Exhibit 10.1
Published CUSIP No.:_____
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$350,000,000
REVOLVING CREDIT FACILITY
Dated as of May 14, 2004
among
NORDSTROM, INC.,
as Borrower,
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
as Lenders,
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANK ONE, NA,
as Syndication Agent
and
U.S. Bank National Association,
as Documentation Agent
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BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND RELATED MATTERS..................................1
Section 1.1 Definitions.............................................1
Section 1.2. Related Matters........................................16
ARTICLE 2 AMOUNTS AND TERMS OF THE CREDIT FACILITIES......................18
Section 2.1. Revolving Loans........................................18
Section 2.2. Bid Loans..............................................20
Section 2.3. Use of Proceeds........................................22
Section 2.4. Interest; Interest Periods; Conversion/Continuation....23
Section 2.5....Notes, Etc.............................................25
Section 2.6. Fees...................................................26
Section 2.7. Termination and Reduction of Revolving Commitments.....26
Section 2.8. Repayments and Prepayments.............................27
Section 2.9. Manner of Payment......................................27
Section 2.10. Pro Rata Treatment.....................................29
Section 2.11 Sharing of Payments....................................29
Section 2.12. Mandatory Suspension and Conversion of Euro-Dollar
Rate Loans.............................................30
Section 2.13. Regulatory Changes.....................................30
Section 2.14. Compensation for Funding Losses........................31
Section 2.15. Certificates Regarding Yield Protection, Etc...........32
Section 2.16 Taxes..................................................32
Section 2.17. Applicable Lending Office; Discretion of Lenders as
to Manner of Funding...................................33
ARTICLE 3 CONDITIONS TO LOANS.............................................33
Section 3.1. Closing Conditions.....................................33
Section 3.2. Conditions Precedent to Loans..........................35
ARTICLE 4 REPRESENTATIONS AND WARRANTIES..................................36
Section 4.1. Organization, Powers and Good Standing.................36
Section 4.2. Authorization, Binding Effect, No Conflict, Etc........36
Section 4.3. Financial Information..................................37
Section 4.4. No Material Adverse Changes............................37
Section 4.5. Litigation.............................................37
Section 4.6. Agreements: Applicable Law.............................37
Section 4.7. Taxes..................................................37
Section 4.8. Governmental Regulation................................38
Section 4.9. Margin Regulations/Proceeds of Loans...................38
Section 4.10. Employee Benefit Plans.................................38
Section 4.11. Disclosure.............................................38
Section 4.12. Solvency...............................................39
Section 4.13. Title to Properties....................................39
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ARTICLE 5 AFFIRMATIVE COVENANTS OF THE BORROWER...........................39
Section 5.1. Financial Statements and Other Reports.................39
Section 5.2. Records and Inspection.................................41
Section 5.3. Corporate Existence, Etc...............................41
Section 5.4 Payment of Taxes and Claims............................41
Section 5.5. Maintenance of Properties..............................41
Section 5.6. Maintenance of Insurance...............................42
Section 5.7. Conduct of Business; Compliance with Law...............42
Section 5.8. Further Assurances.....................................42
Section 5.9. Future Information.....................................42
ARTICLE 6 NEGATIVE COVENANTS OF THE BORROWER..............................43
Section 6.1. Liens..................................................43
Section 6.2. Restricted Payments....................................45
Section 6.3. Leverage Ratio.........................................46
Section 6.4. Restriction on Fundamental Changes.....................46
Section 6.5. Asset Dispositions.....................................46
Section 6.6. Transactions with Affiliates...........................46
ARTICLE 7 EVENTS OF DEFAULT, ETC..........................................47
Section 7.1. Events of Default......................................47
Section 7.2. Remedies...............................................49
Section 7.3 Allocation of Payments After Event of Default..........50
ARTICLE 8 THE AGENT AND THE LENDERS.......................................51
Section 8.1 Appointment and Authorization of gent..................51
Section 8.2 Delegation of uties....................................51
Section 8.3 Liability of gent......................................51
Section 8.4 Reliance by gent.......................................52
Section 8.5. Notice of Default......................................52
Section 8.6. Credit Decision; Disclosure of Information by Agent....53
Section 8.7. Indemnification of Agent...............................53
Section 8.8. Agent in its Individual Capacity.......................54
Section 8.9. Successor Agent........................................54
Section 8.10. Lender Parties.........................................55
Section 8.11. Enforcement by the Agent...............................55
Section 8.12. Syndication Agent and Documentation Agent..............55
Section 8.13. Agent May File Proofs of Claim.........................55
ARTICLE 9 MISCELLANEOUS...................................................56
Section 9.1. Expenses...............................................56
Section 9.2. Indemnity..............................................56
Section 9.3. Waivers; Modifications in Writing......................57
Section 9.4. Cumulative Remedies: Failure or Delays.................58
Section 9.5. Notices, Etc...........................................58
Section 9.6. Successors and Assigns; Designations...................60
Section 9.7. Set Off................................................63
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Section 9.8. Survival of Agreements, Representations and Warranties.64
Section 9.9. Execution in Counterparts..............................64
Section 9.10. Complete Agreement.....................................64
Section 9.11. Limitation of Liability................................64
Section 9.12. WAIVER OF TRIAL BY JURY................................64
Section 9.13. Confidentiality........................................65
Section 9.14. Binding Effect; Continuing Agreement...................66
Section 9.15. NO ORAL AGREEMENTS.....................................66
Section 9.16. USA Patriot Act Notice.................................66
EXHIBITS
Exhibit 2.1(c) Form of Notice of Borrowing
Exhibit 2.1(c)(iii) Form of Notice of Responsible Officers
Exhibit 2.2(b)(i) Form of Bid Loan Quote Request
Exhibit 2.2(b)(ii) Form of Bid Loan Quote
Exhibit 2.4(b)(ii) Form of Notice of Conversion/Continuation
Exhibit 2.5(a)(i) Form of Revolving Loan Note
Exhibit 2.5(a)(ii) Form of Bid Loan Note
Exhibit 3.1(d) Form of Closing Officer's Certificate
Exhibit 5.1(c) Form of Compliance Certificate
Exhibit 9.6(b) Form of Assignment and Assumption
SCHEDULES
Schedule 1.1(a) Borrower, Agent and Lender Information
Schedule 1.1(b) Controlling Stockholders
Schedule 1.1(c) Existing Liens
Schedule 1.1(d) Revolving Commitments
Schedule 4.1 Organization of Borrower and Subsidiaries
Schedule 4.5 Material Litigation
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REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT, dated as of May 14, 2004 (as amended,
supplemented or otherwise modified from time to time, the "Agreement"), by
and among NORDSTROM, INC., a Washington corporation (the "Borrower"), the
banks and other financial institutions that either now or in the future are
parties hereto (collectively the "Lenders" and each individually a "Lender"),
BANK ONE, NA, as Syndication Agent (in such capacity, the "Syndication
Agent"), U.S. BANK NATIONAL ASSOCIATION, as Documentation Agent (in such
capacity, the "Documentation Agent"), and BANK OF AMERICA, N.A., as
administrative agent for the Lenders (in such capacity, and any successor in
such capacity, the "Agent"). The Lenders, the Syndication Agent, the
Documentation Agent and the Agent are collectively referred to herein as the
"Lender Parties" and each individually as a "Lender Party."
