1
EXECUTION COPY
$2,800,000,000
CREDIT AGREEMENT
Dated as of December 19, 1994
Among
FEDERATED DEPARTMENT STORES, INC.
As Borrower
-----------
and
THE INITIAL LENDERS NAMED HEREIN
As Initial Lenders
------------------
and
CITIBANK, N.A.
as Administrative Agent
-----------------------
and
CHEMICAL BANK
As Agent
--------
and
CITICORP SECURITIES, INC.
As Arranger
-----------
and
CHEMICAL SECURITIES INC.
As Co-Arranger
--------------
2
T A B L E O F C O N T E N T S
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION PAGE
1.01. Certain Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.02. Computation of Time Periods . . . . . . . . . . . . . . . . . . . . . . . . . . 36
1.03. Accounting Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
1.04. Currency Equivalents Generally . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
2.01. The Regular Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
2.02. Making the Regular Advances . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
2.03. The Competitive Bid Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2.04. Repayment of Regular Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 45
2.05. Termination or Reduction of the Commitments . . . . . . . . . . . . . . . . . . . 45
2.06. Prepayments of Regular Advances . . . . . . . . . . . . . . . . . . . . . . . . . 46
2.07. Interest on Regular Advances . . . . . . . . . . . . . . . . . . . . . . . . . . 48
2.08. Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
2.09. Conversion of Regular Advances . . . . . . . . . . . . . . . . . . . . . . . . . 50
2.10. Increased Costs, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
2.11. Payments and Computations . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
2.12. Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
2.13. Sharing of Payments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
2.14. Letters of Credit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
2.15. Use of Proceeds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
2.16. Defaulting Lenders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Initial Extension of Credit . . . . . . . . . . . . . . . 66
3
3.02. Conditions Precedent to Each Regular Borrowing, Issuance and Renewal . . . . . . 71
3.03. Conditions Precedent to Each Competitive Bid Borrowing . . . . . . . . . . . . . 72
3.04. Determinations Under Section 3.01 . . . . . . . . . . . . . . . . . . . . . . . . 73
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower . . . . . . . . . . . . . . . . . 73
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
5.02. Negative Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
5.03. Reporting Requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
5.04. Financial Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
6.02. Actions in Respect of the Letters of Credit upon Default . . . . . . . . . . . . 112
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE AGENT
7.01. Authorization and Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113
7.02. Administrative Agent's and Agent's Reliance, Etc. . . . . . . . . . . . . . . . . 113
7.03. Citibank, Chemical and Affiliates . . . . . . . . . . . . . . . . . . . . . . . . 114
7.04. Lender Party Credit Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
7.05. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
7.06. Successor Administrative Agents . . . . . . . . . . . . . . . . . . . . . . . . . 116
7.07. Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
4
8.02. Notices, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
8.03. No Waiver; Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
8.04. Costs and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
8.05. Right of Set-off . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
8.06. Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
8.07. Assignments, Designations and Participations . . . . . . . . . . . . . . . . . . . . . . 121
8.08. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
8.09. No Liability of the Issuing Banks . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
8.10. Release of Collateral. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
8.11. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
8.13. Jurisdiction, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
8.14. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
8.15. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
SCHEDULES
- - ---------
Schedule I - Commitments and Applicable Lending Offices
Schedule II - Guarantors
Schedule 2.04(a) - Amortization of Term Advances
Schedule 2.14(g) - Existing Letters of Credit
Schedule 3.01(e) - Surviving Debt
Schedule 3.01(g) - Disclosed Litigation
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations and Approvals
Schedule 4.01(n) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(bb) - Open Years
Schedule 4.01(ff) - Net Operating Loss Carryforwards
Schedule 4.01(jj) - Existing Debt
Schedule 4.01(ll) - Investments
Schedule 5.02(a) - Existing Liens
Schedule 5.02(b) - Cash Management System
5
EXHIBITS
- - --------
Exhibit A-1 - Form of Term Note
Exhibit A-2 - Form of Working Capital Note
Exhibit A-3 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of 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 Security Agreement
Exhibit F - Form of Guaranty
Exhibit G-1 - Form of Opinion of Counsel for the Loan Parties
Exhibit G-2 - Form of Opinion of General Counsel to the Borrower
6
1
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of December 19, 1994 among FEDERATED
DEPARTMENT STORES, INC., a Delaware corporation ("FEDERATED", and together with
the Surviving Corporation (as hereinafter defined) following the Merger, the
"BORROWER"), the banks, financial institutions and other institutional lenders
(the "INITIAL LENDERS") listed on the signature pages hereof, CITIBANK, N.A.
("CITIBANK"), as administrative agent (together with any successor appointed
pursuant to Article VII, the "ADMINISTRATIVE AGENT") for the Lender Parties (as
hereinafter defined), CHEMICAL BANK ("CHEMICAL"), as agent (the "AGENT"),
CITICORP SECURITIES, INC., as arranger (the "ARRANGER"), and CHEMICAL
SECURITIES INC., as co-arranger (the "CO-ARRANGER").
PRELIMINARY STATEMENTS:
(1) R. H. Macy & Co., Inc., a Delaware corporation (the
"COMPANY"), and certain of its Subsidiaries (as hereinafter defined) (together
with the Company, the "DEBTORS") are debtors and debtors in possession under
Chapter 11 of the Bankruptcy Code (11 U.S.C. Section Section 101 ET SEQ.; the
"BANKRUPTCY CODE") in the United States Bankruptcy Court for the Southern
District of New York (the "BANKRUPTCY COURT").
(2) The Debtors have filed an amended joint plan of
reorganization (as amended or otherwise modified from time to time in
accordance with its terms, to the extent permitted in accordance with the Loan
Documents (as hereinafter defined), the "PLAN OF REORGANIZATION") for the
resolution of the outstanding creditor claims against and equity interests in
the Company and the other Debtors.
(3) The Plan of Reorganization contemplates, among
other things, that Federated and the Company will merge.
(4) Pursuant to the Agreement and Plan of Merger dated
as of August 16, 1994 (as amended or otherwise modified from time to time in
accordance with its terms, to the extent permitted in accordance with the Loan
Documents, the "MERGER AGREEMENT") between Federated and the Company, Federated
has agreed to consummate a merger (the "MERGER") with the Company in which the
Company will be the surviving corporation (the "SURVIVING CORPORATION"). At
the time of the Merger, the Borrower will be reorganized (the
"REORGANIZATION"), with certain divisions and certain other business units of
the Borrower constituting direct or indirect wholly owned Subsidiaries of the
Surviving Corporation holding all assets of such divisions and units material
or necessary to the conduct of the business of
7
2
such divisions and units, substantially as described on pages 47 and 48 of
the Disclosure Statement (as hereinafter defined).
(5) Upon consummation of the Merger and the
Reorganization, the Surviving Corporation will change its name from R. H. Macy
& Co., Inc. to Federated Department Stores, Inc.
(6) The Borrower has requested that, immediately upon
the consummation of the Merger and the Reorganization, the Lenders lend to the
Surviving Corporation up to $2,800,000,000 in order to pay to certain creditors
of the Debtors the cash consideration for their claims against the Debtors, pay
transaction fees and expenses, refinance certain Existing Debt (as hereinafter
defined) of Federated and provide working capital for the Surviving Corporation
and its Subsidiaries. The Lenders have indicated their willingness to agree to
lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
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) the sum of (to the extent otherwise included
in the calculation of Consolidated Debt under clause (a) above) (i)
non-recourse Debt of Ridge Capital Trust II outstanding under the May
Note Monetization Facility and (ii) non-recourse Debt and Debt
consisting of indemnification obligations and guaranties thereof, in
each case of the Borrower or any of its Subsidiaries outstanding under
the Receivables Financing Facility, in each case calculated on a
Consolidated basis in accordance with GAAP.
"ADMINISTRATIVE AGENT" has the meaning specified in the
recital of parties to this Agreement.
8
3
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by Citibank at its office at 399 Park
Avenue, New York, New York 10043, Account No. 36852248, Account Name:
Medium Term Finance, Reference: Federated.
"ADVANCE" means a Term Advance, a Working Capital 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 Administrative Agent
and the applicable Issuing Bank, shall designate.
"APPLICABLE LENDING OFFICE" means, with respect to each Lender
and each Issuing Bank, such Lender's or such Issuing Bank's Domestic
Lending Office in the case of a Base Rate Advance and such Lender's
Eurodollar Lending Office in the case of a Eurodollar Rate Advance
and, in the case of a Competitive Bid Advance, the office of such
Lender notified by such Lender to the Administrative Agent as its
Applicable Lending Office with respect to such Competitive Bid
Advance.
"APPLICABLE MARGIN" means, as of any date, 0% per annum for
Base Rate Advances, and (a) from the date hereof until July 31, 1995,
the percentage per annum for Eurodollar Rate Advances set forth below
for level 5 and the percentage per annum for Trade Letters of Credit
set forth below for level 5 and (b) thereafter, a percentage per annum
for Eurodollar Rate Advances and Trade Letters of Credit determined by
reference to the Interest Coverage Ratio and Debt Rating as set forth
below:
9
4
DEBT RATING EURODOLLAR TRADE
INTEREST COVERAGE RATE LETTERS OF
LEVEL RATIO ----------------------- ADVANCES CREDIT
S&P MOODY'S
-------------------------------------------------------------------------------------------
1 4.50:1 or greater BBB+ or Baa1 or 0.375% 0.250%
above above
2 Less than 4.50:1 but BBB Baa2 0.500% 0.375%
greater than or equal
to 4.25:1
3 Less than 4.25:1 but BBB- Baa3 0.625% 0.425%
greater than or equal
to 3.75:1
4 Less than 3.75:1 but BB+ Ba1 0.750% 0.500%
greater than or equal
to 3.25:1
5 Less than 3.25:1 BB or Ba2 or 1.000% 0.625%
below below
The Applicable Margin for each Eurodollar Rate Advance and each Trade
Letter of Credit shall be determined by reference to the Interest
Coverage Ratio and Debt Rating in effect from time to time; PROVIDED,
HOWEVER, that
(A) if the applicable Debt Ratings established by
S&P and Moody's shall be the same grade and shall fall within
the same level, and the Interest Coverage Ratio falls within a
different level, the Applicable Margin shall be a percentage
per annum equal to the lower of the two applicable percentages
for such levels,
(B) if the applicable Debt Ratings established by
S&P and Moody's shall be different grades, (i) if such grades
are one grade apart, the Applicable Margin shall be a
percentage per annum equal to the lower of (x) the lower of
the two applicable percentages for such grades and (y) the
percentage for the applicable Interest Coverage Ratio and (ii)
if such grades are more than one grade apart, the Applicable
Margin shall be a percentage per annum equal to the lower of
(x) the applicable percentage for the grade that is one grade
below the Debt Rating with the higher grade and (y) the
percentage for the applicable Interest Coverage Ratio,
10
5
(C) if only one of S&P and Moody's shall have in
effect a Debt Rating, the Applicable Margin shall be a
percentage per annum equal to the lower of (x) so long as both
S&P and Moody's are engaged in the business of rating Debt,
the applicable percentage for the grade that is one grade
below the available Debt Rating, or if either S&P or Moody's
is no longer engaged in the business of rating Debt, the
applicable percentage for the available Debt Rating and (y)
the percentage for the applicable Interest Coverage Ratio,
(D) if neither S&P nor Moody's shall have in
effect a Debt Rating, the Applicable Margin shall be
determined by reference to the Interest Coverage Ratio,
(E) no change in the Applicable Margin shall be
effective until five Business Days after the date on which the
Administrative Agent receives financial statements pursuant to
Section 5.03(c) or (d), in the case of a change in the
Applicable Margin due to an increase in the Interest Coverage
Ratio, and, in any case, a certificate of the chief financial
officer of the Borrower demonstrating such Interest Coverage
Ratio and Debt Rating, and no change in the Applicable Margin
shall be effective, in the case of a change in the Applicable
Margin due to a decrease in the Interest Coverage Ratio, until
five Business Days after the date on which the Administrative
Agent should have received financial statements pursuant to
Section 5.03(c) or (d) and a certificate of the chief
financial officer of the Borrower demonstrating such Interest
Coverage Ratio and Debt Rating,
(F) for the period from the date hereof until
February 4, 1996, the Applicable Margin shall not decrease by
more than one level and thereafter, the Applicable Margin
shall not decrease by more than one level in any three-month
period,
(G) during such time as the most recently
available Consolidated financial statements of the Borrower
are those for the second fiscal quarter in the Fiscal Year
ending on February 3, 1996, (i) if EBITDA for the Measurement
Period ending on the last day of such fiscal quarter shall
exceed $410,000,000 and the Interest Coverage Ratio for such
Measurement Period shall exceed 1.9:1, the applicable
percentage for such Interest Coverage Ratio shall be deemed to
be at level 4, and (ii) in all other cases, the applicable
percentage for such Interest Coverage Ratio shall be deemed to
be at level 5, and
11
6
(H) during such time as the most recently
available Consolidated financial statements of the Borrower
are those for the third fiscal quarter in the Fiscal Year
ending on February 3, 1996, (i) if EBITDA for the Measurement
Period ending on the last day of such fiscal quarter shall
exceed $700,000,000 and the Interest Coverage Ratio for such
Measurement Period shall exceed 2.13:1, the applicable
percentage for such Interest Coverage Ratio shall be deemed to
be at level 4, and (ii) in all other cases, the applicable
percentage for such Interest Coverage Ratio shall be deemed to
be at level 5;
PROVIDED FURTHER, HOWEVER, that the foregoing is subject to the
requirements contained in the definition of "DEBT RATING". For
purposes of this definition, the term "grades" refers to the grades of
the Debt Ratings established by S&P and the equivalent grades of the
Debt Ratings established by Moody's.
"APPLICABLE PERCENTAGE" means, as of any date, (a) from the
date hereof until July 31, 1995, 1/4 of 1% per annum, and (b)
thereafter, a percentage per annum determined by reference to the
Applicable Margin Level as set forth below:
APPLICABLE APPLICABLE
MARGIN PERCENTAGE
LEVEL
1 0.1500%
2 0.1875%
3 0.2000%
4 0.2500%
5 0.3125%
The Applicable Percentage shall be determined by reference to the
applicable level for the Applicable Margin in effect from time to
time.
"APPROPRIATE LENDER" means, at any time, with respect to (a)
the Term Facility or the Working Capital Facility, a Lender that has a
Commitment with respect to such Facility at such time, (b) the Letter
of Credit Facility, (i) any Issuing Bank and (ii) if the other Working
Capital Lenders have made Letter of Credit Advances pursuant to
12
7
Section 2.14(c) that are outstanding at such time, each such other
Working Capital Lender and (c) the Swing Line Facility, (i) any Swing
Line Bank and (ii) if the other Working Capital Lenders have made
Swing Line Advances pursuant to Section 2.02(b) that are outstanding
at such time, each such other Working Capital Lender.
"ARRANGER" has the meaning specified in the recital of parties
to this Agreement.
"ASGREC" means Allied Stores General Real Estate Company, a
Delaware corporation and a direct wholly owned Subsidiary of the
Borrower.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"AVAILABLE AMOUNT" of any Letter of Credit or any Documentary
L/C means, at any time, the maximum amount available to be drawn under
such Letter of Credit or Documentary L/C 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.
"BANK HEDGE AGREEMENT" means any interest rate Hedge Agreement
required or permitted under Article V that is entered into by and
between the Borrower and any Lender.
"BANKRUPTCY CODE" has the meaning specified in the Preliminary
Statements.
"BANKRUPTCY COURT" has the meaning specified in the
Preliminary Statements.
"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 1/4 of 1%
or, if there is no nearest 1/4 of 1%, to the next higher 1/4
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
13
8
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 the Administrative Agent 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 the Administrative Agent from three
New York certificate of deposit dealers of recognized standing
selected by the Administrative Agent, 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 the Administrative Agent 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 the Administrative Agent for determining the then
current annual assessment payable by the Administrative Agent
to the Federal Deposit Insurance Corporation (or any
successor) for insuring U.S. dollar deposits of the
Administrative Agent in the United States; and
(c) 1/2 of one percent per annum above the
Federal Funds Rate.
"BASE RATE ADVANCE" means a Regular Advance that bears
interest as provided in Section 2.07(a)(i).
"BORROWER" has the meaning specified in the recital of parties
to this Agreement.
"BORROWER'S ACCOUNT" means the account of the Borrower
maintained by the Borrower with Citibank at its office at 399 Park
Avenue, New York, New York 10043, Account No. 405-448-38.
"BORROWING" means a Term Borrowing, a Working Capital
Borrowing, a Competitive Bid Borrowing or a Swing Line 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
14
9
relates to any Eurodollar Rate Advances, on which dealings are carried
on in the London interbank market.
"CAPITAL EXPENDITURES" means, for any Person for any period,
the sum of (a) all expenditures (other than interest capitalized
during construction) made, directly or indirectly, by such Person and
its Subsidiaries during such period for equipment, fixed assets, real
property or improvements, or for replacements or substitutions
therefor or additions thereto, that have been or should be, in
accordance with GAAP, reflected as additions to property, plant or
equipment on a Consolidated balance sheet of such Person plus (b) the
aggregate principal amount of all Debt (including obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures. For purposes of this definition, the purchase price of
equipment that is purchased simultaneously with the trade-in of
existing equipment or with insurance proceeds shall be included in
Capital Expenditures only to the extent of the gross amount of such
purchase price less the credit granted by the seller of such equipment
for the equipment being traded in at such time or the amount of such
proceeds, as the case may be.
"CAPITALIZED LEASES" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"CARRY-OVER AMOUNT" has the meaning specified in Section
5.02(o).
"CASH CAPITAL EXPENDITURES" means Capital Expenditures other
than those referred to in clause (b) of the definition of "CAPITAL
EXPENDITURES".
"CASH EQUIVALENTS" means any of the following, to the extent
owned by the Borrower or any of its Subsidiaries free and clear of all
Liens and having a maturity of not greater than one year from the date
of acquisition thereof:
(a) readily marketable direct obligations of the
Government of the United States or any agency or
instrumentality thereof or obligations unconditionally
guaranteed by the full faith and credit of the Government of
the United States,
(b) certificates of deposit, eurodollar time
deposits, overnight bank deposits and bankers' acceptances of
any commercial bank organized under the laws of the United
States or any State thereof or any branch of a foreign bank
that (i) is a Lender or a member of the Federal Reserve
System, (ii) issues (or the parent of which issues) commercial
paper rated as described in clause (c) below, and (iii) has
combined capital and surplus of at least $100,000,000, to
15
10
the extent Cash Equivalents under this clause (b) do not
exceed $10,000,000 in the aggregate, or at least $500,000,000,
to the extent such Cash Equivalents exceed $10,000,000 in the
aggregate,
(c) commercial paper in an aggregate amount of no
more than $75,000,000 per issuer outstanding at any time,
issued by any corporation organized under the laws of any
State of the United States and rated at least "Prime-1" (or
the then equivalent grade) by Moody's or "A-1" (or the then
equivalent grade) by S&P, or carrying an equivalent rating by
a nationally recognized rating agency if both S&P and Moody's
cease publishing ratings of investments,
(d) repurchase obligations with a term of not
more than seven days for underlying securities of the type
described in clause (a) above entered into with any commercial
bank organized under the laws of the United States or any
State thereof or any branch of a foreign bank that (i) is a
Lender or a member of the Federal Reserve System, (ii) issues
(or the parent of which issues) commercial paper rated as
described in clause (c) above or has a short term Debt rating
of at least "Prime-1" (or the then equivalent grade) by
Moody's or "A-1" (or the then equivalent grade) by S&P, and
(iii) has combined capital and surplus of at least
$500,000,000, or
(e) Investments in money market or mutual funds
that invest primarily in Cash Equivalents of the type
described in clauses (a), (b) and (c) above.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CHEMICAL" 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.
"CLEAN-DOWN AMOUNT" means (a) for the first Clean-Down Period
occurring after the date hereof, the amount by which the aggregate
amount of the Working
16
11
Capital Commitments on the first day of such Clean-Down Period exceeds
$900,000,000 and (b) for each Clean-Down Period occurring thereafter,
the amount by which the aggregate amount of the Working Capital
Commitments on the first day of such Clean-Down Period exceeds
$1,000,000,000.
"CLEAN-DOWN PERIOD" means, for each consecutive 12-month
period commencing on December 1 of each year, a period of 30
consecutive days commencing between December 1 and March 1 of such
12-month period, with the first such Clean-Down Period commencing no
later than March 1, 1996, provided that if a Clean-Down Period has not
commenced prior to March 1 of any such 12-month period, a Clean-Down
Period shall commence on such date.
"CO-ARRANGER" has the meaning specified in the recital of
parties to this Agreement.
"COLLATERAL" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Administrative Agent for its
benefit and the benefit of the Agent, the Lender Parties and the Hedge
Banks.
"COLLATERAL DOCUMENTS" means the Security Agreement and any
other agreement that creates or purports to create a Lien in favor of
the Administrative Agent for its benefit and the benefit of the Agent,
the Lender Parties and the Hedge Banks.
"COMMITMENT" means a Term Commitment, a Working Capital
Commitment or a Letter of Credit Commitment.
"COMPANY" has the meaning specified in the Preliminary
Statements.
"COMPETITIVE BID ADVANCE" means an advance by a Working
Capital 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 AMOUNT" means, at any time, the aggregate
amount of the Competitive Bid Advances then outstanding.
"COMPETITIVE BID BORROWING" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Working Capital
Lenders whose offer to
17
12
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 Working Capital Lender, in substantially
the form of Exhibit A-3 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, the Company and their respective Subsidiaries that has been
furnished by the Borrower, the Company or any of their respective
Subsidiaries to the Administrative Agent, the 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 the
Administrative Agent, the Agent or any Lender Party not permitted by
this Agreement, (b) was available to the Administrative Agent, the
Agent or any Lender Party on a non-confidential basis prior to its
disclosure to the Administrative Agent, the Agent or such Lender Party
or (c) becomes available to the Administrative Agent, the Agent or any
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 the
Administrative Agent's, the 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 the Administrative Agent, the Agent or
such Lender Party.
"CONFIRMATION ORDER" has the meaning specified in Section
3.01(m)(ii).
"CONSOLIDATED" refers to the consolidation of accounts in
accordance with GAAP.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion of Regular Advances of one Type into Regular Advances of
the other Type pursuant to Section 2.09 or 2.10.
"CONVERTIBLE DEBENTURES" means the Senior Convertible Discount
Notes due February 15, 2004 issued by the Borrower pursuant to the
Senior Convertible Discount Note Agreement dated as of February 5,
1992, among the Borrower, the financial institutions party thereto and
Citibank, as agent, and the Indenture dated as of April 8, 1993
between the Borrower and The First National Bank of Boston, as
trustee.
18
13
"CURRENT ASSETS" of any Person means all assets of such Person
that would, in accordance with GAAP, be classified as current assets
of a company conducting a business the same as or similar to that of
such Person, after deducting adequate reserves in each case in which a
reserve is proper in accordance with GAAP.
"CURRENT LIABILITIES" of any Person means (a) all Debt of such
Person that by its terms is payable on demand or matures within one
year after the date of determination (excluding any Debt renewable or
extendible, at the option of such Person, to a date more than one year
from such date or arising under a revolving credit or similar
agreement that obligates the lender or lenders to extend credit during
a period of more than one year from such date) and (b) all other items
(including taxes accrued as estimated) that in accordance with GAAP
would be classified as current liabilities of such Person.
"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 payment
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations, contingent or otherwise, of such Person under acceptance,
letter of credit or similar facilities, (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 in respect of employee stock plans),
valued, in the case of Redeemable Preferred Stock, at the greater of
its voluntary or 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 (i) to pay
or purchase such Debt or to advance or supply funds for the payment or
purchase of such Debt, (ii) to purchase, sell or lease (as lessee or
lessor) property, or to purchase or sell services,
19
14
primarily for the purpose of enabling the debtor to make payment of
such Debt or to assure the holder of such Debt against loss, (iii) 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 (iv)
otherwise to assure a creditor against loss, and (j) all Debt referred
to in clauses (a) through (i) above of another Person 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.
"DEBTORS" has the meaning specified in the Preliminary
Statements.
"DEBT RATING" means, as of any date, the lowest rating that
has been most recently announced by either S&P or Moody's, as the case
may be, for any class of long-term senior unsecured Debt issued by the
Borrower or, if applicable, the rating assigned (in writing) by either
S&P or Moody's, as the case may be, to the "implied rating" of the
Borrower's long-term senior unsecured Debt. For purposes of the
foregoing, (a) if any rating established by S&P or Moody's shall be
changed, such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such
change, and (b) if S&P or Moody's shall change the basis on which
ratings are established, each reference to the 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.
