (and if such request is made, the
Borrower shall represent and warrant that, after giving effect to
such issuance, the aggregate Available Amount of Letters of
Credit outstanding does not exceed the Letter of Credit Facility)
and the Electronic Issuing Bank may issue Electronic L/Cs without
the giving of notice thereof by such Issuing Bank to the Paying
Agent and each Revolving Credit Lender unless and until the
Paying Agent has notified such Issuing Bank that it must give
such notice prior to any issuance of Letters of Credit and,
provided further that the amount, if any, of the Electronic L/C
Reserve shall reduce the amount of non-electronically issued
Trade Letters of Credit that may be issued. Each such notice of
issuance of a Letter of Credit (a "Notice of Issuance") shall be
by telephone, confirmed immediately in writing, or telex or
telecopier, specifying therein the requested (A) date of such
issuance (which shall be a Business Day), (B) Available Amount of
such Letter of Credit, (C) expiration date of such Letter of
Credit, (D) name and address of the beneficiary of such Letter of
Credit and (E) form of such Letter of Credit, and shall be
accompanied by such application and agreement for letter of
credit as such Issuing Bank may specify to the Borrower for use
in connection with such requested Letter of Credit or, in the
case of Electronic L/Cs, shall be subject to the agreement
entered into with the Electronic Issuing Bank with respect
thereto (in each case, a "Letter of Credit Agreement"). If
(x) the requested form of such Letter of Credit is reasonably
acceptable to such Issuing Bank in its sole discretion and (y) it
has not received notice of objection to such issuance on the
grounds that the Borrower has failed to satisfy the conditions
set forth in Section 3.02 from the Required Lenders, such Issuing
Bank will, upon fulfillment of the applicable conditions set
forth in Article III, make such Letter of Credit available to the
Borrower at its office referred to in Section 8.02 or as
otherwise agreed with the Borrower in connection with such
issuance. In the event and to the extent that the provisions of
any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(ii) Each Issuing Bank shall furnish (A) to the Paying
Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit
issued by such Issuing Bank during the previous week and drawings
during such week under all Letters of Credit issued by such
Issuing Bank, (B) to each Revolving Credit Lender on the first
Business Day of each month a written report summarizing issuance
and expiration dates of Letters of Credit issued by such Issuing
Bank during the preceding month and drawings during such month
under all Letters of Credit issued by such Issuing Bank and
(C) to the Paying Agent and each Revolving Credit Lender on the
first Business Day of each calendar quarter a written report
setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued by
such Issuing Bank.
(c) Drawing and Reimbursement. Unless the Borrower
shall have paid the Paying Agent for the account of the
applicable Issuing Bank simultaneously with or prior to such
Issuing Bank's payment of a draft drawn under a Letter of Credit
issued by it in accordance with the terms of Section 2.16(a) an
amount equal to the amount of such payment (such amount to be
notified to the Borrower by the Issuing Bank on the Business Day
immediately preceding any such payment), the payment by such
Issuing Bank of a draft drawn under any such Letter of Credit
shall constitute for all purposes of this Agreement the making by
such Issuing Bank of a Letter of Credit Advance, which shall be a
Base Rate Advance, in the amount of such draft or, in the case of
any such Letter of Credit denominated in an Alternative Currency,
an amount equal to the Dollar equivalent of such draft. Upon
written demand by any Issuing Bank with an outstanding Letter of
Credit Advance, with a copy of such demand to the Paying Agent,
each Revolving Credit Lender shall purchase from such Issuing
Bank, and such Issuing Bank shall sell and assign to each such
Revolving Credit Lender, such Lender's Pro Rata Share of such
outstanding Letter of Credit Advance as of the date of such
purchase, by making available for the account of its Applicable
Lending Office to the Paying Agent for the account of such
Issuing Bank, by deposit to the Paying Agent's Account, in same
day funds, an amount equal to the portion of the outstanding
principal amount of such Letter of Credit Advance to be purchased
by such Lender. The Borrower hereby agrees to each such sale and
assignment. Each Revolving Credit Lender agrees to purchase its
Pro Rata Share of an outstanding Letter of Credit Advance on
(i) the Business Day on which demand therefor is made by the
Issuing Bank which made such Advance, provided notice of such
demand is given not later than 11:00 A.M. (New York City time) on
such Business Day or (ii) the first Business Day next succeeding
such demand if notice of such demand is given after such time.
Upon any such assignment by an Issuing Bank to any Revolving
Credit Lender of a portion of a Letter of Credit Advance, such
Issuing Bank represents and warrants to such Lender that such
Issuing Bank is the legal and beneficial owner of such interest
being assigned by it, free and clear of any liens, but makes no
other representation or warranty and assumes no responsibility
with respect to such Letter of Credit Advance, the Loan Documents
or the Borrower. If and to the extent that any Revolving Credit
Lender shall not have so made the amount of such Letter of Credit
Advance available to the Paying Agent, such Revolving Credit
Lender agrees to pay to the Paying Agent forthwith on demand such
amount together with interest thereon, for each day from the date
of demand by such Issuing Bank until the date such amount is paid
to the Paying Agent, at the Federal Funds Rate for its account or
the account of such Issuing Bank, as applicable. If such Lender
shall pay to the Paying Agent such amount for the account of such
Issuing Bank on any Business Day, such amount so paid in respect
of principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement,
and the outstanding principal amount of the Letter of Credit
Advance made by such Issuing Bank shall be reduced by such amount
on such Business Day. For purposes of this subsection (c), the
equivalent Dollar amount of any reimbursement obligation of the
Borrower in respect of any Letter of Credit denominated in an
Alternative Currency, and of any obligation of the Revolving
Credit Lenders to pay to the applicable Issuing Bank their Pro
Rata Share of drafts drawn under any Letter of Credit that is
denominated in an Alternative Currency, shall be determined by
using the quoted spot rate at which the applicable Issuing Bank
offers to exchange Dollars for such Alternative Currency at the
office where the draft giving rise to such reimbursement
obligation was presented at 11:00 A.M. local time for such office
on the date on which the applicable Issuing Bank honors a draft
drawn under such Letter of Credit. The applicable Issuing Bank's
determination of each spot rate of exchange pursuant to this
Section 2.16(c) shall be final and conclusive in the absence of
manifest error.
(d) Failure to Make Letter of Credit Advances. The
failure of any Lender to make the Letter of Credit Advance to be
made by it on the date specified in Section 2.16(c) shall not
relieve any other Lender of its obligation hereunder to make its
Letter of Credit Advance on such date, but no Lender shall be
responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such
date.
(e) Obligations Absolute. The Obligations of the
Borrower under this Agreement, any Letter of Credit Agreement and
any other agreement or instrument relating to any Letter of
Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such
Letter of Credit Agreement and such other agreement or instrument
under all circumstances, including, without limitation, the
following circumstances:
(i) any lack of validity or enforceability of this
Agreement, any Note, any Letter of Credit Agreement, any
Letter of Credit or any other agreement or instrument
relating thereto (all of the foregoing being, collectively,
the "L/C Related Documents");
(ii) any change in the time, manner or place of payment
of, or in any other term of, all or any of the Obligations
of the Borrower in respect of any L/C Related Document or
any other amendment or waiver of or any consent to departure
from all or any of the L/C Related Documents;
(iii) the existence of any claim, set-off, defense
or other right that the Borrower may have at any time
against any beneficiary or any transferee of a Letter of
Credit (or any Persons for whom any such beneficiary or any
such transferee may be acting), any Issuing Bank or any
other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated
transaction;
(iv) any statement or any other document presented
under a Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect;
(v) payment by any Issuing Bank under a Letter of
Credit against presentation of a draft or certificate that
does not strictly comply with the terms of such Letter of
Credit, unless such draft or certificate is substantially
different from the applicable form specified by such Letter
of Credit;
(vi) any exchange, release or non-perfection of any
Letter of Credit Collateral or other collateral, or any
release or amendment or waiver of or consent to departure
from any guarantee, for all or any of the Obligations of the
Borrower in respect of the L/C Related Documents; or
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the foregoing,
including, without limitation, any other circumstance that
might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
(f) Compensation. (i) The Borrower shall pay to the
Paying Agent for the account of each Revolving Credit Lender a
commission on such Lender's Pro Rata Share of the average daily
aggregate Available Amount of (A) all Standby Letters of Credit
outstanding from time to time at a rate per annum equal to the
Applicable Margin in effect from time to time for Eurodollar Rate
Advances and (B) all Trade Letters of Credit outstanding from
time to time at a rate per annum equal to the Applicable Margin
in effect from time to time for Trade Letters of Credit, in each
case, calculated for the quarterly period ending on the last
Business Day of each March, June, September and December and
payable in arrears on the fifth Business Day following each such
period, and on the Termination Date.
(ii) The Borrower shall pay to each Issuing Bank, for
its own account, such commissions, issuance fees, fronting fees,
transfer fees and other fees and charges in connection with the
issuance or administration of each Letter of Credit as the
Borrower and such Issuing Bank shall agree.
(g) Existing Letters of Credit. Effective as of the
Effective Date (i) the letters of credit issued for the account
of the Borrower prior to such date by Persons that are Issuing
Banks hereunder and set forth on Schedule 2.16(g) hereto (such
letters of credit being the "Existing Letters of Credit") in an
aggregate face amount not exceeding the total amount set forth on
such Schedule will be deemed to have been issued as, and be,
Letters of Credit hereunder and (ii) the Existing Letters of
Credit and the reimbursement obligations in respect thereof shall
be Obligations of the Borrower hereunder and shall no longer be
Obligations under the documents pursuant to which such Existing
Letters of Credit were initially issued.
SECTION 2.17. Use of Proceeds. The proceeds of the
Advances shall be available (and the Borrower agrees that it
shall use such proceeds) solely for general corporate purposes of
the Borrower and its Subsidiaries.
SECTION 2.18. Defaulting Lenders. (a) If at any one
time, (i) any Lender shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrower
and (iii) the Borrower shall be required to make any payment
hereunder or under any other Loan Document to or for the account
of such Defaulting Lender, then the Borrower may, so long as no
Default shall occur or be continuing at such time and to the
fullest extent permitted by applicable law: (x) replace such
Lender with a Person that is an Eligible Assignee in accordance
with the terms of Section 8.07 (and the Lender being so replaced
shall take all action as may be necessary to assign its rights
and obligations under this Agreement to such Eligible Assignee)
and (y) set off and otherwise apply the Obligation of the
Borrower to make such payment to or for the account of such
Defaulting Lender against the obligation of such Defaulting
Lender to make such Defaulted Advance. If on any date the
Borrower shall so set off and otherwise apply its Obligation to
make any such payment against the obligation of such Defaulting
Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by the Borrower
shall constitute for all purposes of this Agreement and the other
Loan Documents an Advance by such Defaulting Lender made on such
date under the Facility pursuant to which such Defaulted Advance
was originally required to have been made pursuant to
Section 2.01. Such Advance shall be a Base Rate Advance and
shall be considered, for all purposes of this Agreement, to
comprise part of the Borrowing in connection with which such
Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising
such Borrowing shall be Eurodollar Rate Advances on the date such
Advance is deemed to be made pursuant to this subsection (a).
The Borrower shall notify the Paying Agent at any time the
Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of
the Defaulting Lender and the Defaulted Advance required to be
made by such Defaulting Lender and (B) the amount set off and
otherwise applied in respect of such Defaulted Advance pursuant
to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such
Defaulting Lender that is paid by the Borrower, after giving
effect to the amount set off and otherwise applied by the
Borrower pursuant to this subsection (a), shall be applied by the
Paying Agent as specified in subsection (b) or (c) of this
Section 2.18.
(b) If at any one time (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall owe a
Defaulted Amount to the Paying Agent or any of the other Lenders
and (iii) the Borrower shall make any payment hereunder or under
any other Loan Document to the Paying Agent for the account of
such Defaulting Lender, then the Paying Agent may, on its behalf
or on behalf of such other Lenders and to the fullest extent
permitted by applicable law, apply at such time the amount so
paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent
required to pay such Defaulted Amount. If the Paying Agent shall
so apply any such amount to the payment of any such Defaulted
Amount on any date, the amount so applied by the Paying Agent
shall constitute for all purposes of this Agreement and the other
Loan Documents payment, to such extent, of such Defaulted Amount
on such date. Any such amount so applied by the Paying Agent
shall be retained by the Paying Agent or distributed by the
Paying Agent to such other Lenders, ratably in accordance with
the respective portions of such Defaulted Amounts payable at such
time to the Paying Agent and such other Lenders and, if the
amount of such payment made by the Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to
the Paying Agent and the other Lenders, in the following order of
priority:
(i) first, to the Paying Agent for any Defaulted
Amount then owing to the Paying Agent; and
(ii) second, to any other Lenders for any Defaulted
Amounts then owing to such other Lenders, ratably in
accordance with such respective Defaulted Amounts then owing
to such other Lenders.
Any portion of such amount paid by the Borrower for the account
of such Defaulting Lender remaining after giving effect to the
amount applied by the Paying Agent pursuant to this
subsection (b) shall be applied by the Paying Agent as specified
in subsection (c) of this Section 2.18.
(c) If at any one time (i) any Lender shall be a
Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower,
the Paying Agent or any other Lender shall be required to pay or
distribute any amount hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the
Borrower or such other Lender shall pay such amount to the Paying
Agent to be held by the Paying Agent, to the fullest extent
permitted by applicable law, in escrow or the Paying Agent shall,
to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Paying
Agent in escrow under this subsection (c) shall be deposited by
the Paying Agent in an account with Citibank, in the name and
under the control of the Paying Agent, but subject to the
provisions of this subsection (c). The terms applicable to such
account, including the rate of interest payable with respect to
the credit balance of such account from time to time, shall be
Citibank's standard terms applicable to escrow accounts
maintained with it. Any interest credited to such account from
time to time shall be held by the Paying Agent in escrow under,
and applied by the Paying Agent from time to time in accordance
with the provisions of, this subsection (c). The Paying Agent
shall, to the fullest extent permitted by applicable law, apply
all funds so held in escrow from time to time to the extent
necessary to make any Advances required to be made by such
Defaulting Lender and to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to
the Paying Agent or any other Lender, as and when such Advances
or amounts are required to be made or paid and, if the amount so
held in escrow shall at any time be insufficient to make and pay
all such Advances and amounts required to be made or paid at such
time, in the following order of priority:
(i) first, to the Paying Agent for any amount then due
and payable by such Defaulting Lender to the Paying Agent
hereunder;
(ii) second, to any other Lenders for any amount then
due and payable by such Defaulting Lender to such other
Lenders hereunder, ratably in accordance with such
respective amounts then due and payable to such other
Lenders; and
(iii) third, to the Borrower for any Advance then
required to be made by such Defaulting Lender pursuant to a
Commitment of such Defaulting Lender.
In the event that such Defaulting Lender shall, at any time,
cease to be a Defaulting Lender, any funds held by the Paying
Agent in escrow at such time with respect to such Defaulting
Lender shall be distributed by the Paying Agent to such
Defaulting Lender and applied by such Defaulting Lender to the
Obligations owing to such Lender at such time under this
Agreement and the other Loan Documents ratably in accordance with
the respective amounts of such Obligations outstanding at such
time.