RECITALS
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WHEREAS, the Borrower has requested that the Lenders provide a new
revolving credit facility in an aggregate amount of $350,000,000 (the "Credit
Facility") for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested Credit Facility
available to the Borrower on the terms and conditions hereinafter set forth;
and
WHEREAS, this Agreement replaces in its entirety the Existing Credit
Agreement.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND RELATED MATTERS
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Section 1.1 Definitions.
The following terms with initial capital letters have the following
meanings:
"Absolute Rate" is defined in Section 2.2(b)(iii).
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person. The term
"control" means the possession, directly or indirectly, of the power, whether
or not exercised, to direct or cause the direction of the management or
policies of a Person, whether through the ownership of Capital Stock, by
contract or otherwise, and the terms "controlled" and "common
control" have correlative meanings. Unless otherwise indicated, "Affiliate"
refers to an Affiliate of the Borrower. Notwithstanding the foregoing, in no
event shall any Lender Party or any Affiliate of any Lender Partly be deemed
to be an Affiliate of the Borrower. For the avoidance of doubt, the parties
agree that, as of the date hereof, 1700 Seventh L.P., a Washington limited
partnership, is not an Affiliate of the Borrower.
"Agent" means Bank of America or any successor agent appointed in
accordance with Section 8.9.
"Agent-Related Persons" means the Agent (including any successor
administrative agent), together with its Affiliates (including, in the case
of Bank of America in its capacity as the Agent, BAS), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Agent's Account" means the account of the Agent identified as such on
Schedule 1.1(a), or such other account as the Agent may hereafter designate
by notice to the Borrower and each Lender Party.
"Agent's Office" means the office of the Agent identified as such on
Schedule 1.1(a), or such other office as the Agent may hereafter designate by
notice to the Borrower and each Lender Party.
"Agreement" means this Credit Agreement, as it may be amended or
modified from time to time, including all Schedules and Exhibits.
"Applicable Law" means all applicable provisions of all (i)
constitutions, treaties, statutes, laws, rules, regulations and ordinances of
any Governmental Authority, (ii) Governmental Approvals and (iii) orders,
decisions, judgments, awards and decrees of any Governmental Authority.
"Applicable Lending Office" means, with respect to any Lender, (i) in
the case of any payment with respect to Euro-Dollar Rate Loans, such Lender's
Euro-Dollar Lending Office and (ii) in the case of any payment with respect
to Base Rate Loans or Bid Loans or any other payment under the Loan
Documents, such Lender's Domestic Lending Office.
"Applicable Margin" means, at any time, with respect to Facility Fees,
Utilization Fees, or Euro-Dollar Rate Loans, as applicable, the appropriate
applicable percentage corresponding to the long term, senior, unsecured, non-
credit enhanced debt rating of the Borrower in effect from time to time as
shown below:
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Long Term, Senior,
Unsecured, Non-Credit Applicable Margin
Enhanced Debt Rating for Euro-Dollar Applicable Margin Applicable Margin
Level of Borrower Rate Loans for Facility Fees for Utilization Fees
------ --------------------- ----------------- ----------------- --------------------
I. ? A+ from S&P .230% 0.07% .05%
or
? A1 from Xxxxx'x
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II. ? A but < A+ from S&P .270% 0.08% .05%
or
? A2 but < A1 from Xxxxx'x
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III. ? A- but < A from S&P .310% 0.09% .100%
or
? A3 but < A2 from Xxxxx'x
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IV. ? BBB+ but < A- from S&P .500% .125% .125%
or
? Baa1 but < A3 from Xxxxx'x
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V. ? BBB from S&P .575% .175% .125%
and
? Baa2 from Xxxxx'x
or
unrated by S&P and Xxxxx'x
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Notwithstanding the above, (i) if at any time there is a split in
ratings between S&P and Xxxxx'x of one level, the applicable percentage shall
be determined by the higher of the two ratings (e.g. A-/Baa1 results in Level
II pricing) and (ii) if at any time there is a split between S&P and Xxxxx'x
of two or more levels, the applicable level shall be one level below the
higher of the S&P or Xxxxx'x rating (e.g. A-/Baa2 results in Level III
pricing, as does A-/Baa3).
The credit ratings to be utilized for purposes of determining a Level
hereunder are those assigned to the senior unsecured long-term debt of the
Borrower without third-party credit enhancement, and any rating assigned to
any other Debt of the Borrower shall be disregarded. The debt rating in
effect at any date is the debt rating that is in effect at the close of
business on such date. The Applicable Margin shall be determined and, if
necessary, adjusted on the date (each, a "Determination Date") on which there
is any change in the Borrower's debt ratings. Each Applicable Margin shall
be effective from one Determination Date until the next Determination Date.
Any adjustment in the Applicable Margin shall be applicable to all existing
Euro-Dollar Rate Loans as well as any new Euro-Dollar Rate Loans made. The
Borrower shall notify the Agent in writing immediately upon any change in its
debt ratings.
"Approved Fund" is defined in Section 9.6(b).
"Assignment and Assumption" means an Assignment and Assumption in the
form of Exhibit 9.6(b).
"Bank of America" means Bank of America, N.A. or any successor thereto.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C.
Section 101 et seq.), as amended, modified, succeeded or replaced from time
to time.
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"BAS" means Banc of America Securities LLC or any successor thereto.