"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 Administrative 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 2.16(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.
20
15
"DEFAULTED AMOUNT" means, with respect to any Lender at any
time, any amount required to be paid by such Lender to the
Administrative Agent, any other Lender or any Issuing Bank 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 2.14(c) to purchase a portion of a Letter of Credit Advance
made by such Issuing Bank, (c) the Administrative Agent pursuant to
Section 2.02(e) to reimburse the Administrative Agent for the amount
of any Advance made by the Administrative Agent for the account of
such Lender, (d) any other Lender pursuant to Section 2.13 to purchase
any participation in Advances owing to such other Lender or an Issuing
Bank and (e) the Administrative Agent or any Issuing Bank pursuant to
Section 7.05 to reimburse the Administrative Agent or such Issuing
Bank for such Lender's ratable share of any amount required to be paid
by the Lenders to the Administrative 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 2.16(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(f).
"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 Section 8.07(f), (g) and (h) and (iii) is not
otherwise a Working Capital Lender.
"DESIGNATION AGREEMENT" means a designation agreement entered
into by a Working Capital Lender (other than a Designated Bidder) and
a Designated Bidder, and accepted by the Administrative Agent, in
substantially the form of Exhibit D hereto.
"DISCLOSED LITIGATION" has the meaning specified in Section
3.01(g).
21
16
"DISCLOSURE STATEMENT" means the Disclosure Statement dated
October 21, 1994 and filed with the Bankruptcy Court by the Debtors.
"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 for such inventory.
"DOCUMENTARY L/C AMOUNT" means, at any time during a
Non-Investment Grade Period, the Available Amount of Documentary L/Cs
outstanding at such time and at any time during an Investment Grade
Period, zero.
"DOLLARS" and the sign "$" each means lawful money of the
United States.
"DOMESTIC LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
or such other office of such Lender Party as such Lender Party may
from time to time specify to the Borrower and the Administrative
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.
"ELECTRONIC ISSUING BANK" has the meaning specified in Section
2.14(a).
"ELECTRONIC L/C" and "ELECTRONIC L/C RESERVE" each has the
meaning specified in Section 2.14(a).
"ELIGIBLE ASSIGNEE" means (a) with respect to the Term
Facility, (i) a Lender; (ii) an Affiliate of a Lender; or (iii) any
other Person approved by the Administrative 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, (b) with
respect to the Working Capital Facility, (i) a Working Capital Lender;
(ii) an Affiliate of a Working Capital Lender; or (iii) any other
Person approved by the Administrative
22
17
Agent, the 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 (c) with respect to the Letter of
Credit Facility, any Person approved by the Administrative Agent, the
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 any Loan Party
nor any Affiliate of any Loan Party shall qualify as an Eligible
Assignee under this definition.
"ENVIRONMENTAL ACTION" means any administrative, regulatory or
judicial 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, any
Environmental Permit or Hazardous Material or arising from alleged
injury or threat to health, safety or the environment by Hazardous
Material, 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 third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL LAW" means any federal, state, local or (to the
extent applicable) foreign statute, law, ordinance, rule, regulation,
code, order, writ, judgment, injunction, decree or judicial or agency
interpretation, policy or guidance, relating to the environment,
health, safety or Hazardous Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"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 controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of
Section 414 of the Internal Revenue Code.
"ERISA EVENT" means (a) the occurrence of a Reportable Event
with respect to any Plan; (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
23
18
operations at a facility of any Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by any Loan Party 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 failure
by any Loan Party or any ERISA Affiliate to make a payment to a Plan
required under Section 302(f)(1) of ERISA; (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 could constitute grounds for the termination of, or the
appointment of a trustee to administer, such Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender (or, if no such office
is specified, its Domestic Lending Office), or such other office of
such Lender as such Lender may from time to time specify to the
Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum at which deposits in U.S. dollars are
offered by the principal office of the Administrative Agent 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 the Administrative Agent's
Eurodollar Rate Advance comprising part of such Borrowing to be
outstanding during such Interest Period 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.
"EURODOLLAR RATE ADVANCE" means a Regular 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
24
19
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.
"EXCESS CASH FLOW" means, for any Fiscal Year, an amount equal
to Consolidated EBITDA of the Borrower and its Subsidiaries for such
Fiscal Year,
plus (A) (without duplication) the sum of
(i) if there was a net increase in Consolidated
Current Liabilities (excluding, to the extent otherwise
included therein, income taxes payable, Funded Debt and
non-recourse Debt under the Receivables Financing Facility) of
the Borrower and its Subsidiaries during such Fiscal Year, the
amount of such net increase,
(ii) if there was a net decrease in Consolidated
Current Assets (excluding, to the extent otherwise included
therein, cash, Cash Equivalents, deferred income tax assets,
Debt outstanding under the note receivable monetized pursuant
to the May Note Monetization Facility and receivables sold
under the Receivables Financing Facility) of the Borrower and
its Subsidiaries during such Fiscal Year, the amount of such
net decrease,
(iii) an amount equal to the lesser of (A) the
Carry-Over Amount (if any) for such Fiscal Year and (B) the
amount by which the Maximum Permitted Amount for such Fiscal
Year exceeds the Cash Capital Expenditures actually made by
the Borrower and its Subsidiaries on a Consolidated basis
during such Fiscal Year, and
(iv) the amount (if any) of unusual and
extraordinary cash gains during such Fiscal Year
LESS (b) (without duplication) the sum of
25
20
(i) if there was a net decrease in Consolidated
Current Liabilities (excluding, to the extent otherwise
included therein, income taxes payable, Funded Debt and
non-recourse Debt under the Receivables Financing Facility) of
the Borrower and its Subsidiaries during such Fiscal Year, the
amount of such net decrease,
(ii) if there was a net increase in Consolidated
Current Assets (excluding, to the extent otherwise included
therein, cash, Cash Equivalents, deferred income tax assets,
Debt outstanding under the note receivable monetized pursuant
to the May Note Monetization Facility and receivables sold
under the Receivables Financing Facility) of the Borrower and
its Subsidiaries during such Fiscal Year, the amount of such
net increase,
(iii) the amount of Cash Capital Expenditures
actually made by the Borrower and its Subsidiaries on a
Consolidated basis during such Fiscal Year,
(iv) the Carry-Over Amount (if any) for the
immediately succeeding Fiscal Year,
(v) the amount (if any) of unusual and
extraordinary cash losses during such Fiscal Year,
(vi) the amount of cash income taxes actually paid
by the Borrower and its Subsidiaries on a Consolidated basis
during such Fiscal Year,
(vii) the amount of Net Cash Interest and financing
fees actually paid by the Borrower and its Subsidiaries on a
Consolidated basis during such Fiscal Year, and
(viii) Funded Debt (excluding Funded Debt under the
May Note Monetization Facility) of the Borrower and its
Subsidiaries permanently repaid or prepaid by any of them (to
the extent such Debt is not refunded or refinanced (other than
with proceeds of the Advances) and to the extent such
repayment or prepayment is permitted, in each case in
accordance with the Loan Documents) during such Fiscal Year.
"EXISTING DEBT" means Debt of the Company, Federated and their
respective Subsidiaries outstanding immediately before giving effect
to the Merger.
"EXISTING LETTERS OF CREDIT" has the meaning specified in
Section 2.14(g).
26
21
"FACILITY" means the Term Facility, the Working Capital
Facility, the Swing Line Facility or the Letter of Credit Facility.
"FDS NATIONAL BANK" means FDS National Bank, a national
banking association and an indirect wholly owned Subsidiary of the
Borrower.
"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 for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"FEDERATED" has the meaning specified in the recital of
parties to the Agreement.
"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).
"FNC" means Federated Noteholding Corporation, a Delaware
corporation and a direct wholly owned Subsidiary of the Borrower.
"FRH" means Federated Retail Holdings, Inc., a Delaware
corporation and a direct wholly owned Subsidiary of the Borrower.
"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.
27
22
"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(f), 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 Administrative 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 Administrative 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.
"GUARANTORS" means the Subsidiaries of the Borrower listed on
Schedule II hereto and each other Subsidiary of the Borrower that
shall be required to execute and deliver a guaranty pursuant to
Section 5.01(l).
"GUARANTY" has the meaning specified in Section 3.01(m)(ix).
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products, byproducts or breakdown products, radioactive materials,
asbestos-containing materials and radon gas and (b) any other
chemicals, materials or substances designated, classified or regulated
as being "hazardous" or "toxic" or words of similar import under any
Environmental Law.
28
23
"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.
"HEDGE BANK" means any Lender in its capacity as a party to a
Bank Hedge Agreement.
"INDEMNIFIED PARTY" has the meaning specified in Section
8.04(b).
"INFORMATION MEMORANDUM" means, collectively, the information
memoranda dated September 1994 and October 1994 used by the Arranger
and Co-Arranger in connection with the syndication of the Commitments.
"INITIAL EXTENSION OF CREDIT" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
"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.
"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 Regular 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 Administrative 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 at any time when a Default (but not an Event of Default)
has
29
24
occurred and is continuing, the Borrower may only select Interest
Periods of one month; PROVIDED FURTHER, HOWEVER, that:
(a) the Borrower may not select any Interest
Period with respect to any Eurodollar Rate Advance under a
Facility that ends after any principal repayment installment
date for such Facility unless, after giving effect to such
selection, the aggregate principal amount of Base Rate
Advances and of Eurodollar Rate Advances having Interest
Periods that end on or prior to such principal repayment
installment date for such Facility shall be at least equal to
the aggregate principal amount of Advances under such Facility
due and payable on or prior to such date;
(b) the Borrower may not select any Interest
Period with respect to any LIBO Rate Advance that ends after
the Termination Date;
(c) Interest Periods commencing on the same date
for Eurodollar Rate Advances comprising part of the same
Regular Borrowing or for LIBO Rate Advances comprising part of
the same Competitive Bid Borrowing shall be of the same
duration; PROVIDED, HOWEVER, that the Borrower may select up
to three separate Interest Periods of different durations in
connection with (i) the initial refinancing of the Regular
Advances made as part of the Initial Extension of Credit, and
(ii) the prepayment on or prior to January 31, 1995 of the
Series A Notes, Series B Notes and Series C Notes issued
pursuant to the Plan of Reorganization, in each case so long
as each Regular Borrowing with an Interest Period of any
specified duration consists of Advances made by the
Appropriate Lenders ratably according to their Commitments
under the relevant Facility;
(d) 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
(e) 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.
30
25
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"INVESTMENT" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or
other ownership or profit interest, warrants, rights, options,
obligations or other securities of such Person or any capital
contribution to such Person.
"INVESTMENT GRADE PERIOD" means any period during which an
Investment Grade Rating shall be in effect.
"INVESTMENT GRADE RATING" means a Debt Rating of (a) BBB- or
above from S&P and Ba1 or above from Moody's or (b) Baa3 or above from
Moody's and BB+ or above from S&P.
"ISSUING BANK" means Citibank, Chemical, any other Working
Capital Lender that has a Letter of Credit Commitment set forth
opposite its name on Schedule I hereto, any other Working Capital
Lender approved as an Issuing Bank by the Administrative Agent, the
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 Working Capital Lender 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 Administrative
Agent of its Applicable Lending Office and the amount of its Letter of
Credit Commitment (which information shall be recorded by the
Administrative Agent in the Register).
"L/C CASH COLLATERAL ACCOUNT" means the "L/C Cash Collateral
Account" as defined in the Security Agreement or any other account
established by the Borrower with the Administrative Agent for purposes
of cash collateralizing Letters of Credit, on terms and conditions and
subject to documentation satisfactory to the Administrative Agent.
"L/C RELATED DOCUMENTS" has the meaning specified in Section
2.14(e).
"LENDER PARTY" means any Lender, any Issuing Bank or any
Swing Line Bank.
31
26
"LENDERS" means the Initial Lenders and each Person that shall
become a party hereto pursuant to Section 8.07(a), (b), (c), (d) and
(e) 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, each Designated Bidder.
"LETTER OF CREDIT" has the meaning specified in Section
2.14(a).
"LETTER OF CREDIT ADVANCE" means an advance made by any
Issuing Bank or any Working Capital Lender pursuant to Section
2.14(c).
"LETTER OF CREDIT AGREEMENT" has the meaning specified in
Section 2.14(b)(i).
"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 Working Capital Lender has
otherwise become an Issuing Bank, set forth for such Issuing Bank in
the Register maintained by the Administrative 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) $500,000,000, as such amount may
be reduced at or prior to such time pursuant to Section 2.05.
"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, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the rate per annum at which deposits in U.S. dollars are
offered by the principal office of the Administrative Agent 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 the amount that would be
the Administrative Agent's Pro Rata Share of such Borrowing if such
Borrowing were to be a Regular Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period
32
27
by (b) a percentage equal to 100% minus the Eurodollar Rate Reserve
Percentage for such Interest Period.
"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 (a) for purposes of this Agreement and
the Notes and any amendments or modifications hereof or thereof and
for all other purposes other than for purposes of the Collateral
Documents and the Guaranty, (i) this Agreement, (ii) the Notes, (iii)
the Guaranty, (iv) the Collateral Documents and (v) each Letter of
and (b) for purposes of the Collateral Documents and
the Guaranty, (i) this Agreement, (ii) the Notes, (iii) the Guaranty,
(iv) the Collateral Documents, (v) each Letter of and
(vi) each Bank Hedge Agreement, in the case of each of the foregoing
agreements referred to in clause (a) or (b), as it may be amended or
otherwise modified from time to time.
"LOAN PARTIES" means the Borrower, the Guarantors and the
Pledgors.
"MARGIN STOCK" has the meaning specified in Regulation U.
"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 financial condition, business,
results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole, (b) the legality, validity or
enforceability of any Loan Document, (c) the attachment, perfection or
priority of the liens and security interests created under the Loan
Documents, (d) the ability of any Loan Party to perform its
Obligations under any Loan Document or Related Document to which it is
or is to be a party or (e) the rights and remedies of the
Administrative Agent or any Lender Party under any Loan Document or
Related Document.
"MATERIAL CONTRACT" means a "material contract", as defined in
Item 601(b)(10) of Regulation S-K promulgated by the Securities and
Exchange Commission, of any Loan Party or any of its Subsidiaries.
"MAXIMUM PERMITTED AMOUNT" has the meaning specified in
Section 5.02(o).
33
28
"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; provided that, for the first three fiscal quarters
of the Fiscal Year ending on February 3, 1996, "MEASUREMENT PERIOD"
means the period commencing on the first day of such Fiscal Year and
ending on the last day of such fiscal quarter.
"MERGER" has the meaning specified in the Preliminary
Statements.
"MERGER AGREEMENT" has the meaning specified in the
Preliminary Statements.
"MINOR SUBSIDIARY" means any Subsidiary of the Borrower other
than a Loan Party or a Pledged 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 any Loan Party 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 any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party 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 CASH INTEREST" means, for any period, the amount (if any)
by which (a) Net Interest Expense exceeds (b) to the extent included
in clause (a), amortization of deferred financing fees and debt
discount in respect of Debt of the Borrower and its Subsidiaries for
such period, calculated on a Consolidated basis in accordance with
GAAP.
"NET CASH PROCEEDS" means, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance of
any Debt or capital stock or other
34
29
ownership or profit interest, any securities convertible into or
exchangeable for capital stock or other ownership or profit interest
or any warrants, rights, options or other securities to acquire
capital stock or other ownership or profit interest by any Person, the
aggregate amount of cash received from time to time (whether as
initial consideration or through payment or disposition of deferred
consideration) by or on behalf of such Person in connection with such
transaction after deducting therefrom only (without duplication) (a)
reasonable and customary brokerage commissions, underwriting fees and
discounts, legal fees, finder's fees and other similar fees and
commissions, (b) the amount of taxes payable in connection with or as
a result of such transaction and (c) the amount of any Debt owing to a
Person that is not a Loan Party or any of its Subsidiaries or any of
their respective Affiliates secured by a Lien on such asset that, by
the terms of such transaction, is required to be repaid upon such
disposition, in each case to the extent, but only to the extent, that
the amounts so deducted are, at the time of receipt of such cash,
actually paid to a Person that is not an Affiliate of such Person or
any Loan Party and are properly attributable to such transaction or to
the asset that is the subject thereof.
"NET INTEREST EXPENSE" means, for any period, the amount (if
any) by which (a) interest payable on all Debt (including, without
limitation, the interest component of Capitalized Leases) and
amortization of deferred financing fees and debt discount in respect
of all Debt exceeds (b) interest income, in each case of the Borrower
and its Subsidiaries for such period, calculated on a Consolidated
basis in accordance with GAAP.
"NON-INVESTMENT GRADE PERIOD" means any period during which an
Investment Grade Rating shall not be in effect.
"NOTE" means a Term Note, a Working Capital Note or a
Competitive Bid Note.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NOTICE OF COMPETITIVE BID BORROWING" has the meaning
specified in Section 2.03(a)(i).
"NOTICE OF ISSUANCE" has the meaning specified in Section
2.14(b)(i).
"NOTICE OF RENEWAL" has the meaning specified in Section
2.14(a).
35
30
"NOTICE OF SWING LINE BORROWING" has the meaning specified in
Section 2.02(b).
"NOTICE OF TERMINATION" has the meaning specified in Section
2.14(a).
"NPL" means the National Priorities List under CERCLA.
"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(f). Without
limiting the generality of the foregoing, the Obligations of the Loan
Parties 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 any Loan Party under any Loan Document and (b) the
obligation of any Loan Party 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 such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OPEN YEAR" has the meaning specified in Section 4.01(bb).
"OTHER TAXES" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation.
"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
36
31
security benefits, other than in respect of 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 materially adversely
affect the value of such property for the purpose of such business.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency
thereof.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PLAN OF REORGANIZATION" has the meaning specified in the
Preliminary Statements.
"PLEDGED SUBSIDIARY" means any Subsidiary of the Borrower the
capital stock of which has been, or is required to be under the terms
of the Loan Documents, pledged to the Administrative Agent as
Collateral.
"PLEDGORS" means the Borrower, FRH and each Subsidiary of the
Borrower that shall be required to execute and deliver a security
agreement pursuant to Section 5.01(l).
"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
Working Capital Lender at any time, the product of such amount times a
fraction the numerator of which is the amount of such Lender's Working
Capital Commitment at such time and the denominator of which is the
Working Capital Facility at such time.
"RECEIVABLES FINANCING FACILITY" means the receivables
financing facility established by the Borrower in 1992 and any
replacement thereof that is on terms no less favorable, taken as a
whole, to the Borrower and its Subsidiaries, pursuant to which certain
Subsidiaries of the Borrower issue non-recourse public term Debt and
commercial paper secured by certain receivables of the Borrower and
its Subsidiaries.
37
32
"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.
"REDUCTION AMOUNT" has the meaning specified in Section
2.06(b)(vii).
"REGISTER" has the meaning specified in Section 8.07(i).
"REGULAR ADVANCE" means any Advance other than a Competitive
Bid Advance.
"REGULAR BORROWING" means a Term Borrowing, a Working Capital
Borrowing or a Swing Line Borrowing.
"REGULATION U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Merger Agreement, the Plan of
Reorganization and the Tax Agreement.
"RELEASE DATE" means the earlier of (a) the later of (i) the
Termination Date and (ii) the payment in full of the Obligations of
the Loan Parties under the Loan Documents and (b) the earlier of (i)
the date on which the Administrative Agent receives evidence
satisfactory to it that an Investment Grade Rating shall have been in
effect continuously for six months and is then in effect and (ii) the
date on which the Administrative Agent receives evidence satisfactory
to it that a Debt Rating of BBB- or above from S&P and Baa3 or above
from Moody's shall have been in effect continuously for three months
and is then in effect, PROVIDED that the Borrower was not placed on
"credit watch" (or any like designation by S&P or Moody's from time to
time) by either S&P or Moody's at any time during such six-month or
three-month period, as the case may be, PROVIDED FURTHER that no
Default shall have occurred and shall be continuing on such date.
"REORGANIZATION" has the meaning specified in the Preliminary
Statements.
38
33
"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 aggregate
principal amount of the Regular Advances outstanding at such time, (b)
the aggregate Available Amount of all Letters of Credit outstanding at
such time, (c) the aggregate unused Term Commitments at such time and
(d) the aggregate Unused Working Capital 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 aggregate principal amount of
the Regular Advances made by such Lender (in its capacity as a Lender)
and outstanding at such time, (ii) if such Lender shall be an Issuing
Bank, the aggregate Available Amount of all Letters of Credit issued
by such Lender and outstanding at such time, (iii) the unused Term
Commitment of such Lender at such time and (iv) the Unused Working
Capital Commitment of such 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 Working Capital Lenders ratably
in accordance with their respective Working Capital Commitments.
"RESPONSIBLE OFFICER" means any executive officer of the
Borrower or any of its Subsidiaries or any other officer of the
Borrower or any of its Subsidiaries responsible for overseeing or
reviewing compliance with this Agreement or any other Loan Document.
"S&P" means Standard & Poor's, a division of McGraw-Hill, Inc.
"SECURED OBLIGATIONS" has the meaning specified in the
Security Agreement.
"SECURITY AGREEMENT" has the meaning specified in Section
3.01(m)(viii).
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so
maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
39
34
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to
pay such debts and liabilities as they mature and (d) such Person is
not engaged in business or a transaction, and is not about to engage
in business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"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.
"SURVIVING CORPORATION" has the meaning specified in the
Preliminary Statements.
"SURVIVING DEBT" means Existing Debt that will remain
outstanding immediately after giving effect to the Merger.
"SWING LINE ADVANCE" means an advance made by (a) any Swing
Line Bank pursuant to Section 2.01(c) or (b) any Working Capital
Lender pursuant to Section 2.02(b).
"SWING LINE BANK" means each of Citibank, Chemical and up to
three additional Working Capital Lenders as may be designated by the
Borrower from time
40
35
to time (with the consent of any Lender so designated), PROVIDED that
any of Citibank, Chemical or any other Lender as shall have been so
designated may resign upon 30 days' prior written notice to the
Borrower and the Administrative 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(c).
"TAX AGREEMENT" means the Tax Sharing Agreement dated as of
February 5, 1992 among the Borrower and the "Members" referred to
therein, as amended or otherwise modified from time to time in
accordance with its terms, to the extent permitted in accordance with
the Loan Documents.
"TAXES" has the meaning specified in Section 2.12(a).
"TERM ADVANCE" has the meaning specified in Section 2.01(a).
"TERM BORROWING" means a borrowing consisting of simultaneous
Term Advances of the same Type made by the Term Lenders.
"TERM COMMITMENT" means, with respect to any Term Lender at
any time, the amount set forth opposite such Lender's name on Schedule
I hereto under the caption "Term Commitment" or, if such Lender has
entered into one or more Assignments and Acceptances, set forth for
such Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(i) as such Lender's "Term Commitment", as
such amount may be reduced at or prior to such time pursuant to
Section 2.05.
"TERM FACILITY" means, at any time, the aggregate amount of
the Term Lenders' Term Commitments at such time.
"TERM LENDER" means any Lender that has a Term Commitment.
"TERM NOTE" means a promissory note of the Borrower payable to
the order of any Term Lender, in substantially the form of Exhibit A-1
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Term Advance made by such Lender.
"TERMINATION DATE" means the earlier of March 31, 2000 and the
date of termination in whole of the Term Commitments, the Working
Capital Commitments,
41
36
the Letter of Credit Commitments and the Swing Line Facility 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.
"TYPE" refers to the distinction between Regular Advances
bearing interest at the Base Rate and Regular Advances bearing
interest at the Eurodollar Rate.
"UNUSED WORKING CAPITAL COMMITMENT" means, with respect to any
Working Capital Lender at any time,
(a) such Lender's Working Capital Commitment at
such time MINUS
(b) the sum of
(i) the aggregate principal amount of
all Working Capital 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 Competitive Bid Amount at
such time,
(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 2.14(c) and outstanding
at such time and
42
37
(D) to the extent not included in
clause (b)(i) of this definition, the
aggregate principal amount of all Swing Line
Advances made by the Swing Line Banks
pursuant to Section 2.01(c) 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.
"WELFARE PLAN" means a welfare plan, as defined in Section
3(1) of ERISA.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
"WORKING CAPITAL ADVANCE" has the meaning specified in Section
2.01(b).
"WORKING CAPITAL BORROWING" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the
Working Capital Lenders.
"WORKING CAPITAL COMMITMENT" means, with respect to any
Working Capital Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Working Capital
Commitment" or, if such Lender has entered into one or more
Assignments and Acceptances, set forth for such Lender in the Register
maintained by the Administrative Agent pursuant to Section 8.07(i) as
such Lender's "Working Capital Commitment", as such amount may be
reduced at or prior to such time pursuant to Section 2.05.