(d) The rights and remedies against a Defaulting
Lender under this Section 2.18 are in addition to other rights
and remedies that the Borrower may have against such Defaulting
Lender with respect to any Defaulted Advance and that the Paying
Agent or any Lender may have against such Defaulting Lender with
respect to any Defaulted Amount.
SECTION 2.19. Evidence of Debt. (a) Each Lender
shall maintain in accordance with its usual practice an account
or accounts evidencing the indebtedness of the Borrower to such
Lender resulting from each Advance owing to such Lender from time
to time, including the amounts of principal and interest payable
and paid to such Lender from time to time hereunder. The
Borrower agrees that upon notice by any Lender to the Borrower
(with a copy of such notice to the Paying Agent) to the effect
that a promissory note or other evidence of indebtedness is
required or appropriate in order for such Lender to evidence
(whether for purposes of pledge, enforcement or otherwise) the
Advances owing to, or to be made by, such Lender, the Borrower
shall promptly execute and deliver to such Lender a Note, payable
to the order of such Lender in a principal amount equal to the
Commitment of such Lender.
(b) The Register maintained by the Paying Agent pursuant to
Section 8.07 shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall
be recorded (i) the date and amount of each Borrowing made
hereunder, the type of Advances comprising such Borrowing and, if
appropriate, the Interest Period applicable thereto, (ii) the
terms of each Assignment and Acceptance delivered to and accepted
by it, (iii) the amount of any principal or interest due and
payable or to become due and payable from the Borrower to each
Lender hereunder, and (iv) the amount of any sum received by the
Paying Agent from the Borrower hereunder and each Lender's share
thereof.
(c) Notwithstanding anything to the contrary contained in
this Agreement, entries made in good faith by the Paying Agent in
the Register pursuant to subsection (b) above, and by each Lender
in its account or accounts pursuant to subsection (a) above,
shall be prima facie evidence of the amount of principal and
interest due and payable or to become due and payable from the
Borrower to, in the case of the Register, each Lender and, in the
case of such account or accounts, such Lender, under this
Agreement, absent manifest error; provided, however, that the
failure of the Paying Agent or such Lender to make an entry, or
any finding that an entry is incorrect, in the Register or such
account or accounts shall not limit or otherwise affect the
obligations of the Borrower under this Agreement.
(d) References herein to Notes shall mean and be references
to Revolving Credit Notes and Competitive Bid Notes to the extent
issued hereunder.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Initial
Extension of Credit. The obligation of each Lender to make an
Advance or of any Issuing Bank to issue a Letter of Credit on the
occasion of the Initial Extension of Credit hereunder is subject
to the satisfaction of the following conditions precedent before
or concurrently with the Initial Extension of Credit:
(a) There shall have occurred no Material Adverse
Change since February 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 (or shall be concurrently with the
Initial Extension of Credit) paid in full in cash (or
otherwise satisfied with respect to Existing Letters of
Credit and the Existing Competitive Bid Advances) and all
Commitments (as defined in the Existing Credit 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
Lender Parties) and shall remain in effect, and no law or
regulation shall be applicable in the reasonable judgment of
the Lender Parties that restrains, prevents or imposes
materially adverse conditions upon the transactions
contemplated hereby.
(e) The Borrower shall have paid all accrued fees and
expenses of the Agents and the Lender Parties (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
or would result from the Initial Extension of Credit
that constitutes a Default.
(g) The Paying Agent shall have received on or before
the Effective Date the following, each dated such day, in
form and substance satisfactory to the Paying Agent and
(except for the Revolving Credit Notes) in sufficient copies
for each Lender Party:
(i) The Revolving Credit Notes to the order
of each of the Lenders that have requested Revolving
Credit Notes prior to the Effective Date.
(ii) Certified copies of the resolutions of
the Board of Directors of the Borrower approving this
Agreement and the Notes, and of all documents
(including, without limitation, charters and bylaws)
evidencing other necessary corporate action and
governmental approvals, if any, with respect to this
Agreement and the Notes.
(iii) A certificate of the Secretary or
an Assistant Secretary of the Borrower certifying the
names and true signatures of the officers of the
Borrower authorized to sign this Agreement and the
Notes and the other documents to be delivered
hereunder.
(iv) A favorable opinion of Jones, Day,
Reavis & Pogue, counsel for the Borrower, substantially
in the form of Exhibit E hereto and as to such other
matters as any Lender Party through the Paying Agent
may reasonably request.
(v) A favorable opinion of Dennis J.
Broderick, General Counsel for the Borrower, in form
and substance satisfactory to the Paying Agent.
(vi) A favorable opinion of Shearman &
Sterling, counsel for the Agents, in form and substance
satisfactory to the Agents.
SECTION 3.02. Conditions Precedent to Each Regular
Borrowing and each Issuance and Renewal of Letters of Credit.
The obligation of each Lender to make a Regular Advance (other
than a Letter of Credit Advance made by an Issuing Bank or a
Revolving Credit Lender pursuant to Section 2.16(c), or a Swing
Line Advance made by a Revolving Credit Lender pursuant to
Section 2.02(b)) on the occasion of each Regular Borrowing
(including the initial Borrowing), the obligation of each Swing
Line Bank to make a Swing Line Advance on the occasion of each
Swing Line Borrowing and the obligation of each Issuing Bank to
issue Letters of Credit (including the initial issuance) or renew
a Standby Letter of Credit from time to time shall be subject to
the conditions precedent that the Effective Date shall have
occurred and on the date of such Borrowing, issuance or renewal
(a) the following statements shall be true (and each of the
giving of the applicable Notice of Revolving Credit Borrowing,
Notice of Swing Line Borrowing, Notice of Issuance or Notice of
Renewal and the acceptance by the Borrower of the proceeds of
such Borrowing or such Letter of Credit Issuance or the renewal
of such Standby Letter of Credit shall constitute a
representation and warranty by the Borrower that on the date of
such Borrowing, issuance or renewal such statements are true):
(i) the representations and warranties contained in
Section 4.01 are correct on and as of the date of such
Borrowing, issuance or renewal, before and after giving
effect to such Borrowing, issuance or renewal and to the
application of the proceeds therefrom, as though made on and
as of such date other than any such representations or
warranties that, by their terms, refer to a specific date
other than the date of such Borrowing, issuance or renewal,
in which case as of such specific date; and
(ii) no event has occurred and is continuing, or would
result from such Borrowing, issuance or renewal or from the
application of the proceeds therefrom, that constitutes a
Default;
and (b) the Paying Agent shall have received such other
approvals, opinions or documents as any Lender through the Paying
Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive
Bid Borrowing. The obligation of each Lender that is to make a
Competitive Bid Advance on the occasion of a Competitive Bid
Borrowing to make such Competitive Bid Advance as part of such
Competitive Bid Borrowing is subject to the conditions precedent
that (i) the Paying Agent shall have received the written
confirmatory Notice of Competitive Bid Borrowing with respect
thereto, (ii) on or before the date of such Competitive Bid
Borrowing, but prior to such Competitive Bid Borrowing, the
Paying Agent shall have received a Competitive Bid Note payable
to the order of such Lender for each of the one or more
Competitive Bid Advances to be made by such Lender as part of
such Competitive Bid Borrowing for each such Lender that shall
have requested such Note prior to the date of such Competitive
Bid Borrowing, in a principal amount equal to the principal
amount of the Competitive Bid Advance to be evidenced thereby and
otherwise on such terms as were agreed to for such Competitive
Bid Advance in accordance with Section 2.03, and (iii) on the
date of such Competitive Bid Borrowing the following statements
shall be true (and each of the giving of the applicable Notice of
Competitive Bid Borrowing and the acceptance by the Borrower of
the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower that on the date of
such Competitive Bid Borrowing such statements are true):
(a) the representations and warranties contained in
Section 4.01 are correct on and as of the date of such
Competitive Bid Borrowing, before and after giving effect to
such Competitive Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date
other than any such representations or warranties that, by
their terms, refer to a specific date other than the date of
such Borrowing, in which case as of such specific date;
(b) no event has occurred and is continuing, or would
result from such Competitive Bid Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default; and
(c) no event has occurred and no circumstance exists
as a result of which the information concerning the Borrower
that has been provided to the Agents and each Lender Party
by the Borrower in connection herewith would include an
untrue statement of a material fact or omit to state any
material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under
which they were made, not misleading.
SECTION 3.04. Determinations Under Section 3.01. For
purposes of determining compliance with the conditions specified
in Section 3.01, each Lender Party shall be deemed to have
consented to, approved or accepted or to be satisfied with each
document or other matter required thereunder to be consented to
or approved by or acceptable or satisfactory to the Lender
Parties unless an officer of the Agent responsible for the
transactions contemplated by the Loan Documents shall have
received notice from such Lender Party prior to the Initial
Extension of Credit specifying its objection thereto and if the
Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Paying Agent such
Lender Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the
Borrower. The Borrower represents and warrants as follows:
(a) The Borrower is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation.
(b) The execution, delivery and performance by the
Borrower of this Agreement and the other Loan Documents, and
the consummation of the transactions contemplated hereby and
thereby, are within the Borrower's corporate powers, have
been duly authorized by all necessary corporate action, and
do not contravene (i) the Borrower's charter or by-laws or
(ii) law or any contractual restriction binding on or
affecting the Borrower.
(c) No authorization or approval or other action by,
and no notice to or filing with, any governmental authority
or regulatory body or any other third party is required for
the due execution, delivery and performance by the Borrower
of this Agreement or any other Loan Document except for the
authorizations, approvals, actions, notices and filings
listed on Schedule 4.01(c) hereto, all of which have been
duly obtained, taken, given or made and are in full force
and effect.
(d) This Agreement has been, and each of the other
Loan Documents when delivered hereunder will have been, duly
executed and delivered by the Borrower. This Agreement is,
and each of the other Loan Documents when delivered
hereunder will be, the legal, valid and binding obligation
of the Borrower enforceable against the Borrower in
accordance with their respective terms.
(e) The Consolidated balance sheet of the Borrower and
its Subsidiaries as at February 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 Party, 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, any Letter of Credit shall be
outstanding (and not cash collateralized or for which a "back-to-
back" letter of credit shall not have been issued pursuant to
Section 2.10(b)(i)(B)) or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Compliance with Laws, Etc. Comply, and cause each
of its Subsidiaries to comply, in all material respects,
with all applicable laws, rules, regulations and orders,
such to include, without limitation, compliance with ERISA
and Environmental Laws except, in any case, where the
failure so to comply, either individually or in the
aggregate, could not be reasonably expected to have a
Material Adverse Effect.
(b) Payment of Taxes, Etc. Pay and discharge, and
cause each of its Subsidiaries to pay and discharge, before
the same shall become delinquent, (i) all taxes, assessments
and governmental charges or levies imposed upon it or upon
its property and (ii) all lawful claims that, if unpaid,
might by law become a Lien upon its property; provided,
however, that neither the Borrower nor any of its
Subsidiaries shall be required to pay or discharge any such
tax, assessment, charge or claim (x) that is being contested
in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until
any Lien resulting therefrom attaches to its property and
becomes enforceable against its other creditors and (y) if
such non-payments, either individually or in the aggregate,
could not be reasonably expected to have a Material Adverse
Effect.
(c) Maintenance of Insurance. Maintain, and cause
each of its Subsidiaries to maintain, insurance with
responsible and reputable insurance companies or
associations in such amounts and covering such risks as is
usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in
which the Borrower or such Subsidiary operates except where
failure to maintain such insurance could not be reasonably
expected to have a Material Adverse Effect.
(d) Preservation of Corporate Existence, Etc.
Preserve and maintain, and cause each of its Subsidiaries to
preserve and maintain, its corporate existence, rights
(charter and statutory), permits, licenses, approvals,
privileges and franchises, except, with respect to such
rights, permits, licenses, approvals, and privileges, where
the failure to do so could not be reasonably expected to
have a Material Adverse Effect; provided, however, that the
Borrower and its Subsidiaries may consummate any merger or
consolidation permitted under Section 5.02(b) and provided
further that neither the Borrower nor any of its
Subsidiaries shall be required to preserve or maintain
(i) the corporate existence of any Minor Subsidiary if the
Board of Directors of the parent of such Minor Subsidiary,
or an executive officer of such parent to whom such Board of
Directors has delegated the requisite authority, shall
determine that the preservation and maintenance thereof is
no longer desirable in the conduct of the business of such
parent and that the loss thereof is not disadvantageous in
any material respect to the Borrower, such parent, the
Agents or the Lender Parties or (ii) any right, permit,
license, approval or franchise if the Board of Directors of
the Borrower or such Subsidiary shall determine that the
preservation thereof is no longer desirable in the conduct
of the business of the Borrower or such Subsidiary, as the
case may be, and that the loss thereof is not
disadvantageous in any material respect to the Borrower,
such Subsidiary, the Agents or the Lender Parties.
(e) Visitation Rights. At any reasonable time and
from time to time, (i) permit any Agent or any of the Lender
Parties or any agents or representatives thereof, (x) to
examine and make copies of and abstracts from the records
and books of account of, and visit the properties of, the
Borrower and any of its Subsidiaries, and (y) to discuss the
affairs, finances and accounts of the Borrower and any of
its Subsidiaries with any of their officers or directors and
with their independent certified public accountants,
provided, however, that with respect to the Lender Parties
and their rights described in clause (x) above, so long as
no Event of Default shall have occurred and be continuing,
such Lender Parties shall exercise rights at the same time
(such time to be arranged by the Paying Agent with the
Borrower) and (ii) take such action as may be necessary to
authorize its independent certified public accountants to
disclose to the Persons described in clause (i) above any
and all financial statements and other information of any
kind, including, without limitation, copies of any
management letter, or the substance of any information that
such accountants may have with respect to the business,
financial condition or results of operations of the Borrower
or any of its Subsidiaries.
(f) Keeping of Books. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in
which full and correct entries shall be made of all
financial transactions and the assets and business of the
Borrower and each such Subsidiary in accordance with
generally accepted accounting principles in effect from time
to time.
(g) Maintenance of Properties, Etc. Except as
otherwise permitted pursuant to Section 5.02(e), or where
the failure to do so, either individually or in the
aggregate, could not be reasonably expected to have a
Material Adverse Effect, maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of
its properties that are used or useful in the conduct of its
business in good working order and condition, ordinary wear
and tear excepted.