"Base Rate" means a fluctuating rate of interest per annum equal to the
higher of (i) the Federal Funds Rate plus one-half of one percent (.50%) or
(ii) the Prime Rate.
"Base Rate Loan" means a Revolving Loan, or portion thereof, that bears
interest by reference to the Base Rate.
"Bid Loan" is defined in Section 2.2(a).
"Bid Loan Borrowing" is defined in Section 2.2(a).
"Bid Loan Note" means a Bid Loan Note made by the Borrower, in
substantially the form of Exhibit 2.5(a)(ii), payable to the order of a
Lender, evidencing the obligation of the Borrower to repay the Bid Loans made
by such Lender, and includes any Bid Loan Note issued in exchange or
substitution therefor.
"Bid Loan Quote" is defined in Section 2.2(b)(ii).
"Bid Loan Quote Request" is defined in Section 2.2(b)(i).
"Borrower" means Nordstrom, Inc., a
Washington corporation, and its
successors and permitted assigns.
"Borrower Account" means the account of the Borrower identified as such
on Schedule 9.5, or such other account as the Borrower may hereafter
designate by notice to the Agent, with the prior consent of the Agent (such
consent not to be withheld, conditioned or delayed so long as the designation
of such account would not prevent the Agent from satisfying its obligations
hereunder in a timely manner).
"Borrowing" means a contemporaneous borrowing of Loans of the same Type.
"Business Day" means any day that (i) is not a Saturday, Sunday or other
day on which banks in Seattle,
Washington, San Francisco, California or
Charlotte, North Carolina are authorized or obligated to close and (ii) if
the applicable Business Day relates to any Euro-Dollar Rate Loans, is a Euro-
Dollar Business Day.
"Capital Stock" means, with respect to any Person, all (i) shares,
interests, participations or other equivalents (howsoever designated) of
capital stock and other equity or ownership interests of such Person and (ii)
rights (other than debt securities convertible into capital stock or other
equity interests), warrants or options to acquire any such capital stock or
other equity interests.
"Capitalized Leases" means, as to any Person, all leases of such Person
of real or personal property that in accordance with GAAP are or should be
capitalized on the balance sheet of such Persons. The amount of any
Capitalized Lease shall be the
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capitalized amount thereof as determined in accordance with GAAP.
"Change of Control" means that any "person" or "group" (as such terms
are used in Sections 13(d) of the Securities Exchange Act of 1934), other
than the Controlling Stockholders, becomes the "beneficial owner" (as defined
in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except
that a person or group shall be deemed to have "beneficial ownership" of all
securities that such person or group has the right to acquire whether such
right is immediately exercisable or only after the passage of time), directly
or indirectly, of Voting Stock of the Borrower (or other securities
convertible into such Voting Stock) representing 40% or more of the combined
voting power of all Voting Stock of the Borrower.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986 and the rules and
regulations promulgated thereunder, as amended, modified, succeeded or
replaced from time to time.
"Compliance Certificate" is defined in Section 5.1(c).
"Contingent Obligation" means, as to any Person, any obligation, direct
or indirect, contingent or otherwise, of such Person which does or would
reasonably be expected to result in the direct payment of money (i) with
respect to any Debt or other obligation of another Person, including any
direct or indirect guarantee of such Debt (other than any endorsement for
collection in the ordinary course of business) or any other direct or
indirect obligation, by agreement or otherwise, to purchase or repurchase any
such Debt or obligation or any security therefor, or to provide funds for the
payment or discharge of any such Debt or obligation (whether in the form of
loans, advances, stock purchases, capital contributions or otherwise), (ii)
to provide funds to maintain the financial condition of any other Person,
(iii) to lease or purchase property, securities or services primarily for the
purpose of assuring the holders of Debt or other obligations of another
Person or (iv) otherwise to assure or hold harmless the holders of Debt or
other obligations of another Person against loss in respect thereof. The
amount of any Contingent Obligation shall be the greater of (a) the amount of
the Debt or obligation guaranteed or otherwise supported thereby or (b) the
maximum amount guaranteed or supported by the Contingent Obligation. The
term "Contingent Obligation", as used with respect to the Borrower or any
Subsidiary, shall not include (1) the obligations of the Borrower under any
obligation which the Borrower does or may have to sell to, repurchase from or
indemnify the purchaser with respect to accounts discounted or sold by the
Borrower or any Subsidiary in the ordinary course of its business (but any
such other obligation shall be excluded only to the extent that such other
obligation is for the benefit, directly or indirectly, of any Person that is
a Wholly-Owned Subsidiary (direct or indirect) of the Borrower); or (2) any
obligation which a Subsidiary does or may have to sell to, repurchase from or
indemnify the purchaser with respect to accounts discounted or sold by the
Borrower or such Subsidiary in the ordinary course of its business (but any
such other obligation shall be excluded only to the extent that such
obligation is for the benefit, directly or indirectly, of any Person that is
a Wholly-Owned Subsidiary (direct or
5
indirect) of the Borrower); (3) supply, service or licensing agreements
between or among the Borrower or its Subsidiaries and any Affiliate(s), in
each case, so long as such agreements comply with Section 6.6; (4)
environmental indemnities routinely given as part of sale, lease or other
disposition or acquisition of real estate, or (5) "indemnities" for
attorneys' fees and costs which are incidental to another transaction and/or
damages arising from breach of the terms of such transaction.
"Contractual Obligation" means, as applied to any Person, any provision
of any security issued by that Person or of any indenture, agreement or other
instrument to which that Person is a party or by which it or any of the
properties owned or leased by it is bound or otherwise subject.
"Controlled Group" means all members of a controlled group of
corporations and all trades or businesses (irrespective of whether
incorporated) that, together with the Borrower or any Subsidiary, are or were
treated as a single employer under Section 414 of the Code.
"Controlling Stockholders" means the individuals listed on Schedule
1.1(b) hereto and the spouse and lineal descendants of any such individual.