"WORKING CAPITAL FACILITY" means, at any time, the aggregate
amount of the Working Capital Lenders' Working Capital Commitments at
such time.
"WORKING CAPITAL LENDER" means any Lender that has a Working
Capital 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.
"WORKING CAPITAL NOTE" means a promissory note of the Borrower
payable to the order of any Working Capital Lender, in substantially
the form of Exhibit A-2
43
38
hereto, evidencing the aggregate indebtedness of the Borrower to such Lender
resulting from the Working Capital Advances made by such Lender.
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 TERM ADVANCES. Each Term Lender severally
agrees, on the terms and conditions hereinafter set forth, to make a single
advance (a "TERM ADVANCE") to the Borrower on any Business Day during the
period from the date hereof until January 31, 1995 in an amount not to exceed
such Lender's Term Commitment at such time. The Term Borrowing shall consist
of Term Advances made by the Term Lenders ratably according to their Term
Commitments. Amounts borrowed under this Section 2.01(a) and repaid or prepaid
may not be reborrowed.
(b) THE WORKING CAPITAL ADVANCES. Each Working Capital
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make advances (each a "WORKING CAPITAL ADVANCE") to the Borrower from time to
time on any Business Day during the period from the date hereof until the
Termination Date in an amount for each such Advance not to exceed an amount
equal to such Lender's Unused Working Capital
44
39
Commitment at such time less such Lender's Pro Rata Share of the Documentary
L/C Amount at such time. Each Working Capital Borrowing shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof (other than a Borrowing the proceeds of which shall be used solely to
repay or prepay in full outstanding Swing Line Advances made by any Swing Line
Bank or 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 Working
Capital 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
Working Capital Borrowing. Each Working Capital Borrowing shall consist of
Working Capital Advances made by the Working Capital Lenders ratably according
to their Working Capital Commitments. Within the limits referred to in the
first sentence of this Section 2.01(b), the Borrower may borrow under this
Section 2.01(b), prepay pursuant to Section 2.06(a) and reborrow under this
Section 2.01(b).
(c) 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 aggregate of the
Unused Working Capital Commitments of the Working Capital Lenders at such time
less the Documentary L/C 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 Working Capital 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 aggregate Unused Working Capital Commitments of the Working Capital
Lenders (other than Working Capital Lenders that are Defaulting Lenders or
Potential Defaulting Lenders) 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
45
40
Bank, in its sole discretion, elects to make Swing Line Advances), the Borrower
may borrow under this Section 2.01(c), repay pursuant to Section 2.04(c) or
prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(c).
(d) CLEAN-DOWN. Notwithstanding the provisions of
Sections 2.01(b), 2.01(c), 2.03(a) and 2.14(a), no Borrowings may be made under
Section 2.01(b), 2.01(c) or 2.03(a), and no Standby Letters of Credit may be
issued under Section 2.14(a), during any Clean-Down Period, unless the
aggregate principal amount of Working Capital Advances, Letter of Credit
Advances, Swing Line Advances and Competitive Bid Advances plus the aggregate
Available Amount of Standby Letters of Credit outstanding after giving effect
to such Borrowing or the issuance of such Standby Letter of Credit does not
exceed the Clean-Down Amount.
SECTION 2.02. MAKING THE REGULAR ADVANCES. (a) Except as
otherwise provided in Section 2.02(b) or 2.14, each Regular 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 Borrowing in the case of a
Borrowing consisting of Eurodollar Rate Advances, or the first Business Day
prior to the date of the proposed Borrowing in the case of a Borrowing
consisting of Base Rate Advances, by the Borrower to the Administrative Agent,
which shall give to each Appropriate Lender prompt notice thereof by telex or
telecopier. Each such notice of a Regular Borrowing (a "NOTICE OF BORROWING")
shall be by telephone, confirmed immediately in writing, or telex or
telecopier, in substantially the form of Exhibit B-1 hereto, specifying therein
the requested (i) date of such Borrowing, (ii) Facility under which such
Borrowing is to be made, (iii) Type of Advances comprising such Borrowing, (iv)
aggregate amount of such Borrowing and (v) in the case of a Borrowing
consisting of Eurodollar Rate Advances, initial Interest Period for each such
Advance. Each Appropriate Lender shall, before 11:00 A.M. (New York City time)
on the date of such Borrowing, make available for the account of its Applicable
Lending Office to the Administrative Agent at the Administrative Agent's
Account, in same day funds, such Lender's ratable portion of such Borrowing in
accordance with the respective Commitments under the applicable Facility of
such Lender and the other Appropriate Lenders. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower by crediting the Borrower's Account; PROVIDED,
HOWEVER, that, in the case of any Working Capital Borrowing, the Administrative
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
Working Capital Lender and outstanding on the date of such Working Capital
Borrowing, plus interest accrued and unpaid thereon to and as of such date,
available to such Swing Line Bank or such Issuing
46
41
Bank, as the case may be, and such other Working Capital Lenders for repayment
of such Swing Line Advances and Letter of Credit Advances.
(b) 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
Administrative 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(c), it
makes the requested Swing Line Advance, such Swing Line Bank will make the
amount thereof available to the Administrative Agent at the Administrative
Agent's Account, in same day funds. After the Administrative Agent's receipt
of such funds and upon fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the
Borrower by crediting the Borrower's Account. Upon written demand by any Swing
Line Bank with an outstanding Swing Line Advance, with a copy of such demand to
the Administrative Agent, each other Working Capital Lender shall purchase from
such Swing Line Bank, and such Swing Line Bank shall sell and assign to each
such other Working Capital 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
Administrative Agent for the account of such Swing Line Bank, by deposit to the
Administrative 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 Working Capital 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 Working Capital 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 any Loan Party. If and to the extent that any Working Capital Lender shall
not have so made the amount of such Swing Line Advance available to the
Administrative Agent, such Working Capital Lender agrees to pay to the
Administrative 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 Administrative Agent, at the Federal Funds
Rate. If such Lender shall pay to the Administrative Agent such amount for the
account
47
42
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
the initial Borrowing hereunder or for any Borrowing if the aggregate amount of
such Borrowing is less than $25,000,000 or if the obligation of the Appropriate
Lenders to make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or 2.10 and (ii) the Eurodollar Rate Advances may not be
outstanding as part of more than 10 separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line
Borrowing shall be irrevocable and binding on the Borrower. In the case of any
Borrowing that the related Notice of Borrowing specifies is to be comprised of
Eurodollar Rate Advances, the Borrower shall indemnify each Appropriate 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 Borrowing
for such Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including 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 Borrowing when such Advance, as a result of
such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received
notice from an Appropriate Lender prior to the date of any Regular Borrowing
under a Facility under which such Lender has a Commitment that such Lender will
not make available to the Administrative Agent such Lender's ratable portion of
such Borrowing, the Administrative Agent may assume that such Lender has made
such portion available to the Administrative Agent on the date of such
Borrowing in accordance with subsection (a) or (b) of this Section 2.02 and the
Administrative 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
Administrative Agent, the Borrower and such Lender severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such
Borrowing and (ii) in the case of such Lender, the Federal Funds Rate. If such
Lender shall pay to the Administrative Agent such corresponding amount, such
amount so paid shall constitute such Lender's Advance as part of such Borrowing
for purposes of this Agreement. If the Borrower shall repay to the
48
43
Administrative Agent such corresponding amount, such payment shall not relieve
such Lender of any obligation it may have to the Borrower hereunder.
(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 date hereof 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 aggregate Unused Working Capital
Commitments of the Lenders in effect immediately prior to giving effect to such
Competitive Bid Borrowing less the Documentary L/C Amount at such time and (y)
following the making of each Competitive Bid Borrowing, (I) the aggregate
amount of the Competitive Bid Advances of all Lenders then outstanding shall
not exceed $1,000,000,000 and (II) the aggregate amount of the Competitive Bid
Advances of any one Lender then outstanding shall not exceed the greater of (x)
the Working Capital Commitment of such Lender and (y) $50,000,000.
(i) The Borrower may request a Competitive Bid Borrowing
under this Section 2.03 by delivering to the Administrative 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 and not later than 180 days
after the date of such Competitive Bid Borrowing), (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 Working Capital 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
49
44
of the proposed Competitive Bid Borrowing, if the Borrower shall
instead specify in the Notice of Competitive Bid Borrowing that the
rates of interest to be offered by the Working Capital Lenders are to
be based on the LIBO Rate (the Advances comprising such Competitive
Bid Borrowing being referred to herein as "LIBO RATE ADVANCES"). The
Administrative Agent shall in turn promptly notify each Working
Capital 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 Working Capital 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 Administrative
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 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
Working Capital 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 Administrative Agent
in its capacity as a Working Capital 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 Administrative
Agent by the other Working Capital Lenders. If any Working Capital
Lender shall elect not to make such an offer, such Lender shall so
notify the Administrative 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 Administrative Agent by the other Working Capital 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
50
45
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by
giving the Administrative 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 Administrative 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 Administrative 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 Administrative
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 Administrative Agent
that such Competitive Bid Borrowing is cancelled pursuant to paragraph
(iii)(x) above, the Administrative Agent shall give prompt notice
thereof to the Working Capital 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 Administrative 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 Administrative 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
51
46
of such Competitive Bid Borrowing specified in the notice received
from the Administrative Agent pursuant to clause (A) of the preceding
sentence or any later time when such Lender shall have received notice
from the Administrative Agent pursuant to clause (C) of the preceding
sentence, make available for the account of its Applicable Lending
Office to the Administrative Agent at the Administrative 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 Administrative Agent of
such funds, the Administrative Agent will make such funds available to
the Borrower by crediting the Borrower's Account. Promptly after each
Competitive Bid Borrowing the Administrative Agent will notify each
Working Capital Lender of the amount and maturity of the Competitive
Bid Borrowing and the consequent Competitive Bid Amount.
(vi) If the Borrower notifies the Administrative 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
(including 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 three Business Days of the date of any other Competitive Bid Borrowing;
PROVIDED, HOWEVER, that notwithstanding the immediately preceding proviso, up
to three Competitive Bid Borrowings may be made within three Business Days of
any other Competitive Bid Borrowing in connection with (i) the initial
refinancing of the Regular Advances made as part of the Initial Extension of
Credit and (ii) the prepayment on or prior to
52
47
January 31, 1995 of the Series A Notes, the Series B Notes and the Series C
Notes issued pursuant to the Plan of Reorganization.
(d) The Borrower shall repay to the Administrative 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 be evidenced by a separate Competitive Bid Note of the Borrower
payable to the order of the Lender making such Competitive Bid Advance.
(g) Upon delivery of each Notice of Competitive Bid
Borrowing, the Borrower shall pay a non-refundable competitive bid fee of
$3,000 to the Administrative Agent for its own account.
SECTION 2.04. REPAYMENT OF REGULAR ADVANCES.
53
48
(a) TERM ADVANCES. The Borrower shall repay to the
Administrative Agent for the ratable account of the Term Lenders the aggregate
outstanding principal amount of the Term Advances on the dates and in the
amounts indicated on Schedule 2.04(a) hereto.
(b) WORKING CAPITAL ADVANCES. The Borrower shall repay
to the Administrative Agent for the ratable account of the Working Capital
Lenders on the Termination Date the aggregate principal amount of the Working
Capital Advances then outstanding.
(c) SWING LINE ADVANCES. The Borrower shall repay to the
Administrative Agent for the account of each Swing Line Bank and each other
Working Capital 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.
(d) LETTER OF CREDIT ADVANCES. The Borrower shall repay
to the Administrative Agent for the account of each Issuing Bank and each other
Working Capital 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 2.05. TERMINATION OR REDUCTION OF THE COMMITMENTS.
(a) OPTIONAL. The Borrower may, upon at least three Business Days' notice to
the Administrative Agent, terminate in whole or reduce in part the unused
portions of the Term Commitments, the Letter of Credit Facility and the Swing
Line Facility and the Unused Working Capital Commitments; PROVIDED, HOWEVER,
that each partial reduction of a Facility (i) shall be in an aggregate amount
of $5,000,000 or an integral multiple of $1,000,000 in excess thereof and (ii)
shall be made ratably among the Appropriate Lenders in accordance with their
Commitments with respect to such Facility.
(b) MANDATORY. (i) The Working Capital Facility shall be
automatically and permanently reduced on a pro rata basis on each date on which
prepayment thereof is required to be made pursuant to Section 2.06(b)(i) or
(ii) in an amount equal to the applicable Reduction Amount, PROVIDED that each
such reduction of the Working Capital Facility shall be made ratably among the
Working Capital Lenders in accordance with their Working Capital Commitments,
PROVIDED FURTHER, HOWEVER, that notwithstanding the foregoing and Section
2.06(b)(vii), in no event shall the Working Capital Facility be reduced,
pursuant to this Section 2.05(b)(i), to less than $1,100,000,000.
54
49
(ii) The Letter of Credit Facility and the Swing Line
Facility shall be permanently reduced from time to time on the date of each
reduction in the Working Capital Facility by the amounts, if any, by which the
aggregate amounts of the Letter of Credit Facility and the Swing Line Facility,
respectively, exceed the Working Capital Facility after giving effect to such
reduction of the Working Capital Facility.
(iii) On the date of the Term Borrowing, after giving
effect to such Term Borrowing, and from time to time thereafter upon each
repayment or prepayment of the Term Advances, the aggregate Term Commitments of
the Term Lenders shall be automatically and permanently reduced, on a pro rata
basis, by an amount equal to the amount by which the aggregate Term Commitments
immediately prior to such reduction exceed the aggregate unpaid principal
amount of the Term Advances then outstanding.
SECTION 2.06. 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 Administrative Agent stating the proposed date
and aggregate principal amount of the prepayment, and if such notice is given
the Borrower shall, prepay the outstanding aggregate 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
aggregate principal amount prepaid; PROVIDED, HOWEVER, that (x) each partial
prepayment shall be in an aggregate principal amount of $5,000,000 or an
integral multiple of $1,000,000 in excess thereof and (y) if any prepayment of
a Eurodollar Rate Advance is made other than on the last day of an Interest
Period for such Advance, the Borrower shall also pay any amounts owing pursuant
to Section 8.04(c). With respect to each such prepayment of any Term Advances,
50% of such prepayment shall be applied to the installments thereof pro rata
and the remaining 50% of such prepayment shall be applied to the installments
thereof in inverse order of maturity.
(b) MANDATORY. (i) If on the 90th day following the end
of any Fiscal Year, an Investment Grade Rating shall not be in effect, the
Borrower shall, on or before such 90th day, commencing with the Fiscal Year
ending on February 3, 1996, prepay an aggregate principal amount of the Regular
Advances comprising part of the same Borrowings in an amount equal to (x) 35%,
if the Interest Coverage Ratio at the end of such Fiscal Year is greater than
3.75:1 or (y) 50%, in all other cases, in each case of the amount of Excess
Cash Flow for such Fiscal Year. Each such prepayment shall be applied ratably
FIRST to the Term Facility, with 50% of such prepayment applied to the
installments thereof pro rata and the remaining 50% of such prepayment applied
to the installments thereof in inverse order of maturity and SECOND to the
Working Capital Facility as set forth in clause (vii) below.
55
50
(ii) During each Non-Investment Grade Period, the Borrower
shall, on the date of receipt of the Net Cash Proceeds by the Borrower or any
of its Subsidiaries from (A) the sale, lease, transfer or other disposition of
any assets of the Borrower or any of its Subsidiaries (other than any sale,
lease, transfer or other disposition of assets pursuant to clause (i), (ii),
(iii), (v) or (vi) of Section 5.02(d)) and (B) the incurrence or issuance by
the Borrower or any of its Subsidiaries of any Debt (other than Debt incurred
or issued pursuant to clause (i)(A), (B) or (D), (ii) or (iii) of Section
5.02(b)), prepay an aggregate principal amount of the Advances comprising part
of the same Borrowings in an amount equal to 50% of the amount of such Net Cash
Proceeds. Each such prepayment shall be applied FIRST to the Term Facility,
with 50% of such prepayment applied to the installments thereof pro rata and
the remaining 50% of such prepayment applied in inverse order of maturity and
SECOND to the Working Capital Facility as set forth in clause (vii) below.
(iii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Working Capital Advances comprising part of
the same Borrowings, the Letter of Credit Advances and the Swing Line Advances
equal to the amount by which (A) the sum of the aggregate principal amount of
(w) the Working Capital Advances, (x) the Letter of Credit Advances, (y) the
Swing Line Advances and (z) the Competitive Bid Advances then outstanding plus
the aggregate Available Amount of all Letters of Credit then outstanding
exceeds (B) the Working Capital Facility on such Business Day.
(iv) The Borrower shall, on each Business Day and on the
Termination Date, pay to the Administrative Agent for deposit in the L/C Cash
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 (iv) 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 Administrative Agent in their sole discretion, issued by
a bank satisfactory to such Issuing Banks and the Administrative Agent in their
sole discretion, in an amount equal to the aggregate Available Amount of the
Letters of Credit then outstanding.
(v) The Borrower shall pay to the Administrative Agent,
on the first day of each Clean-Down Period, an amount equal to the amount by
which the aggregate principal amount of the Working Capital Advances, the
Letter of Credit Advances, the Swing Line Advances and the Competitive Bid
Advances plus the aggregate Available Amount of outstanding Standby Letters of
Credit exceeds the Clean-Down Amount, FIRST to be applied to
56
51
prepay the Working Capital Advances, the Letter of Credit Advances and the
Swing Line Advances and SECOND to be deposited in the L/C Cash Collateral
Account.
(vi) The Borrower shall, on or within the 30 Business Days
immediately preceding the date of any prepayment, redemption, purchase or
defeasance of Debt by the Borrower or any of its Subsidiaries pursuant to
clause (viii) of Section 5.02(j), prepay an aggregate principal amount of the
Advances comprising part of the same Borrowings in an amount equal to the
aggregate principal amount of the other Debt being so prepaid, redeemed,
purchased or defeased. Each such prepayment shall be applied ratably to the
Term Facility, with 50% of such prepayment applied to the installments thereof
pro rata and the remaining 50% of such prepayment applied to the installments
thereof in inverse order of maturity.
(vii) Prepayments of the Working Capital Facility made
pursuant to clause (i), (ii), (iii) or (v) above 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, THIRD applied to prepay Working Capital
Advances then outstanding comprising part of the same Borrowings until such
Advances are paid in full and FOURTH deposited in the L/C Cash Collateral
Account to cash collateralize 100% of the Available Amount of the Letters of
Credit then outstanding; and, in the case of prepayments of the Working Capital
Facility required pursuant to clause (i) or (ii) above, the amount remaining
(if any) after the prepayment in full of the Advances then outstanding and the
100% cash collateralization of the aggregate Available Amount of Letters of
Credit then outstanding (the sum of such prepayment amounts, cash
collateralization amounts and remaining amount being referred to herein as the
"REDUCTION AMOUNT") may be retained by the Borrower and the Working Capital
Facility shall be permanently reduced as set forth in Section 2.05(b)(i). Upon
the drawing of any Letter of Credit for which funds are on deposit in the L/C
Cash Collateral Account, such funds shall be applied to reimburse the relevant
Issuing Bank or Working Capital Lenders, as applicable.
(viii) 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 2.07. 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 (A) the Base Rate in effect from time to time and (B) the
Applicable Margin in effect from time to time,
57
52
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
(A) the Eurodollar Rate for such Interest Period for such Advance and
(B) 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 six months, on the day that occurs during
such Interest Period three months after 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 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 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, in the case of interest, on the Type of Advance on which
such interest has accrued pursuant to clause (a)(i) or (a)(ii) above, and, in
all other cases, on Base Rate Advances pursuant to clause (a)(i) above.
(c) NOTICE OF INTEREST RATE. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a), the Administrative Agent shall
give notice to the Borrower and each Appropriate Lender of the applicable
interest rate determined by the Administrative Agent for purposes of clause
(a)(i) or (a)(ii) above.
SECTION 2.08. FEES. (a) COMMITMENT FEE. The Borrower shall
pay to the Administrative Agent for the account of the Lenders a commitment fee
on the average daily unused portion of each Appropriate Lender's Term
Commitment and on the sum of the average daily Unused Working Capital
Commitment of such Lender plus its Pro Rata Share of the average daily
outstanding Swing Line Advances PLUS its Pro Rata Share of the average daily
outstanding Competitive Bid Advances (in each case, such average to be
calculated for the period commencing on the due date of the most recent such
payment (or the date of the Initial Extension of Credit in the case of the
first such payment) and ending on the date such payment is due) from the date
of the Initial Extension of Credit in the case of each Initial
58
53
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 Applicable Percentage in
effect from time to time, payable in arrears, on March 31, 1995, and
thereafter, quarterly on the last Business Day of each March, June, September
and December, and on the Termination Date; PROVIDED, HOWEVER, that any
commitment fee accrued with respect to any of the Commitments 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
commitment fee shall otherwise have been due and payable by the Borrower prior
to such time; and PROVIDED FURTHER that no commitment fee shall accrue on any
of the Commitments of a Defaulting Lender so long as such Lender shall be a
Defaulting Lender.
(b) UTILIZATION FEE. During each Non-Investment Grade
Period, for each day on which the sum of the aggregate outstanding Advances
plus the aggregate Available Amount of outstanding Letters of Credit plus the
aggregate Available Amount of outstanding Documentary L/Cs exceeds 50% of the
sum of (i) the Term Commitments on such day plus (ii) the Working Capital
Commitments on such day, the Borrower shall pay to the Administrative Agent for
the account of each Lender (other than the Designated Bidders) a utilization
fee on the sum of the aggregate amount of the Advances outstanding and owing to
such Lender plus such Lender's Pro Rata Share of the aggregate Available Amount
of all outstanding Standby Letters of Credit at the rate of 0.25% per annum,
payable in arrears on March 31, 1995, and thereafter, quarterly on the last
Business Day of each March, June, September and December and on the Termination
Date; PROVIDED, HOWEVER, that any utilization fee accrued with respect to any
of the Advances 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 utilization fee shall otherwise have been due and payable
by the Borrower prior to such time; and PROVIDED FURTHER that no utilization
fee shall accrue on any of the Advances of a Defaulting Lender so long as such
Lender shall be a Defaulting Lender.
(c) ADMINISTRATIVE AGENT'S FEES. The Borrower shall pay
to the Administrative Agent for its own account such fees as may from time to
time be agreed between the Borrower and the Administrative Agent.
SECTION 2.09. CONVERSION OF REGULAR ADVANCES. (a) OPTIONAL.
The Borrower may on any Business Day, upon notice given to the Administrative
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 in the case of a Conversion to
Eurodollar Rate Advances, or the first Business Day prior to the date of the
proposed Conversion in the case of a Conversion to Base
59
54
Rate Advances and subject to the provisions of Section 2.10, Convert all or any
portion of the Regular Advances of one Type comprising the same Borrowing into
Regular 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
Advances shall result in more separate Borrowings than permitted under Section
2.02(c). Each such notice of Conversion shall, within the restrictions
specified above, specify (i) the date of such Conversion, (ii) the Advances to
be Converted and (iii) if such Conversion is into Eurodollar Rate Advances, the
duration of the initial Interest Period for such Advances. Each notice of
Conversion shall be irrevocable and binding on the Borrower.
(b) MANDATORY. (i) 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.
(ii) 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 Administrative Agent will forthwith so notify the Borrower and the
Appropriate Lenders, whereupon each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default, (x) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (y) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. INCREASED COSTS, ETC. (a) If, due to either
(i) the introduction of or any change (other than any change by way of
imposition or increase of reserve requirements included in the Eurodollar Rate
Reserve Percentage) in or in the interpretation of any law or regulation or
(ii) the compliance with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing to make or of
making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances
or of agreeing to issue or of issuing or maintaining Letters of Credit, then
the Borrower shall from time to time, upon demand by such Lender (with a copy
of such demand to the Administrative Agent), pay to the Administrative Agent
for the account of such Lender additional amounts sufficient to
60
55
compensate such Lender for such increased cost; PROVIDED, HOWEVER, that a
Lender claiming additional amounts under this Section 2.10(a) agrees to use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such a designation would avoid the need for, or reduce the amount
of, such increased cost that may thereafter accrue and would not, in the
reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender. A certificate as to the amount of such increased cost, submitted to
the Borrower by such Lender, shall be conclusive and binding for all purposes,
absent manifest error. If the Borrower so notifies the Administrative Agent
within ten Business Days after any Lender notifies the Borrower of any
increased cost pursuant to the foregoing provisions of this Section 2.10(a),
the Borrower may, upon payment of such increased cost to such Lender, replace
such Lender with a Person that is an Eligible Assignee in accordance with the
terms of Section 8.07 (and the Lender being so replaced shall take all action
as may be necessary to assign its rights and obligations under this Agreement
to such Eligible Assignee).