(h) Reporting Requirements. Furnish to the Lenders:
(i) as soon as available and in any event
within 45 days after the end of each of the first three
quarters of each Fiscal Year, Consolidated balance
sheet of the Borrower and its Subsidiaries as of the
end of such quarter and Consolidated statements of
income and cash flows of the Borrower and its
Subsidiaries for the period commencing at the end of
the previous Fiscal Year and ending with the end of
such quarter, duly certified (subject to year-end audit
adjustments) by the chief financial officer of the
Borrower as having been prepared in accordance with
generally accepted accounting principles and
certificates of the chief financial officer of the
Borrower as to compliance with the terms of this
Agreement and setting forth in reasonable detail the
then applicable Public Debt Ratings and Interest
Coverage Ratio and the calculations necessary to
demonstrate compliance with Section 5.03, provided that
in the event of any change in GAAP used in the
preparation of such financial statements, the Borrower
shall also provide, if necessary for the determination
of compliance with Section 5.03, a statement of
reconciliation conforming such financial statements to
GAAP;
(ii) as soon as available and in any event
within 90 days after the end of each Fiscal Year, a
copy of the annual audit report for such year for the
Borrower and its Subsidiaries, containing a
Consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such Fiscal Year and
Consolidated statements of income and cash flows of the
Borrower and its Subsidiaries for such Fiscal Year, in
each case accompanied by an opinion acceptable to the
Required Lenders by KPMG Peat Marwick LLP or other
independent public accountants acceptable to the
Required Lenders and certificates of the chief
financial officer of the Borrower as to compliance with
the terms of this Agreement and setting forth in
reasonable detail the then applicable Public Debt
Ratings and Interest Coverage Ratio and the
calculations necessary to demonstrate compliance with
Section 5.03, provided that in the event of any change
in GAAP used in the preparation of such financial
statements, the Borrower shall also provide, if
necessary for the determination of compliance with
Section 5.03, a statement of reconciliation conforming
such financial statements to GAAP;
(iii) as soon as possible and in any
event within five days after any Responsible Officer
becomes aware of the occurrence of each Default and
each event, development or circumstance that has or
could reasonably be expected to have a Material Adverse
Effect in each case continuing on the date of such
statement, a statement of the chief financial officer
of the Borrower setting forth details of such Default,
event, development or other circumstance (including,
without limitation, the anticipated effect thereof) and
the action that the Borrower has taken and proposes to
take with respect thereto;
(iv) promptly after the sending or filing
thereof, copies of all reports that the Borrower sends
to any of the holders of any class of its outstanding
securities, and copies of all reports and registration
statements (in the form in which such registration
statements become effective), other than registration
statements on Form S-8 or any successor form thereto,
that the Borrower or any Subsidiary files with the
Securities and Exchange Commission or any national
securities exchange;
(v) promptly after the commencement thereof,
notice of all actions and proceedings before any court,
governmental agency or arbitrator affecting the
Borrower or any of its Subsidiaries of the type
described in Section 4.01(f);
(vi) as soon as possible, and in any event
within five Business Days after any change in the then
applicable Public Debt Rating, a certificate of the
chief financial officer of the Borrower setting forth
such Public Debt Rating; and
(vii) such other information respecting
the business, condition (financial or otherwise),
operations, properties or prospects of Borrower or any
of its Subsidiaries as any Lender Party through either
Administrative Agent may from time to time reasonably
request.
(i) Transactions with Affiliates. Conduct, and cause
each of its Subsidiaries to conduct, all transactions
otherwise permitted under this Agreement with any of their
Affiliates on terms that are fair and reasonable and no less
favorable to the Borrower or such Subsidiary than it would
obtain in a comparable arm's-length transaction with a
Person not an Affiliate, other than, so long as no Default
has occurred and is continuing, transactions in the ordinary
course of business between or among the Borrower and any of
its Subsidiaries if such transaction could not reasonably be
expected to have a Material Adverse Effect.
SECTION 5.02. Negative Covenants. So long as any
Advance shall remain unpaid, any Letter of Credit shall be
outstanding (and not cash collateralized or for which a "back-to-
back" letter of credit shall not have been issued pursuant to
Section 2.10(b)(i)(B)) or any Lender Party shall have any
Commitment hereunder, the Borrower will not:
(a) Liens, Etc. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur,
assume or suffer to exist, any Lien on or with respect to
any of its properties of any character (including, without
limitation, accounts) whether now owned or hereafter
acquired, or sign or file, or permit any of its Subsidiaries
to sign or file, under the Uniform Commercial Code of any
jurisdiction, a financing statement that names the Borrower
or any of its Subsidiaries as debtor, or sign, or permit any
of its Subsidiaries to sign, any security agreement
authorizing any secured party thereunder to file such
financing statement, or assign, or permit any of its
Subsidiaries to assign, any accounts or other right to
receive income, excluding, however, from the operation of
the foregoing restrictions the following:
(i) Liens created or existing under the
Loan Documents;
(ii) Permitted Liens;
(iii) the Liens existing on the date
hereof and described on Schedule 5.02(a) hereto;
(iv) purchase money Liens upon or in real
property or equipment acquired or held by the Borrower
or any of its Subsidiaries in the ordinary course of
business to secure the purchase price of such property
or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition, construction or
improvement of any such property or equipment to be
subject to such Liens, or Liens existing on any such
property or equipment at the time of acquisition (other
than any such Liens created in contemplation of such
acquisition that were not incurred to finance the
acquisition of such property or equipment), or
extensions, renewals or replacements of any of the
foregoing for the same or a lesser amount; provided,
however, that no such Lien shall extend to or cover any
properties of any character other than the real
property or equipment being acquired, constructed or
improved (except that Liens incurred in connection with
the construction or improvement of real property may
extend to additional real property immediately
contiguous to such property being constructed or
improved) and no such extension, renewal or replacement
shall extend to or cover any such properties not
theretofore subject to the Lien being extended, renewed
or replaced;
(v) Liens arising in connection with
Capitalized Leases permitted under Section
5.02(d)(vii); provided that no such Lien shall extend
to or cover any assets other than the assets subject to
such Capitalized Leases;
(vi) Liens on property of a Person existing
at the time such Person is merged into or consolidated
with the Borrower or any Subsidiary of the Borrower or
becomes a Subsidiary of the Borrower; provided that
such Liens (other than replacement Liens permitted
under clause (xi) below) were not created in
contemplation of such merger, consolidation or
investment and do not extend to any assets other than
those of the Person merged into or consolidated with
the Borrower or such Subsidiary or acquired by the
Borrower or such Subsidiary;
(vii) Liens on accounts receivable and
other related assets arising solely in connection with
the sale or other disposition of such accounts
receivable pursuant to Section 5.02(e)(ii);
(viii) Liens securing Documentary L/Cs or
Trade Letters of Credit; provided that no such Lien
shall extend to or cover any assets of the Borrower or
any of its Subsidiaries other than the inventory (and
bills of lading and other documents related thereto)
being financed by any such Documentary L/C or Trade
Letter of Credit, as the case may be;
(ix) Liens in respect of goods consigned to
the Borrower or any of its Subsidiaries in the ordinary
course of business; provided that such Liens are
limited to the goods so consigned;
(x) financing statements filed in the
ordinary course of business solely for notice purposes
in respect of operating leases and in-store retail
licensing arrangements entered into in the ordinary
course of business;
(xi) Liens securing Debt incurred by the
Borrower or its Subsidiaries, in an aggregate amount at
any time outstanding not to exceed $250,000,000; and
(xii) the replacement, extension or
renewal of any Lien permitted by clause (iii), (v) or
(vi) above upon or in the same property theretofore
subject thereto or, in the case of Liens on real
property and related personal property of the Borrower
or any of its Subsidiaries, upon or in substitute
property of like kind of the Borrower or such
Subsidiary, as the case may be, determined in good
faith by the Board of Directors of the Borrower or such
Subsidiary to be of the same or lesser value than the
property theretofore subject thereto, or the
replacement, extension or renewal (without increase in
the amount or change in any direct or contingent
obligor) of the Debt secured thereby.
(b) Mergers, Etc. Merge or consolidate with or into
any Person, or permit any of its Material Subsidiaries to do
so, except that (i) any Subsidiary of the Borrower may merge
or consolidate with or into any other Subsidiary of the
Borrower, (ii) any Subsidiary of the Borrower may merge into
the Borrower and the Borrower may merge with any other
Person so long as the Borrower is the surviving corporation
and (iii) in connection with any acquisition, any Subsidiary
of the Borrower may merge into or consolidate with any other
Person or permit any other Person to merge into or
consolidate with it, so long as the Person surviving such
merger shall be a Subsidiary of the Borrower, provided, in
each case, that no Event of Default shall have occurred and
be continuing at the time of such proposed transaction or
would result therefrom.
(c) Accounting Changes. Make or permit, or permit any
of its Subsidiaries to make or permit, any change in
accounting policies or reporting practices, except as
required or permitted by generally accepted accounting
principles.
(d) Subsidiary Debt. Permit any of its Subsidiaries
to create, assume or suffer to exist, any Debt other than:
(i) Debt owed to the Borrower or to a wholly
owned Subsidiary of the Borrower;
(ii) in the case of FDS 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 Available Amount not to exceed
$250,000,000 at any time outstanding; and
(xi) Debt of any Person that becomes a
Subsidiary of the Borrower after the date hereof that
is existing at the time such Person becomes a
Subsidiary of the Borrower (other than Debt incurred
solely in contemplation of such Person becoming a
Subsidiary of the Borrower) and any Debt extending the
maturity of, or refunding or refinancing, such Debt, in
whole or in part, provided that the principal amount of
such Debt shall not be increased above the principal
amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and
contingent obligors therefor shall not be changed, as a
result of or in connection with such extension,
refunding or refinancing.
(e) Sales, Etc. of Assets. Sell, lease, transfer or
otherwise dispose of, or permit any of its Subsidiaries to
sell, lease, transfer or otherwise dispose of, any assets or
grant any option or other right to purchase, lease or
otherwise acquire any assets, except (i) sales of assets for
fair value, provided that the aggregate value of assets
sold, leased, transferred or otherwise disposed of pursuant
to this clause during the term of this Agreement shall not
be greater than 20% of the value of the total Tangible
Assets of the Borrower and its Subsidiaries on a
Consolidated basis as of February 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, any Letter of Credit shall be
outstanding (and not cash collateralized or for which a "back-to-
back" letter of credit shall not have been issued pursuant to
Section 2.10(b)(i)(B)) or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) Leverage Ratio. Maintain at the end of each
Measurement Period a Leverage Ratio not greater than 0.62 to
1.0.
(b) Interest Coverage Ratio. Maintain at the end of
each Measurement Period an Interest Coverage Ratio of at
least 3.25 to 1.0.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the
following events ("Events of Default") shall occur and be
continuing:
(a) The Borrower shall fail to pay any principal of
any Advance when the same becomes due and payable; or the
Borrower shall fail to pay any interest on any Advance or
make any other payment of fees or other amounts payable
under any Loan Document within three Business Days after the
same becomes due and payable; or
(b) Any representation or warranty made by the
Borrower herein (or any of its officers) in connection with
this Agreement shall prove to have been incorrect in any
material respect when made; or
(c) (i) The Borrower shall fail to perform or observe
any term, covenant or agreement contained in
Section 5.01(d), (e), (h) or (i), 5.02 (other than, with
respect to Section 5.01(h) and 5.02(a), to the extent
described in clause (ii) below) or 5.03, or (ii) the
Borrower shall fail to perform or observe any term, covenant
or agreement contained in Section 5.02(a) (solely with
respect to the imposition of non-consensual Liens) or
Section 5.01(h)(i) or (ii) if such failure shall remain
unremedied for 10 days or (iii) the Borrower shall fail to
perform any other term, covenant or agreement contained in
any Loan Document on its part to be performed or observed if
such failure shall remain unremedied for 20 days after the
earlier of the date on which (A) a Responsible Officer of
the Borrower becomes aware of such failure or (B) written
notice thereof shall have been given to the Borrower by the
Paying Agent or any Lender Party; or
(d) The Borrower or any of its Subsidiaries shall fail
to pay any principal of or premium or interest on any Debt
that is outstanding in a principal or notional amount of at
least $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 (other than Letter of Credit Advances by an Issuing
Bank or a Revolving Credit Lender pursuant to Section 2.16(c) and
other than Swing Line Advances by a Revolving Credit Lender
pursuant to Section 2.02(b)) and of each Issuing Bank to issue
Letters of Credit to be terminated, whereupon the same shall
forthwith terminate, and (ii) shall at the request, or may with
the consent, of the Required Lenders, by notice to the Borrower,
declare the Notes, all interest thereon and all other amounts
payable under this Agreement to be forthwith due and payable,
whereupon the Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment,
demand, protest or further notice of any kind, all of which are
hereby expressly waived by the Borrower; provided, however, that
in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the United States Bankruptcy
Code, (A) the obligation of each Lender to make Advances (other
than Letter of Credit Advances by an Issuing Bank or a Revolving
Credit Lender pursuant to Section 2.16(c) and other than Swing
Line Advances by a Revolving Credit Lender pursuant to Section
2.02(b)) and of each Issuing Bank to issue Letters of Credit
shall automatically be terminated and (B) the Notes, all such
interest and all such amounts shall automatically become and be
due and payable, without presentment, demand, protest or any
notice of any kind, all of which are hereby expressly waived by
the Borrower.
SECTION 6.02. Actions in Respect of the Letters of
Credit upon Event of Default. (a) If, at any time and from time
to time, any Letters of Credit shall have been issued by any
Issuing Bank hereunder and (i) an Event of Default shall have
occurred and be continuing, (ii) the Borrower shall have given
notice of prepayment in whole under Section 2.10 of all Advances
or shall have prepaid in whole all Advances, (iii) the
Termination Date shall have occurred or (iv) if at any time, as a
result of prepayments pursuant to Section 2.10, the Termination
Date shall be a date not more than 30 days following the
expiration of any Letter of Credit, then, upon the occurrence of
any of the events described in clauses (i) through (iv) above,
the Paying Agent may, and upon the request of any Issuing Bank or
of the Required Lenders shall, whether in addition to the taking
by any Agent of any of the actions described in Article VI or
otherwise, make demand upon the Borrower to, and forthwith upon
such demand the Borrower will, pay to the Paying Agent for its
benefit and the ratable benefit of the Lender Parties in same day
funds at the Paying Agent's office designated in such demand, for
deposit in a special cash collateral account (the "Letter of
Credit Collateral Account") to be maintained in the name of the
Paying Agent and under the sole dominion and control of the
Paying Agent for the benefit of the Paying Agent and the ratable
benefit of the Lender Parties at such place as shall be
designated by the Paying Agent, an amount equal to the amount of
the Letter of Credit Obligations.
(b) The Borrower hereby pledges and assigns to the
Paying Agent for its benefit and the ratable benefit of the
Lender Parties, and grants to the Paying Agent for its benefit
and the ratable benefit of the Lender Parties a lien on and a
security interest in, the following collateral (the "Letter of
Credit Collateral"):
(i) the Letter of Credit Collateral Account, all cash
deposited therein, and all certificates and instruments, if
any, from time to time representing or evidencing the Letter
of Credit Collateral Account;
(ii) all Eligible Securities from time to time held by
the Paying Agent and all certificates and instruments from
time to time representing or evidencing Eligible Securities;
(iii) all notes, certificates of deposit and other
instruments from time to time hereafter delivered to or
otherwise possessed by the Paying Agent for or on behalf of
the Borrower in substitution for or in respect of any or all
of the then existing Letter of Credit Collateral;
(iv) all interest, dividends, cash, instruments and
other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any
or all of the then existing Letter of Credit Collateral; and
(v) to the extent not covered by clauses (i) through
(iv) above, all proceeds of any or all of the foregoing
Letter of Credit Collateral.
The lien and security interest granted hereby secures the payment
of all Obligations of the Borrower now or hereafter existing
hereunder and under any other Loan Document.
(c) The Borrower hereby authorizes the Paying Agent to
apply, from time to time after funds are deposited in the Letter
of Credit Collateral Account, funds then held in the Letter of
Credit Collateral Account to the payment of any amounts, in such
order as the Paying Agent may elect, as shall have become or
shall become due and payable by the Borrower to the Lender
Parties in respect of the Letters of Credit.