"Debt" means, with respect to any Person, the aggregate amount of,
without duplication: (i) all obligations for borrowed money (including,
except as otherwise provided in subpart (iii) below, purchase money
indebtedness) other than, with respect to Debt of the Borrower or any of its
Subsidiaries, funds borrowed by the Borrower or any such Subsidiary from the
Borrower or another such Subsidiary; (ii) all obligations evidenced by bonds,
debentures, notes or other similar instruments; (iii) all obligations to pay
the deferred purchase price of property or services, except trade accounts
payable (which trade payables are deemed to include any consignment
purchases) arising in the ordinary course of business that are not overdue;
(iv) the principal portion of all obligations under (a) Capitalized Leases
and (b) any synthetic lease, tax retention operating lease, off-balance sheet
loan or similar off-balance sheet financing product of such Person where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP; (v) all obligations
of third parties secured by a Lien on any asset owned by such Person whether
or not such obligation or liability is assumed; (vi) all obligations of such
Person, contingent or otherwise, in respect of any letters of credit or
bankers' acceptances; (vii) all Contingent Obligations; (viii) the aggregate
amount paid to, or borrowed by, such Person as of such date under a sale of
receivables or similar transaction (regardless of whether such transaction is
effected without recourse to such Person or in a manner that would not be
reflected on the balance sheet of such Person in accordance with GAAP); (ix)
all Debt of any partnership or unincorporated joint venture to the extent
such Person is legally obligated with respect thereto; and (x) all net
obligations with respect to interest rate protection agreements, foreign
currency exchange agreements, commodity purchase or option agreements or
other interest or exchange rate or commodity price hedging agreements.
"Default" means any condition or event that, with the giving of notice
or lapse of
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time or both, would, unless cured or waived, become an Event of Default.
"Documentation Agent" means U. S. Bank National Association or any
successor thereto.
"Dollars" and "$" mean lawful money of the United States of America.
"Domestic Lending Office" means the office, branch or Affiliate of any
Lender identified on Schedule 1.1(a) as its Domestic Lending Office or such
other office, branch or Affiliate as the Lender may hereafter designate as
its Domestic Lending Office for one or more Types of Loans by notice to the
Borrower and the Agent.
"EBITDAR" means, for any period, with respect to the Borrower and its
consolidated Subsidiaries, Net Income plus, to the extent deducted in
determining such Net Income, the sum of (a) Interest Expense, (b) income tax
expense, (c) depreciation expense, (d) amortization expense and (e) Rent
Expense, in each case as determined in accordance with GAAP.
"Eligible Assignee" is defined in Section 9.6(g).
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"ERISA Event" means (i) (a) the occurrence of a reportable event, within
the meaning of Section 4043(c) of ERISA, with respect to any Plan unless the
30-day notice requirement with respect to such event has been waived by the
PBGC (provided that a reportable event arising from the disqualification of a
Plan or the distress termination of a Plan under ERISA Section 4041(c) shall
be deemed to be an ERISA Event without regard to any waiver of notice by the
PBGC by regulation or otherwise), or (b) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in paragraph
(9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30 days;
(ii) an application is filed with the Internal Revenue Service for a minimum
funding waiver under Section 412 of the Code with respect to a Plan; (iii)
the provision by the administrator of a 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); (iv) the cessation of operations at a facility of the Borrower or
any member of the Controlled Group in the circumstances described in Section
4062(e) of ERISA; (v) the withdrawal by the Borrower or any member of the
Controlled Group from a Plan during a plan year for which it was a
substantial employer, as defined in Section 4001(a)(2) of ERISA; (vi) the
conditions for the imposition of a lien under Section 302(f) of ERISA shall
have been met with respect to any Plan; (vii) the adoption of an amendment to
a Plan requiring the provision of security to such Plan pursuant to Section
307 of ERISA; or (viii) the institution by the PBGC of proceedings to
terminate a Plan pursuant to Section 4042 of
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ERISA, or the occurrence of any event or condition described in Section 4042
of ERISA that constitutes grounds for the termination of, or the appointment
of a trustee to administer, a Plan.
"Euro-Dollar Business Day" means any Business Day on which commercial
banks are open for international business (including dealings in interbank
Dollar deposits) in London, England.
"Euro-Dollar Lending Office" means the office, branch or Affiliate of
any Lender identified on Schedule 1.1(a) as its Euro-Dollar Lending Office
or, subject to the terms hereof, such other office, branch or Affiliate as
such Lender may hereafter designate as its Euro-Dollar Lending Office by
notice to the Borrower and the Agent.
"Euro-Dollar Rate" means with respect to any Euro-Dollar Rate Loan, a
rate per annum determined by the Agent to be equal to the quotient obtained
by dividing (a) the Interbank Offered Rate by (b) 1 minus the Euro-Dollar
Reserve Requirement.
"Euro-Dollar Rate Loan" means a Revolving Loan, or portion thereof, that
bears interest at a rate determined by reference to a Euro-Dollar Rate (and
as to which a single Interest Period is applicable).
"Euro-Dollar Reserve Requirement" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal) in effect on such
day, whether or not applicable to any Lender, under regulations issued from
time to time by the Federal Reserve Board of Governors for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Euro-Dollar Rate for each
outstanding Euro-Dollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Euro-Dollar Reserve Requirement.
"Event of Default" means any of the events specified in Section 7.1.
"Excluded Tax" means, with respect to any payment to any Lender Party,
(i) any taxes imposed on or measured by the overall net income (including a
franchise tax based on net income) of such Lender Party by any Governmental
Authority or taxing authority thereof or therein, and (ii) any taxes imposed
on or measured by the overall net income (including a franchise tax based on
net income) of such Lender Party or its Agent's Office or Applicable Lending
Office in respect of which the payment is made, by any Governmental Authority
in the jurisdiction in which it is incorporated, maintains its principal
executive office or in which such Agent's Office or Applicable Lending Office
is located.
"Existing Credit Agreement" means that certain Amended and Restated
Credit Agreement, dated as of November 20, 2001, by and among the Borrower,
the financial institutions party thereto as lenders thereunder, Bank One, NA,
as syndication agent, U.S.
8
Bank National Association, as documentation agent, and Bank of America, N.A.,
as administrative agent for such lenders, as it has been amended,
supplemented or otherwise modified from time to time.
"Existing Liens" means the Liens described on Schedule 1.1(c).
"Facility Fee" is defined in Section 2.6(a).
"Federal Funds Rate" means, for any period, a fluctuating per annum
interest rate equal to, for each day during such period, (i) 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 preceding
Business Day) by the Federal Reserve Bank of New York; or (ii) if the rate in
clause (i) above is not so published for any day which is a Business Day, the
Federal Funds Rate for such day shall be the average rate (rounded upward, if
necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal
Reserve System, or any successor thereto.