(b) If any Lender Party (other than the Designated
Bidders) 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 Administrative Agent), the Borrower shall pay to the
Administrative 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 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 to the issuance or maintenance of any Letters of Credit. A
certificate as to such amounts submitted to the Borrower by such Lender Party
shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances
under any Facility, Lenders owed at least a majority in interest of the then
aggregate unpaid principal amount thereof notify the Administrative Agent that
the Eurodollar Rate for any Interest Period for such Advances will not
adequately reflect the cost to such Lenders of making, funding or maintaining
their Eurodollar Rate Advances for such Interest Period, the Administrative
Agent shall forthwith so notify the Borrower and the Appropriate Lenders,
whereupon (i) each such Eurodollar Rate Advance under such Facility will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of
61
56
the Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lenders have determined that the circumstances causing such
suspension no longer exist.
(d) Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank or other
governmental authority shall assert 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 continue to fund or
maintain Eurodollar Rate Advances or LIBO Rate Advances hereunder, then, on
notice thereof and demand therefor by such Lender to the Borrower through the
Administrative Agent, (i) each Eurodollar Rate Advance under each Facility
under which such Lender has a Commitment 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 Appropriate Lenders to make, or
to Convert Regular Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower that such Lender has
determined that the circumstances causing such suspension no longer exist.
SECTION 2.11. PAYMENTS AND COMPUTATIONS. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any
right of counterclaim or set-off (except as otherwise provided in Section
2.16), not later than 12:00 Noon (New York City time) on the day when due in
U.S. dollars to the Administrative Agent at the Administrative Agent's Account
in same day funds. The Administrative Agent will promptly thereafter cause
like funds to be distributed (i) if such payment by the Borrower is in respect
of principal, interest, commitment fees, utilization fees or any other
Obligation then payable hereunder and under the Notes to more than one Lender
or Issuing Bank, to such Lenders or such Issuing Banks, as the case may be, for
the account of their respective Applicable Lending Offices ratably in
accordance with the amounts of such respective Obligations then payable to such
Lenders or Issuing Banks and (ii) if such payment by the Borrower is in respect
of any Obligation then payable hereunder to one Lender or one Issuing Bank, to
such Lender or such Issuing Bank 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 of such Assignment and Acceptance,
the Administrative Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee or Issuing
Bank 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.
62
57
(b) If the Administrative Agent receives funds for
application to the Obligations under the Loan Documents under circumstances for
which the Loan Documents do not specify the Advances or the Facility to which,
or the manner in which, such funds are to be applied, the Administrative Agent
may, but shall not be obligated to, elect to distribute such funds to each
Lender ratably in accordance with such Lender's proportionate share of the
principal amount of all outstanding Advances and the Available Amount of all
Letters of Credit then outstanding, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender, and for
application to such principal installments, as the Administrative Agent shall
direct.
(c) 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, in the case of a Lender, under the Note held by such Lender, to
charge from time to time against any or all of the Borrower's accounts with
such Lender Party any amount so due.
(d) All computations of interest, fees and Letter of
Credit commissions shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest, fees or commissions are payable. Each determination by the
Administrative Agent of an interest rate, fee or commission hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(e) 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,
commitment fee or utilization 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.
(f) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to any
Lender or any Issuing Bank hereunder that the Borrower will not make such
payment in full, the Administrative Agent may assume that the Borrower has made
such payment in full to the Administrative Agent on such date and the
Administrative Agent may, in reliance upon such assumption, cause to be
distributed to each such Lender or such Issuing Bank on such due date an amount
equal to the amount then due each such Lender or such Issuing Bank, as the case
may be. If and to the extent the Borrower shall not have so made such payment
in full to the Administrative Agent, each such Lender or such Issuing Bank, as
the case may be, shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Lender or such Issuing Bank
63
58
together with interest thereon, for each day from the date such amount is
distributed to such Lender or such Issuing Bank until the date such Lender or
such Issuing Bank repays such amount to the Administrative Agent, at the
Federal Funds Rate.
SECTION 2.12. TAXES. (a) Any and all payments by the
Borrower hereunder or under the Notes shall be made, in accordance with Section
2.11, 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 the Administrative Agent, net income taxes that are imposed by the United
States and franchise taxes and net income taxes that are imposed on such Lender
Party or the Administrative Agent by the state or foreign jurisdiction under
the laws of which such Lender Party or the Administrative Agent (as the case
may be) is organized or any political subdivision thereof and, in the case of
each Lender Party, franchise taxes and net income taxes that are imposed on
such Lender Party by the state or foreign 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 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 the Administrative 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 2.12) such Lender Party or the Administrative 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, documentary, excise, property or similar taxes, charges or levies
that arise from any payment made hereunder or under the Notes or from the
execution, delivery or registration of, 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
the Administrative Agent for the full amount of Taxes and Other Taxes, and for
the full amount of taxes imposed by any jurisdiction on amounts payable under
this Section 2.12, paid by such Lender Party or the Administrative Agent (as
the case may be) and any liability (including penalties, additions to tax,
interest and expenses) arising therefrom or with respect thereto. This
indemnification shall be made within 30 days from the date such Lender Party or
the Administrative Agent (as the case may be) makes written demand therefor.
64
59
(d) Within 30 days after the date of any payment of
Taxes, the Borrower shall furnish to the Administrative Agent, at its address
referred to in Section 8.02, the original receipt of payment thereof or a
certified copy of such receipt. 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 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 Administrative Agent, at such address, an opinion of counsel acceptable to
the Administrative 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 shall, 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 became a Lender Party in the case of each other
Lender Party, and from time to time thereafter if requested in writing by the
Borrower or the Administrative Agent (but only so long thereafter as such
Lender Party remains lawfully able to do so), provide the Administrative Agent
and the Borrower with Internal Revenue Service form 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 is entitled to a
reduced rate of United States withholding tax on payments under this Agreement
or the Notes. To the extent permitted by law, as an alternative to form 1001
or 4224, each such Lender Party may provide the Administrative Agent with two
duly completed copies of Internal Revenue Service Form W-8, or any successor
form prescribed by the Internal Revenue Service, certifying that such Lender
Party is exempt from United States federal withholding tax pursuant to Section
871(h) or 881(c) of the Internal Revenue Code, together with an annual
certificate stating that such Lender Party is not a "person" described in
Section 871(h)(3) or 881(c)(3) of the Internal Revenue Code. 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 form
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
65
60
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,
4224 or W-8, 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
subsection (e) (OTHER THAN if such failure is due to a change in law occurring
after the date on which a form originally was required to be provided or if
such form otherwise is not required under subsection (e)), such Lender Party
shall not be entitled to indemnification under subsection (a) or (c) with
respect to Taxes imposed by the United States; 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 such Lender Party
shall reasonably request to assist such Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts
payable pursuant to this Section 2.12 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 2.13. SHARING OF PAYMENTS, ETC. If any Lender or any
Issuing Bank shall obtain at any time any payment (whether voluntary,
involuntary, through the exercise of any right of set-off, or otherwise) (a) on
account of Obligations due and payable to such Lender or Issuing Bank hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations due and payable to such
Lender or Issuing Bank at such time to (ii) the aggregate amount of the
Obligations due and payable to all Lenders and all Issuing Banks hereunder and
under the Notes at such time) of payments on account of the Obligations due and
payable to all Lenders and all Issuing Banks hereunder and under the Notes at
such time obtained by all the Lenders at such time or (b) on account of
Obligations owing (but not due and payable) to such Lender or Issuing Bank
hereunder and under the Notes at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations owing to
such Lender or Issuing Bank at such time to (ii) the aggregate amount of the
Obligations owing (but not due and payable) to all Lenders and all Issuing
Banks hereunder and under the Notes at such time) of payments on account of the
Obligations owing (but not due and payable) to all Lenders and all Issuing
Banks hereunder and under the Notes at such time obtained by all of the Lenders
and all of the
66
61
Issuing Banks at such time, such Lender or Issuing Bank shall forthwith
purchase from the other Lenders and the other Issuing Banks such participations
in the Obligations due and payable or owing to them, as the case may be, as
shall be necessary to cause such purchasing Lender or Issuing Bank 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 or Issuing Bank, such purchase from each other Lender and each other
Issuing Bank shall be rescinded and such other Lender or Issuing Bank shall
repay to the purchasing Lender or Issuing Bank the purchase price to the extent
of such other Lender's or Issuing Bank's ratable share (according to the
proportion of (i) the purchase price paid to such Lender or Issuing Bank to
(ii) the aggregate purchase price paid to all Lenders or Issuing Banks) of such
recovery together with an amount equal to such Lender's or Issuing Bank's
ratable share (according to the proportion of (i) the amount of such other
Lender's or Issuing Bank's required repayment to (ii) the total amount so
recovered from the purchasing Lender or Issuing Bank) of any interest or other
amount paid or payable by the purchasing Lender or Issuing Bank in respect of
the total amount so recovered. The Borrower agrees that any Lender or Issuing
Bank so purchasing a participation from another Lender or Issuing Bank pursuant
to this Section 2.13 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 or Issuing Bank were the direct
creditor of the Borrower in the amount of such participation.
SECTION 2.14. 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 referred to in Section 2.14(g), the "LETTERS OF CREDIT") for
the account of the Borrower or the Borrower and any Guarantor 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 Working Capital Commitments of the Working Capital Lenders at such time
less (2) the sum of (I) the Electronic L/C Reserve then in effect and (II) the
Documentary L/C Amount 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 $10,000,000. 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
67
62
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 Administrative 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 Administrative
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 Administrative 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 2.14(a), repay any Letter of Credit Advances resulting from
drawings thereunder pursuant to Section 2.14(c) and request the issuance of
additional Letters of Credit under this Section 2.14(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 $400,000,000, which reserve shall (i) 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 (ii) be
established or revised upon not less than 2 Business Days' prior written notice
thereof from the Borrower to the Administrative Agent, PROVIDED, that upon the
occurrence and during the continuance of a Default, the ability to establish
and
68
63
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 2.14(a)), which shall give to the
Administrative Agent and each Working Capital 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 Trade Letters
of Credit outstanding does not exceed $400,000,000) and the Electronic Issuing
Bank may issue, up to $400,000,000 in the aggregate of Electronic L/Cs without
the giving of notice thereof by such Issuing Bank to the Administrative Agent
and each Working Capital Lender unless and until the Administrative 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 (or, in the case of Electronic
L/Cs, transmitted electronically), 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 Lenders
holding at least a majority in interest of the Working Capital Commitments,
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 shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(ii) Each Issuing Bank shall furnish (A) to the
Administrative 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
69
64
such week under all Letters of Credit issued by such Issuing Bank, (B) to each
Working Capital 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 Administrative
Agent and each Working Capital 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 Administrative 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 2.14(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 Administrative Agent, each Working Capital Lender shall purchase
from such Issuing Bank, and such Issuing Bank shall sell and assign to each
such Working Capital 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 Administrative Agent
for the account of such Issuing Bank, by deposit to the Administrative 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
Working Capital 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 Working Capital 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 any Loan Party. If and to the extent that any
Working Capital Lender shall not have so made the amount of such Letter of
Credit Advance available to the Administrative Agent, such Working Capital
Lender agrees to pay to
70
65
the Administrative 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 Administrative 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 Administrative 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 Working Capital 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 2.14(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 2.14(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 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 and such other agreement or
instrument under all circumstances, including, without limitation, the
following circumstances:
(i) any lack of validity or enforceability of any Loan
Document, any Letter of , 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
71
66
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
Collateral or other collateral, or any release or amendment or waiver
of or consent to departure from the Guaranty or any other 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
Administrative Agent for the account of each Working Capital 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
payable in arrears quarterly on the last Business Day of each March, June,
September and December, commencing March 31, 1995, 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
72
67
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
first date on which the conditions set forth in Sections 3.01 and 3.02 shall
have been satisfied, (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 2.14(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 hereunder and
shall no longer be Obligations under the documents pursuant to which such
Existing Letters of Credit were initially issued.
SECTION 2.15. USE OF PROCEEDS. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
solely to pay to certain creditors of the Debtors the cash consideration for
their claims against the Debtors, purchase the claims of The Prudential
Insurance Company of America against the Company pursuant to an option to do so
held by FNC, refinance the Series A Notes, the Series B Notes and the Series C
Notes to be issued pursuant to the Plan of Reorganization, pay transaction fees
and expenses, refinance certain Existing Debt of Federated and provide working
capital for the Borrower and its Subsidiaries and for other general corporate
purposes, including, without limitation, non-hostile acquisitions.
SECTION 2.16. DEFAULTING LENDERS. (a) In the event that, 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. In the event that, 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
73
68
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 Administrative 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 which 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 Administrative Agent as specified in subsection (b) or (c) of
this Section 2.16.
(b) In the event that, at any one time, (i) any Lender
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Administrative Agent or any of the other Lenders and (iii) the
Borrower shall make any payment hereunder or under any other Loan Document to
the Administrative Agent for the account of such Defaulting Lender, then the
Administrative 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. In the event that the Administrative Agent shall so apply
any such amount to the payment of any such Defaulted Amount on any date, the
amount so applied by the Administrative 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
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lenders, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative 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 Administrative Agent and the
other Lenders, in the following order of priority:
(i) FIRST, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative 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.
74
69
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
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.16.
(c) In the event that, 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
Administrative 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 Administrative Agent to be held by the Administrative Agent, to
the fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent
in escrow under this subsection (c) shall be deposited by the Administrative
Agent in an account with Citibank, in the name and under the control of the
Administrative 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
Administrative Agent in escrow under, and applied by the Administrative Agent
from time to time in accordance with the provisions of, this subsection (c).
The Administrative 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 Administrative 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 Administrative Agent for any amount
then due and payable by such Defaulting Lender to the Administrative
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.
75
70
In the event that such Defaulting Lender shall, at any time, cease to be a
Defaulting Lender, any funds held by the Administrative Agent in escrow at such
time with respect to such Defaulting Lender shall be distributed by the
Administrative 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 2.16 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 Administrative Agent or any Lender may have against such
Defaulting Lender with respect to any Defaulted Amount.
ARTICLE III
CONDITIONS OF 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) The Merger Agreement shall be in full force and
effect; and the Merger shall have been consummated substantially in
accordance with the terms of the Merger Agreement, without any waiver
or amendment not consented to by the Lenders (such consent not to be
unreasonably withheld or delayed) of any material term, provision or
condition set forth therein, and in compliance in all material
respects with all applicable laws.
(b) The Reorganization shall have been consummated
substantially in accordance with the terms described in the Disclosure
Statement or the Plan of Reorganization.
(c) The Plan of Reorganization shall have been confirmed
by the Bankruptcy Court in substantially the form of the draft dated
October 21, 1994 furnished to the Lenders prior to the date hereof,
without any waiver or amendment not consented to by the Lenders (such
consent not to be unreasonably withheld or delayed) of any term,
provision or condition set forth therein, and in compliance in all
material respects with
76
71
all applicable laws; and the Confirmation Order shall be in full force
and effect, and shall not have been reversed, modified or amended in
any respect, and (i) all applicable appeal periods shall have expired
without the pendency of any appeal or the entry of any stay or (ii)
the "Effective Date" (as defined in the Plan of Reorganization) shall
have occurred.
(d) The Lender Parties shall be satisfied with the
corporate and legal structure of each Loan Party and each of its
Subsidiaries and the capitalization of Federated and each of its
Subsidiaries as set forth in the financial statements referred to in
Section 4.01(f), including the terms and conditions of the charter,
bylaws and each class of capital stock of each Loan Party and of each
agreement or instrument relating to such corporate and legal
structure.
(e) The Lender Parties shall be satisfied that all
Existing Debt, other than the Surviving Debt (which is identified on
Schedule 3.01(e)), has been prepaid, redeemed or defeased in full or
otherwise satisfied and extinguished and that all Surviving Debt shall
be on terms and conditions described in the Information Memorandum or
the Disclosure Statement or otherwise satisfactory to the Lender
Parties.
(f) Before giving effect to the Merger, the
Reorganization and the other transactions contemplated by this
Agreement, there shall have occurred no material adverse change in the
business, financial condition, results of operations, or prospects of
Federated or any of its Subsidiaries since January 29, 1994 or of the
Company or any of its Subsidiaries since July 30, 1994.
(g) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party 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 other than the matters described on Schedule
3.01(g) (the "DISCLOSED LITIGATION") or (ii) purports to affect the
legality, validity or enforceability of the Merger, the
Reorganization, this Agreement, any Note, any other Loan Document, any
Related Document or the consummation of the transactions contemplated
hereby, and there shall have been no adverse change in the status, or
financial effect on any Loan Party or any of its Subsidiaries, of the
Disclosed Litigation from that described on Schedule 3.01(g).
(h) The Lender Parties shall have completed a due
diligence investigation of the Loan Parties and their Subsidiaries in
scope, and with results, satisfactory to the Lender Parties, and
nothing shall have come to the attention of the Lender Parties
77
72
during the course of such due diligence investigation to lead them to
believe (i) that the Information Memorandum was or has become
misleading, incorrect or incomplete in any material respect, (ii)
that, following the consummation of the Merger and the Reorganization,
the Borrower and its Subsidiaries would not have good title to all
material assets of the Company and its Subsidiaries reflected in the
Information Memorandum and (iii) that the Merger or the Reorganization
will have a Material Adverse Effect; without limiting the generality
of the foregoing, the Lender Parties shall have been given such access
to the management, records, books of account, contracts and properties
of the Loan Parties and their Subsidiaries as they shall have
requested.
(i) All of the Collateral shall be owned by the Borrower
or one or more of the Borrower's Subsidiaries, in each case free and
clear of any lien, charge or encumbrance; the Administrative Agent
shall have a valid and perfected first priority lien on and security
interest in the Collateral for the benefit of itself and the benefit
of the Agent, the Lender Parties and the Hedge Banks; and all filings,
recordations and searches necessary or desirable in connection with
such liens and security interests shall have been duly made.
(j) All governmental and third party consents and
approvals necessary in connection with the Loan Documents and the
transactions contemplated thereby shall have been obtained (without
the imposition of any conditions that are not acceptable to the Lender
Parties) and shall remain in effect to the extent that a failure to
obtain any such consents and approvals could not reasonably be
expected to have a Material Adverse Effect; all applicable waiting
periods shall have expired without any action being taken by any
competent authority; and no law or regulation shall be applicable in
the judgment of the Lender Parties that restrains, prevents or imposes
materially adverse conditions upon the Loan Documents or the
transactions contemplated thereby.
(k) The Lender Parties shall be satisfied (i) that the
Borrower and its Subsidiaries, after giving effect to the transactions
contemplated by the Loan Documents, will be able to meet their
obligations under all Welfare Plans, (ii) that the employee benefit
plans of the Loan Parties and the ERISA Affiliates have been, in all
material respects, funded not less than in accordance with the
applicable minimum statutory requirements, (iii) that no Reportable
Event has occurred that would cause a material liability to any Loan
Party or any ERISA Affiliate and (iv) that no termination of, or
withdrawal from, any employee benefit plan of any Loan Party or any
ERISA Affiliate has occurred, is reasonably expected to occur or is
contemplated that could result in a material liability to any Loan
Party or any ERISA Affiliate.
78
73
(l) The Borrower shall have paid all accrued fees and
expenses of the Administrative Agent and the Lender Parties (including
the accrued fees and expenses of counsel to the Administrative Agent
and the Agent).
(m) The Administrative Agent shall have received on or
before the day of the Initial Extension of Credit the following, each
dated such day (unless otherwise specified), in form and substance
satisfactory to the Lender Parties (unless otherwise specified) and
(except for the Revolving Credit Notes and the Term Notes) in
sufficient copies for each Lender Party:
(i) The Working Capital Notes and the Term Notes
payable to the order of the Lenders.
(ii) A certified copy of an order of the
Bankruptcy Court approving the Plan of Reorganization (the
"CONFIRMATION ORDER").
(iii) Certified copies of the resolutions of the
Board of Directors of the Company approving the Merger, the
Merger Agreement and the Plan of Reorganization and of the
Borrower and each other Loan Party approving the Merger, the
Reorganization, this Agreement, the Notes, each other Loan
Document and each Related Document to which it is or is to be
a party, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with
respect to the Merger, the Reorganization, this Agreement, the
Notes, each other Loan Document and each Related Document.
(iv) A copy of a certificate of the Secretary of
State of the jurisdiction of its incorporation, dated
reasonably near the date of the Initial Extension of Credit,
listing the charter of the Borrower and each other Loan Party
and each amendment thereto on file in his office and
certifying that (A) such amendments are the only amendments to
the Borrower's or such other Loan Party's charter on file in
his office, (B) the Borrower and each other Loan Party have
paid all franchise taxes to the date of such certificate and
(C) the Borrower and each other Loan Party are duly
incorporated and in good standing or presently subsisting
under the laws of the state of the jurisdiction of its
incorporation.
(v) Certified copies of a certificate of merger
or other confirmation from the Secretary of State of the State
of Delaware satisfactory to the Administrative Agent of the
consummation of the Merger.
79
74
(vi) A certificate of the Borrower and each other
Loan Party, signed on behalf of the Borrower and such other
Loan Party by its President or a Vice President and its
Secretary or an Assistant Secretary, dated the date of the
Initial Extension of Credit (the statements made in which
certificate shall be true on and as of the date of the Initial
Extension of Credit), certifying as to (A) the absence of any
amendments to the charter of the Borrower or such other Loan
Party since the date of the Secretary of State's certificate
referred to in Section 3.01(m)(iv), (B) a true and correct
copy of the bylaws of the Borrower and such other Loan Party
as in effect on the date of the Initial Extension of Credit,
(C) the due incorporation and good standing of the Borrower
and such other Loan Party as a corporation organized under the
laws of the state of the jurisdiction of its incorporation,
and the absence of any proceeding for the dissolution or
liquidation of the Borrower or such other Loan Party, (D) the
truth of the representations and warranties contained in the
Loan Documents as though made on and as of the date of the
Initial Extension of Credit and (E) the absence of any event
occurring and continuing, or resulting from the Initial
Extension of Credit, that constitutes a Default.
(vii) A certificate of the Secretary or an
Assistant Secretary of the Borrower and each other Loan Party
certifying the names and true signatures of the officers of
the Borrower and such other Loan Party authorized to sign this
Agreement, the Notes, each other Loan Document and each
Related Document to which they are or are to be parties and
the other documents to be delivered hereunder and thereunder.
(viii) A security agreement in substantially the
form of Exhibit E (together with each other security agreement
delivered pursuant to Section 5.01(l), in each case as amended
from time to time in accordance with its terms, the "SECURITY
AGREEMENT"), duly executed by each Pledgor, together with
certificates representing the Pledged Shares referred to
therein accompanied by undated stock powers executed in blank
and instruments evidencing the Pledged Debt referred to
therein indorsed in blank and evidence that all other action
that the Administrative Agent may deem necessary or desirable
in order to perfect and protect the liens and security
interests created under the Security Agreement has been taken.
(ix) A guaranty in substantially the form of
Exhibit F (together with each other guaranty delivered
pursuant to Section 5.01(l), in each case as amended from time
to time in accordance with its terms, the "GUARANTY"), duly
executed by each Guarantor.
80
75
(x) Certified copies of each of the Related
Documents, duly executed by the parties thereto and in form
and substance reasonably satisfactory to the Lender Parties,
together with all agreements, instruments and other documents
delivered in connection therewith.
(xi) Such financial, business and other
information regarding each Loan Party and its Subsidiaries as
the Lender Parties shall have requested, including, without
limitation, information as to possible contingent liabilities,
tax matters, environmental matters, obligations under ERISA
and Welfare Plans, collective bargaining agreements and other
arrangements with employees, annual financial statements of
Federated and its Subsidiaries dated January 29, 1994, annual
financial statements of the Company and its Subsidiaries dated
July 30, 1994, interim financial statements dated the end of
the most recent fiscal quarter for which financial statements
are available (or, in the event the Lender Parties' due
diligence review reveals material changes since such financial
statements, as of a later date within 45 days of the day of
the Initial Extension of Credit), forecasted financial
information prepared by management of the Borrower, in form
and substance satisfactory to the Administrative Agent and the
Agent on a quarterly basis for the first two years following
the day of the Initial Extension of Credit.
(xii) A letter, in form and substance satisfactory
to the Administrative Agent, from KPMG Peat Marwick LLP, the
Borrower's independent certified public accountants, to the
Borrower, acknowledging that the Lender Parties have relied
and will rely upon the financial statements of the Borrower
examined by such accountants in determining whether to enter
into, and to take action or refrain from taking action under,
the Loan Documents.