(d) Neither the Borrower nor any Person claiming or
acting on behalf of or through the Borrower shall have any right
to withdraw any of the funds held in the Letter of Credit
Collateral Account, except as provided in Section 6.02(h);
provided, however, that as long as no Event of Default shall have
occurred and be continuing, and to the extent that there is an
amount in excess of $1,000,000 in the Letter of Credit Collateral
Account at the end of any Business Day after taking into account
applications of funds, if any, from the Letter of Credit
Collateral Account made pursuant to Section 6.02(c), the Paying
Agent will, at the written request of the Borrower, from time to
time invest amounts on deposit in the Letter of Credit Collateral
Account in such Eligible Securities as the Borrower may select
and the Paying Agent may approve; provided further that the
Borrower shall take such action as the Paying Agent may deem
necessary or desirable to create a perfected security interest in
favor of the Paying Agent on behalf of itself and the Lender
Parties in any such Eligible Securities. If the Borrower shall
have the right to have amounts on deposit in the Letter of Credit
Collateral Account invested by the Paying Agent, but shall have
failed to request the Paying Agent to invest such amounts, the
Paying Agent will endeavor to invest such amounts in such
Eligible Securities as the Paying Agent shall select. Any
interest received by the Paying Agent in respect of Eligible
Securities shall be credited against the Letter of Credit
Obligations. Non-interest proceeds from Eligible Securities that
are not invested or reinvested in Eligible Securities as provided
above shall be deposited and held in cash in the Letter of Credit
Collateral Account under the sole dominion and control of the
Paying Agent.
(e) The Borrower agrees that it will not (i) sell or
otherwise dispose of any interest in the Letter of Credit
Collateral or (ii) create or permit to exist any lien, security
interest or other charge or encumbrance upon or with respect to
any of the Letter of Credit Collateral, except for the security
interest created by this Section 6.02.
(f) If any Event of Default shall have occurred and be
continuing:
(i) The Paying Agent may, in its sole discretion,
without notice to the Borrower except as required by law and
at any time from time to time, charge, set off and otherwise
apply all or any part of first, the Letter of Credit
Obligations and second, the other Obligations of the
Borrower now or hereafter existing under any of the Loan
Documents, against the Letter of Credit Collateral Account
or any part thereof, in such order as the Paying Agent shall
elect. The Paying Agent agrees promptly to notify the
Borrower after any such set-off and application made by the
Paying Agent, provided that the failure to give such notice
shall not affect the validity of such set-off and
application. The rights of the Paying Agent under this
Section 6.02(f) are in addition to other rights and remedies
(including other rights of set-off) that the Paying Agent
may have.
(ii) The Paying Agent may also exercise, in its sole
discretion, in respect of the Letter of Credit Collateral
Account, in addition to the other rights and remedies
provided for herein or otherwise available to it, all the
rights and remedies of a secured party upon default under
the Uniform Commercial Code in effect in the State of New
York at that time, and the Paying Agent may, without notice
except as specified below, sell the Letter of Credit
Collateral or any part thereof in one or more parcels at
public or private sale, at any of the Paying Agent's offices
or elsewhere, for cash, on credit or for future delivery,
and upon such other terms as the Paying Agent may deem
commercially reasonable. The Borrower agrees that, to the
extent notice of sale shall be required by law, at least ten
days' notice to the Borrower of the time and place of any
public sale or the time after which any private sale is to
be made shall constitute reasonable notification. The
Paying Agent shall not be obligated to make any sale of
Letter of Credit Collateral or any part thereof, regardless
of notice of sale having been given. The Paying Agent may
adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such
sale may, without further notice, be made at the time and
place to which it was so adjourned.
(iii) Any cash held in the Letter of Credit Collateral
Account, and all cash proceeds received by the Paying Agent
in respect of any sale of, collection from or other
realization upon all or any part of the Letter of Credit
Collateral Account may, in the discretion of the Paying
Agent, then or at any time thereafter be applied (after
payment of any amounts payable pursuant to Section 8.04) in
whole or in part by the Paying Agent for the ratable benefit
of the Lender Parties against all or any part of the
obligations of the Borrower now or hereafter existing under
any of the Loan Documents in such order as the Paying Agent
may elect.
(g) The Paying Agent shall be deemed to have exercised
reasonable care in the custody and preservation of the Letter of
Credit Collateral if the Letter of Credit Collateral is accorded
treatment substantially equal to that which the Paying Agent
accords its own property, it being understood that the Paying
Agent shall not have any responsibility or liability (i) for
ascertaining or taking action with respect to calls, conversions,
exchanges, maturities, tenders or other matters relative to any
Eligible Securities, whether or not the Paying Agent has or is
deemed to have knowledge of such matters, (ii) for taking any
necessary steps to preserve rights against any parties with
respect to the Letter of Credit Collateral, (iii) for the
collection of any proceeds from Eligible Securities, (iv) by
reason of any invalidity, lack of value or uncollectability of
any of the payments received by the Paying Agent from obligors
with respect to Eligible Securities, or (v) for any loss
resulting from investments made pursuant to Section 6.02(d),
except to the extent such loss was attributable to the Paying
Agent's gross negligence or wilful misconduct in complying with
Section 6.02(d), or (vi) in connection with any investments made
pursuant to Section 6.02(d) without a written request from the
Borrower, or any failure by the Paying Agent to make any such
investment.
(h) Any surplus of the funds held in the Letter of
Credit Collateral Account and remaining after payment in full of
all of the obligations of the Borrower under this Agreement and
under any other Loan Document after the Termination Date shall be
paid to the Borrower or to whomsoever may be lawfully entitled to
receive such surplus.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender
Party hereby appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under this Agreement and the other Loan Documents as
are delegated to such Agent by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto.
As to any matters not expressly provided for by the Loan
Documents (including, without limitation, enforcement or
collection of the Notes), no Agent shall be required to exercise
any discretion or take any action, but shall be required to act
or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the
Required Lenders, and such instructions shall be binding upon all
Lender Parties and all holders of Notes; provided, however, that
no Agent shall be required to take any action that exposes such
Agent to personal liability or that is contrary to this Agreement
or applicable law. Each Agent agrees to give to each Lender
Party prompt notice of each notice given to it by the Borrower
pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. No Agent nor any
of its directors, officers, agents or employees shall be liable
for any action taken or omitted to be taken by it or them under
or in connection with the Loan Documents, except for its or their
own gross negligence or willful misconduct. Without limitation
of the generality of the foregoing, each Agent: (i) may treat
the payee of any Note as the holder thereof until the Paying
Agent receives and accepts an Assignment and Acceptance entered
into by the Lender Party that is the payee of such Note, as
assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (ii) may consult with legal counsel (including
counsel for the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or
experts; (iii) makes no warranty or representation to any Lender
Party and shall not be responsible to any Lender Party for any
statements, warranties or representations (whether written or
oral) made in or in connection with the Loan Documents;
(iv) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or
conditions of any Loan Document on the part of the Borrower or to
inspect the property (including the books and records) of the
Borrower; (v) shall not be responsible to any Lender Party for
the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to
be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant hereto; and
(vi) shall incur no liability under or in respect of any Loan
Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram or
telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. Citibank, Chase and Affiliates. With
respect to their Commitments, the Advances made by them and the
Note issued to them, Citibank and Chase shall have the same
rights and powers under the Loan Documents as any other Lender
Party and may exercise the same as though they were not the
Agents; and the terms "Lender" or "Lenders" and "Lender Party" or
"Lender Parties" shall, unless otherwise expressly indicated,
include Citibank and Chase in their individual capacities.
Citibank, Chase and their Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any
kind of business with, the Borrower, any of its Subsidiaries and
any Person who may do business with or own securities of the
Borrower or any such Subsidiary, all as if Citibank and Chase
were not the Agents and without any duty to account therefor to
the Lender Parties.
SECTION 7.04. Lender Credit Decision. Each Lender
Party acknowledges that it has, independently and without
reliance upon any Agent or any other Lender and based on the
financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement.
Each Lender Party also acknowledges that it will, independently
and without reliance upon any Agent or any other Lender Party and
based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party
(other than the Designated Bidders) severally agrees to indemnify
the Agents, the Syndication Agent and 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 Agent or Documentation Agent, as the case may be, in
any way relating to or arising out of the Loan Documents or any
action taken or omitted by such Agent, Syndication Agent or
Documentation Agent, as the case may be, under the Loan
Documents; provided, however, that no Lender Party shall be
liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
or disbursements resulting from the gross negligence or willful
misconduct of any Agent, Syndication Agent or Documentation
Agent, as the case may be. Without limitation of the foregoing,
each Lender Party (other than the Designated Bidders) agrees to
reimburse each Agent, Syndication Agent or Documentation Agent,
as the case may be, promptly upon demand for its ratable share of
any reasonable costs and expenses (including, without limitation,
reasonable fees and expenses of counsel) payable by the Borrower
under Section 8.04, to the extent that such Agent, Syndication
Agent or Documentation Agent, as the case may be is not promptly
reimbursed for such costs and expenses by the Borrower. For
purposes of this Section 7.05(a), the Lender Parties' respective
ratable shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective
Lender Parties, (b) their respective Pro Rata Shares of the
aggregate Available Amount of all Letters of Credit outstanding
at such time and (c) their respective Unused Revolving Credit
Commitments at such time. In the event that any Defaulted
Advance shall be owing by any Defaulting Lender at any time, such
Lender Party's Commitment with respect to the Facility under
which such Defaulted Advance was required to have been made shall
be considered to be unused for purposes of this Section 7.05(a)
to the extent of the amount of such Defaulted Advance. The
failure of any Lender to reimburse such Agent, Syndication Agent
or Documentation Agent, as the case may be, promptly upon demand
for its ratable share of any amount required to be paid by the
Lender Parties to such Agent, Syndication Agent or Documentation
Agent, as the case may be, as provided herein shall not relieve
any other Lender Party of its obligation hereunder to reimburse
such Agent, Syndication Agent or Documentation Agent, as the case
may be, for its ratable share of such amount, but no Lender Party
shall be responsible for the failure of any other Lender Party to
reimburse such Agent, Syndication Agent or Documentation Agent,
as the case may be, for such other Lender Party's ratable share
of such amount. Without prejudice to the survival of any other
agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this
Section 7.05(a) shall survive the payment in full of principal,
interest and all other amounts payable hereunder and under the
other Loan Documents.
(b) Each Lender Party (other than the Designated
Bidders) severally agrees to indemnify each Issuing Bank (to the
extent not reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against such Issuing Bank in any way relating to
or arising out of the Loan Documents or any action taken or
omitted by such Issuing Bank under the Loan Documents; provided,
that no Lender Party shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements resulting from
such Issuing Bank's gross negligence or willful misconduct.
Without limitation of the foregoing, each Lender Party (other
than the Designated Bidders) agrees to reimburse such Issuing
Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, reasonable fees and
expenses of counsel) payable by the Borrower under Section 8.04,
to the extent that such Issuing Bank is not promptly reimbursed
for such costs and expenses by the Borrower. For purposes of
this Section 7.05(b), the Lenders Parties' respective ratable
shares of any amount shall be determined, at any time, according
to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender
Parties, (b) their respective Pro Rata Shares of the aggregate
Available Amount of all Letters of Credit outstanding at such
time, and (c) their respective Unused Revolving Credit
Commitments at such time. The failure of any Lender party (other
than a Designated Bidder) to reimburse such Issuing Bank promptly
upon demand for its ratable share of any amount required to be
paid by the Lender Parties to such Issuing Bank as provided
herein shall not relieve any other Lender Party of its obligation
hereunder to reimburse such Issuing Bank for its ratable share of
such amount, but no Lender Party shall be responsible for the
failure of any other Lender Party to reimburse such Issuing Bank
for such other Lender Party's ratable share of such amount.
Without prejudice to the survival of any other agreement of any
Lender Party hereunder, the agreement and obligations of each
Lender Party contained in this Section 7.05(b) shall survive the
payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents.
SECTION 7.06. Successor Agents. Either Administrative
Agent or the Paying Agent may resign at any time by giving
written notice thereof to the Lender Parties and the Borrower and
may be removed at any time with or without cause by the Required
Lenders. Upon any such resignation or removal, the Required
Lenders shall have the right to appoint a successor
Administrative Agent or Paying Agent, as the case may be,
subject, so long as no Default shall have occurred and be
continuing, to the consent of the Borrower (which consent shall
not be unreasonably withheld or delayed). If no successor
Administrative Agent or Paying Agent shall have been so appointed
by the Required Lenders, and shall have accepted such
appointment, within 30 days after the retiring Administrative
Agent's or Paying Agent's giving of notice of resignation or the
Required Lenders' removal of the retiring Administrative Agent or
Paying Agent, then the retiring Administrative Agent or Paying
Agent may, on behalf of the Lender Parties, appoint a successor
Administrative Agent or Paying Agent, which shall be a commercial
bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of
at least $1,000,000,000. Upon the acceptance of any appointment
as Administrative Agent or Paying Agent hereunder by a successor
Administrative Agent or Paying Agent, such successor
Administrative Agent or Paying Agent shall thereupon succeed to
and become vested with all the rights, powers, discretion,
privileges and duties of the retiring Administrative Agent or
Paying Agent, and the retiring Administrative Agent or Paying
Agent shall be discharged from its duties and obligations under
this Agreement. After any retiring Administrative Agent's or
Paying Agent's resignation or removal hereunder as Administrative
Agent or Paying Agent, the provisions of this Article VII shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was Administrative Agent or Paying Agent
under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver
of any provision of this Agreement or the Revolving Credit Notes,
nor consent to any departure by the Borrower therefrom, shall in
any event be effective unless the same shall be in writing and
signed by the Required Lenders, and then such waiver or consent
shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no
amendment, waiver or consent shall, unless in writing and signed
by all the Lenders (other than the Designated Bidders and other
than any Lender that is, at such time, a Defaulting Lender), do
any of the following: (a) waive any of the conditions specified
in Section 3.01, (b) increase the Commitments of the Lenders or
subject the Lenders to any additional obligations, (c) reduce the
principal of, or interest on, the Revolving Credit Notes or any
fees or other amounts payable hereunder, (d) postpone any date
fixed for any payment of principal of, or interest on, the
Revolving Credit Notes or any fees or other amounts payable
hereunder, (e) change the percentage of the Commitments, the
aggregate Available Amount of outstanding Letters of Credit or of
the aggregate unpaid principal amount of the Revolving Credit
Notes, or the number of Lenders, that shall be required for the
Lenders or any of them to take any action hereunder or (f) amend
this Section 8.01; and provided further that no amendment, waiver
or consent shall, unless in writing and signed by each Swing Line
Bank or Issuing Bank, as the case may be, in addition to the
Lenders required above to take such action, affect the rights or
duties of the Swing Line Banks or of the Issuing Banks, as the
case may be, under this Agreement or any Note; and provided,
further, that no amendment, waiver or consent shall, unless in
writing and signed by the Administrative Agents or the Paying
Agent, as the case may be, in addition to the Lenders required
above to take such action, affect the rights or duties of the
Administrative Agents or Paying Agent, as the case may be, under
this Agreement or any Note.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing
(including telecopier, telegraphic or telex communication) and
mailed, telecopied, telegraphed, telexed or delivered, if to the
Borrower, at its address at 7 West Seventh Street, Cincinnati,
Ohio 45202, Attention: Chief Financial Officer, with a copy to
General Counsel; if to any Initial Lender, Swing Line Bank or any
Initial Issuing Bank, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender
Party, at its Domestic Lending Office specified in the Assignment
and Acceptance pursuant to which it became a Lender Party; and if
Citibank in its capacity as Paying Agent or Administrative Agent,
at its address at 2 Penns Way, Suite 200, New Castle, Delaware
19720, Attention: 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 Party or any Agent to exercise, and no delay
in exercising, any right hereunder or under any Note shall
operate as a waiver thereof; nor shall any single or partial
exercise of any such right preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. Costs and Expenses. (a) The Borrower
agrees to pay on demand all costs and expenses of the Paying
Agent and the Administrative Agents in connection with the
preparation, execution, delivery, administration, modification
and amendment of the Loan Documents and the other documents to be
delivered hereunder, including, without limitation, (A) all due
diligence, syndication (including printing, distribution and bank
meetings), transportation, computer, duplication, appraisal,
consultant, and audit expenses and (B) the reasonable fees and
expenses of counsel for the Paying Agent and the Administrative
Agents with respect thereto and with respect to advising the
Paying Agent and the Administrative Agents as to their rights and
responsibilities under this Agreement. The Borrower further
agrees to pay on demand all costs and expenses of the Paying
Agent, the Administrative Agents and the Lenders, if any
(including, without limitation, reasonable counsel fees and
expenses), in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of the Loan
Documents and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of
counsel for the Paying Agent, the Administrative Agents and each
Lender Party in connection with the enforcement of rights under
this Section 8.04(a).