"Fee Letter" means that certain letter agreement, dated as of March 18,
2004, among the Borrower, the Agent and BAS regarding certain fees relating
to this Agreement, as the same may be amended, supplemented or otherwise
modified in writing from time to time by the Borrower, the Agent and BAS.
"Fees" means, collectively, the fees defined in or referenced in Section
2.6.
"Fiscal Year" means the fiscal year of the Borrower, which shall be the
twelve month-period ending on January 31 in each year or such other period as
the Borrower may designate and the Agent may approve in writing. "Fiscal
Quarter" or "fiscal quarter" means any quarter of a Fiscal Year.
"Fund" is defined in Section 9.6(g).
"Funded Debt" means, with respect to the Borrower and its Subsidiaries,
on a consolidated basis, the aggregate amount of, without duplication: (i)
all obligations for borrowed money (including, except as otherwise provided
in subpart (iii) below, purchase money indebtedness) other than funds
borrowed by the Borrower or any Subsidiary from the Borrower or another
Subsidiary; (ii) all obligations evidenced by bonds, debentures, notes or
other similar instruments; (iii) all obligations to pay the deferred purchase
price of property or services, except trade accounts payable (which trade
payables are deemed to include any consignment purchases) arising in the
ordinary course of business that are not overdue; (iv) the principal portion
of all obligations under (a) Capitalized Leases and (b) any synthetic lease,
tax retention operating lease, off-balance sheet loan or similar off-balance
sheet financing product of the Borrower or any of its
9
Subsidiaries where such transaction is considered borrowed money indebtedness
for tax purposes but is classified as an operating lease in accordance with
GAAP; (v) all obligations of others secured by a Lien on any asset owned by
the Borrower or any of its Subsidiaries whether or not such obligation or
liability is assumed; and (vi) the aggregate amount paid to, or borrowed by,
the Borrower or any of its Subsidiaries as of such date under a sale of
receivables or similar transaction (regardless of whether such transaction is
effected without recourse to the Borrower or any of its Subsidiaries or in a
manner that would not be reflected on the balance sheet of the Borrower or
any of its Subsidiaries in accordance with GAAP).
"Funding Date" means any date on which a Loan is (or is requested to be)
made.
"GAAP" means generally accepted accounting principles as in effect in
the United States of America from time to time and applied on a consistent
basis.
"Governmental Approval" means an authorization, consent, approval,
permit or license issued by, or a registration, qualification or filing with,
any Governmental Authority.
"Governmental Authority" means any nation and any state or political
subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government and any tribunal or arbitrator of competent jurisdiction.
"Indemnified Liabilities" is defined in Section 9.2(a).
"Interbank Offered Rate" means for any Interest Period with respect to
any Euro-Dollar Rate Loan: (i) the rate per annum equal to the rate
determined by the Agent to be the offered rate that appears on the page of
the Telerate screen (or any successor thereto) that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period, or (ii) if the rate referenced in the preceding clause (i) does not
appear on such page or service or such page or service shall cease to be
available, the rate per annum equal to the rate determined by the Agent to be
the offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period, determined as of approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period, or (iii) if the rates referenced in the preceding clauses (i) and
(ii) are not available, the rate per annum determined by the Agent as the
rate of interest at which deposits in Dollars for delivery on the first day
of such Interest Period in same day funds in the approximate amount of the
Euro-Dollar Rate Loan being made, continued or converted by Bank of America
and with a term equivalent to such Interest Period would be offered by Bank
of America's London Branch to major banks in the London interbank Eurodollar
market at their request at approximately 4:00 p.m.
10
(London time) two Business Days prior to the first day of such Interest
Period.
"Interest Expense" means the consolidated interest expense (including
the amortization of debt discount and premium, the interest component under
Capitalized Leases and the implied interest component under synthetic leases,
tax retention operating leases, off-balance sheet loans or similar off-
balance sheet financing products) of the Borrower and its Subsidiaries, as
determined in accordance with GAAP.
"Interest Period" means, subject to the conditions set forth below:
(i) with respect to each Euro-Dollar Rate Loan, the period
commencing on the Funding Date specified in the related Notice of Borrowing
or Notice of Conversion/Continuation and ending (subject to availability to
all Lenders) one, two, three or six months thereafter, as the Borrower may
elect, as applicable; and
(ii) with respect to any Bid Loan, the period commencing on the
Funding Date specified in the related Bid Loan Quote Request and ending on
any Business Day not less than seven and not more than 30 days thereafter, as
the Borrower may request as provided in Section 2.2(b)(i).
Notwithstanding the foregoing: (a) if a Euro-Dollar Rate Loan is
continued, the Interest Period applicable to the continued Euro-Dollar Rate
Loan shall commence on the day on which the Interest Period applicable to
such Euro-Dollar Rate Loan ends; (b) any Interest Period applicable to a
Euro-Dollar Rate Loan (1) that would otherwise end on a day that is not a
Business Day shall be extended to the next succeeding Business Day, unless
such succeeding Business Day falls in another calendar month, in which case
such Interest Period shall end on the next preceding Business Day or (2) that
begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the calendar
month; and (c) no Interest Period shall end after the Maturity Date.
"Investment Agreement" means the Investment Agreement, dated as of
October 8, 1984, between the Borrower and Nordstrom Credit, Inc., a Colorado
corporation, as amended from time to time.
"Lender" means each of those banks and other financial institutions
identified as such on the signature pages hereto and such other institutions
that may become Lenders pursuant to Section 9.6(b).
"Lender Party" means each of the Lenders, the Agent, the Syndication
Agent and the Documentation Agent.
"Leverage Ratio" is defined in Section 6.3.
"Lien" means any lien, mortgage, pledge, security interest, charge, or
11
encumbrance of any kind (including any conditional sale or other title
retention agreement or any lease in the nature thereof) and any agreement to
give any lien, mortgage, pledge, security interest, charge, or other
encumbrance of any kind.
"Loan" means a Base Rate Loan, Euro-Dollar Rate Loan or Bid Loan, each
of which constitutes a "Type" of Loan.
"Loan Documents" means, collectively, this Agreement, the Notes, and any
other agreement, instrument or other writing executed or delivered by the
Borrower in connection herewith, and all amendments, exhibits and schedules
to any of the foregoing.
"Margin Regulations" means Regulations T, U and X of the Federal Reserve
Board, as amended from time to time, or any successor regulations.