(xiii) A favorable opinion of Jones, Day, Reavis &
Pogue, counsel for the Loan Parties, in substantially the form
of Exhibit G-1 hereto and a favorable opinion of Dennis J.
Broderick, General Counsel to the Borrower, in substantially
the form of Exhibit G-2 hereto and, in each case, as to such
other matters as the Administrative Agent may reasonably
request.
(xiv) A favorable opinion of Shearman & Sterling,
counsel for the Administrative Agent and the Agent, in form
and substance satisfactory to the Administrative Agent and the
Agent.
81
76
SECTION 3.02. CONDITIONS PRECEDENT TO EACH REGULAR BORROWING,
ISSUANCE AND RENEWAL. The obligation of each Appropriate Lender to make a
Regular Advance (other than a Letter of Credit Advance made by an Issuing Bank
or a Working Capital Lender pursuant to Section 2.14(c), a Swing Line Advance
made by a Working Capital Lender pursuant to Section 2.02(b), or a Working
Capital Advance made by a Working Capital Lender pursuant to Section 2.02(a) so
long as the proceeds thereof are used solely for purposes of repaying or
prepaying outstanding Swing Line Advances) on the occasion of each Regular
Borrowing (including the initial Borrowing) and the obligation of each Issuing
Bank to issue a Letter of Credit (including the initial issuance) or renew a
Standby Letter of Credit, and the right of the Borrower to request a Swing Line
Borrowing, shall be subject to the further conditions precedent that 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 Borrowing, Notice
of Issuance, Notice of Swing Line Borrowing or Notice of Renewal and the
acceptance by the Borrower of the proceeds of such Borrowing or of such Letter
of Credit 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 each
Loan Document 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;
(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
(iii) in the case of a Borrowing (other than any Term
Borrowing) or the issuance or renewal of a Letter of Credit, the
aggregate amount of such Borrowing, issuance or renewal and all other
Borrowings (other than any Term Borrowing), issuances and renewals to
be made on the same day does not exceed an amount equal to the
aggregate Unused Working Capital Commitments LESS the Documentary L/C
Amount;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender (other than the Designated
Bidders) through the Administrative Agent may reasonably request.
82
77
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 Administrative Agent shall have received the
written confirmatory Notice of Competitive Bid Borrowing with respect thereto,
(ii) on or before the date of such Borrowing, but prior to such Borrowing, the
Administrative 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 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 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 Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing such statements are true):
(a) the representations and warranties contained in each
Loan Document are correct on and as of the date of such Borrowing,
before and after giving effect to such Borrowing and to the
application of the proceeds therefrom, as though made on and as of
such date other than any such representations or warranties that, by
their terms, refer to a specific date other than the date of such
Borrowing or issuance, in which case as of such specific date;
(b) no event has occurred and is continuing, or would
result from such Borrowing or from the application of the proceeds
therefrom, that constitutes a Default;
(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 Administrative Agent and each Lender 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; and
(d) the aggregate amount of such Borrowing and all other
Borrowings (other than any Term Borrowing) and issuances and renewals
of Letters of Credit to be made on the same day does not exceed an
amount equal to the aggregate Unused Working Capital Commitments LESS
the Documentary L/C Amount.
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
83
78
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
Administrative 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 Administrative 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 (and for purposes of the
Initial Extension of Credit, such representations and warranties shall be
deemed to have been made immediately after giving effect to the Merger and the
Reorganization):
(a) Each Loan Party (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to
so qualify or be licensed is not reasonably likely to have a Material
Adverse Effect and (iii) has all requisite corporate power and
authority to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted. All of
the outstanding capital stock of the Guarantors has been validly
issued, is fully paid and non-assessable and is directly or indirectly
owned by the Borrower free and clear of all Liens except those created
under the Loan Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete
and accurate list of all Subsidiaries of each Loan Party, showing as
of the date hereof (as to each such Subsidiary) the jurisdiction of
its incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class owned
(directly or indirectly) by such Loan Party and the number of shares
covered by all outstanding options, warrants, rights of conversion or
purchase and similar rights at the date hereof. All of the
outstanding capital stock of all of such Subsidiaries has been validly
issued, is fully paid and non-assessable and is owned by such Loan
Party or one or more of its Subsidiaries free and clear of all Liens,
except those created under the Loan
84
79
Documents. Each such Subsidiary (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify or be licensed except where the failure to
so qualify or be licensed is not reasonably likely to have a Material
Adverse Effect and (iii) has all requisite corporate power and
authority to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted.
(c) The execution, delivery and performance by each Loan
Party of this Agreement, the Notes, each other Loan Document and each
Related Document to which it is or is to be a party, and the
consummation of the Merger, the Reorganization and the other
transactions contemplated hereby, are within such Loan Party's
corporate powers, have been duly authorized by all necessary corporate
action, and do not (i) contravene such Loan Party's charter or bylaws,
(ii) violate any law (including, without limitation, the Securities
Exchange Act of 1934 and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970),
rule, regulation (including, without limitation, Regulation X of the
Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict
with or result in the breach of, or constitute a default under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument binding on or affecting any Loan Party, any of its
Subsidiaries or any of their properties or (iv) except for the Liens
created under the Loan Documents, result in or require the creation or
imposition of any Lien upon or with respect to any of the properties
of any Loan Party or any of its Subsidiaries. No Loan Party or any of
its Subsidiaries is in violation of any such law, rule, regulation,
order, writ, judgment, injunction, decree, determination or award or
in breach of any such contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument, the violation or breach of
which is reasonably likely to have a Material Adverse Effect.
(d) 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 (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes, any other Loan Document or any Related Document
to which it is or is to be a party, (ii) the consummation of the
Merger, the Reorganization or the other transactions contemplated
hereby, (iii) the grant by any Loan Party of the Liens granted by it
pursuant to the Collateral Documents, (iv) the perfection or
maintenance of the Liens created by the Collateral Documents
(including the first priority nature thereof) or (v) the exercise by
the Administrative Agent, the Agent or any Lender Party of its rights
under the Loan Documents or the remedies in
85
80
respect of the Collateral pursuant to the Collateral Documents, except
for the authorizations, approvals, actions, notices and filings listed
on Schedule 4.01(d), all of which have been duly obtained, taken,
given or made and are in full force and effect other than, with
respect to clause (ii) above, those authorizations, approvals,
actions, notices and filings which the failure to obtain, take, give
or make, either individually or in the aggregate, could not reasonably
be expected to have a Material Adverse Effect. All applicable waiting
periods in connection with the Merger, the Reorganization and the
other transactions contemplated hereby have expired without any action
having been taken by any competent authority restraining, preventing
or imposing materially adverse conditions upon the Merger or the
Reorganization or the rights of the Loan Parties or their Subsidiaries
freely to transfer or otherwise dispose of, or to create any Lien on,
any properties now owned or hereafter acquired by any of them.
(e) This Agreement has been, and each of the Notes, each
other Loan Document and each Related Document when delivered hereunder
will have been, duly executed and delivered by each Loan Party party
thereto. This Agreement is, and each of the Notes, each other Loan
Document and each Related Document when delivered hereunder will be,
the legal, valid and binding obligation of each Loan Party party
thereto, enforceable against such Loan Party in accordance with its
terms.
(f) The Consolidated and consolidating balance sheets of
Federated and its Subsidiaries as at January 29, 1994, and the related
Consolidated and consolidating statements of income and the related
Consolidated statement of cash flows of Federated and its Subsidiaries
for the fiscal year then ended, accompanied by an opinion of KPMG Peat
Marwick LLP, independent public accountants, and the Consolidated and
consolidating balance sheets of Federated and its Subsidiaries as at
October 29, 1994, and the related Consolidated and consolidating
statements of income and the related Consolidated statement of cash
flows of Federated and its Subsidiaries for the nine months then
ended, duly certified by the chief financial officer of Federated,
copies of which have been furnished to each Lender Party, fairly
present, subject, in the case of said balance sheets as at October 29,
1994, and said statements of income and cash flows for the nine months
then ended, to year-end audit adjustments, the Consolidated and
consolidating financial condition of Federated and its Subsidiaries as
at such dates and the Consolidated and consolidating results of the
operations of Federated and its Subsidiaries for the periods ended on
such dates, in the case of such Consolidated financial statements, all
in accordance with generally accepted accounting principles applied on
a consistent basis, and in the case of such Consolidated and
consolidating financial statements, all consistent with past
practices. Since January 29, 1994, (i) there has been no material
adverse change, as of the date of this Agreement, in the
86
81
business, financial condition, results of operations or prospects of
any Loan Party or any of its Subsidiaries, and (ii) there has been no
material adverse change in the business, financial condition, results
of operations or prospects of the Borrower or the Borrower and its
Subsidiaries taken as a whole.
(g) The Consolidated balance sheet of the Company and its
Subsidiaries as at July 30, 1994, and the related Consolidated
statements of income and cash flows of the Company and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Deloitte & Touche LLP, independent public accountants, copies of
which are set forth in the Disclosure Statement furnished to each
Lender Party prior to the date hereof, and the Consolidated balance
sheet of the Company and its Subsidiaries as at October 29, 1994, and
the related Consolidated statements of income and cash flows of the
Company and its Subsidiaries for the three months then ended, duly
certified by the chief financial officer of the Company, copies of
which have been furnished to each Lender Party, fairly present,
subject, in the case of said balance sheets as at October 29, 1994,
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 Company and its Subsidiaries as at such dates and the
Consolidated results of the operations of the Company and its
Subsidiaries for the periods ended on such dates, all in accordance
with generally accepted accounting principles applied on a consistent
basis. Since July 30, 1994, there has been no material adverse
change, as of the date of this Agreement, in the business, financial
condition, results of operations or prospects of the Company or any of
its Subsidiaries.
(h) The Consolidated projected balance sheets, income
statements and cash flows statements of the Borrower and its
Subsidiaries delivered to the Lender Parties pursuant to Section
3.01(m)(xi) or 5.03(e) (collectively, the PROJECTIONS") were prepared
in good faith on the basis of the assumptions stated therein, which
assumptions were, in the opinion of the management of the Borrower,
fair in the light of conditions existing at the time of delivery of
such forecasts; and at the time of delivery, the management of the
Borrower believed that the forecasts of the Borrower's future
financial performance set forth in the Projections were reasonable and
attainable.
(i) Neither the Information Memorandum nor any other
written information, exhibit or report furnished by any Loan Party to
the Administrative Agent or any Lender Party in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan
Documents (other than the Projections) contained any untrue statement
of a material fact or omitted to state a material fact necessary to
make the statements made therein not misleading.
87
82
(j) There is no action, suit, investigation, litigation
or proceeding affecting any Loan Party or any of its Subsidiaries,
including any Environmental Action, pending or threatened before any
court, governmental agency or arbitrator that (i) would be reasonably
likely to have a Material Adverse Effect (other than the Disclosed
Litigation) or (ii) purports to affect the legality, validity or
enforceability of the Merger, the Reorganization, this Agreement, any
Note, any other Loan Document or any Related Document or the
consummation of the transactions contemplated hereby, and there has
been no adverse change in the status, or financial effect on any Loan
Party or any of its Subsidiaries, of the Disclosed Litigation from
that described on Schedule 3.01(g).
(k) No proceeds of any Advance will be used to acquire
any equity security of a class that is registered pursuant to Section
12 of the Securities Exchange Act of 1934 (other than, to the extent
applicable, in connection with (i) the acquisition of the Company and
its Subsidiaries pursuant to the Merger Agreement or (ii) an
acquisition of a company, so long as (x) the board of directors of
such company shall have approved such acquisition at the time such
acquisition is first publicly announced, (y) if such company shall
have been soliciting bids for its acquisition, the board of directors
of such company shall not have determined either to accept no offer or
to accept an offer other than the Borrower's offer or (z) if such
company shall not have been soliciting bids for its acquisition or if
the board of directors of such company shall have solicited bids for
its acquisition but shall have determined either to accept no offer or
to accept an offer other than the Borrower's offer, the existence,
amount and availability for the acquisition of such company of the
Facilities hereunder shall not have been disclosed, orally or in
writing, until after such time as the board of directors of such
company shall have approved such acquisition by the Borrower and so
long as, in any case, such acquisition is otherwise permitted
hereunder).
(l) The Borrower is not engaged in the business of
extending credit for the purpose of purchasing or carrying Margin
Stock, and no proceeds of any Advance will be used to purchase or
carry any Margin Stock or to extend credit to others for the purpose
of purchasing or carrying any Margin Stock (other than, to the extent
applicable, in connection with the acquisitions referred to in clauses
(i) and (ii) of Section 4.01(k)).
(m) Following application of the proceeds of each
Advance, not more than 25 percent of the value of the assets (either
of the Borrower only or of the Borrower and its Subsidiaries on a
Consolidated basis) subject to the provisions of Section 5.02(a) or
5.02(d) or subject to any restriction contained in any agreement or
88
83
instrument between the Borrower and any Lender Party or any Affiliate
of any Lender Party relating to Debt and within the scope of Section
6.01(d) will be Margin Stock.
(n) Set forth on Schedule 4.01(n) hereto is a complete
and accurate list of all Plans, Multiemployer Plans and Welfare Plans
with respect to any employees of any Loan Party or any of its
Subsidiaries.
(o) No ERISA Event has occurred or is reasonably expected
to occur with respect to any Plan (other than the Reportable Event
described in Department of Labor Regulation Section 2615.21 with
respect to the Debtors' Chapter 11 proceedings under the Bankruptcy
Code) that has resulted in or could be reasonably expected to result
in a material liability of any Loan Party or any ERISA Affiliate.
(p) As of the last annual actuarial valuation date, the
current liability (as defined in Section 412 of the Internal Revenue
Code) under each Plan does not exceed the fair market value of the
assets of such Plan and there has been no material adverse change in
the funding status of any such Plan since such date.
(q) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the
Lender Parties, is complete and accurate and fairly presents the
funding status of such Plan, and since the date of such Schedule B
there has been no material adverse change in such funding status.
(r) Neither any Loan Party 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 any Loan Party or any ERISA Affiliate.
(s) Neither any Loan Party 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 any
Loan Party 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 any Loan Party or any ERISA Affiliate.
(t) Except as set forth in the financial statements
referred to in this Section 4.01 or Section 5.03, the Borrower and its
Subsidiaries have no material liability with
89
84
respect to "expected post retirement benefit obligations" within the
meaning of Statement of Financial Accounting Standards No. 106.
(u) Neither the business nor the properties of any Loan
Party or any of its Subsidiaries are affected by any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm,
hail, earthquake, embargo, act of God or of the public enemy or other
casualty (whether or not covered by insurance) that would be
reasonably likely to have a Material Adverse Effect.
(v) The operations and properties of each Loan Party and
each of its Subsidiaries comply with all Environmental Laws, all
necessary Environmental Permits have been obtained and are in effect
for the operations and properties of each Loan Party and its
Subsidiaries, each Loan Party and its Subsidiaries are in compliance
with all such Environmental Permits, except, in any case, where the
failure to so comply with or perform any of the foregoing, either
individually or in the aggregate, could not be reasonably expected to
have a Material Adverse Effect, and no circumstances exist that would
be reasonably likely to (i) form the basis of an Environmental Action
against any Loan Party or any of its Subsidiaries or any of their
properties that could have a Material Adverse Effect or (ii) cause any
such property to be subject to any restrictions on ownership,
occupancy, use or transferability under any Environmental Law that
could have a Material Adverse Effect.
(w) None of the properties currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list of sites, and no underground storage
tanks, as such term is defined in 42 U.S.C. Section 6991, are owned or
operated by any Loan Party or any of its Subsidiaries; and Hazardous
Materials have not been released or disposed of on any property
currently or formerly owned or operated by any Loan Party or any of
its Subsidiaries, except, in any case under this Section 4.01(w),
where the consequence of any of the foregoing, either individually or
in the aggregate, could not be reasonably expected to have a Material
Adverse Effect.
(x) Neither any Loan Party nor any of its Subsidiaries
has transported or arranged for the transportation of any Hazardous
Materials to any location that is listed or proposed for listing on
the NPL or on the CERCLIS or any analogous foreign, state or local
list, and all Hazardous Materials generated, used, treated, handled or
stored at, or transported to or from, any property currently or
formerly owned or operated by any Loan Party or any of its
Subsidiaries have been disposed of in a manner that could result in an
Environmental Action, except, in any case, where the consequence of
any
90
85
of the foregoing, either individually or in the aggregate, could not
be reasonably expected to have a Material Adverse Effect.
(y) Neither any Loan Party nor any of its Subsidiaries is
a party to any indenture, loan or credit agreement or any lease or
other agreement or instrument or subject to any charter or corporate
restriction that would be reasonably likely to have a Material Adverse
Effect.
(z) The Collateral Documents create a valid and perfected
first priority security interest in the Collateral, securing the
payment of the Secured Obligations, and all filings and other actions
necessary or desirable to perfect and protect such security interest
have been duly taken. The Loan Parties are the legal and beneficial
owners of the Collateral free and clear of any Lien, except for the
liens and security interests created or permitted under the Loan
Documents.
(aa) Each Loan Party and each of its Subsidiaries and
Affiliates has filed, has caused to be filed or has been included in
all tax returns (Federal, state, local and foreign) required to be
filed and has paid all taxes shown thereon to be due, together with
applicable interest and penalties, except to the extent such taxes are
being contested in good faith and by proper proceedings and as to
which appropriate reserves are being maintained and to the extent that
such non-payments, either individually or in the aggregate, could not
be reasonably expected to have a Material Adverse Effect.
(bb) Set forth on Schedule 4.01(bb) hereto is a complete
and accurate list, as of the date hereof, of each taxable year of the
Borrower and each of its Subsidiaries and Affiliates for which Federal
income tax returns have been filed and for which the expiration of the
applicable statute of limitations for assessment or collection has not
occurred by reason of extension or otherwise (an "OPEN YEAR").
(cc) The aggregate unpaid amount, as of the date hereof,
of adjustments to the Federal income tax liability of the Borrower and
its Subsidiaries and Affiliates proposed by the Internal Revenue
Service with respect to Open Years, if required to be paid, could not
reasonably be expected to have a Material Adverse Effect. No issues
have been raised by the Internal Revenue Service in respect of Open
Years that, in the aggregate, would be reasonably likely to have a
Material Adverse Effect.
(dd) The aggregate unpaid amount, as of the date hereof,
of adjustments to the state, local and foreign tax liability of the
Borrower and its Subsidiaries and Affiliates proposed by all state,
local and foreign taxing authorities (other than amounts arising from
adjustments to Federal income tax returns), if required to be paid,
could
91
86
not reasonably be expected to have a Material Adverse Effect. No
issues have been raised by such taxing authorities that, in the
aggregate, would be reasonably likely to have a Material Adverse
Effect.
(ee) Neither the Merger nor the Reorganization will
generate taxable income to the Borrower or any of its Subsidiaries or
Affiliates for federal income tax purposes other than income the
recognition of which is deferred under the consolidated return
regulations.
(ff) Except as a result of the Merger, no "ownership
change" as defined in Section 382(g) of the Internal Revenue Code, and
no event that would result in the application of the "separate return
limitation year" or "consolidated return change of ownership"
limitations under the Federal income tax consolidated return
regulations, has occurred with respect to the Borrower since February
4, 1992. The Borrower and its Subsidiaries have, as of the date
hereof, net operating loss carryforwards for U.S. Federal income tax
purposes equal in the aggregate to at least $600,000,000. Set forth
on Schedule 4.01(ff) hereto is the extent to which the net operating
loss carryforwards are expected to be subject to the limits imposed by
Section 382 of the Internal Revenue Code as a result of the Merger or
any other event that would earlier have triggered an ownership change
under Section 382(g) of the Internal Revenue Code.
(gg) No Loan Party is an "investment company," or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the making of any Advances,
nor the issuance of any Letters of Credit, nor the application of the
proceeds or repayment thereof by the Borrower, nor the consummation of
the other transactions contemplated hereby, will violate any provision
of such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
(hh) The Borrower is, individually and together with its
Subsidiaries, Solvent and as of the date of the Initial Extension of
Credit, each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(ii) The payment obligations (whether contingent, deferred
or otherwise) of the Borrower and its Subsidiaries under the
employment agreements and compensation arrangements to which any of
them is a party could not, individually or in the aggregate, be
reasonably expected to result in a Material Adverse Effect.
92
87
(jj) Set forth on Schedule 4.01(jj) hereto is a complete
and accurate list of all Existing Debt (other than Surviving Debt),
showing as of the date hereof the principal amount outstanding
thereunder.
(kk) Set forth on Schedule 3.01(e) hereto is a complete
and accurate list of all Surviving Debt, showing as of the date hereof
the principal amount outstanding thereunder.
(ll) Set forth on Schedule 4.01(ll) hereto is a complete
and accurate list of all Investments held by any Loan Party or any of
its Subsidiaries, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
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 2.06(b)(iv)) 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 compliance to
include, without limitation, compliance with ERISA and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime
Control Act of 1970, 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 any portion of the Collateral or any property of any
Pledged Subsidiary and becomes enforceable against its other creditors
and (y) if such non-payments, either individually
93
88
or in the aggregate, could not be reasonably expected to have a
Material Adverse Effect.
(c) COMPLIANCE WITH ENVIRONMENTAL LAWS. Comply, and
cause each of its Subsidiaries and all lessees and other Persons
operating or occupying its properties to comply, in all material
respects, with all applicable Environmental Laws and Environmental
Permits; obtain and renew and cause each of its Subsidiaries to obtain
and renew all Environmental Permits necessary for its operations and
properties; and conduct, and cause each of its Subsidiaries to
conduct, any investigation, study, sampling and testing, and undertake
any cleanup, removal, remedial or other action necessary to remove and
clean up all Hazardous Materials from any of its properties, in
accordance with the requirements of all Environmental Laws, except, in
any case under this subsection (c), where the failure so to comply
with or perform any of the foregoing, either individually or in the
aggregate, could not be reasonably expected to have a Material Adverse
Effect; PROVIDED, HOWEVER, that neither the Borrower nor any of its
Subsidiaries shall be required to undertake any such cleanup, removal,
remedial or other action to the extent that its obligation to do so is
being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such
circumstances.
(d) 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.
(e) 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 the Merger and the Reorganization and any
other merger or consolidation permitted under Section 5.02(c); 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
94
89
is not disadvantageous in any material respect to the Borrower, such
parent, the Administrative Agent or the Lender Parties or (ii) any
right, permit, license, approval, privilege or franchise if the
preservation and maintenance thereof is no longer desirable in the
conduct of the business of the Borrower or such Subsidiary, as the
case may be, and the loss thereof is not disadvantageous in any
material respect to the Borrower, such Subsidiary, the Administrative
Agent or the Lender Parties.
(f) VISITATION RIGHTS. At any reasonable time and from
time to time, (i) permit the Administrative Agent, the 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 Default shall have
occurred and be continuing, such Lender Parties shall exercise such
rights at the same time (such time to be arranged by the
Administrative 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.
(g) 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.
(h) MAINTENANCE OF PROPERTIES, ETC. 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, except as otherwise permitted pursuant to Section 5.02(d) or
where the failure to do so, either individually or in the aggregate,
could not be reasonably expected to have a Material Adverse Effect.
(i) PERFORMANCE OF RELATED DOCUMENTS, MATERIAL CONTRACTS
AND LEASES. Perform and observe all of the terms and provisions of
each Related Document, each Material Contract and each lease of real
property to which the Borrower or any of its
95
90
Subsidiaries is a party to be performed or observed by it, maintain
each such Related Document, Material Contract and lease in full force
and effect and not allow, with respect to any such leases, such leases
to lapse or be terminated or any rights to renew such leases to be
forfeited or cancelled, enforce each such Related Document, Material
Contract and lease in accordance with its terms, except, in any case,
where the failure to do so, either individually or in the aggregate,
could not be reasonably expected to have a Material Adverse Effect.
(j) TRANSACTIONS WITH AFFILIATES. Conduct, and cause
each of its Subsidiaries to conduct, all transactions otherwise
permitted under the Loan Documents with any of their Affiliates on
economic 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 shall have occurred and be continuing,
transactions in the ordinary course of business (i) during any Non-
Investment Grade Period, (A) between or among Minor Subsidiaries, (B)
between or among Loan Parties (other than the Borrower) involving cash
or other consideration of less than $30,000,000, PROVIDED that such
transaction could not reasonably be expected to materially impair the
value of the Collateral or the Guaranty or (C) between or among Loan
Parties (other than the Borrower) involving cash or other
consideration of $30,000,000 or more, PROVIDED that such transaction
could not reasonably be expected to materially impair the value of the
Collateral or the Guaranty and a majority of the disinterested members
of the Board of Directors of the applicable Loan Parties determines
that such transaction could not reasonably be expected to have a
Material Adverse Effect or materially impair the value of the
Collateral or the Guaranty, or (ii) during any Investment Grade
Period, between or among the Borrower and any of its Subsidiaries,
PROVIDED that, in the case of clause (i) or (ii) above, such
transaction could not reasonably be expected to have a Material
Adverse Effect.