(b) The Borrower agrees to indemnify and hold harmless
the Agents and each Lender and each of their Affiliates and their
officers, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against any and all claims,
damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be
incurred by or asserted or awarded against any Indemnified Party,
in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any
investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Loan Documents, any of
the transactions contemplated thereby or the actual or proposed
use of the proceeds of the Advances or (ii) the actual or alleged
presence of Hazardous Materials on any property of the Borrower
or any of its Subsidiaries or any Environmental Action relating
in any way to the Borrower or any of its Subsidiaries, except to
the extent such claim, damage, loss, liability or expense is
found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the
indemnity in this Section 8.04(b) applies, such indemnity shall
be effective whether or not such investigation, litigation or
proceeding is brought by the Borrower, its directors,
shareholders or creditors or an Indemnified Party or any other
Person or any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are
consummated, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment
by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. The
Borrower also agrees that no Indemnified Party shall have any
liability (whether direct or indirect, in contract or tort or
otherwise) to the Borrower or any of its security holders or
creditors arising out of, related to or in connection with the
Facilities, the actual or proposed use of the Advances, the Loan
Documents or any of the transactions contemplated thereby, except
(a) to the extent that such liability is found in a final
non-appealable judgment by a court of competent jurisdiction to
have resulted from such Indemnified Party's gross negligence or
willful misconduct and (b) for direct, as opposed to
consequential, damages for breach of the Indemnified Parties'
obligations hereunder.
(c) If any payment of principal of, or Conversion of,
any Eurodollar Rate Advance or LIBO Rate Advance is made by the
Borrower to or for the account of a Lender Party other than on
the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.08(d) or (e),
2.10 or 2.12, acceleration of the maturity of the Notes pursuant
to Section 6.01 or for any other reason, or by an Eligible
Assignee to a Lender Party other than on the last day of the
Interest Period for such Advance upon an assignment of rights and
obligations under this Agreement pursuant to Section 8.07 as a
result of a demand by the Borrower pursuant to Section 8.07(a),
the Borrower shall, upon demand by such Lender Party (with a copy
of such demand to the Paying Agent), pay to the Paying Agent for
the account of such Lender Party any amounts required to
compensate such Lender Party for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment
or Conversion, including, without limitation, any loss (excluding
loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds
acquired by any Lender Party to fund or maintain such Advance.
(d) If the Borrower fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document,
including, without limitation, reasonable fees and expenses of
counsel and indemnities, such amount may be paid on behalf of the
Borrower by the Paying Agent or any Lender, in its sole
discretion.
(e) Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in Sections 2.11, 2.14 and
8.04 shall survive the payment in full of principal, interest and
all other amounts payable hereunder and under the Notes.
SECTION 8.05. Right of Set-off. Upon (i) the
occurrence and during the continuance of any Event of Default and
(ii) the making of the request or the granting of the consent
specified by Section 6.01 to authorize the Agents to declare the
Notes due and payable pursuant to the provisions of Section 6.01,
each Lender Party and each of its Affiliates is hereby authorized
at any time and from time to time, to the fullest extent
permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any
time held and other indebtedness at any time owing by such Lender
Party or such Affiliate to or for the credit or the account of
the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement and the
Note held by such Lender Party, whether or not such Lender Party
shall have made any demand under this Agreement or such Note and
although such obligations may be unmatured. Each Lender Party
agrees promptly to notify the Borrower after any such set-off and
application, provided that the failure to give such notice shall
not affect the validity of such set-off and application. The
rights of each Lender Party and its Affiliates under this Section
are in addition to other rights and remedies (including, without
limitation, other rights of set-off) that such Lender Party and
its Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall
become effective (other than Sections 2.01 and 2.03, which shall
only become effective upon satisfaction of the conditions
precedent set forth in Section 3.01) when it shall have been
executed by the Borrower and the Agents and when the Paying Agent
shall have been notified by each Initial Lender and Initial
Issuing Bank that such Initial Lender or Initial Issuing Bank, as
the case may be, has executed it and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Agents and
each Lender Party and their respective successors and assigns,
except that the Borrower shall not have the right to assign its
rights hereunder or any interest herein without the prior written
consent of the Lenders.
SECTION 8.07. Assignments, Designations and
Participations. (a) Each Lender (other than the Designated
Bidders) may, and if demanded by the Borrower (following a demand
by such Lender pursuant to Section 2.11) upon at least ten
Business Days' notice to such Lender and the Paying Agent will,
assign to one or more Persons all or a portion of its rights and
obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Revolving Credit Advances
owing to it and the Revolving Credit Note or Notes held by it);
provided, however, that (i) each such assignment shall be of a
constant, and not a varying, percentage of all rights and
obligations under this Agreement (other than any right to make
Competitive Bid Advances, Competitive Bid Advances owing to it
and Competitive Bid Notes), (ii) except in the case of an
assignment to a Person that, immediately prior to such
assignment, was a Lender or an assignment of all of a Lender's
rights and obligations under this Agreement, the amount of the
Commitment of the assigning Lender being assigned pursuant to
each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event
be less than $10,000,000 or an integral multiple of $1,000,000 in
excess thereof, (iii) each such assignment shall be to an
Eligible Assignee, (iv) each such assignment made as a result of
a demand by the Borrower pursuant to this Section 8.07(a) shall
be arranged by the Borrower after consultation with the Paying
Agent and shall be either an assignment of all of the rights and
obligations of the assigning Lender under this Agreement or an
assignment of a portion of such rights and obligations made
concurrently with another such assignment or other such
assignments that together cover all of the rights and obligations
of the assigning Lender under this Agreement, (v) no Lender shall
be obligated to make any such assignment as a result of a demand
by the Borrower pursuant to this Section 8.07(a) unless and until
such Lender shall have received one or more payments from either
the Borrower or one or more Eligible Assignees in an aggregate
amount at least equal to the aggregate outstanding principal
amount of the Advances owing to such Lender, together with
accrued interest thereon to the date of payment of such principal
amount and all other amounts payable to such Lender under this
Agreement, and (vi) the parties to each such assignment shall
execute and deliver to the Paying Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance, together
with any Revolving Credit Note subject to such assignment and a
processing and recordation fee of $3,000.
(b) Each Issuing Bank may assign to one or more
Eligible Assignees all or a portion of its rights and obligations
under the undrawn portion of its Letter of Credit Commitment at
any time; provided, however, that (i) except in the case of an
assignment to a Person that immediately prior to such assignment
was an Issuing Bank or an assignment of all of an Issuing Bank's
rights and obligations under this Agreement, the amount of the
Letter of Credit Commitment of the assigning Issuing Bank being
assigned pursuant to each such assignment (determined as of the
date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than $10,000,000 and shall
be in an integral multiple of $1,000,000 in excess thereof, (ii)
each such assignment shall be to an Eligible Assignee, and (iii)
the parties to each such assignment shall execute and deliver to
the Paying Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a
processing and recordation fee (unless paid pursuant to Section
8.07(a)) of $2,000 for each Assignment and Acceptance between an
Issuing Bank and its Affiliate or another Issuing Bank or $3,000
for each other Assignment and Acceptance.
(c) Upon the execution, delivery, acceptance and
recording, from and after the effective date specified in each
Assignment and Acceptance, (x) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (y) the Lender or
Issuing Bank assignor thereunder shall, to the extent that rights
and obligations hereunder have been assigned by it pursuant to
such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the
case of an Assignment and Acceptance covering all or the
remaining portion of an assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party
hereto).
(d) By executing and delivering an Assignment and
Acceptance, the Lender assignor thereunder and the assignee
thereunder confirm to and agree with each other and the other
parties hereto as follows: (i) other than as provided in such
Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with any Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in
connection with, any Loan Document or any other instrument or
document furnished pursuant hereto; (ii) such assigning Lender
makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning
Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the
Agents to take such action as agent on its behalf and to exercise
such powers and discretion under this Agreement as are delegated
to the Agents by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with their
terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender and an assignee representing that
it is an Eligible Assignee, together with any Revolving Credit
Note or Notes, if any, subject to such assignment, the Paying
Agent shall, if such Assignment and Acceptance has been completed
and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its
receipt of such notice and if so requested by the assignee, the
Borrower, at its own expense, shall execute and deliver to the
Paying Agent in exchange for the surrendered Revolving Credit
Note a new Note to the order of such assignee in an amount equal
to the Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Lender has retained a Commitment
hereunder and so requests, a new Revolving Credit Note to the
order of the assigning Lender in an amount equal to the
Commitment retained by it hereunder. Such new Revolving Credit
Note or Notes, if any, shall be in an aggregate principal amount
equal to the aggregate principal amount of such surrendered
Revolving Credit Note or Notes, if any, shall be dated the
effective date of such Assignment and Acceptance and shall
otherwise be in substantially the form of Exhibit A-1 hereto.
(f) Each Lender (other than the Designated Bidders)
may designate one or more banks or other entities to have a right
to make Competitive Bid Advances as a Lender pursuant to
Section 2.03; provided, however, that (i) no such Lender shall be
entitled to make more than two such designations, (ii) each such
Lender making one or more of such designations shall retain the
right to make Competitive Bid Advances as a Lender pursuant to
Section 2.03, (iii) each such designation shall be to a
Designated Bidder and (iv) the parties to each such designation
shall execute and deliver to the Paying Agent, for its acceptance
and recording in the Register, a Designation Agreement. Upon
such execution, delivery, acceptance and recording, from and
after the effective date specified in each Designation Agreement,
the designee thereunder shall be a party hereto with a right to
make Competitive Bid Advances as a Lender pursuant to
Section 2.03 and the obligations related thereto.
(g) By executing and delivering a Designation
Agreement, the Lender making the designation thereunder and its
designee thereunder confirm and agree with each other and the
other parties hereto as follows: (i) such Lender makes no
representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in
or in connection with any Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or
value of, or the perfection or priority of any lien or security
interest created or purported to be created under or in
connection with, this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such Lender makes no
representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or
document furnished pursuant hereto; (iii) such designee confirms
that it has received a copy of this Agreement, together with
copies of the financial statements referred to in Section 4.01
and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter
into such Designation Agreement; (iv) such designee will,
independently and without reliance upon any Agent, such
designating Lender or any other Lender and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not
taking action under this Agreement; (v) such designee confirms
that it is a Designated Bidder; (vi) such designee appoints and
authorizes the Agents to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement
as are delegated to the Agents by the terms hereof, together with
such powers and discretion as are reasonably incidental thereto;
and (vii) such designee agrees that it will perform in accordance
with their terms all of the obligations which by the terms of
this Agreement are required to be performed by it as a Lender.
(h) Upon its receipt of a Designation Agreement
executed by a designating Lender and a designee representing that
it is a Designated Bidder, the Paying Agent shall, if such
Designation Agreement has been completed and is substantially in
the form of Exhibit D hereto, (i) accept such Designation
Agreement, (ii) record the information contained therein in the
Register and (iii) give prompt notice thereof to the Borrower.
(i) The Paying Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and
Acceptance and each Designation Agreement delivered to and
accepted by it and a register for the recordation of the names
and addresses of the Lenders and, with respect to Lenders other
than Designated Bidders, the Commitment of, and principal amount
of the Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the
Borrower, the Paying Agent and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for
all purposes of this Agreement. The Register shall be available
for inspection by the Borrower or any Lender at any reasonable
time and from time to time upon reasonable prior notice.
(j) Each Lender may sell participations to one or more
banks or other entities (other than the Borrower or any of its
Affiliates) in or to all or a portion of its rights and
obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Advances owing to it and
the Note or Notes held by it); provided, however, that (i) such
Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall
remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of
any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agents and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such
Lender's rights and obligations under this Agreement and (v) no
participant under any such participation shall have any right to
approve any amendment or waiver of any provision of this
Agreement or any Note, or any consent to any departure by the
Borrower therefrom, except to the extent that such amendment,
waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or postpone any
date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation.
(k) Any Lender may, in connection with any assignment,
designation or participation or proposed assignment, designation
or participation pursuant to this Section 8.07, disclose to the
assignee, designee or participant or proposed assignee, designee
or participant, any information relating to the Borrower
furnished to such Lender by or on behalf of the Borrower;
provided that, prior to any such disclosure, the assignee,
designee or participant or proposed assignee, designee or
participant shall agree to preserve the confidentiality of any
Confidential Information relating to the Borrower received by it
from such Lender.
(l) Notwithstanding any other provision set forth in
this Agreement, any Lender may at any time create a security
interest in all or any portion of its rights under this Agreement
(including, without limitation, the Advances owing to it and the
Note or Notes held by it) in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 8.08. Confidentiality. None of the Agents or
any Lender Party shall disclose any Confidential Information to
any Person without the written consent of the Borrower, other
than (a) to such Agent's or such Lender Party's Affiliates to
whom disclosure is required to enable any such Agent or Lender
Party to perform its obligations under this Agreement or in
connection with the administration or monitoring of the Loan
Documents by such Agent or Lender Party and their officers,
directors, employees, agents, representatives and advisors and to
actual or prospective Eligible Assignees and participants, and
that, in each case, are advised of the confidential nature of
such Confidential Information, (b) as required by any law, rule
or regulation or judicial process, (c) to any rating agency when
required by it in connection with the Competitive Bid Advances
made by, and the rating of, any Designated Bidder, provided that,
prior to any such disclosure, such rating agency shall undertake
to preserve the confidentiality of any Confidential Information
received by it from such Lender and (d) as requested or required
by any state, federal or foreign authority or examiner regulating
banks or banking.