"Margin Stock" means "margin stock" as defined in the Margin
Regulations.
"Material Adverse Effect" or "Material Adverse Change" means (i) a
material adverse effect on or (ii) a material adverse change in, as the case
may be, any one or more of the following: (A) the business, assets,
liabilities, results of operations or condition (financial or otherwise) of
the Borrower and its Subsidiaries taken as a whole or (B) the ability of the
Borrower to perform its obligations under any Loan Document to which it is a
party or (C) the actual material rights and remedies of any Lender Party
under any Loan Document.
"Material Contractual Obligation" means a Contractual Obligation, the
violation of which could reasonably be expected to have a Material Adverse
Effect.
"Maturity Date" means May 14, 2007.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor or
assignee of the business of such company in the business of rating debt.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA.
"Net Income" means, for any period with respect to the Borrower and its
consolidated Subsidiaries, net income (or net loss), excluding the effect of
extraordinary or other non-recurring gains and losses, as determined in
accordance with GAAP.
"Note" means a Revolving Loan Note or Bid Loan Note.
"Notice of Borrowing" is defined in Section 2.1(c)(i).
"Notice of Conversion/Continuation" is defined in Section 2.4(b)(ii).
"Notice of Responsible Officers" is defined in Section 2.1(c)(iii).
12
"Obligations" means all present and future obligations and liabilities
of the Borrower of every type and description arising under or in connection
with the Loan Documents due or to become due to the Lender Parties or any
Person entitled to indemnification under the Loan Documents, or any of their
respective successors, transferees or assigns, whether for principal,
interest, Fees, expenses, indemnities or other amounts (including attorneys'
fees and expenses) and whether due or not due, direct or indirect, joint
and/or several, absolute or contingent, voluntary, or involuntary, liquidated
or unliquidated, determined or undetermined, and whether now or hereafter
existing, renewed or restructured.
"Participant" is defined in Section 9.6(d).
"PBGC" means the Pension Benefit Guaranty Corporation, as defined in
Title IV of ERISA, or any successor.
"Permitted Liens" means, with respect to any asset, the Liens (if any)
permitted to exist on such asset in accordance with Section 6.1.
"Person" means an individual, a corporation, a partnership, a limited
liability company, a trust, an unincorporated organization or any other
entity or organization, including a government or any agency or political
subdivision thereof.
"Plan" means, at any time, any employee pension benefit plan that is
covered by Title IV of ERISA or subject to the minimum funding standards
under Section 412 of the Code and that is either (i) maintained by the
Borrower or any member of a Controlled Group for employees of the Borrower or
such Controlled Group or was formerly so maintained and in respect of which
the Borrower or any member of the Controlled Group could have liability under
Section 4069 of ERISA in the event such plan has been or were to be
terminated or (ii) maintained for employees of the Borrower or any member of
the Controlled Group and at least one Person other than the Borrower and the
members of the Controlled Group or was formerly so maintained and in respect
of which the Borrower or any member of the Controlled Group could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been
or were to be terminated.
"Post-Default Rate" means (i) with respect to all Base Rate Loans and
any other amounts (other than then outstanding Euro-Dollar Rate Loans) owing
hereunder not paid when due, a rate per annum equal at all times to the rate
otherwise applicable to Base Rate Loans plus 2.00% per annum, and (ii) with
respect to each then outstanding Euro-Dollar Rate Loan, a rate per annum
equal at all times to the rate otherwise applicable to such Euro-Dollar Rate
Loan plus 2.00% per annum.
"Prime Rate" means the per annum rate of interest in effect for such day
as publicly announced from time to time by Bank of America as its "prime
rate". Such rate is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a
13
reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in
the public announcement of such change.
"Recourse Agreement" means the Recourse Agreement, dated as of March 1,
2001, between the Borrower and Nordstrom Credit, Inc., a Colorado
corporation, for the benefit of Nordstrom fsb, a federal savings bank, as
amended from time to time.
"Regulation D" means Regulation D of the Federal Reserve Board, as
amended from time to time.
"Regulatory Change" means (i) the adoption or becoming effective after
the date hereof of any treaty, law, rule or regulation, (ii) any change in
any such treaty, law, rule or regulation (including Regulation D), or any
change in the administration or enforcement thereof, by any Governmental
Authority, central bank or other monetary, authority charged with the
interpretation or administration thereof, in each case after the date hereof,
or (iii) compliance after the date hereof by any Lender Party (or its
Applicable Lending Office or, in the case of capital adequacy requirements,
any holding company of any Lender Party) with any interpretation, directive,
request, order or decree (whether or not having the force of law) of any such
Governmental Authority, central bank or other monetary authority.
"Rent Expense" means the consolidated rent expense of the Borrower and
its Subsidiaries, as determined in accordance with GAAP.
"Required Lenders" means Lenders having more than 50% of the Revolving
Commitments or, if the Revolving Commitments have terminated, Lenders holding
more than 50% of the aggregate unpaid principal amount of the Loans.
"Responsible Officer" is defined in Section 2.1(c)(iii).
"Restricted Payment" means (i) any dividend or other distribution,
direct or indirect, on account of any Capital Stock of the Borrower or any
Subsidiary now or hereafter outstanding, except (a) a dividend or other
distribution payable solely in shares or equivalents of Capital Stock of the
same class as the Capital Stock on account of which the dividend or
distribution is being paid or made and (b) the issuance of equity interests
upon the exercise of outstanding warrants, options or other rights, or (ii)
any redemption, retirement, sinking fund or similar payment, purchase or
other acquisition for value, direct or indirect, of any Capital Stock of the
Borrower or any Subsidiary now or hereafter outstanding.
"Revolving Commitment" means, with respect to each Lender, the amount
set forth for such Lender on Schedule 1.1(d) or as set forth in the
Assignment and Assumption pursuant to which such Lender becomes a party
hereto, in each case, as modified or terminated from time to time pursuant to
the terms hereof.
14
"Revolving Commitment Percentage" means, for each Lender, the percentage
identified on Schedule 1.1(d) opposite such Lender's name or as set forth in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, in each case, as such percentage may be modified in accordance with
the terms hereof.
"Revolving Commitment Termination Date" is defined in Section 2.7(a).
"Revolving Committed Amount" means THREE HUNDRED FIFTY MILLION DOLLARS
($350,000,000), as such amount may be reduced in accordance with Section 2.7.