(k) INTEREST RATE HEDGING. Enter into prior to the
Initial Extension of Credit hereunder, and maintain at all times
thereafter, interest rate Hedge Agreements with Persons approved by
the Administrative Agent and the Agent (such approval not to be
unreasonably withheld or delayed), covering a notional amount in an
amount such that not less than 75%, during any period during which the
Borrower shall not have a Debt Rating of at least BBB- from S&P and at
least Baa3 from Moody's, of the Consolidated Funded Debt (calculated,
in the case of the Fiscal Year ending on January 31, 1995, based on
the pro forma balance sheet furnished to the Lenders prior to the date
hereof, and for each Fiscal Year thereafter, as at the end of the
immediately preceding Fiscal Year) of the Borrower and its
Subsidiaries is maintained at a fixed rate of interest and providing
for such Persons to make payments thereunder for a period of no less
than two years (i) for the first three years after the date hereof, to
the extent that the sum of
96
91
the Applicable Margin for Eurodollar Rate Advances in effect on the
date any such Hedge Agreement is entered into PLUS the Eurodollar Rate
in effect from time to time for an Interest Period of three months
equals or exceeds 10% per annum and (ii) thereafter, to the extent
that the Eurodollar Rate in effect from time to time for an Interest
Period of three months equals or exceeds 10% per annum.
(l) COVENANT TO GUARANTEE OBLIGATIONS AND TO GIVE
SECURITY. Prior to the date on which an Investment Grade Rating is
established, and after such date if such Investment Grade Rating shall
cease to be in effect and the Release Date shall not have occurred,
and at the expense of the Borrower, at such time as any new direct or
indirect Subsidiaries of the Borrower are formed or acquired or any
existing Subsidiary of the Borrower that did not previously hold any
operating assets or real property acquires any operating assets or
real property or any existing Subsidiary of the Borrower that
previously was prohibited under the terms of its certificate of
incorporation from issuing guaranties or pledging its assets is no
longer so prohibited, (i) if such Subsidiary holds any operating
assets or real property or if such Subsidiary is not prohibited under
the terms of its certificate of incorporation from doing so, within 15
Business Days thereafter, cause such Subsidiary, and cause each direct
and indirect parent (other than the Borrower) of such Subsidiary, if
it has not already done so, to duly execute and deliver to the
Administrative Agent a guaranty, in substantially the form of Exhibit
F hereto and otherwise in form and substance satisfactory to the
Administrative Agent, guaranteeing the Borrower's Obligations under
the Loan Documents, (ii) if such Subsidiary is not prohibited under
the terms of its certificate of incorporation from doing so, within 15
Business Days thereafter, duly execute and deliver, and cause each
Subsidiary that is a direct or indirect parent of such Subsidiary, if
it has not already done so, to duly execute and deliver to the
Administrative Agent a security agreement, in substantially the form
of Exhibit E hereto and otherwise in form and substance satisfactory
to the Administrative Agent, securing the Borrower's Obligations under
the Loan Documents or such parent Subsidiary's Obligations under the
Guaranty, as the case may be, and take, or cause such parent
Subsidiary to take, whatever action as may be necessary or advisable
in the reasonable opinion of the Administrative Agent to vest in the
Administrative Agent valid and subsisting liens on and security
interests in the Collateral purported to be subject to such security
agreement and (iii) within 30 days thereafter, deliver to the
Administrative Agent a signed copy of a favorable opinion, addressed
to the Administrative Agent and the Lender Parties, of internal
counsel to the Loan Parties or other counsel for the Loan Parties
acceptable to the Administrative Agent as to the matters contained in
clauses (i) and (ii) above, as to such guaranty and security agreement
being legal, valid and binding Obligations of the Loan Party party
thereto enforceable in accordance with their terms and as to such
other matters as the Administrative Agent may reasonably
97
92
request; PROVIDED, HOWEVER, that nothing contained in this Section
5.01(l) shall require that the charter of any present or future
Subsidiary of the Borrower be amended to permit such Subsidiary to
issue guaranties or pledge its assets, except that no such charter
shall restrict the issuance of Debt or the pledging of assets if the
principal purpose of the adoption of such restriction would be to
avoid the issuance of guaranties and the pledging of assets pursuant
to this Section 5.01(l); PROVIDED FURTHER, HOWEVER, that
notwithstanding anything contained herein to the contrary, no indirect
Subsidiary of the Borrower the primary assets of which are real
property shall be required to issue a guaranty so long as its capital
stock shall have been pledged to the Administrative Agent as
Collateral by its direct parent and such parent shall have executed
and delivered a guaranty hereunder.
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 2.06(b)(iv)) or any Lender Party shall have any
Commitment hereunder, the Borrower will not, at any time:
(a) LIENS, ETC. Create, incur, assume or suffer to
exist, or permit any of its Subsidiaries to create, incur, assume or
suffer to exist, any Lien on or with respect to any of its properties
of any character (including, without limitation, accounts) whether now
owned or hereafter acquired, or sign or file, or permit any of its
Subsidiaries to sign or file, under the Uniform Commercial Code of any
jurisdiction, a financing statement that names the Borrower or any of
its Subsidiaries as debtor, or sign, or permit any of its Subsidiaries
to sign, any security agreement authorizing any secured party
thereunder to file such financing statement, or assign, or permit any
of its Subsidiaries to assign, any accounts or other right to receive
income, EXCLUDING, HOWEVER, from the operation of the foregoing
restrictions the following:
(i) Liens created under the 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
98
93
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(b)(iii)(C); 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 (xii) 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(d)(v);
(viii) cash collateral securing Surviving Debt
consisting of letters of credit outstanding in an aggregate
amount not to exceed $2,000,000;
(ix) Liens securing Documentary L/Cs permitted
under Section 5.02(b)(iii)(F) 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;
99
94
(x) 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;
(xi) 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; 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 other than ASGREC, 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) DEBT. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Debt other than:
(i) in the case of the Borrower,
(A) Debt owed to a wholly owned
Subsidiary of the Borrower, PROVIDED that if the
Release Date shall not have occurred, such Debt may
be incurred only to the extent that (1) such Debt
arises out of the conduct of the Borrower's ordinary
course of business pursuant to and in accordance with
the Borrower's cash management system described on
Schedule 5.02(b) hereto or (2) such Debt, together
with dividends received by the Borrower from its
Subsidiaries, is incurred and remains outstanding
solely to the extent necessary for the Borrower to
make scheduled payments and prepayments permitted
hereunder of principal of and interest on its Debt
owing to Persons other than its Affiliates and to pay
necessary administrative expenses of the Borrower on
a timely basis and at the time of incurrence or
issuance of such Debt, no Default shall have occurred
and be continuing;
(B) Debt in respect of Hedge Agreements
designed to hedge against fluctuations in interest
rates or foreign exchange rates incurred in
100
95
the ordinary course of business and consistent with
prudent business practices, PROVIDED that such Hedge
Agreements shall be non-speculative in nature
(including, without limitation, with respect to the
term and purpose thereof);
(C) unsecured Debt in an aggregate
amount not to exceed $200,000,000; PROVIDED that the
Net Cash Proceeds thereof shall be applied to prepay
the Advances pursuant to and in accordance with
Section 2.06(b)(ii); and
(D) during any Investment Grade Period,
unsecured Debt in an aggregate amount not to exceed
$500,000,000 at any one time outstanding; PROVIDED,
HOWEVER, that after giving effect to the incurrence
or issuance of such Debt, the Interest Coverage
Ratio, calculated on a pro forma basis, shall equal
or exceed 3.75:1 and the Leverage Ratio shall not
exceed 0.45:1; PROVIDED FURTHER, HOWEVER, that at the
time of the incurrence or issuance of such Debt, the
Borrower shall not be on "credit watch" (or any like
designation by S&P or Moody's from time to time) for
downgrading of its Debt Rating to BB+ or below by S&P
or Ba1 or below by Moody's; PROVIDED FURTHER that if,
subsequent to the incurrence or issuance of any such
Debt, the Debt Rating shall cease to be an Investment
Grade Rating, such outstanding Debt shall be deemed
to be permitted hereunder; and
(ii) in the case of any of its Subsidiaries,
(A) during any Non-Investment Grade
Period, in the case of any such Subsidiary that is a
Guarantor or, during any Investment Grade Period, in
the case of any such Subsidiary, Debt owed to the
Borrower or to a wholly owned Subsidiary of the
Borrower;
(B) in the case of FDS National Bank,
Debt owed to the Borrower, Debt incurred in
connection with the financing of accounts receivable
in an aggregate principal amount not to exceed
$200,000,000 at any time outstanding, PROVIDED that
such Debt is evidenced by senior intercompany notes
pledged to the Administrative Agent as Collateral in
accordance with the terms of the Loan Documents; and
(C) in the case of Macy's Primary Real
Estate, Inc., Debt owed to FNC in an aggregate
principal amount not to exceed
101
96
$550,926,100, PROVIDED that such Debt shall not be
pledged to any Person except to the extent permitted
or required under Section 5.01(l); and
(D) in the case of any such Subsidiary
that is not a Guarantor (other than FDS National Bank
and FNC), Debt owed to the Borrower or to a wholly
owned Subsidiary of the Borrower (1) arising out of
the conduct of the Borrower's business pursuant to
and in accordance with the Borrower's cash management
system described on Schedule 5.02(b) hereto, (2)
evidenced by intercompany notes executed by such
Subsidiary solely for purposes and arising out of
transactions consistent with past practices, so long
as such notes are pledged to the Administrative Agent
as Collateral to the extent required by, and in
accordance with the terms of, the Loan Documents or
(3) in a principal amount not to exceed $25,000,000
in the aggregate for all such Subsidiaries from the
date hereof; and
(iii) in the case of the Borrower and any of its
Subsidiaries (other than FNC),
(A) Debt under the Loan Documents;
(B) Debt secured by Liens permitted by
Section 5.02(a)(iv) not to exceed in the aggregate
(i) during any Non-Investment Grade Period,
$50,000,000 at any time outstanding and (ii) during
any Investment Grade Period, $100,000,000 at any time
outstanding, PROVIDED that if, subsequent to the
incurrence of such Debt, the Debt Rating shall cease
to be an Investment Grade Rating, such outstanding
Debt shall be deemed to be permitted hereunder to the
extent not permitted under subclause (i) above;
(C) (i) Capitalized Leases not to exceed
in the aggregate (x) during any Non-Investment Grade
Period, $50,000,000 at any time outstanding and (y)
during any Investment Grade Period, $100,000,000 at
any time outstanding, PROVIDED that if, subsequent to
entering into such Capitalized Leases, the Debt
Rating shall cease to be an Investment Grade Rating,
such outstanding Capitalized Leases shall be deemed
to be permitted hereunder to the extent not permitted
under subclause (x) above, and (ii) in the case of
Capitalized Leases to which any Subsidiary of the
Borrower is a party, Debt of the Borrower of the type
described in
102
97
clause (i) of the definition of "DEBT" guaranteeing
the Obligations of such Subsidiary under such
Capitalized Leases;
(D) the Surviving Debt, and any Debt
extending the maturity of, or refunding or
refinancing, in whole or in part, any Surviving
Debt; PROVIDED that the terms (including, without
limitation, principal amount, interest rate,
limitations on liens, if any, guaranties, if any,
collateral, if any, and subordination terms, if any)
taken as a whole of any such extending, refunding or
refinancing Debt, and of any agreement entered into
and of any instrument issued in connection therewith,
are no less favorable to the Loan Parties or the
Lender Parties, as determined by the Administrative
Agent in its reasonable discretion, than the terms
governing the Debt so extended, refunded or
refinanced PROVIDED that no unsecured Debt shall be
refunded or refinanced by secured Debt); PROVIDED,
HOWEVER, that any such refunding or refinancing Debt
may provide for an earlier maturity than the Debt
being so refunded or refinanced so long as such
earlier maturity is no earlier than six months after
the Termination Date, PROVIDED FURTHER that the
principal amount of such Surviving 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, PROVIDED STILL FURTHER that
nothing contained in this subclause (D) shall
prohibit the prepayment of the Series B Notes issued
pursuant to the Plan of Reorganization with the Net
Cash Proceeds from the sale or other financing of
accounts receivable to the extent otherwise permitted
under this Agreement;
(E) Debt incurred in connection with the
sale or other disposition of accounts receivable
pursuant to Section 5.02(d)(v) 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 subject to the
limitations described in Section 5.02(b)(i)(B);
(F) Debt in respect of Documentary L/Cs
in an aggregate Available Amount not to exceed
$250,000,000 at any time outstanding and, together
with the aggregate Available Amount of outstanding
Trade Letters of Credit, not to exceed $400,000,000
at any time outstanding;
103
98
(G) Debt of any Person that becomes a
Subsidiary of the Borrower after the date hereof in
accordance with the terms of Section 5.02(e) 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
(H) indorsement of negotiable
instruments for deposit or collection or similar
transactions in the ordinary course of business.
(c) MERGERS, ETC. Merge into or consolidate with any
Person or permit any Person to merge into it, or permit any of its
Subsidiaries to do so, except that (i) the Borrower and its
Subsidiaries may consummate the Merger and the Reorganization, (ii)
any Subsidiary of the Borrower may merge into or consolidate with any
other Subsidiary of the Borrower, PROVIDED that, in the case of any
such merger or consolidation under this clause (ii), (x) the Person
formed by such merger or consolidation shall be a wholly owned
Subsidiary of the Borrower, and (y) if the capital stock of either
such Subsidiary is Collateral, the capital stock of the resulting
Subsidiary shall be pledged as Collateral pursuant to Section 5.01(l)
and (iii) any Minor Subsidiary may merge into or consolidate with the
Borrower; PROVIDED, HOWEVER, that in each case, immediately after
giving effect thereto, no event shall occur and be continuing that
constitutes a Default and, in the case of any such merger to which the
Borrower is a party, the Borrower is the surviving corporation.
(d) 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 other than:
(i) sales of inventory, equipment and fixtures in
the ordinary course of its business;
(ii) in a transaction authorized by subsection (c)
of this Section;
(iii) sales of assets for cash or senior promissory
notes or for other assets consisting of real property and
equipment to be used in the business of the Borrower and its
Subsidiaries, in each case for fair value, in an aggregate
amount not to exceed $100,000,000 in any Fiscal Year, PROVIDED
that the Net Cash Proceeds thereof shall be reinvested as
Capital Expenditures for the businesses of the Borrower and
its Subsidiaries to the extent permitted under the
104
99
Loan Documents, PROVIDED FURTHER that any notes received in
connection with any sale of assets pursuant to this clause
(iii) shall be payable within five years of such sale and
shall not exceed, in the aggregate, $30,000,000 in principal
amount in any Fiscal Year;
(iv) sales of assets for cash and for fair value
in an aggregate amount not to exceed $250,000,000 in any
Fiscal Year and in an aggregate amount from the date hereof
not to exceed $500,000,000, PROVIDED, HOWEVER, that sales of
assets in connection with sale-leaseback transactions shall
not exceed, in any Fiscal Year, the sum of (x) $100,000,000
PLUS (y) an amount equal to the aggregate amount of assets
permitted under the terms of this Agreement to be sold in
connection with sale- leaseback transactions in any prior
Fiscal Year to the extent such asset sales and related
sale-leaseback transactions shall not have been consummated in
such prior Fiscal Year;
(v) the sale or other disposition of accounts
receivable and related charge accounts in the ordinary course
of business of the Borrower and its Subsidiaries substantially
as conducted on the date hereof pursuant to the Receivables
Financing Facility and the sale of certain accounts receivable
to General Electric Capital Corporation in connection with the
transfer of certain stores operated on the date hereof by
Abraham & Straus, Inc. to Macy's East, Inc., a wholly owned
Subsidiary of the Borrower; and
(vi) the grant of any option or other right to
purchase any asset in a transaction which would be permitted
under the provisions of clause (iii), (iv) or (v) above;
PROVIDED that in the case of sales of assets pursuant to clause (iv)
above, the Borrower shall, on the date of receipt by the Borrower or
any of its Subsidiaries of the Net Cash Proceeds from such sale,
prepay the Advances pursuant to, and in the amount and the order of
priority set forth in, Section 2.06(b)(ii), as specified therein.
(e) INVESTMENTS IN OTHER PERSONS. Make or hold, or
permit any of its Subsidiaries to make or hold, any Investment in any
Person other than:
(i) Investments by the Borrower and its
Subsidiaries in their Subsidiaries outstanding on the date
hereof and additional Investments in wholly owned Subsidiaries
that are not Loan Parties, which during any Non-Investment
Grade Period, shall be in an amount invested from the date
hereof not to exceed $5,000,000 individually and $25,000,000
in the aggregate for all such
105
100
Subsidiaries, PROVIDED that if, subsequent to the making of
any such Investment during any Investment Grade Period, the
Debt Rating shall cease to be an Investment Grade Rating, any
such Investment shall be deemed to be permitted hereunder, and
additional Investments in wholly owned Subsidiaries that are
Loan Parties;
(ii) loans and advances to employees in the
ordinary course of the business of the Borrower and its
Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $10,000,000 at any time outstanding;
(iii) Investments by the Borrower and its
Subsidiaries in Cash Equivalents in an aggregate principal
amount not to exceed $300,000,000 at any time outstanding;
(iv) Investments by the Borrower and its
Subsidiaries in Hedge Agreements permitted under Section
5.02(b)(i)(B) or 5.02(b)(iii)(E);
(v) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(i)(A);
(vi) loans and advances in the ordinary course of
business to vendors of the Borrower and its Subsidiaries in
connection with in-store merchandising;
(vii) loans and advances in the ordinary course of
business to sublessees and licensees of the Borrower and its
Subsidiaries and Investments in overseas manufacturers in the
ordinary course of business in an aggregate amount not to
exceed $20,000,000 at any time outstanding;
(viii) construction advances made in the ordinary
course of business to developers that are not Affiliates of
the Borrower or any of its Subsidiaries in connection with
store renovations;
(ix) Investments existing on the date hereof and
described on Schedule 4.01(ll) hereto;
(x) Investments consisting of Cash Capital
Expenditures permitted under Section 5.02(o) to the extent not
otherwise permitted under clause (xii) below;
106
101
(xi) Investments evidenced by senior promissory
notes representing assets and property of the Borrower and its
Subsidiaries sold pursuant to Section 5.02(d)(iii);
(xii) other Investments in an aggregate amount
invested (in any combination of cash and securities of the
Borrower) not to exceed, together with the aggregate amount of
Debt incurred pursuant to Section 5.02(b)(i)(D) and Cash
Capital Expenditures made in connection with the acquisition
of any business pursuant to an asset purchase, from the date
hereof until the Termination Date:
(a) $250,000,000 during such time as the
Debt Rating is not an Investment Grade Rating, and
(b) $500,000,000 during such time as the
Debt Rating is an Investment Grade Rating; PROVIDED
that if, subsequent to the making of any such
Investments permitted under this subclause (b), the
Debt Rating shall cease to be an Investment Grade
Rating, such Investment shall be deemed to be
permitted hereunder;
PROVIDED FURTHER that with respect to Investments made under
this clause (xii):
(1) no more than $200,000,000 may be
invested in any Fiscal Year,
(2) the aggregate amount of such
Investments shall not exceed $500,000,000 from the
date hereof,
(3) any newly acquired or created
Subsidiary of the Borrower or any of its Subsidiaries
shall be a wholly owned Subsidiary thereof,
(4) immediately before and after giving
effect thereto, no Default shall have occurred and be
continuing or would result therefrom,
(5) during any Non-Investment Grade
Period, immediately before and after giving effect to
such Investment, the Interest Coverage Ratio,
calculated on a pro forma basis, shall equal or
exceed 3.25:1 and the Leverage Ratio, calculated on a
pro forma basis, shall not exceed 0.49:1,
107
102
(6) during any Investment Grade Period,
immediately before and after giving effect to such
Investment, the Interest Coverage Ratio, calculated
on a pro forma basis, shall equal or exceed 4.0:1
(unless S&P and Moody's shall have established a Debt
Rating of at least BBB- and Baa3, respectively, in
which case such Interest Coverage Ratio shall equal
or exceed 3.75:1) and the Leverage Ratio, calculated
on a pro forma basis, shall not exceed 0.45:1 and
(7) any business acquired or invested in
pursuant to this clause (xii) shall be in the same or
a similar line of business as the business of the
Borrower or any of its Subsidiaries;
PROVIDED STILL FURTHER that (1) within the aggregate limits
contained in subclauses (a) and (b) above, any amounts
permitted to be invested in any Fiscal Year and not so
invested may be carried over and invested in the immediately
succeeding Fiscal Year, subject to the limitations contained
in the immediately preceding proviso, (2) with respect to any
Investment proposed to be made during an Investment Grade
Period, if immediately before and after giving effect thereto,
the Interest Coverage Ratio, calculated on a pro forma basis
as described above, shall equal or exceed 3.25:1 and the
Leverage Ratio, calculated on a pro forma basis, shall not
exceed 0.49:1 but shall not otherwise meet the requirements
contained in clause (6) above, then Investments shall be
permitted to be made in an amount which, together with
Investments made pursuant to this clause (xii) during any
Non-Investment Grade Period, shall not exceed $250,000,000
from the date hereof and (3) for purposes of calculating the
Interest Coverage Ratio and the Leverage Ratio on a pro forma
basis, such ratios shall be calculated based on historical
financial statements but after giving effect to current market
rates and operating synergies reasonably expected to result
from such Investment.
(f) DIVIDENDS, ETC. Declare or pay any dividends,
purchase, redeem, retire, defease or otherwise acquire for value any
of its capital stock or any warrants, rights or options to acquire
such capital stock, now or hereafter outstanding, return any capital
to its stockholders as such, make any distribution of assets, capital
stock, warrants, rights, options, obligations or securities to its
stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit
any of its Subsidiaries to do any of the foregoing or permit any of
its Subsidiaries to purchase, redeem, retire, defease or otherwise
acquire for value any capital stock of the Borrower or any warrants,
rights or options to acquire such capital stock or to issue or sell
any capital stock or any warrants, rights or options to acquire such
capital stock,
108
103
except that, so long as no Default shall have occurred and be
continuing at the time of any action described in clause (i) or (ii)
below or would result therefrom,
(i) the Borrower may
(A) declare and pay dividends and
distributions payable only in common of the Borrower,
(B) purchase, redeem, retire, defease or
otherwise acquire shares of its capital stock with
the proceeds received from the issue of new shares of
its capital stock with equal or inferior voting
powers, designations, preferences and rights,
(C) make payments in respect of the 1992
Executive Equity Incentive Plan, the 1995 Equity
Plan, the Supplementary Executive Retirement Plan,
the Executive Deferred Compensation Plan dated as of
November 1, 1993 and the Share Purchase Rights
Agreement, in each case as amended, amended and
restated or replaced from time to time in a manner
consistent with prudent business practices, and
(D) during an Investment Grade Period,
declare and pay cash dividends to its stockholders
and purchase, redeem, retire or otherwise acquire
shares of its own outstanding capital stock for cash
solely out of Consolidated net income of the Borrower
and its Subsidiaries during an Investment Grade
Period, PROVIDED that if, after the declaration of
any such dividends, the Debt Rating shall cease to be
an Investment Grade Rating, such declared dividends
shall be deemed to be permitted hereunder and
(ii) any Subsidiary of the Borrower may
(A) declare and pay cash dividends to
the Borrower, PROVIDED that if the Release Date shall
not have occurred, such cash dividends may be
declared and paid (x) by FNC with the proceeds
received in connection with the repayment of
mortgages held by it, so long as the Borrower applies
such dividends to prepay the Advances pursuant to
Section 2.06(b)(ii), (y) by Federated Credit Holdings
Corporation in the ordinary course of business and
consistent with past practices and (z) otherwise,
together with Debt incurred pursuant to Section
5.02(b)(i)(A) in accordance with clause (2) of the
proviso thereto, solely
109
104
to the extent necessary for the Borrower to make
scheduled payments and prepayments permitted
hereunder of principal of and interest on its Debt
owing to Persons other than its Affiliates and to pay
necessary administrative expenses of the Borrower on
a timely basis and
(B) declare and pay cash dividends to
any other Subsidiary of the Borrower of which it is a
Subsidiary.