SECTION 8.09. No Liability of the Issuing Banks. The
Borrower assumes all risks of the acts or omissions of any
beneficiary or transferee of any Letter of Credit with respect to
its use of such Letter of Credit. Neither any Issuing Bank nor
any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection
therewith; (b) the validity, sufficiency or genuineness of
documents, or of any endorsement thereon, even if such documents
should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (c) payment by such Issuing Bank against
presentation of documents that do not comply with the terms of a
Letter of Credit, including failure of any documents to bear any
reference or adequate reference to the Letter of Credit, unless
such documents are substantially different from the applicable
form specified by such Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment
under any Letter of Credit, except that the Borrower shall have a
claim against such Issuing Bank, and such Issuing Bank shall be
liable to the Borrower, to the extent of any direct, but not
consequential, damages suffered by the Borrower that the Borrower
proves were caused by (i) such Issuing Bank's willful misconduct
or gross negligence in determining whether documents presented
under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) such Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of
a draft and certificates strictly complying with the terms and
conditions of the Letter of Credit. In furtherance and not in
limitation of the foregoing, such Issuing Bank may accept
documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any
notice or information to the contrary.
SECTION 8.10. Governing Law. This Agreement and the
Notes shall be governed by, and construed in accordance with, the
laws of the State of New York.
SECTION 8.11. Execution in Counterparts. This
Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a
manually executed counterpart of this Agreement.
SECTION 8.12. Judgment. (a) If for the purposes of
obtaining judgment in any court it is necessary to convert a sum
due hereunder or under the Notes in any currency (the "Original
Currency") into another currency (the "Other Currency") the
parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be that
at which in accordance with normal banking procedures the Paying
Agent could purchase the Original Currency with the Other
Currency at 9:00 A.M. (New York City time) on the first Business
Day preceding that on which final judgment is given.
(b) The obligation of the Borrower in respect of any
sum due in the Original Currency from it to any Lender Party or
the Paying Agent hereunder shall, notwithstanding any judgment in
any Other Currency, be discharged only to the extent that on the
Business Day following receipt by such Lender Party or the Paying
Agent (as the case may be) of any sum adjudged to be so due in
such Other Currency such Lender Party or the Paying Agent (as the
case may be) may in accordance with normal banking procedures
purchase Dollars with such Other Currency; if the amount of the
Original Currency so purchased is less than the sum originally
due to such Lender Party or the Paying Agent (as the case may be)
in the Original Currency, the Borrower agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify
such Lender Party or the Paying Agent (as the case may be)
against such loss, and if the amount of the Original Currency so
purchased exceeds the sum originally due to any Lender Party or
the Paying Agent (as the case may be) in the Original Currency,
such Lender Party or the Paying Agent (as the case may be) agrees
to remit to the Borrower such excess.
SECTION 8.13. Jurisdiction, Etc. (a) Each of the
parties hereto hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of
any New York State court or federal court of the United States of
America sitting in New York City, and any appellate court from
any thereof, in any action or proceeding arising out of or
relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and
determined in any such New York State court or, to the extent
permitted by law, in such federal court. Each of the parties
hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any
right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or the Notes in the courts
of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and
effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the Notes in any
New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.
SECTION 8.14. Waiver of Jury Trial. Each of the
Borrower, the Agents and the Lender Parties hereby irrevocably
waives all right to trial by jury in any action, proceeding or
counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement or the Notes or the
actions of any Agent or any Lender Party in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto
duly authorized, as of the date first above written.
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/ E. Bradly Jones
Name: E. Bradly Jones
Title: 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/ Harold Bitler
Name: Harold Bitler
Title: First 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. FIVE YEAR CREDIT AGREEMENT
COMMITMENTS AND APPLICABLE LENDING OFFICES
Name of Initial Revolving Letter of Credit Domestic Lending Eurodollar Lending
Lender Credit Commitment Office Office
Commitment
Citibank, N.A. $140,625,000 $250,000,000 Credit: Credit:
399 Park Avenue 399 Park Avenue
New York, NY 10043 New York, NY
Attn: Allen Fisher 10043
Phone: (212) 559-0293 Attn: Allen
Fax: (212) 793-3963 Fisher
Administrative: Phone: (212)
2 Penns Plaza 559-0293
Suite 200 Fax: (212) 793-
New Castle, DE 19720 3963
Attn: Leonard Sarcona Administrative:
Phone: (718) 248-4536 2 Penns Plaza
Fax: (718) 248-4844 Suite 200
New Castle, DE
19720
Attn: Leonard
Sarcona
Phone: (718)
248-4536
Fax: (718) 248-
4844
The Chase $140,625,000 $1,000,000,000 Credit: Credit:
Manhattan Bank 270 Park Avenue, 48th 270 Park
Fl. Avenue, 48th Fl.
New York, NY 10017 New York, NY 10017
Attn: Ellen Gertzog Attn: Ellen Gertzog
Phone: (212) 270-1539 Phone: (212) 270-
Fax: (212) 270-5646 1539
Administrative: Fax: (212) 270-5646
One Chase Manhattan Administrative:
Plaza One Chase Manhattan
8th Floor Plaza 8th Floor
New York, NY 10081 New York, NY
Attn: Amy Labinger 10081
Phone: (212) 552-4025 Attn: Amy
Fax: (212) 552-7500 Labinger
Phone: (212)
552-4025
Fax: (212) 552-
7500
BankBoston, N.A. $105,000,000 $500,000,000 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) 434-5280 Phone: (617) 434-
Fax: (617) 434-6685 5280
Administrative: Fax: (617) 434-6685
100 Federal Street Administrative:
Mail Stop 01-21-01 100 Federal Street
Boston, MA 02110 Mail Stop 01-21-
Attn: Michelle 01
Taglione Boston, MA 02110
Phone: (617) 434- Attn: Michelle
4039 Taglione
Fax: (617) 434- Phone: (617) 434-
6685 4039
Fax: (617) 434-
6685
The Bank of $105,000,000 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) 828-1307 Phone: (312) 828-
Fax: (312) 987-0303 1307
Administrative: Fax: (312) 987-0303
231 South LaSalle Administrative:
Street 231 So. LaSalle
Chicago, IL 60697 Street
Attn: Sandra Chicago, IL
Kramer 60697
Phone: (312) 828- Attn: Sandra
6645 Kramer
Fax: (312) 987- Phone: (312) 828-
5833 6645
Fax: (312) 987-
5833
The Bank of New $60,000,000 Credit: Credit:
York One Wall Street, 22nd One Wall Street,
Floor 22nd Floor
New York, NY 10286 New York, NY 10286
Attn: Paula DiPonzo Attn: Paula DiPonzo
Phone: (212) 635-7867 Phone: (212) 635-
Fax: (212) 635-1483 7867
Administrative: Fax: (212) 635-1483
One Wall Street, 22nd Administrative:
Floor One Wall Street,
New York, NY 10286 22nd Floor
Attn: Susan New York, NY
Baratta 10286
Phone: (212) 635- Attn: Susan
6761 Baratta
Fax: (212) 635- Phone: (212) 635-
6397 6761
Fax: (212) 635-
6397
Credit Suisse $60,000,000 Credit: Credit:
First Boston 11 Madison Ave., 21st 11 Madison Ave.,
Floor 21st Floor
New York, NY 10010 New York, NY 10010
Attn: Chris Horgan Attn: Chris Horgan
Phone: (212) 325-9157 Phone: (212) 325-
Fax: (212) 325-8309 9157
Administrative: Fax: (212) 325-8309
11 Madison Ave. Administrative:
New York, NY 10010 11 Madison Ave.
Attn: Gina Manginello New York, NY 10010
Phone: (212) 325-9149 Attn: Gina
Fax: (212) 325-8319 Manginello
Phone: (212)
325-9149
Fax: (212) 325-
8319
Fleet National $60,000,000 Credit: Credit:
Bank One Federal Street One Federal Street
MA OF 0320 MA OF 0320
Boston, MA 02110 Boston, MA 02110
Attn: Richard Seufert Attn: Richard
Phone: (617) 346-0611 Seufert
Fax: (617) 346-0689 Phone: (617) 346-
Administrative: 0611
One Federal Street Fax: (617) 346-0689
MA OF 0308 Administrative:
Boston, MA 02110 One Federal Street
Attn: Michael Araujo MA OF 0308
Phone: (617) 346-0601 Boston, MA 02110
Fax: (617) 346-0595 Attn: Michael
Araujo
Phone: (617) 346-
0601
Fax: (617) 346-0595
PNC Bank $60,000,000 Credit: Credit:
201 East 5th Street 201 East 5th Street
Cincinnati, OH 45202 Cincinnati, OH
Attn: John Taylor 45202
Phone: (513) 651-8688 Attn: John Taylor
Fax: (513) 651-8952 Phone: (513) 651-
Administrative: 8688
201 E. 5th Street Fax: (513) 651-8952
Cincinnati, OH Administrative:
45202 201 E. 5th Street
Attn: Sandy Wilson Cincinnati, OH
Phone:(513) 651- 45202
8984 Attn: Sandy
Fax: (513) 651- Wilson
8952 Phone: (513) 651-
8984
Fax: (513) 651-
8952
Societe General $60,000,000 $50,000,000 Credit: Credit:
181 West Madison 181 West Madison
Street Street
Suite 3400 Suite 3400
Chicago, IL 60602 Chicago, IL 60602
Attn: Eric Bellaiche Attn: Eric
Phone: (312) 578-5015 Bellaiche
Fax: (312) 578-5099 Phone: (312) 578-
Administrative: 5015
181 West Madison Fax: (312) 578-5099
Street Administrative:
Suite 3400 181 West Madison
Chicago, IL 60602 Street
Attn: Donna Benson Suite 3400
Phone: (312) 578-5112 Chicago, IL 60602
Fax: (312) 578-5099 Attn: Donna Benson
Phone: (312) 578-
5112
Fax: (312) 578-5099
Sumitomo Bank $60,000,000 Credit: Credit:
U.S. Corporate Dept. U.S. Corporate
277 Park Avenue, 6th Dept.
Floor 277 Park Avenue,
New York, NY 10172 6th Floor
Attn: Toivo Kiiver New York, NY 10172
Phone: (212) 224-4119 Attn: Toivo Kiiver
Fax (212) 224-5188 Phone: (212) 224-
Administrative: 4119
International Finance Fax (212) 224-5188
Dept. Administrative:
277 Park Avenue, 6th International
Floor Finance Dept.
New York, NY 10172 277 Park Avenue,
Attn: Daria Soriano 6th Floor
Phone: (212) 224-4061 New York, NY 10172
Fax (212) 224-5192 Attn: Daria Soriano
Phone: (212) 224-
4061
Fax (212) 224-5192
The Bank of $48,750,000 Credit: Credit:
Montreal 115 South LaSalle 115 South LaSalle
Street Street
13 West 13 West
Chicago, IL 60603 Chicago, IL 60603
Attn: Julia Buthman Attn: Julia Buthman
Phone: (312) 750-3491 Phone: (312) 750-
Fax: (312) 750-1789 3491
Administrative: Fax: (312) 750-1789
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) 750-3852 Attn: Neelan Duss
Fax: (312) 750-6061 Phone: (312) 750-
3852
Fax: (312) 750-6061
The Bank of Tokyo- $48,750,000 Credit: Credit:
Mitsubishi, Ltd., 227 W. Monroe Street 227 W. Monroe
Chicago Branch Suite 2300 Street
Chicago, IL 60606 Suite 2300
Attn: William J. Chicago, IL
Murray 60606
Phone: (312) 696-4553 Attn: William
Fax: (312) 696-4535 J. Murray
Administrative: Phone: (312)
227 W. Monroe Street 696-4553
Suite 2300 Fax: (312) 696-
Chicago, IL 60606 4535
Attn: Julie Galligan Administrative:
Phone: (312) 696-4711 227 W. Monroe
Fax: (312) 696-4532 Street
Suite 2300
Chicago, IL
60606
Attn: Julie
Galligan
Phone: (312)
696-4711
Fax: (312) 696-
4532
Banque Paribas $48,750,000 Credit: Credit:
787 Seventh Avenue 787 Seventh Avenue
New York, NY 10019 New York, NY 10019
Attn: Mary Finnegan Attn: Mary Finnegan
Phone: (212) 841-2551 Phone: (212) 841-
Fax: (212) 841-2333 2551
Administrative: Fax: (212) 841-2333
787 Seventh Avenue Administrative:
New York, NY 10019 787 Seventh Avenue
Attn: Terri Knuth New York, NY
Phone: (212) 841- 10019
2229 Attn: Terri
Fax: (212) 841- Knuth
2217 Phone: (212) 841-
2229
Fax: (212) 841-
2217
Mellon Bank, N.A. $48,750,000 Credit: Credit:
One Mellon Bank One Mellon Bank
Center, Room 4535 Center, Room 4535
Pittsburgh, PA 15258- Pittsburgh, PA
0001 15258-0001
Attn: Joan Bird Attn: Joan Bird
Phone: (412) 234-7172 Phone: (412)
Fax: (412) 236-1914 234-7172
Administrative: Fax: (412) 236-
Three Mellon Bank 1914
Center, Room 2305 Administrative:
Pittsburgh, PA 15259- Three Mellon
0003 Bank Center, Room
Attn: Greg Klino 2305
Phone: (412) 234-1867 Pittsburgh, PA
Fax: (412) 234-5049 15259-0003
Attn: Greg
Klino
Phone: (412)
234-1867
Fax: (412) 234-
5049
Sanwa Bank $48,750,000 Credit: Credit:
55 East 52nd Street 55 East 52nd Street
New York, NY 10055 New York, NY 10055
Attn: Jean-Michel Attn: Jean-Michel
Fatovic Fatovic
Phone: (212) 339-6397 Phone: (212) 339-
Fax: (212) 754-1304 6397
Administrative: Fax: (212) 754-1304
55 East 52nd Street Administrative:
New York, NY 10055 55 East 52nd
Attn: Marlin Chin Street
Phone: (212) 339-65 New York, NY
Fax: (212) 754-2368 10055
Attn: Marlin
Chin
Phone: (212)
339-6592
Fax: (212)
754-2368
Caisse Nationale $37,500,000 Credit: Credit:
de Credit Agricole 55 E. Monroe Street 55 E. Monroe
Suite 4700 Street
Chicago, IL 60603 Suite 4700
Attn: Ray Chicago, IL
Falkenberg 60603
Phone: (312) 917- Attn: Ray
7426 Falkenberg
Fax: (312) 372- Phone: (312) 917-
3724 7426
Administrative: Fax: (312) 372-
55 E. Monroe Street 3724
Suite 4700 Administrative:
Chicago, IL 60603 55 E. Monroe
Attn: James Street
Barrett Suite 4700
Phone: (312) 917- Chicago, IL
7429 60603
Fax: (312) 372- Attn: James
4421 Barrett
Phone: (312) 917-
7429
Fax: (312) 372-
4421
First Chicago Bank $37,500,000 Credit: Credit:
One First National One First
Plaza National Plaza
Chicago, IL 60670 Chicago, IL
Attn: Paul E. 60670
Rigby Attn: Paul E.
Phone: (312) 732- Rigby
6132 Phone: (312) 732-
Fax: (312) 732- 6132
8587 Fax: (312) 732-
Administrative: 8587
One First National Administrative:
Plaza One First
Chicago, IL 60670 National Plaza
Attn: Mary Hart Chicago, IL
Phone: (312) 732- 60670
6137 Attn: Mary Hart
Fax: (312) 732- Phone: (312) 732-
2715 6137
Fax: (312) 732-
2715
Morgan Guaranty $37,500,000 Credit: Credit:
Trust Company of 60 Wall Street 60 Wall Street
New York New York, NY 10260- New York, NY 10260-
0060 0060
Attn: Deborah Attn: Deborah
Brodheim Brodheim
Phone: (212) 648-8063 Phone: (212) 648-
Fax: (212) 648-5018 8063
Administrative: Fax: (212) 648-5018
500 Stanton Administrative:
Christiana Ctr. 500 Stanton
Newark, DE 19713- Christiana Ctr.