"Revolving Loan Note" means a Revolving Loan Note made by the Borrower,
in substantially in the form of Exhibit 2.5(a)(i), payable to the order of a
Lender, evidencing the obligation of the Borrower to repay the Revolving
Loans made by such Lender and includes any Revolving Loan Note issued in
exchange or substitution therefor.
"Revolving Loans" is defined in Section 2.1(a)(i).
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc., or any successor or assignee of the business of
such division in the business of rating debt.
"SEC" means the United States Securities and Exchange Commission, and
any successor thereto.
"Senior Officer" means, with respect to the Borrower, the chairman of
the board of directors, the president, the chief executive officer, the chief
operating officer, the chief financial officer, or the vice president and
treasurer of the Borrower.
"Solvent" and "Solvency" mean, with respect to any Person as of a
particular date, that on such date (i) such Person is able to pay its debts
and other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (ii) such Person does not intend to,
and does not believe that it will, incur debts or liabilities beyond such
Person's ability to pay as such debts and liabilities mature in their
ordinary course, (iii) such Person is not engaged in a business or a
transaction, and is not about to engage in a business or a transaction, for
which such Person's assets would constitute unreasonably small capital after
giving due consideration to the prevailing practice in the industry in which
such Person is engaged or is about to engage, (iv) the fair value of the
assets of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person and (v)
the present fair saleable 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. In computing the amount of
contingent liabilities at any time, it is intended that such liabilities will
be computed at the amount which, in 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
15
liability.
"Subsidiary" means, with respect to any Person, any other Person of
which more than 50% of the Voting Stock is at the time directly or indirectly
owned by such first Person. Unless otherwise indicated, "Subsidiary" refers
to a Subsidiary of the Borrower.
"Syndication Agent" means Bank One, NA or any successors thereto.
"Taxes" means any income, stamp, excise, property and other taxes,
charges, fees, levies, duties, imposts, withholdings or other assessments,
together with any interest and penalties, additions to tax and additional
amounts imposed by any federal, state, local or foreign taxing authority upon
any Person.
"Type" is defined in the definition of "Loan."
"Utilization Fee" is defined in Section 2.6(b).
"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 though the right to so vote has been suspended by the happening
of such a contingency.
"Wholly-Owned" means, with respect to any Subsidiary, that all the
Capital Stock (except for directors' qualifying shares) of such Subsidiary
are directly or indirectly owned by the Borrower.
Section 1.2. Related Matters.
(a) Construction. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, the
singular includes the plural, the part includes the whole, "including" is not
limiting, and "or" has the inclusive meaning represented by the phrase
"and/or." The words "hereof," "hereto," "hereby," "hereunder" and similar
terms in this Agreement refer to this Agreement as a whole (including the
Preamble, the Recitals, the Schedules and the Exhibits) and not to any
particular provision of this Agreement. References in this Agreement to
"Articles," "Sections," "Subsections," "Exhibits," "Schedules," "Recitals"
and "Preambles" are to this Agreement unless otherwise specified. References
in this Agreement to any agreement, other document or law "as amended" or "as
amended from time to time," or to amendments of any document or law, shall
include any amendments, supplements, replacements, renewals, waivers or other
modifications. References in this Agreement to any law (or any part thereof)
include any rules and regulations promulgated thereunder (or with respect to
such part) by the relevant Governmental Authority, as amended from time to
time.
(b) Determinations. Any determination or calculation contemplated
by this
16
Agreement that is made by any Lender Party in good faith and reasonably shall
be final and conclusive and binding upon the Borrower and, in the case of
determinations by the Agent, also the other Lender Parties, in the absence of
manifest error. All consents and other actions of any Lender Party
contemplated by this Agreement may be given, taken, withheld or not taken in
such Lender Party's discretion (whether or not so expressed), except as
otherwise expressly provided herein.
(c) Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared on a consolidated basis in
accordance with GAAP. In the event that any "Accounting Change" (as defined
below) shall occur and such change results in a material change in the
resulting financial covenants, standards or terms in this Agreement, then the
Borrower and the Lender Parties agree to enter into negotiations in order to
amend such provisions of this Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for evaluating
the Borrower's financial condition shall be the same after such Accounting
Changes as they would be if such Accounting Changes had not been made. Until
such time as such an amendment shall have been executed and delivered by the
Borrower, the Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred. "Accounting
Changes" refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the
Financial Accounting Standards Board of the American Institute of Certified
Public Accountants or, if applicable, the SEC or any regulator of financial
institutions or financial institution holding companies.
(d) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS (OTHER THAN THE RULES REGARDING
CONFLICTS OF LAWS) OF THE STATE OF
WASHINGTON.
(e) Headings. The Article and Section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction hereof.
(f) Severability. If any provision of this Agreement shall be held
to be invalid, illegal or unenforceable under Applicable Law in any
jurisdiction, such provision shall be ineffective only to the extent of such
invalidity, illegality or unenforceability, which shall not affect any other
provisions hereof or the validity, legality or enforceability of such
provision in any other jurisdiction.
(g) Time. All references to time herein shall be references to
Pacific Standard Time or Pacific Daylight Time, as the case may be, unless
specified otherwise.
17
ARTICLE 2
AMOUNTS AND TERMS OF THE CREDIT FACILITIES
Section 2.1. Revolving Loans.
(a) General Terms.
(i) Each Lender severally agrees, upon the terms and subject to
the conditions set forth in this Agreement, at any time from and after the
Closing Date until the Business Day next preceding the Revolving Commitment
Termination Date, to make revolving loans (each a "Revolving Loan") to the
Borrower; provided that (A) the sum of all Revolving Loans outstanding plus
all Bid Loans outstanding shall not exceed the Revolving Committed Amount and
(B) with respect to each individual Lender, such Lender's pro rata share of
outstanding Revolving Loans shall not exceed such Lender's Revolving
Commitment Percentage of the Revolving Committed Amount.
(ii) Revolving Loans may be voluntarily prepaid pursuant to
Section 2.8(c) and, subject to the provisions of this Agreement, any amounts
so prepaid or otherwise repaid in accordance with their terms may be re-
borrowed, up to the amount available under this Section 2.1 at the time of
such reborrowing.
(b) Type of Loans and Amounts.