(g) 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.
(h) CHARTER AMENDMENTS. Amend, or permit any of its
Subsidiaries to amend, its certificate of incorporation or bylaws,
except where such amendment could not be reasonably expected to have a
Material Adverse Effect.
(i) ACCOUNTING CHANGES, ETC. Make or permit, or permit
any of its Subsidiaries to make or permit, any change in (i)
accounting policies or reporting practices (including, without
limitation, with respect to the reflection of accounts receivable on
the Consolidated balance sheet of the Borrower and its Subsidiaries),
except as permitted or required by generally accepted accounting
principles or law and disclosed to the Lender Parties, the Agent and
the Administrative Agent on a timely basis or (ii) Fiscal Year.
(j) PREPAYMENTS, ETC. OF DEBT. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner, or make any payment in violation of any subordination
terms of, any Debt, other than:
(i) the prepayment of the Advances in accordance
with the terms of this Agreement,
(ii) regularly scheduled or required repayments or
redemptions of Surviving Debt,
(iii) refundings and refinancings permitted under
Section 5.02(b)(iii)(D),
(iv) prepayments under, and in accordance with the
terms of, the Receivables Financing Facility,
110
105
(v) prepayment of the Convertible Debentures in
an aggregate amount in any Fiscal Year not to exceed the
amount of Excess Cash Flow for the immediately preceding
Fiscal Year to the extent not required to prepay the Advances
pursuant to Section 2.06(b)(i), PROVIDED that any such
prepayment shall be made no later than the 100th day following
the end of the immediately preceding Fiscal Year,
(vi) on or prior to January 31, 1995, prepayment
of the Series A Notes, the Series B Notes and the Series C
Notes issued pursuant to the Plan of Reorganization, PROVIDED
that the Series A Notes shall be prepaid in full prior to any
prepayment of the Series B Notes and Series C Notes, PROVIDED
FURTHER that immediately after giving effect to all such
prepayments under this clause (vi), but prior to giving effect
to any prepayments made pursuant to clause (vii) below, the
aggregate outstanding principal amount of such Series A Notes,
Series B Notes and Series C Notes shall not be less than
$500,000,000,
(vii) prepayment of the Series B Notes issued
pursuant to the Plan of Reorganization (A) on or prior to
January 31, 1995, in an aggregate principal amount not to
exceed the lesser of $200,000,000 and the amount of the Net
Cash Proceeds received in connection with the sale or
non-recourse financing of accounts receivable pursuant to
Section 5.02(b)(iii)(E) pursuant to one or more accounts
receivable financing transactions other than those described
in the Information Memorandum or (B) in an aggregate amount in
any Fiscal Year not to exceed the amount of Excess Cash Flow
for the immediately preceding Fiscal Year to the extent not
required to prepay the Advances pursuant to Section 2.06(b)(i)
and not used to prepay the Convertible Debentures pursuant to
Section 5.02(j)(v), PROVIDED that, in the case of this clause
(B), the Term Advances shall have been paid in full,
(viii) during any Non-Investment Grade Period,
prepayment, redemption, purchase or defeasance of Debt in an
aggregate amount not to exceed $10,000,000 in any Fiscal Year,
and
(ix) during any Investment Grade Period,
prepayment, redemption, purchase or defeasance of Debt in an
aggregate amount not to exceed $250,000,000 in any Fiscal
Year, PROVIDED that concurrently with, or within the 30
Business Days immediately preceding, any such prepayment,
redemption, purchase or defeasance, so long as the Term
Facility shall not have been paid in full, the Borrower shall
prepay the Term Advances pursuant to, and in the
111
106
amount and order of priority set forth in, Section
2.06(b)(vi), as specified therein, PROVIDED FURTHER that if,
subsequent to any such prepayment, redemption, purchase,
defeasance or satisfaction, the Debt Rating shall cease to be
an Investment Grade Rating, such prepayment, redemption,
purchase, defeasance or satisfaction shall be deemed to be
permitted hereunder,
or amend, modify or change in any manner any term or condition of any
Surviving Debt, or permit any of its Subsidiaries to do any of the
foregoing other than to prepay any Debt payable to the Borrower.
(k) AMENDMENT, ETC. OF RELATED DOCUMENTS. Cancel or
terminate any Related Document or consent to or accept any
cancellation or termination thereof, amend, modify or change in any
manner any term or condition of any Related Document or give any
consent, waiver or approval thereunder, waive any default under or any
breach of any term or condition of any Related Document, agree in any
manner to any other amendment, modification or change of any term or
condition of any Related Document or take any other action in
connection with any Related Document that would impair the rights or
interests of the Administrative Agent or any Lender Party or that
could be reasonably expected to have a Material Adverse Effect, or
permit any of its Subsidiaries to do any of the foregoing.
(l) AMENDMENT, ETC. OF MATERIAL CONTRACTS. Cancel or
terminate any Material Contract or consent to or accept any
cancellation or termination thereof, amend or otherwise modify any
Material Contract or give any consent, waiver or approval thereunder,
waive any default under or breach of any Material Contract, agree in
any manner to any other amendment, modification or change of any term
or condition of any Material Contract or take any other action in
connection with any Material Contract that could be reasonably
expected to have a Material Adverse Effect, or permit any of its
Subsidiaries to do any of the foregoing.
(m) SECTION 338 ELECTION. Make an election under Section
338(g) of the Internal Revenue Code with respect to the Merger.
(n) PARTNERSHIPS. Become a general partner in any
general or limited partnership, or permit any of its Subsidiaries to
do so, other than any Subsidiary the sole assets of which consist of
its interest in such partnership.
(o) CASH CAPITAL EXPENDITURES. During any Non-Investment
Grade Period, make, or permit any of its Subsidiaries to make, any
Cash Capital Expenditures that would cause the aggregate of all such
Cash Capital Expenditures made by the Borrower
112
107
and its Subsidiaries in any period set forth below to exceed the
amount set forth below for such period:
FISCAL YEAR AMOUNT
1995 $705,000,000
1996 $697,000,000
1997 $706,000,000
1998 and thereafter $713,000,000
PROVIDED that, commencing with the Fiscal Year ending in January 1996,
the Borrower and its Subsidiaries shall be entitled to make additional
Cash Capital Expenditures in any Fiscal Year in an amount (the
"CARRY-OVER AMOUNT") equal to the lesser of (i) 25% of the amount set
forth above for the immediately preceding Fiscal Year and (ii) the
amount by which (A) the amount (the "MAXIMUM PERMITTED AMOUNT") of
Cash Capital Expenditures permitted under this Section 5.02(o) for the
immediately preceding Fiscal Year (after giving effect to this
proviso) exceeds (B) the actual amount of Cash Capital Expenditures
made during the immediately preceding Fiscal Year; PROVIDED FURTHER
that if, subsequent to the making of Cash Capital Expenditures during
any Investment Grade Period in excess of the amounts specified above,
the Debt Rating shall cease to be an Investment Grade Rating, such
Cash Capital Expenditures shall be deemed to be permitted hereunder;
PROVIDED STILL FURTHER that in connection with the acquisition of any
business pursuant to an asset purchase (whether during a
Non-Investment Grade Period or an Investment Grade Period), the
applicable requirements as to Investments contained in Section
5.02(e)(xii) shall have been satisfied.
SECTION 5.03. REPORTING REQUIREMENTS. 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 2.06(b)(iv)) or any Lender Party shall have any
Commitment hereunder, the Borrower will furnish to the Lender Parties:
(a) DEFAULT NOTICE. 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 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.
113
108
(b) MONTHLY FINANCIALS. During each Non-Investment Grade
Period, as soon as available and in any event within 45 days after the
end of January of each Fiscal Year, and within 30 days after the end
of each other month, a Consolidated balance sheet of the Borrower and
its Subsidiaries as of the end of such month and a Consolidated
statement of income of the Borrower and its Subsidiaries for the
period commencing at the end of the previous month and ending with the
end of such month 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 month,
and divisional balance sheets and profit and loss statements for such
month and the period commencing at the end of the previous Fiscal Year
and ending with the end of such fiscal month setting forth in each
case in comparative form the corresponding figures for the
corresponding period of the preceding Fiscal Year, all in reasonable
detail and duly certified by the chief financial officer, the
treasurer or the controller of the Borrower.
(c) QUARTERLY FINANCIALS. As soon as available and in
any event within 45 days after the end of each of the first three
fiscal quarters of each Fiscal Year, Consolidated, and during any
Non-Investment Grade Period, consolidating, balance sheets of the
Borrower and its Subsidiaries as of the end of such quarter and
Consolidated, and during any Non-Investment Grade Period,
consolidating, statements of income of the Borrower and its
Subsidiaries for the period commencing at the end of the previous
fiscal quarter and ending with the end of such fiscal quarter and
Consolidated, and during any Non-Investment Grade Period,
consolidating, statements of income and a Consolidated statement of
cash flows for the period commencing at the end of the previous Fiscal
Year and ending with the end of such fiscal quarter, setting forth in
the case of such Consolidated financial statements in comparative form
the corresponding figures for the corresponding period of the
preceding Fiscal Year, all in reasonable detail and duly certified
(subject to year-end audit adjustments) by the chief financial officer
of the Borrower as having been prepared in accordance with GAAP,
together with (i) a certificate of said officer stating that no
Default has occurred and is continuing or, if a Default has occurred
and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto
and (ii) a certificate of said officer as to the then applicable Debt
Rating and Interest Coverage Ratio and containing a schedule in form
satisfactory to the Administrative Agent of the computations used by
the Borrower in determining compliance with the covenants contained in
Section 5.04.
(d) ANNUAL FINANCIALS. 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
114
109
the Borrower and its Subsidiaries, including therein Consolidated
balance sheets 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 of
KPMG Peat Marwick LLP or other independent public accountants of
recognized standing acceptable to the Required Lenders, and, during
any Non-Investment Grade Period, a consolidating balance sheet of the
Borrower and its Subsidiaries as at the end of such Fiscal Year and,
during any Non-Investment Grade Period, a consolidating statement of
income for such Fiscal Year, all in reasonable detail and duly
certified by the chief financial officer of the Borrower, in the case
of such consolidated financial statements, as having been prepared in
accordance with GAAP, and in each case, consistent with past
practices, in each case together with (i) a certificate of such
accounting firm to the Lenders stating that in the course of the
regular audit of the business of the Borrower and its Subsidiaries,
which audit was conducted by such accounting firm in accordance with
generally accepted auditing standards, such accounting firm has
obtained no knowledge that a Default has occurred and is continuing,
or if, in the opinion of such accounting firm, a Default has occurred
and is continuing, a statement as to the nature thereof, (ii) a
certificate of the chief financial officer of the Borrower as to the
then applicable Debt Rating and Interest Coverage Ratio and containing
a schedule in form satisfactory to the Administrative Agent of the
computations used by such accountants in determining, as of the end of
such Fiscal Year, compliance with the covenants contained in Section
5.04 and (iii) a certificate of the chief financial officer of the
Borrower stating that no Default has occurred and is continuing or, if
a default has occurred and is continuing, a statement as to the nature
thereof and the action that the Borrower has taken and proposes to
take with respect thereto.
(e) ANNUAL BUSINESS PLAN AND FORECASTS. During any
Non-Investment Grade Period, as soon as available and in any event no
later than April 30 of each Fiscal Year, a business plan and forecasts
prepared by management of the Borrower, in form reasonably
satisfactory to the Administrative Agent, of balance sheets, income
statements and cash flow statements for such Fiscal Year.
(f) SEMIANNUAL BUSINESS PLAN. During any Non-Investment
Grade Period, as soon as available and in any event no later than
March 8 and September 1 of each Fiscal Year, a semiannual seasonal
business plan prepared by management of the Borrower, in form and
substance reasonably satisfactory to the Administrative Agent.
115
110
(g) LONG TERM PLAN. As soon as available and in any
event no later than 15 days after the final review thereof by the
board of directors of the Borrower, any long term business and
financial plan prepared by management of the Borrower.
(h) ERISA EVENTS. Promptly and in any event within 10
days after any Loan Party or any ERISA Affiliate knows or has reason
to know that any ERISA Event that is reasonably expected to result in
a material liability of any Loan Party or any ERISA Affiliate has
occurred, a statement of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with
respect thereto.
(i) PLAN TERMINATIONS. Promptly and in any event within
two Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer any
such Plan if such termination or appointment could be reasonably
expected to result in a material liability of any Loan Party or any
ERISA Affiliate.
(j) PLAN ANNUAL REPORTS. Promptly and in any event
within 30 days after the filing thereof with the Internal Revenue
Service, copies of each Schedule B (Actuarial Information) to the
annual report (Form 5500 Series) with respect to each of the Federated
Department Stores, Inc. Pension Plan, the Allied Stores Corporation
Retirement Benefit Plan and the R.H. Macy's & Co., Inc. Pension Plan
and any other Plan the "current liability" (as defined in Section
412(l)(7) of the Internal Revenue Code) of which exceeds $50,000,000.
(k) MULTIEMPLOYER PLAN NOTICES. Promptly and in any
event within five Business Days after receipt thereof by any Loan
Party or any ERISA Affiliate from the sponsor of a Multiemployer Plan,
copies of each notice concerning (i) the imposition of Withdrawal
Liability by any such Multiemployer Plan, (ii) the reorganization or
termination, within the meaning of Title IV of ERISA, of any such
Multiemployer Plan or (iii) the amount of liability incurred, or that
may be incurred, by such Loan Party or ERISA Affiliate in connection
with any event described in clause (i) or (ii), if such imposition,
reorganization, termination or amount could be reasonably expected to
result in a material liability of any Loan Party or any ERISA
Affiliate.
(l) LITIGATION. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Loan Party or any of its Subsidiaries of the type
116
111
described in Section 4.01(j), and promptly after the occurrence
thereof, notice of any adverse change in the status or the financial
effect on any Loan Party or any of its Subsidiaries of the Disclosed
Litigation from that described on Schedule 3.01(g).
(m) SECURITIES REPORTS. Promptly after the sending or
filing thereof, copies of all proxy statements, financial statements
and reports that any Loan Party or any of its Subsidiaries sends to
its stockholders, and copies of all regular, periodic and special
reports, and all registration statements (other than registration
statements on Form S-8), that any Loan Party or any of its
Subsidiaries files with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor, or with any
national securities exchange.
(n) AGREEMENT NOTICES. Promptly upon receipt thereof,
copies of all notices, requests and other documents received by any
Loan Party or any of its Subsidiaries under or pursuant to the Merger
Agreement, the Plan of Reorganization or any Material Contract
(including, without limitation, any indenture, loan or credit or
similar agreement) regarding or related to any breach or default by
any party thereto or any other event that could materially impair the
value of the interests or the rights of any Loan Party or otherwise
have a Material Adverse Effect and copies of any amendment,
modification or waiver of any provision of any Related Document or any
indenture, loan or credit or similar agreement that adversely affects
the rights or interests of the Administrative Agent or any Lender
Party or that is otherwise material and, from time to time upon
request by the Administrative Agent, such information and reports
regarding the Related Documents and the Material Contracts as the
Administrative Agent may reasonably request.
(o) REVENUE AGENT REPORTS. Within 10 days after receipt,
copies of all Revenue Agent Reports (Internal Revenue Service Form
886), or other written proposals of the Internal Revenue Service, that
propose, determine or otherwise set forth positive adjustments to the
Federal income tax liability of the affiliated group (within the
meaning of Section 1504(a)(1) of the Internal Revenue Code) of which
the Borrower is a member aggregating $10,000,000 or more.
(p) ENVIRONMENTAL CONDITIONS. Promptly after the
occurrence thereof, notice of any condition or occurrence on any
property of any Loan Party or any of its Subsidiaries that results in
a material noncompliance by any Loan Party or any of its Subsidiaries
with any Environmental Law or Environmental Permit or could (i) form
the basis of an Environmental Action against any Loan Party or any of
its Subsidiaries or such property that could have a Material Adverse
Effect or (ii) cause any such property to be subject to any
restrictions on ownership, occupancy, use or
117
112
transferability under any Environmental Law that could have a Material
Adverse Effect.
(q) INSURANCE. Upon request of the Administrative Agent,
a report summarizing the insurance coverage (specifying type, amount
and carrier) in effect for each Loan Party and its Subsidiaries and
containing such additional information as any Lender Party may
reasonably specify.
(r) OTHER INFORMATION. Such other information respecting
the business, condition (financial or otherwise), operations,
performance, properties or prospects of any Loan Party or any of its
Subsidiaries as any Lender Party through the Administrative Agent may
from time to time reasonably request.
SECTION 5.04. 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 2.06(b)(iv)) or any Lender Party shall have any
Commitment hereunder, the Borrower will:
(a) LEVERAGE RATIO. Maintain at the end of each fiscal
quarter of the Borrower a Leverage Ratio of not more than the amount
set forth below for each period set forth below:
FISCAL QUARTER ENDING IN THE FISCAL RATIO
MONTH OF
April, 1995 0.55:1
July, 1995 0.55:1
October, 1995 0.56:1
January, 1996 0.49:1
April, 1996 0.51:1
July, 1996 0.51:1
October, 1996 0.52:1
January, 1997 0.47:1
April, 1997 0.48:1
July, 1997 0.48:1
October, 1997 0.49:1
January, 1998 0.44:1
April, 1998 0.44:1
July, 1998 0.44:1
October, 1998 0.45:1
January, 1999
and thereafter 0.40:1
118
113
(b) FIXED CHARGE COVERAGE RATIO. During each
Non-Investment Grade Period, maintain at the end of each Measurement
Period a ratio of the sum of (x) Consolidated EBITDA for the
Measurement Period then ended PLUS (y) in the case of any such
Measurement Period ending prior to or on February 3, 1996, the net
increase (if any) in respect of Debt of the Borrower and its
Subsidiaries under the Receivables Financing Facility during such
Measurement Period to the sum of (i) Net Cash Interest for such
Measurement Period PLUS (ii) principal amounts of all Funded Debt
payable (other than (I) Debt refunded or refinanced in accordance with
the terms of the Loan Documents and (II) Debt payable under the May
Note Monetization Facility) PLUS (iii) Cash Capital Expenditures made
PLUS (iv) cash income taxes paid PLUS (v) cash dividends made, in each
case by the Borrower and its Subsidiaries during such Measurement
Period determined in accordance with GAAP of not less than the amount
set forth below for each period set forth below:
MEASUREMENT PERIOD ENDING
IN THE FISCAL MONTH OF RATIO
April, 1995 0.25:1
July, 1995 0.32:1
October, 1995 0.50:1
January, 1996 1.00:1
April, 1996 1.00:1
July, 1996 1.00:1
October, 1996 1.00:1
January, 1997 1.00:1
April, 1997 1.00:1
July, 1997 1.00:1
October, 1997 1.00:1
January, 1998
and thereafter 1.00:1
119
114
(c) INTEREST COVERAGE RATIO. Maintain at the end of each
Measurement Period an Interest Coverage Ratio of not less than the
amount set forth below for each Measurement Period set forth below:
120
115
MEASUREMENT PERIOD ENDING
IN THE FISCAL MONTH OF RATIO
April, 1995 1.10:1
July, 1995 1.10:1
October, 1995 1.50:1
January, 1996 2.75:1
April, 1996 2.75:1
July, 1996 2.75:1
October, 1996 2.75:1
January, 1997 3.00:1
April, 1997 3.00:1
July, 1997 3.00:1
October, 1997 3.00:1
January, 1998 3.50:1
April, 1998 3.50:1
July, 1998 3.50:1
October, 1998 3.50:1
January, 1999 3.75:1
April, 1999 3.75:1
July, 1999 3.75:1
October, 1999 3.75:1
January, 2000
and thereafter 4.00:1
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) (i) the Borrower shall fail to pay any principal of
any Advance when the same shall become due and payable or (ii) the
Borrower shall fail to pay any interest on any Advance, or any Loan
Party shall fail to make any other payment under any Loan
121
116
Document, in each case under this clause (ii) within one Business Day
after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party
(or any of its officers) under or in connection with any Loan Document
shall prove to have been incorrect in any material respect when made;
or
(c) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 5.01(e), (f) or (j),
5.02 (other than, with respect to Section 5.02(a), to the extent
described in clause (d)(i) below), 5.03 (except to the extent
described in clause (d)(i) below) or 5.04; or
(d) (i) 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 5.03(b),
(c), (d), (e), (f), (g) or (m) if such failure shall remain unremedied
for 10 days or (ii) any Loan Party 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
Administrative Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail
to pay any principal of, premium or interest on or any other amount
payable in respect of any Debt that is outstanding in a principal or
notional amount of at least $30,000,000 (or its equivalent in any
Alternative Currency) either individually or in the aggregate (but
excluding Debt outstanding hereunder) of such Loan Party 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 otherwise to cause, or to permit the
holder thereof to cause, such Debt to mature; 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
122
117
(f) any Loan Party 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 any Loan Party 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, 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) that
is being diligently contested by it in good faith, 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 any substantial part of its property) shall occur;
or any Loan Party or any of its Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this
subsection (f); or
(g) 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 any Loan Party 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 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(g) 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
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiaries that could
reasonably be expected to have a Material Adverse Effect, and there
shall be any period of 20 consecutive 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
(i) any provision of any Loan Document after delivery
thereof pursuant to Section 3.01 or 5.01(l) shall for any reason cease
to be valid and binding on or
123
118
enforceable against any Loan Party party to it, or any such Loan Party
shall so state in writing; or
(j) any Collateral Document after delivery thereof
pursuant to Section 3.01 or 5.01(l) shall for any reason (other than
pursuant to the terms thereof) cease to create a valid and perfected
first priority lien on and security interest in the Collateral
purported to be covered thereby; or
(k) (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 33-1/3% 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 shall cease for any reason
(other than due to death, disability or previously established
mandatory retirement) 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
(l) 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 Loan Parties and
the ERISA Affiliates related to such ERISA Event) exceeds $30,000,000;
or
(m) any Loan Party 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 Loan Parties and the 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
(n) any Loan Party 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 Loan Parties
124
119
and the 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;
then, and in any such event, the Administrative 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 Appropriate Lender to make Advances (other than
Letter of Credit Advances by an Issuing Bank or a Working Capital Lender
pursuant to Section 2.14(c) and Swing Line Advances by a Working Capital 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 and the other Loan Documents 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 any Loan Party or
any of its Subsidiaries under the Bankruptcy Code, (x) the obligation of each
Lender to make Advances (other than Letter of Credit Advances by an Issuing
Bank or a Working Capital Lender pursuant to Section 2.14(c) and Swing Line
Advances by a Working Capital Lender pursuant to Section 2.02(b)) and of each
Issuing Bank to issue Letters of Credit shall automatically be terminated and
(y) 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 DEFAULT. If any Event of Default shall have occurred and be continuing,
the Administrative Agent may, irrespective of whether it is taking any of the
actions described in Section 6.01 or otherwise, make demand upon the Borrower
to, and forthwith upon such demand the Borrower will, pay to the Administrative
Agent on behalf of the Lender Parties in same day funds at the Administrative
Agent's office designated in such demand, for deposit in the L/C Cash
Collateral Account, an amount equal to the aggregate Available Amount of all
Letters of Credit then outstanding. If at any time the Administrative Agent
determines that any funds held in the L/C Cash Collateral Account are subject
to any right or claim of any Person other than the Administrative Agent and the
Lender Parties or that the total amount of such funds is less than the
aggregate Available Amount of all Letters of Credit, the Borrower will,
forthwith upon demand by the Administrative Agent, pay to the Administrative
Agent, as additional funds to be deposited and held in the L/C Cash Collateral
Account, an amount equal to the
125
120
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent determines to be free and clear of any such right and
claim.
ARTICLE VII
THE ADMINISTRATIVE AGENT AND THE AGENT
SECTION 7.01. AUTHORIZATION AND ACTION. Each Lender (in its
capacities as a Lender and a potential Hedge Bank) and each Issuing Bank hereby
appoints and authorizes the Administrative Agent and the 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 the
Administrative Agent and the Agent by the terms hereof and thereof, 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), neither the
Administrative Agent nor the 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
neither the Administrative Agent nor the Agent shall be required to take any
action that exposes the Administrative Agent or the Agent to personal liability
or that is contrary to this Agreement or applicable law. Each of the
Administrative Agent and the Agent agrees to give to each Lender and each
Issuing Bank prompt notice of each notice given to it by the Borrower pursuant
to the terms of this Agreement.