2107 Newark, DE 19713-
Attn: Vickie Fedele 2107
Phone: (302) 634-4225 Attn: Vickie Fedele
Fax: (302) 634-1852 Phone: (302) 634-
4225
Fax: (302) 634-1852
Standard Chartered $37,500,000 Credit: Credit:
Bank 7 World Trade Center 7 World Trade
27th Floor Center
New York, NY 10048 27th Floor
Attn: David Cutting New York, NY 10048
Phone: (212) 667-0469 Attn: David Cutting
Fax: (212) 667-0225 Phone: (212) 667-
Administrative: 0469
707 Wilshire Blvd., W- Fax: (212) 667-0225
8-33 Administrative:
Los Angeles, CA 707 Wilshire Blvd.,
90017 W-8-33
Attn: Qustanti Shiber Los Angeles, CA
Phone: (213) 614-5037 90017
Fax: (213) 614-4270 Attn: Qustanti
Shiber
Phone: (213) 614-
5037
Fax: (213) 614-4270
Wachovia Bank $26,250,000 Credit: Credit:
191 Peachtree 191 Peachtree
Street, N.E. Street, N.E.
28th Floor, GA-370 28th Floor, GA-
Atlanta, GA 30303 370
Attn: Michael Atlanta, GA
Ripps 30303
Phone: (404) 332- Attn: Michael
5283 Ripps
Fax: (404) 332- Phone: (404) 332-
6898 5283
Administrative: Fax: (404) 332-
191 Peachtree 6898
Street, N.E. Administrative:
28th Floor, GA-370 191 Peachtree
Atlanta, GA 30303 Street, N.E.
Attn: Christy N. 28th Floor, GA-
Howard 370
Phone: (404) 332- Atlanta, GA
6261 30303
Fax: (404) 332- Attn: Christy N.
6898 Howard
Phone: (404) 332-
6261
Fax: (404) 332-
6898
Comerica Bank $22,500,000 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) 222-6192 Phone (313) 222-
Fax: (312) 222-9514 6192
Administrative: Fax: (312) 222-9514
500 Woodward Ave. Administrative:
MC 3268 500 Woodward Ave.
Detroit, MI 48226 MC 3268
Attn: Beverly Jones Detroit, MI 48226
Phone (313) 222-3805 Attn: Beverly Jones
Fax: (312) 222-3351 Phone (313) 222-
3805
Fax: (312) 222-3351
National Bank of $22,500,000 Credit: Credit:
Kuwait 299 Park Avenue 299 Park Avenue
New York, NY 10171- New York, NY 10171-
0023 0023
Attn: Muhanned Kamal Attn: Muhanned
Phone: (212) 303-9828 Kamal
Fax: (212) 888-2958 Phone: (212) 303-
Administrative: 9828
299 Park Avenue Fax: (212) 888-2958
New York, NY 10171- Administrative:
0023 299 Park Avenue
Attn: Jeff Ganter New York, NY 10171-
(212) 303-9868 0023
(212) 888-2958 Attn: Jeff Ganter
(212) 303-9868
(212) 888-2958
Arab Bank PLC $18,750,000 Credit: Credit:
520 Madison Ave. 520 Madison Ave.
New York, NY 10022 New York, NY 10022
Attn: Khanh Vuong Attn: Khanh
Phone: (212) 715-9717 Vuong
Fax: (212) 593-4632 Phone: (212) 715-
Administrative: 9717
520 Madison Ave. Fax: (212) 593-4632
New York, NY 10022 Administrative:
Attn: Justo Huapaya 520 Madison Ave.
Phone: (212) 715-9713 New York, NY 10022
Fax: (212) 593-4632 Attn: Justo
Huapaya
Phone: (212) 715-
9713
Fax: (212) 593-4632
The Asahi Bank $18,750,000 Credit: Credit:
One World Trade One World Trade
Center Center
60th Floor 60th Floor
New York, NY 10048 New York, NY
Attn: Wit Derby 10048
Phone: (212) 912- Attn: Wit Derby
7038 Phone: (212) 912-
Fax: (212) 432- 7038
1135 Fax: (212) 432-
Administrative: 1135
One World Trade Administrative:
Center One World Trade
60th Floor Center
New York, NY 10048 60th Floor
Attn: Lily Chan New York, NY
Phone: (212) 912- 10048
7022 Attn: Lily Chan
Fax: (212) 432- Phone: (212) 912-
1135 7022
Fax: (212) 432-
1135
Bank One, N.A. $18,750,000 Credit: Credit:
8044 Montgomery Road 8044 Montgomery
Suite 350 Road
Cincinnati, OH 45236- Suite 350
5800 Cincinnati, OH
Attn: Kevin McConnell 45236-5800
Phone: (513) 985-5017 Attn: Kevin
Fax: (513) 985-5030 McConnell
Administrative: Phone: (513) 985-
P.O. Box 710209 5017
Columbus, OH 43271- Fax: (513) 985-5030
0209 Administrative:
Attn: Jim Zook P.O. Box 710209
Phone: (614) 248-6187 Columbus, OH 43271-
Fax: (614) 248-5518 0209
Attn: Jim Zook
Phone: (614) 248-
6187
Fax: (614) 248-5518
Barnett Bank $18,750,000 Credit: Credit:
50 N. Laurel Street 50 N. Laurel
17th Floor Street
Jacksonville, FL 17th Floor
32202 Jacksonville, FL
Attn: Brad Harrell 32202
Phone: (904) 791-5428 Attn: Brad Harrell
Fax: (904) 791-7963 Phone: (904) 791-
Administrative: 5428
100 Laura St., 5th Fax: (904) 791-7963
Floor, Jacksonville, Administrative:
FL 32202 100 Laura St., 5th
Attn: Joyce Terrell Floor, Jacksonville,
Phone: (904) 791-7940 FL 32202
Fax: (904) 791-7737 Attn: Joyce Terrell
Phone: (904) 791-
7940
Fax: (904) 791-7737
The Fifth-Third $18,750,000 Credit: Credit:
Bank 38 Fountain Square 38 Fountain
Plaza Square Plaza
Cincinnati, OH Cincinnati, OH
45263 45263
Attn: Andy Hauck Attn: Andy Hauck
Phone: (513) 579- Phone: (513) 579-
4178 4178
Fax: (513) 579- Fax: (513) 579-
5226 5226
Administrative: Administrative:
38 Fountain Square 38 Fountain
Plaza Square Plaza
Cincinnati, OH Cincinnati, OH
45263 45263
Attn: Danial Attn: Daniel
Mullen Mullen
Phone: (513) 579- Phone: (513) 579-
4104 4104
Fax: (513) 579- Fax: (513) 579-
4226 4226
First National $18,750,000 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) 244- Phone: (410) 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) 244- Phone: (410) 244-
4201 4201
Fax: (410) 244- Fax: (410) 244-
4294 4294
Star Bank $18,750,000 Credit: Credit:
425 Walnut Street 425 Walnut Street
Cincinnati, OH 45202 Cincinnati, OH
Attn: Bill Goodwin 45202
Phone: (513) 762-8973 Attn: Bill Goodwin
Fax: (513) 762-2068 Phone: (513) 762-
Administrative: 8973
425 Walnut Street Fax: (513) 762-2068
Cincinnati, OH Administrative:
45202 425 Walnut Street
Attn: Tracy Briede Cincinnati, OH
Phone: (513) 632- 45202
4034 Attn: Tracy
Fax: (513) 632- Briede
3099 Phone: (513) 632-
4034
Fax: (513) 632-
3099
SunTrust Bank, $18,750,000 Credit: Credit:
Central Florida, 200 S. Orange Ave. 200 S. Orange
National MC 0-1043 Ave.
Association Orlando, FL 32801 MC 0-1043
Attn: Stephen L. Orlando, FL
Leister 32801
Phone: (407) 237-4705 Attn: Stephen
Fax: (407) 237-6894 L. Leister
Administrative: Phone: (407)
200 S. Orange Ave. 237-4705
MC 0-1043 Fax: (407) 237-
Orlando, FL 32801 6894
Attn: Lois Keezel Administrative:
Phone: (407) 237-4855 200 S. Orange
Fax: (407) 237-6894 Ave.
MC 0-1043
Orlando, FL
32801
Attn: Lois
Keezel
Phone: (407)
237-4855
Fax: (407) 237-
6894
Union Bank of $18,750,000 Credit: Credit:
California, N.A. 350 California St., 350 California
11th Fl. St., 11th Fl.
San Francisco, CA San Francisco,
94104 CA 94104
Attn: Timothy P. Attn: Timothy
Streb, VP P. Streb, VP
Phone: (415) 705-7021 Phone: (415)
Fax: (415) 705-7085 705-7021
Administrative: Fax: (415) 705-
350 California St., 7085
11th Fl. Administrative:
San Francisco, CA 350 California
94104 St., 11th Fl.
Attn: Richard A. San Francisco,
Sutter, VP CA 94104
Phone: (415) 705-7090 Attn: Richard
Fax: (415) 705-7085 A. Sutter, VP
Phone: (415)
705-7090
Fax: (415) 705-
7085
PT Bank Negara $7,500,000 Credit: Credit:
Indonesia 55 Broadway 55 Broadway
New York, NY 10006 New York, NY 10006
Attn: Muhamed El- Attn: Muhamed El-
Shazay Shazay
Phone: (212) 943-4750 Phone: (212) 943-
Fax: (212) 344-5723 4750
Administrative: Fax: (212) 344-5723
55 Broadway Administrative:
New York, NY 10006 55 Broadway
Attn: Monica Baccari New York, NY 10006
Phone: (212) 943-4750 Attn: Monica
Fax: (212) 344-5723 Baccari
Phone: (212) 943-
4750
Fax: (212) 344-5723
The Mitsui Trust $7,500,000 Credit: Credit:
Banking Company, 190 South LaSalle 190 South
Limited Street LaSalle Street
Suite 1000 Suite 1000
Chicago, IL 60603 Chicago, IL
Attn: Koichi Yokoyama 60603
Phone: (312) 201-4704 Attn: Koichi
Fax: (312) 201-0593 Yokoyama
Administrative: Phone: (312)
1251 Ave. of the 201-4704
Americas Fax: (312) 201-
39th Floor 0593
New York, NY 10281 Administrative:
Attn: Edward Simnor 1251 Ave. of
Phone: (212) 790-5361 the Americas
Fax: (212) 768-3100 39th Floor
New York, NY
10281
Attn: Edward
Simnor
Phone: (212)
790-5361
SCHEDULE 2.03(h)
Existing Competitive Bid Advances
Date of Issuance Date of Expiration Amount Outstanding* Holder
7/14/97 7/31/97 $ 50,000,000 Societe Generale
7/14/97 7/31/97 80,000,000 Citibank
7/14/97 7/31/97 20,000,000 Morgan Guaranty
7/14/97 7/31/97 25,000,000 Citibank
7/7/97 8/1/97 15,000,000 Morgan Guaranty
7/7/97 8/1/97 70,000,000 Chase Bank
7/7/97 8/1/97 80,000,000 Citibank
7/7/97 8/1/97 30,000,000 Banque Paribas
7/7/97 8/1/97 5,000,000 Arab Bank
Total 375,000,000
*as of July 28, 1997
SCHEDULE 2.16(g)
Existing Letters of Credit
Trade Letters of Credit
Issued by Citibank
Base #926560
Date of Issuance Date of Expiration Amount Outstanding *
March 1, 1996 September 5, 1997 $ 897.90
April 9, 1996 July 25, 1997 4,159.19
April 10, 1996 August 14, 1997 9,702.26
April 12, 1996 July 5, 1997 ** 14,583.00
July 10, 1996 July 17, 1997 ** 44,148.65
August 29, 1996 September 17, 1997 690,539.10
October 9, 1996 September 30, 1997 235,315.47
October 15, 1996 October 25, 1997 955,386.10
October 15, 1996 October 26, 1997 3,322,245.51
October 22, 1996 November 10, 1997 956,487.24
November 28, 1996 November 25, 1997 47,016.40
January 24, 1997 October 27, 1997 1,628,288.33
January 24, 1997 July 31, 1997 63,129.04
March 14, 1997 September 30, 1997 12,205.49
March 14, 1997 September 30, 1997 17,047.69
April 17, 1997 July 6, 1997 ** 1,618.60
April 9, 1997 November 15, 1997 247,922.40
June 5, 1997 September 29, 1997 147,224.05
June 13, 1997 January 31, 1998 17,591.20
June 13, 1997 January 31, 1998 202,853.65
June 13, 1997 January 31, 1998 182,885.80
June 13, 1997 January 31, 1998 328,416.62
June 13, 1997 January 31, 1998 1,000.00
July 17, 1997 August 30, 1997 32,234.10
Total $ 9,162,897.79
Base #916613
Date of Issuance Date of Expiration Amount Outstanding *
February 3, 1992 December 31, 1997 $ 61,379.94
March 2, 1992 June 30, 1997 ** 292,345.39
March 30, 1992 December 31, 1997 150,465.14
February 23, 1996 December 31, 1997 5,686,574.08
February 23, 1996 December 31, 1997 2,167,674.55
February 23, 1996 December 31, 1997 30,881,602.85
February 23, 1996 December 31, 1997 9,633,599.98
February 23, 1996 December 31, 1997 569,951.01
February 23, 1996 December 31, 1997 13,234,696.65
February 23, 1996 December 31, 1997 8,862,394.82
February 23, 1996 December 31, 1997 1,261,639.30
February 23, 1996 December 31, 1997 8,057,368.81
February 23, 1996 December 31, 1997 11,367,604.57
February 23, 1996 August 9, 1997 72,604.10
February 23, 1996 August 9, 1997 10,001.00
February 23, 1996 August 9, 1997 10,001.00
February 23, 1996 August 9, 1997 10,001.00
February 26, 1996 August 9, 1997 10,001.00
February 24, 1997 July 10, 1997 ** 28,662.04
May 30, 1997 September 16, 1997 141,904.56
May 30, 1997 August 31, 1997 15,487.56
June 10, 1997 August 31, 1997 210,426.54
Total $ 92,736,385.89
Base #942081
Date of Issuance Date of Expiration Amount Outstanding ***
April 11, 1997 April 4, 1998 $ 50,001.00
April 11, 1997 April 4, 1998 1.00
April 11, 1997 April 4, 1998 1.00
April 11, 1997 April 4, 1998 1.00
April 11, 1997 April 4, 1998 1.00
April 11, 1997 April 4, 1998 10,015,346.80
April 11, 1997 April 4, 1998 1,591,723.68
April 11, 1997 April 4, 1998 109,667.40
April 11, 1997 April 4, 1998 50,001.00
April 11, 1997 April 4, 1998 50,001.00
April 11, 1997 April 4, 1998 4,646,502.64
April 11, 1997 April 4, 1998 15,442,003.72
April 11, 1997 April 4, 1998 7,567,480.20
April 11, 1997 April 4, 1998 50,001.00
Total $ 39,572,732.44
Standby Letters of Credit
Date of Issuance Date of Expiration Amount Outstanding*** Issuing Bank
December 24, 1992 December 19, 1997 $ 3,825,000.00 Citibank
December 24, 1992 December 19, 1997 37,500.00 Citibank
December 19, 1994 December 19, 1997 7,500,000.00 Societe Generale
January 25, 1995 January 27, 1998 500,000.00 Societe Generale
February 10, 1995 February 10, 1998 240,000.00 Societe Generale
December 19, 1994 December 19, 1997 25,000,000.00 Societe Generale
December 19, 1994 December 19, 1997 7,300,000.00 Societe Generale
July 23, 1997 July 23, 1998 175,100.00 Societe Generale
June 6, 1995 June 5, 1998 447,000.00 Bank Boston
January 19, 1996 October 9, 1997 172,000.00 Bank Boston
January 19, 1996 October 9, 1997 1,550,000.00 Bank Boston
January 19, 1996 October 9, 1997 1,338,400.00 Bank Boston
January 30, 1996 October 8, 1997 36,700.00 Bank Boston
January 30, 1996 October 9, 1997 50,000.00 Bank Boston
Total $ 48,171,903.00
* as of July 22, 1997
** LC balances are maintained for 30 days after the Expiration Date
*** estimate as of July 28, 1997
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
($000) (estimated at July 28, 1997)
Receivables Backed Notes 1,894,800
PNC Mortgage (re: Horne's) 32,498
Tax Notes - Federated Ch. 11 3,408
Tax Notes - Macy Ch. 11 -- IRS 70,301
Non-IRS 20,705
Note Monitization debt 176,000
Other Real Estate Mortgages:
Pearl Street 250 (A)
New York Life 3,941 (A)
CalPERS 9,622 (A)
Principal Mutual Life 8,630
Arizona State Retirement System 1,494 (A)
Connecticut General 1,764 (A)
Bank of America 19,865 (A)
Capitalized Leases 76,372
Total 2,319,650
(A) Scheduled for 100% prepayment on August 1, 1997.