SECTION 7.02. ADMINISTRATIVE AGENT'S AND AGENT'S RELIANCE,
ETC. Neither the Administrative Agent nor the Agent nor any of their
respective 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, the
Administrative Agent and the Agent: (a) may treat the payee of any Note as the
holder thereof until the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, as provided in
Section 8.07; (b) may consult with legal counsel (including counsel for any
Loan Party), independent public accountants and other experts selected by it
with reasonable care 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; (c) makes no warranty or representation to any Lender
Party and shall not be responsible to any Lender Party for any
126
121
statements, warranties or representations (whether written or oral) made in or
in connection with the Loan Documents; (d) 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 any Loan Party or
to inspect the property (including the books and records) of any Loan Party;
(e) 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 thereto; and (f) 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 telegram,
telecopy, cable or telex) believed by it to be genuine and signed or sent by
the proper party or parties.
SECTION 7.03. CITIBANK, CHEMICAL AND AFFILIATES. With
respect to its Commitments, the Advances made by it and the Notes issued to it,
each of Citibank and Chemical shall have the same rights and powers under the
Loan Documents as any other Lender and may exercise the same as though it were
not the Administrative Agent or the Agent, as the case may be; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include each
of Citibank and Chemical in its individual capacity. Citibank and Chemical and
their respective 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, any Loan Party, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if Citibank and Chemical were not the
Administrative Agent and the Agent, respectively, and without any duty to
account therefor to the Lender Parties.
SECTION 7.04. LENDER PARTY CREDIT DECISION. Each Lender
Party acknowledges that it has, independently and without reliance upon the
Administrative Agent, the Agent or any Lender Party 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 the Administrative Agent, the Agent or
any 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 (other than
the Designated Bidders) severally agrees to indemnify the Administrative Agent
and the 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,
127
122
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against the Administrative Agent or the Agent in any way relating to or arising
out of the Loan Documents or any action taken or omitted by the Administrative
Agent or the Agent under the Loan Documents; PROVIDED, HOWEVER, that no Lender
shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Administrative Agent's or the Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender (other than the Designated Bidders) agrees to reimburse the
Administrative Agent and the Agent promptly upon demand for its ratable share
of any reasonable costs and expenses (including, without limitation, reasonable
fees and expenses of counsel) payable by the Borrower under Section 8.04, to
the extent that the Administrative Agent or the Agent is not promptly
reimbursed for such costs and expenses by the Borrower. For purposes of this
Section 7.05(a), the Lenders' respective ratable shares of any amount shall be
determined, at any time, according to the sum of (a) the aggregate principal
amount of the Regular Advances outstanding at such time and owing to the
respective Lenders, (b) their respective Pro Rata Shares of the aggregate
Available Amount of all Letters of Credit outstanding at such time, (c) the
aggregate unused portions of their respective Term Commitments at such time and
(d) their respective Unused Working Capital Commitments at such time. In the
event that any Defaulted Advance shall be owing by any Defaulting Lender at any
time, such Lender's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 7.05(a) to the extent of the amount of such
Defaulted Advance. The failure of any Lender to reimburse the Administrative
Agent or the Agent promptly upon demand for its ratable share of any amount
required to be paid by the Lenders to the Administrative Agent or the Agent as
provided herein shall not relieve any other Lender of its obligation hereunder
to reimburse the Administrative Agent or the Agent for its ratable share of
such amount, but no Lender shall be responsible for the failure of any other
Lender to reimburse the Administrative Agent or the Agent for such other
Lender's ratable share of such amount. Without prejudice to the survival of
any other agreement of any Lender hereunder, the agreement and obligations of
each Lender contained in this Section 7.05(a) shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under the
other Loan Documents.
(b) Each Lender severally agrees to indemnify each
Issuing Bank (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, 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, HOWEVER, that
no Lender shall be liable for
128
123
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 agrees to reimburse such Issuing Bank 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 Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower. For purposes
of this Section 7.05(b), the Lenders' respective ratable shares of any amount
shall be determined, at any time, according to the sum of (a) the aggregate
principal amount of the Regular Advances outstanding at such time and owing to
the respective Lenders, (b) their respective Pro Rata Shares of the aggregate
Available Amount of all Letters of Credit outstanding at such time, (c) the
aggregate unused portions of their respective Term Commitments at such time and
(d) their respective Unused Working Capital Commitments at such time. In the
event that any Defaulted Advance shall be owing by any Defaulting Lender at any
time, such Lender's Commitment with respect to the Facility under which such
Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 7.05(b) to the extent of the amount of such
Defaulted Advance. The failure of any Lender to reimburse such Issuing Bank
promptly upon demand for its ratable share of any amount required to be paid by
the Lenders to such Issuing Bank as provided herein shall not relieve any other
Lender of its obligation hereunder to reimburse such Issuing Bank for its
ratable share of such amount, but no Lender shall be responsible for the
failure of any other Lender to reimburse such Issuing Bank for such other
Lender's ratable share of such amount. Without prejudice to the survival of
any other agreement of any Lender hereunder, the agreement and obligations of
each Lender contained in this Section 7.05(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 ADMINISTRATIVE AGENTS. The
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrower and may be removed at any time with or without
cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Administrative
Agent. If no successor Administrative 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 giving of notice of resignation or
the Required Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a
successor Administrative Agent, which shall be a commercial bank organized
under the laws of the United States or of any State thereof and having a
combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent and upon the execution and filing or recording of such financing
statements, or amendments thereto, and such other instruments or notices, as
may be necessary or desirable, or as the Required
129
124
Lenders may request, in order to continue the perfection of the Liens granted
or purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. After any retiring Administrative
Agent's resignation or removal hereunder as Administrative 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 under this
Agreement.
SECTION 7.07. AGENT. The Agent, in its capacity as Agent,
assumes no responsibility or obligation hereunder for servicing, syndication,
enforcement or collection of the Debt resulting from the Advances, nor any
duties as agent hereunder for the Lender Parties. The title of "Agent" implies
no fiduciary responsibility on the part of the Agent, in its capacity as Agent,
to the Administrative Agent or any Lender Party and the use of such title does
not impose on the Agent any duties or obligations greater than those of any
Lender Party or entitle the Agent to any rights other than those to which any
other Lender Party is entitled.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment or waiver of any
provision of this Agreement or the Notes (other than the Competitive Bid Notes)
or any other Loan Document, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed (or, in the case of the Security Agreement, consented to) 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 (a) 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 at
any time: (i) waive any of the conditions specified in Section 3.01 or, in the
case of the Initial Extension of Credit, Section 3.02, (ii) change the number
of Lenders or the percentage of (x) the Commitments, (y) the aggregate unpaid
principal amount of the Advances or (z) the aggregate Available Amount of
outstanding Letters of Credit that, in each case, shall be required for the
Lenders or any of them to take any action hereunder, (iii) release all or
substantially all of the Collateral in any transaction or any series of related
transactions or permit the creation, incurrence, assumption or existence of any
Lien on all or substantially all of the Collateral in any transaction or any
series of related transactions to secure any Obligations other than Obligations
owing to the Lender Parties, the Hedge Banks, the Agent and the Administrative
Agent under the Loan Documents and other
130
125
than Debt owing to any other Person, PROVIDED that, in the case of any Lien on
all or substantially all of the Collateral to secure Debt owing to any other
Person, (A) the Borrower shall, on the date such Debt shall be incurred or
issued, prepay the Advances pursuant to, and in the order of priority set forth
in, Section 2.06(b)(ii) in an aggregate principal amount equal to the amount of
such Net Cash Proceeds to the extent required to do so under Section 5.02(b)
and (B) the Required Lenders shall otherwise permit the creation, incurrence,
assumption or existence of such Lien and, to the extent not otherwise permitted
under Section 5.02(b), of such Debt or (iv) amend this Section 8.01 and (b) no
amendment, waiver or consent shall, unless in writing and signed by the
Required Lenders and each Lender that has a Commitment under the Term Facility
or the Working Capital Facility if affected by such amendment, waiver or
consent, (i) increase the Commitments of such Lender or subject such Lender to
any additional obligations, (ii) reduce the principal of, or interest on, the
Notes (other than the Competitive Bid Notes) held by such Lender or any fees or
other amounts payable hereunder to such Lender, (iii) postpone any date fixed
for any payment of principal of, or interest on, the Notes (other than the
Competitive Bid Notes) held by such Lender or any fees or other amounts payable
hereunder to such Lender or (iv) change the order of application of any
prepayment set forth in Section 2.06 in any manner that materially affects such
Lender; PROVIDED FURTHER that no amendment, waiver or consent shall, unless in
writing and signed by each Swing Line Bank or each Issuing Bank, as the case
may be, in addition to the Lenders required above to take such action, affect
the rights or obligations of the Swing Line Banks or of the Issuing Banks, as
the case may be, under this Agreement; and PROVIDED FURTHER that no amendment,
waiver or consent shall, unless in writing and signed by the Administrative
Agent in addition to the Lenders required above to take such action, affect the
rights or duties of the Administrative Agent under this Agreement or any Note.
SECTION 8.02. NOTICES, ETC. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, 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 or any initial Issuing
Bank, at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender or Issuing Bank, at its Domestic Lending Office
specified in the Assignment and Acceptance pursuant to which it became a
Lender; and if to the Administrative Agent, at its address at 1 Court Square,
7th Floor, Zone 1, Long Island City, New York 11120, Attention: Ed Vowinkel,
Telephone No. (718) 248-4523, Telecopier No. (718) 248-4844/45; or, as to the
Borrower or the 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 Administrative 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
131
126
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 Administrative Agent pursuant to
Article II, III or VII shall not be effective until received by the
Administrative Agent. Delivery by telecopier of an executed counterpart of any
amendment or waiver of any provision of this Agreement or the Notes or of any
Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of
any Lender or the Administrative 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 (i) all costs and expenses of the Administrative Agent and the
Agent in connection with the preparation, execution, delivery, administration,
modification and amendment of the Loan Documents (including, without
limitation, (A) all due diligence, collateral review, syndication,
transportation, computer, duplication, appraisal, audit, insurance, consultant,
search, filing and recording fees and expenses and (B) the reasonable fees and
expenses of counsel for the Administrative Agent and the Agent with respect
thereto, with respect to advising the Administrative Agent and the Agent as to
their respective rights and responsibilities, or the perfection, protection or
preservation of rights or interests, under the Loan Documents, with respect to
negotiations with any Loan Party or with other creditors of any Loan Party or
any of its Subsidiaries arising out of any Default or any events or
circumstances that may give rise to a Default and with respect to presenting
claims in or otherwise participating in or monitoring any bankruptcy,
insolvency or other similar proceeding involving creditors' rights generally
and any proceeding ancillary thereto directly involving or relating to the
Borrower or any of its Subsidiaries) and (ii) all costs and expenses of the
Administrative Agent, the Agent and the Lender Parties in connection with the
enforcement of the Loan Documents, whether in any action, suit or litigation,
any bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally or otherwise (including, without limitation, the reasonable
fees and expenses of counsel for the Administrative Agent, the Agent and each
Lender Party with respect thereto).
(b) The Borrower agrees to indemnify and hold harmless
the Administrative Agent, the Agent, each Lender Party and each of their
Affiliates and their officers, directors, employees, agents and advisors (each,
an "INDEMNIFIED PARTY") from and against any and all
132
127
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, or in connection with the preparation
for a defense of, any investigation, litigation or proceeding arising out of,
related to or in connection with (i) the Facilities, the actual or proposed use
of the Advances, the Loan Documents or any of the transactions contemplated
thereby, including, without limitation, any acquisition or proposed acquisition
(including, without limitation, the Merger and any of the other transactions
contemplated hereby) by Federated or any of its Subsidiaries or Affiliates of
all or any portion of the stock or substantially all the assets of the Company
or any of its Subsidiaries or (ii) the actual or alleged presence of Hazardous
Materials on any property of any Loan Party or any of its Subsidiaries or any
Environmental Action relating in any way to any Loan Party or any of its
Subsidiaries, in each case whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party 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, including, without limitation, the Merger and the Reorganization,
except (a) to the extent that such liability is found in a final non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct and (b) for direct,
as opposed to consequential, damages for breach of the Indemnified Parties'
obligations hereunder.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to or for
the account of a Lender other than on the last day of the Interest Period for
such Advance, as a result of a payment or Conversion pursuant to Section
2.09(b)(i) or 2.10(d), acceleration of the maturity of the Notes pursuant to
Section 6.01 or for any other reason, the Borrower shall, upon demand by such
Lender (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender any amounts required to
compensate such Lender for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment, including, without limitation,
any loss (including loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired
by any Lender to fund or maintain such Advance.
133
128
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender, in its sole discretion.
(e) Without prejudice to the survival of any other
agreement of any Loan Party hereunder or under any other Loan Document, the
agreements and obligations of the Borrower contained in Sections 2.10 and 2.12
and this Section 8.04 shall survive the payment in full of principal, interest
and all other amounts payable hereunder and under any of the other Loan
Documents.
SECTION 8.05. RIGHT OF SET-OFF. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent 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 otherwise 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 or Notes held by such Lender, irrespective of whether such Lender
Party shall have made any demand under this Agreement or such Note or Notes and
although such obligations may be unmatured. Each Lender Party agrees promptly
to notify the Borrower after any such set-off and application; PROVIDED,
HOWEVER, 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 8.05 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 when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each Initial Lender and each initial Issuing Bank that such Initial Lender
and such Issuing Bank has executed it and thereafter shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent 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 Lender Parties.
SECTION 8.07. ASSIGNMENTS, DESIGNATIONS AND PARTICIPATIONS.
(a) Each Lender (other than the Designated Bidders) may and, if demanded by
the Borrower pursuant to
134
129
Section 2.10(a) or 2.16 upon at least ten Business Days' notice to such Lender
and the Administrative Agent, will assign to one or more Eligible Assignees all
or a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitment or Commitments, the
Regular Advances owing to it and the Note or Notes held by it); PROVIDED,
HOWEVER, that (i) each such assignment shall be of a uniform, and not a
varying, percentage of all rights and obligations under and in respect of one
or more Facilities (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 $5,000,000 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 Administrative 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 Regular 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
Administrative Agent, for its acceptance and recording in the Register, an
Assignment and Acceptance, together with any Note or Notes subject to such
assignment and a processing and recordation fee of $2,000 for each Assignment
and Acceptance between a Lender and its Affiliate or another Lender or $3,000
for each other Assignment and Acceptance.
(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
135
130
(iii) the parties to each such assignment shall execute and deliver to the
Administrative 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 such execution, delivery, acceptance and
recording, from and after the effective date specified in such 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 or Issuing Bank's rights and obligations under
this Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
(d) By executing and delivering an Assignment and
Acceptance, the Lender or Issuing Bank 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 or Issuing Bank, as the case may be, makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
any other 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 Loan Document or any other instrument or
document furnished pursuant hereto or thereto; (ii) such assigning Lender or
Issuing Bank, as the case may be, makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower or any other Loan Party or the performance or observance by any Loan
Party 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 the Administrative Agent, such
assigning Lender or Issuing Bank, as the case may be, or any other Lender or
Issuing Bank 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
136
131
(subject to obtaining the approvals required, if any, from the Borrower, the
Administrative Agent and the Agent); (vi) such assignee appoints and authorizes
the Administrative 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 the Administrative Agent by the terms thereof, 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
or Issuing Bank, as the case may be.
(e) Upon its receipt of an Assignment and Acceptance
executed by an assigning Lender or Issuing Bank and an assignee, together with
any Note or Notes subject to such assignment, the Administrative 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. Such Assignment and Acceptance shall not
become effective until the information contained therein is recorded in the
Register by the Administrative Agent. In the case of any assignment by a
Lender, within five Business Days after its receipt of such notice, the
Borrower, at its own expense, shall execute and deliver to the Administrative
Agent in exchange for the surrendered Note or Notes a new Note to the order of
such Eligible Assignee in an amount equal to the Commitment assumed by it under
a Facility pursuant to such Assignment and Acceptance and, if the assigning
Lender has retained a Commitment hereunder under such Facility, a new Note to
the order of the assigning Lender in an amount equal to the Commitment retained
by it hereunder. Such new Note or Notes shall be in an aggregate principal
amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and
shall otherwise be in substantially the form of Exhibit A-1 or A-2 hereto, as
the case may be.
(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
Administrative 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.
137
132
(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 this 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, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or any other Loan Party or
the performance or observance by any Loan Party of any of its obligations under
any Loan Document or any other instrument or document furnished pursuant
thereto; (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 the Administrative 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 Administrative Agent to
take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Administrative Agent 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 Administrative 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. Such
Designation Agreement shall not become effective until the information
contained therein is recorded in the Register by the Administrative Agent.
(i) The Administrative Agent, acting for this purpose as
the agent of the Borrower, 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 Lender Parties and, with respect to Lender Parties other
than Designated Bidders, the Commitment under each Facility of, and principal
amount of, and interest on, the Advances owing to, each Lender Party from time
to
138
133
time (the "REGISTER"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrower, the
Administrative Agent and the Lender Parties shall treat each Person whose name
is recorded in the Register as a Lender Party hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
(j) Each Lender may sell participations in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, 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
Commitments) 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 Administrative Agent 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 any Loan Document, or any consent
to any departure by any Loan Party 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, 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, or release
all or substantially all of the Collateral.
(k) Any Lender Party 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 Party by or on behalf of the
Borrower; PROVIDED, HOWEVER, 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 received
by it from such Lender Party.
(l) Notwithstanding any other provision set forth in this
Agreement, any Lender Party 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 any 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.
139
134
SECTION 8.08. 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 8.09. 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. RELEASE OF COLLATERAL. As soon as practicable
after the Release Date, the Administrative Agent shall, at the Borrower's
expense, execute and deliver to the Borrower such documents as the Borrower
shall reasonably request to evidence the release of the Collateral from the
liens and security interest created under the Collateral Documents.
SECTION 8.11. CONFIDENTIALITY. None of the Administrative
Agent, the Agent or any Lender Party shall disclose any Confidential
Information to any Person without the written consent of the Borrower, other
than (a) to the Administrative Agent's, the Agent's or such Lender Party's
Affiliates and their officers, directors, employees, agents, representatives
and advisors and to actual or prospective Eligible Assignees and participants,
and that, in each
140
135
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 8.12. 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 Administrative Agent
could purchase the Original Currency with the Other Currency at 9:00 A.M. (New
York City time) on the first Business Day preceding that on which final
judgment is given.
(b) The obligation of the Borrower in respect of any sum
due in the Original Currency from it to any Lender or the Administrative 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 Administrative Agent (as the case may be) of any sum
adjudged to be so due in such Other Currency such Lender Party or the
Administrative 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 Administrative 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 Administrative 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
Administrative Agent (as the case may be) in the Original Currency, such Lender
Party or the Administrative 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 any of the other Loan Documents to which it is a
party, 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
141
136
in this Agreement shall affect any right that any party may otherwise have to
bring any action or proceeding relating to this Agreement or any of the other
Loan Documents 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
any of the other Loan Documents to which it is a party 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. 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 8.15. WAIVER OF JURY TRIAL. Each of the Borrower,
the Administrative Agent, the Lenders and the Issuing Banks 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
any of the Loan Documents, the Advances or the actions of the Administrative
Agent, any Lender or any Issuing Bank 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.
By /s/ Dennis J. Broderick
-----------------------------------
Title: Senior Vice President,
General Counsel and Secretary
CITIBANK, N.A.,
as Administrative Agent
By /s/ Paul Trefrey
-----------------------------------
Title: Vice President
142
137
CHEMICAL BANK,
as Agent
By /s/ William Rindfuss
------------------------------
Title: Vice President
CITICORP SECURITIES, INC.,
as Arranger
By /s/ Paul Trefrey
------------------------------
Title: Vice President
CHEMICAL SECURITIES INC.,
as Co-Arranger
By /s/ Kurt C. Jomo
------------------------------
Title: Managing Directory
143
138
INITIAL LENDERS
---------------
CITIBANK, N.A.
By /s/ Paul Trefrey
-------------------------
Title: Vice President
CHEMICAL BANK
By /s/ William Rindfuss
-------------------------
Title: Vice President
144
139
ALLIED IRISH BANKS, P.L.C.
By /s/ Marcia Meeker
-----------------------
Title: V. P.
By /s/
-----------------------
Title: S. V. P.
ARAB BANK PLC, GRAND CAYMAN
By /s/ Peter Boyadjian
-----------------------
Title: V. P.
THE ASAHI BANK, LTD.
By /s/ Mr. Junichi Yamada
-----------------------
Title: Senior Deputy
General Manager
BANK OF AMERICA ILLINOIS
By /s/ Adam Balbach
-----------------------
Title: Vice President
BANK OF MONTREAL
By /s/ D. Bruce Thomsen
-----------------------
Title: Director
THE BANK OF NEW YORK
145
140
By /s/ Paula M. DiPonzio
---------------------------
Title: Vice President
BANK ONE, COLUMBUS, N.A.
By /s/ Wendy C. Mayhew
---------------------------
Title:
BANQUE PARIBAS
By /s/ John J. McCormick
---------------------------
Title: Assistant Vice
President
By /s/ Stan Berkman
---------------------------
Title: Senior V. P.
BERLINER HANDELS-UND
FRANKFURTER BANK
By /s/ John Sykes /s/ Contos
---------------------------
Title: AVP VP
CAISSE NATIONALE DE CREDIT
AGRICOLE
By /s/
---------------------------
Title: First V. P.
THE CHASE MANHATTAN BANK, N.A.
By /s/ Ellen Gertzog
---------------------------
146
141
Title: Vice President
COMERICA BANK
By /s/ Hugh G. Porter
-----------------------------------------
Title: Vice President
COMMERZBANK AKTIENGE SELLSCHAFT,
GRAND CAYMAN BRANCH
By /s/ Basu /s/ Mark D.Monson
-----------------------------------------
Title: First Vice Vice
President President
CREDIT LYONNAIS
CAYMAN ISLAND BRANCH
By /s/ W. Michael George
-----------------------------------------
Title: Authorized Signature
CREDIT SUISSE
By /s/ Christopher Eldin /s/ Daniela E. Hess
-----------------------------------------
Title: Member of Senior Associate
Management
DEUTSCHE BANK AG NEW YORK
AND/OR CAYMAN ISLANDS
BRANCHES
By /s/ Jeffrey N. Wieser /s/ Gregory M. Hill
-------------------------------------------
Title: Director Vice President
147
142
THE FIFTH THIRD BANK
By /s/ Timothy Elsbrock
------------------------------
Title: A. V. P.
THE FIRST NATIONAL BANK OF
BOSTON
By /s/ Rod Guinn
------------------------------
Title: Vice President
THE FIRST NATIONAL BANK
OF CHICAGO
By /s/ Paul E. Rigby
------------------------------
Title: Vice President
THE FIRST NATIONAL BANK
OF MARYLAND
By /s/ Brooks W. Thropp
------------------------------
Title: Vice President
FLEET BANK OF MASSACHUSETTS, N.A.
By /s/ Maryann S. Smith
------------------------------
Title: Vice President
THE FUJI BANK, LIMITED,
NEW YORK BRANCH
148
143
By /s/ Katsunori Nozawa
---------------------------
Title: Vice President and
Manager
THE INDUSTRIAL BANK OF JAPAN,
LIMITED
By /s/
---------------------------
Title: Senior Vice President
and Senior Manager
MELLON BANK, N.A.
By /s/ Gary J. Gegick
---------------------------
Title: Vice President
NATIONSBANK OF
SOUTH CAROLINA, N.A.
By /s/
---------------------------
Title: Assistant Vice
President
THE NIPPON CREDIT BANK, LTD.
By /s/ Lori Ravit
---------------------------
Title: Assistant Vice
President
PNC BANK, OHIO, NATIONAL
ASSOCIATION
By /s/ David Melin
---------------------------
Title: Commercial Banking
Officer
149
144
THE SANWA BANK LIMITED,
NEW YORK BRANCH
By /s/ Kabota
------------------------
Title: Vice President
SHAWMUT BANK, N.A.
By /s/ Richard M. Seufert
------------------------
Title: Vice President
SOCIETE GENERALE
By /s/ Seth Asofsky
------------------------
Title: Vice President
SOCIETY NATIONAL BANK
By /s/ John Langenderfer
------------------------
Title: Vice President
STAR BANK, N.A.
By /s/ Nancy J. Cracolice
------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
By /s/ Yoshinori Kawamura
------------------------
Title: Joint General Manager
150
145
THE SUMITOMO TRUST & BANKING
CO., LTD. NEW YORK BRANCH
By /s/
---------------------------
Title: Deputy General
Manager
UNION BANK OF FINLAND, LTD.
GRAND CAYMAN BRANCH
By /s/
---------------------------
Title: Senior Vice
President
By /s/ Eric I. Mann
---------------------------
Title: Vice President
WACHOVIA BANK OF GEORGIA, N.A.
By /s/
---------------------------
Title: S. V. P.