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated:
_______________, ____
FOR VALUE RECEIVED, the undersigned, FEDERATED
DEPARTMENT STORES, INC., a Delaware corporation (the "Borrower"),
HEREBY PROMISES TO PAY to the order of ___________________ (the
"Lender") for the account of its Applicable Lending Office on the
Termination Date (each as defined in the Credit Agreement
referred to below) the aggregate principal amount of the
Revolving Credit Advances (as defined below) owing to the Lender
by the Borrower pursuant to the Five Year Credit Agreement dated
as of 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 Termination Date.
The Borrower promises to pay interest on the unpaid
principal amount of each Revolving Credit Advance from the date
of such Revolving Credit Advance until such principal amount is
paid in full, at such interest rates, and payable at such times,
as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money
of the United States of America to Citibank, N.A., as Paying
Agent, at 399 Park Avenue, New York, NY 10043, in same day funds.
Each Revolving Credit Advance owing to the Lender by the Borrower
pursuant to the Credit Agreement, and all payments made on
account of principal thereof, shall be recorded by the Lender
and, prior to any transfer hereof, endorsed on the grid attached
hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit
Notes referred to in, and is entitled to the benefits of, the
Credit Agreement. The Credit Agreement, among other things,
(i) provides for the making of Revolving Credit Advances by the
Lender to the Borrower from time to time in an aggregate amount
not to exceed at any time outstanding the U.S. dollar amount
first above mentioned, the indebtedness of the Borrower resulting
from each such Revolving Credit Advance being evidenced by this
Promissory Note, and (ii) contains provisions for acceleration of
the maturity hereof upon the happening of certain stated events
and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein
specified.
FEDERATED DEPARTMENT STORES, INC.
By
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Amount of Principal Paid Unpaid Notation
Date Advance or Prepaid Principal Made By
Balance
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated:
_______________, ____
FOR VALUE RECEIVED, the undersigned, FEDERATED
DEPARTMENT STORES, INC., a Delaware corporation (the "Borrower"),
HEREBY PROMISES TO PAY to the order of _________________________
(the "Lender") for the account of its Applicable Lending Office
(as defined in the Five Year Credit Agreement dated as of July
28, 1997 among the Borrower, the Lender and certain other lender
parties party thereto, Citibank, N.A., as Administrative Agent
and as Paying Agent for the Lender and such other lenders, The
Chase Manhattan Bank, as Administrative Agent for the Lender and
such other lenders, BankBoston, N.A., as Syndication Agent and
The Bank of America, National Trust & Savings Association, as
Documentation Agent (as amended, supplemented or otherwise
modified from time to time, the "Credit Agreement"; the terms
defined therein being used herein as therein defined)), on
_______________, ____, the principal amount of
U.S.$_______________.
The Borrower promises to pay interest on the unpaid
principal amount hereof from the date hereof until such principal
amount is paid in full, at the interest rate and payable on the
interest payment date or dates provided below:
Interest Rate: _____% per annum (calculated on the basis of a
year of _____ days for the actual number of days elapsed).
Both principal and interest are payable in lawful money
of the United States of America to Citibank, N.A., as Paying
Agent, for the account of the Lender at 399 Park Avenue, New
York, NY 10043 in same day funds.
This Promissory Note is one of the Competitive Bid
Notes referred to in, and is entitled to the benefits of, the
Credit Agreement. The Credit Agreement, among other things,
contains provisions for acceleration of the maturity hereof upon
the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest
and notice of any kind. No failure to exercise, and no delay in
exercising, any rights hereunder on the part of the holder hereof
shall operate as a waiver of such rights.
This Promissory Note shall be governed by, and
construed in accordance with, the laws of the State of New York.
FEDERATED DEPARTMENT STORES, INC.
By
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Paying Agent
for the Lender Parties party
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: Leonard Sarcona
Ladies and Gentlemen:
The undersigned, Federated Department Stores, Inc.,
refers to the Five Year 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 Lender Parties
party thereto, Citibank, N.A., as Paying Agent and as
Administrative Agent for said Lender Parties, The Chase Manhattan
Bank, as Administrative Agent for said Lender Parties,
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 B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Paying Agent
for the Lender Parties party
to the Credit Agreement
referred to below
399 Park Avenue
New York, New York 10043 [Date]
Attention: Leonard Sarcona
Ladies and Gentlemen:
The undersigned, Federated Department Stores, Inc.,
refers to the Five Year Credit Agreement dated as of July
28, 1997 (as amended, supplemented or otherwise modified from
time to time, the "Credit Agreement", the terms defined therein
being used herein as therein defined), among the undersigned,
certain Lender Parties party ther eto, Citibank, N.A., as Paying
Agent and as Administrative Agent for said Lender Parties, The
Chase Manhattan Bank, as Administrative Agent for said Lender
Parties, 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 2.03 of the Credit Agreement that the undersigned hereby
requests a Competitive Bid Borrowing under the Credit Agreement,
and in that connection sets forth the terms on which such
Competitive Bid Borrowing (the "Proposed Competitive Bid
Borrowing") is requested to be made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
(F) ___________________ ________________________
(G) ___________________ ________________________
(H) ___________________ ________________________
The undersigned hereby certifies that the following
statements are true on the date hereof, and will be true on the
date of the Proposed Competitive Bid Borrowing:
(a) the representations and warranties contained in
Section 4.01 are correct, before and after giving effect to the
Proposed Competitive Bid Borrowing and to the application of the
proceeds therefrom, as though made on and as of such date other
than any such representations or warranties that, by their
terms, refer to a specific date other than the date of such
Proposed Competitive Bid Borrowing, in which case as of such
specific date;
(b) no event has occurred and is continuing, or would
result from the Proposed Competitive Bid Borrowing or from the
application of the proceeds therefrom, that constitutes a
Default;
(c) no event has occurred and no circumstance exists as a
result of which the information concerning the undersigned that
has been provided to the Agents and each Lender by the
undersigned in connection with the Credit Agreement would
include an untrue statement of a material fact or omit to state
any material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which
they were made, not misleading; and
(d) the aggregate amount of the Proposed Competitive Bid
Borrowing and all other Borrowings to be made on the same day
under the Credit Agreement is within the aggregate amount of the
Unused Revolving Credit Commitments of the Lenders less the
Commercial Paper Set-Aside Amount.
The undersigned hereby confirms that the Proposed
Competitive Bid Borrowing is to be made available to it in
accordance with Section 2.03(a)(v) of the Credit Agreement.
Very truly yours,
FEDERATED DEPARTMENT STORES, INC.
By
Title:
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Five Year Credit Agreement
dated as of 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 Lender Parties (as defined in the Credit
Agreement) party thereto, Citibank, N.A., as an administrative
agent for the Lender Parties (in such capacity, an
"Administrative Agent") and paying agent (in such capacity, the
"Paying Agent") for the Lender Parties, The Chase Manhattan Bank,
as an administrative agent (in such capacity, an "Administrative
Agent"; the Administrative Agents and the Paying Agent being,
collectively, the "Agents") for the Lender Parties, 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 (other than in respect of Competitive Bid Advances and
Competitive Bid Notes) equal to the percentage interest specified
on Schedule 1 hereto of all outstanding rights and obligations
under the Credit Agreement (other than in respect of Competitive
Bid Advances and Competitive Bid Notes). After giving effect to
such sale and assignment, the Assignee's Commitment and the
amount of the Advances owing to the Assignee will be as set forth
on Schedule 1 hereto.
2. The Assignor (i) represents and warrants that it
is the legal and beneficial owner of the interest being assigned
by it hereunder and that such interest is free and clear of any
adverse claim; (ii) makes no representation or warranty and
assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the
perfection or priority of any lien or security interest created
or purported to be created under or in connection with, any Loan
Document or any other instrument or document furnished pursuant
thereto; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any
of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; and
(iv) attaches the Revolving Credit Note held by the Assignor and
requests that the Administrative Agent exchange such Revolving
Credit Note for a new Revolving Credit Note payable to the order
of the Assignee in an amount equal to the Commitment assumed by
the Assignee pursuant hereto or new Revolving Credit Notes
payable to the order of the Assignee in an amount equal to the
Commitment assumed by the Assignee pursuant hereto and the
Assignor in an amount equal to the Commitment retained by the
Assignor under the Credit Agreement, respectively, as specified
on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 thereof and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon any Agent, the Assignor
or any other Lender Party and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action
under the Credit Agreement; (iii) confirms that it is an Eligible
Assignee; (iv) appoints and authorizes each Agent to take such
action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such
Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that
it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are
required to be performed by it as a Lender Party; and
(vi) attaches any U.S. Internal Revenue Service forms required
under Section 2.14 of the Credit Agreement.
4. Following the execution of this Assignment and
Acceptance, it will be delivered to the Paying Agent for
acceptance and recording by the Paying Agent. The effective date
for this Assignment and Acceptance (the "Effective Date") shall
be the date of acceptance hereof by the Paying Agent, unless
otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Paying
Agent, as of the Effective Date, (i) the Assignee shall be a
party to the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a
Lender thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Acceptance, relinquish its rights
and be released from its obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Paying
Agent, from and after the Effective Date, the Paying Agent shall
make all payments under the Credit Agreement and the Revolving
Credit Notes in respect of the interest assigned hereby
(including, without limitation, all payments of principal,
interest and facility fees with respect thereto) to the Assignee.
The Assignor and Assignee shall make all appropriate adjustments
in payments under the Credit Agreement and the Revolving Credit
Notes for periods prior to the Effective Date directly between
themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
New York.
8. This Assignment and Acceptance may be executed in
any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of Schedule 1 to this Assignment and Acceptance by
telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have
caused Schedule 1 to this Assignment and Acceptance to be
executed by their officers thereunto duly authorized as of the
date specified thereon.
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $__________
Aggregate outstanding principal amount of ________ Advances
assigned: $__________
*[Principal amount of Revolving Credit Note payable to
Assignee: $__________]
**[Principal amount of Revolving Credit Note payable to
Assignor: $__________]
Effective Date***: _______________, ____
[NAME OF ASSIGNOR], as Assignor
By
Title:
Dated: _______________, ____
[NAME OF ASSIGNEE], as Assignee
By
Title:
Dated: _______________, ____
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
_______________________________
* 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 solely by
reason of clause (iii) of the definition of "Eligible
Assignee".
EXHIBIT D - FORM OF
DESIGNATION AGREEMENT
Dated _______________, ____
Reference is made to the Five Year Credit Agreement
dated as of 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 Lender Parties (as defined in the Credit
Agreement) party thereto, Citibank, N.A., as an administrative
agent for the Lender Parties (in such capacity, an
"Administrative Agent") and paying agent (in such capacity, the
"Paying Agent") for the Lender Parties, The Chase Manhattan Bank,
as an administrative agent (in such capacity, an "Administrative
Agent"; the Administrative Agents and the Paying Agent being,
collectively, the "Agents") for the Lender Parties, 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 "Designor") and
______________________ (the "Designee") agree as follows:
1. The Designor hereby designates the Designee, and
the Designee hereby accepts such designation, to have a right to
make Competitive Bid Advances pursuant to Section 2.03 of the
Credit Agreement.
2. The Designor makes no representation or warranty
and assumes no responsibility with respect to (i) any statements,
warranties or representations made in or in connection with the
Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value, or the
perfection or priority of any lien or security interest created
or purported to be created under or in connection with, of any
Loan Document or any other instrument or document furnished
pursuant thereto and (ii) the financial condition of the Borrower
or the performance or observance by the Borrower of any of its
obligations under any Loan Document or any other instrument or
document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.01 thereof and such
other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this
Designation Agreement; (ii) agrees that it will, independently
and without reliance upon any Agent, the Designor or any other
Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is a Designated Bidder;
(iv) appoints and authorizes each Agent to take such action as
agents on its behalf and to exercise such powers and discretion
under the Credit Agreement as are delegated to such Agent by the
terms thereof, together with such powers and discretion as are
reasonably incidental thereto; and (v) agrees that it will
perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement are required to be
performed by it as a Lender Party.
4. Following the execution of this Designation
Agreement by the Designor and its Designee, it will be delivered
to the Paying Agent for acceptance and recording by the Paying
Agent. The effective date for this Designation Agreement (the
"Effective Date") shall be the date of acceptance hereof by the
Paying Agent, unless otherwise specified on the signature page
hereto.
5. Upon such acceptance and recording by the Paying
Agent, as of the Effective Date, the Designee shall be a party to
the Credit Agreement with a right to make Competitive Bid
Advances as a Lender Party pursuant to Section 2.03 of the Credit
Agreement and the rights and obligations of a Lender Party
related thereto.
6. This Designation Agreement shall be governed by,
and construed in accordance with, the laws of the State of
New York.
7. This Designation Agreement may be executed in any
number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be
deemed to be an original and all of which taken together shall
constitute one and the same agreement. Delivery of an executed
counterpart of a signature page to this Designation Agreement by
telecopier shall be effective as delivery of a manually executed
counterpart of this Designation Agreement.
IN WITNESS WHEREOF, the Designor and the Designee have
caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above
written.
Effective Date*: _______________, ____
[NAME OF DESIGNOR],
as Designor
By
Title:
[NAME OF DESIGNEE],
as Designee
By
Title:
Applicable Lending Office (and
address for notices):
[Address]
Accepted this ____ day
of _______________, ____
CITIBANK, N.A., as Paying Agent
By
Title:
EXHIBIT E - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER
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.