(i) Loans made under this Section 2.1 may be Base Rate Loans
or Euro-Dollar Rate Loans, subject, however, to Sections 2.4(c) and 2.12.
(ii) Each Borrowing of Revolving Loans shall be in a minimum
aggregate amount of $1,000,000 and integral multiples of $100,000 in excess
thereof, in the case of a Borrowing of Base Rate Loans, or a minimum
aggregate amount of $5,000,000 and integral multiples of $1,000,000 in excess
thereof, in the case of a Borrowing of Euro-Dollar Rate Loans.
(c) Notice of Borrowing.
(i) When the Borrower desires to borrow Revolving Loans
pursuant to this Section 2.1, it shall provide telephonic notice to the Agent
followed promptly by a written Notice of Borrowing substantially in the form
of Exhibit 2.1(c), duly completed and executed by a Responsible Officer (a
"Notice of Borrowing"), (A) no later than 10:00 a.m. on the proposed Funding
Date, in the case of a Borrowing of Base Rate Loans, or (B) no later than
10:00 a.m. at least three Euro-Dollar Business Days before the proposed
Funding Date, in the case of a Borrowing of Euro-Dollar Rate Loans.
(ii) No Lender Party shall incur any liability to the
Borrower or the
18
other Lender Parties in acting upon any telephonic notice that such Lender
Party believes to have been given by a Responsible Officer or for otherwise
acting in good faith under this Section 2.1 and in making any Loan in
accordance with this Agreement pursuant to any telephonic notice and, upon
funding of Revolving Loans by any Lender in accordance with this Agreement
pursuant to any such telephonic notice, the Borrower shall have effected
Revolving Loans hereunder.
(iii) The Borrower shall notify the Agent of the names of
its officers and employees authorized to request and take other actions with
respect to Loans on behalf of the Borrower (each a "Responsible Officer") by
providing the Agent with a Notice of Responsible Officers substantially in
the form of Exhibit 2.1(c)(iii), duly completed and executed by a Senior
Officer (a "Notice of Responsible Officers"). The Agent shall be entitled to
rely conclusively on a Responsible Officer's authority to request and take
other actions with respect to Loans on behalf of the Borrower until the Agent
receives a new Notice of Responsible Officers that no longer designates such
Person as a Responsible Officer.
(iv) Any Notice of Borrowing (or telephonic notice)
delivered pursuant to this Section 2.1 shall be irrevocable and, subject to
Section 2.12(a), the Borrower shall be bound to make a Borrowing in
accordance therewith.
(v) The Agent shall promptly notify each Lender of the
contents of any Notice of Borrowing (or telephonic notice) received by it,
and such Lender's pro rata portion of the Borrowing requested. Prior to
11:00 a.m. on the date specified in such notice as the Funding Date, each
Lender, subject to the terms and conditions hereof, shall make its pro rata
portion of the Borrowing available, in Dollars and in immediately available
funds, to the Agent at the Agent's Account.
(d) Funding. Not later than 1:00 p.m. on the applicable Funding
Date or such later time as may be agreed to by the Borrower and the Agent,
and subject to and upon satisfaction of the applicable conditions set forth
in Article 3 as determined by the Agent, the Agent shall, upon receipt of the
proceeds of the requested Loans, make such proceeds available to the Borrower
in Dollars in immediately available funds in the Borrower Account.
(e) Several Obligations. No Lender shall be responsible for the
failure or delay by any other Lender in its obligation to make Revolving
Loans hereunder; provided, however, that the failure of any Lender to fulfill
its obligations hereunder shall not relieve any other Lender of its
obligations hereunder. Unless the Agent shall have been notified by any
Lender prior to the date of any such Revolving Loan that such Lender does not
intend to make available to the Agent its portion of the Revolving Loans to
be made on such date, the Agent may assume that such Lender has made such
amount available to the Agent on the date of such Loans, and the Agent, in
reliance upon such assumption, may (in its sole discretion but without any
obligation to do so) make available to the Borrower a
19
corresponding amount. If such corresponding amount is not in fact made
available to the Agent, the Agent shall be able to recover such corresponding
amount from such Lender. If such Lender does not pay such corresponding
amount upon the Agent's demand therefor, the Agent will promptly notify the
Borrower, and the Borrower shall pay such corresponding amount to the Agent
not later than the Business Day after receipt of such notice from the Agent.
The Agent shall also be entitled to recover from such Lender or the Borrower,
as the case may be, interest on such corresponding amount in respect of each
day from the date such corresponding amount was made available by the Agent
to the Borrower to the date such corresponding amount is recovered by the
Agent at a per annum rate equal to (i) from the Borrower at the applicable
rate for such Revolving Loan pursuant to the Notice of Borrowing or (ii) from
such Lender, at a rate per annum equal to, during the period to but excluding
the date two Business Days after demand therefor, the Federal Funds Rate,
and, thereafter, the Base Rate plus two percent (2%) per annum.
Notwithstanding anything else contained in this Agreement or the other Loan
Documents, in the event the Borrower is required to make any payment in
accordance with this Section 2.1(e) which causes payment prior to the end of
an Interest Period, such repayment shall be without any cost or fee described
in Section 2.14.
Section 2.2. Bid Loans.
(a) General Terms. At any time prior to the Business Day
immediately preceding the Revolving Commitment Termination Date, the Borrower
may request the Lenders to make offers to make bid loans to the Borrower
(each a "Bid Loan"); provided that (i) the sum of all Bid Loans outstanding
plus all Revolving Loans outstanding shall not exceed the Revolving Committed
Amount; (ii) the aggregate amount of Bid Loans requested for any Funding Date
and with the same Interest Period (each a "Bid Loan Borrowing") shall be at
least $2,000,000 and in integral multiples of $1,000,000 in excess thereof;
and (iii) all Interest Periods applicable to Bid Loans shall be subject to
Section 2.4(c). The Lenders may, but shall have no obligation to, make such
offers, and the Borrower may, but shall have no obligation to, accept any
such offers in the manner set forth in this Section 2.2.
(b) Bid Loan Procedures.
(i) When the Borrower wishes to request offers to make Bid
Loans, it shall provide telephonic notice to the Agent (which shall promptly
notify the Lenders) followed promptly by written notice substantially in the
form of Exhibit 2.2(b)(i), duly completed and executed by a Responsible
Officer (a "Bid Loan Quote Request"), so as to be received no later than
10:00 a.m. on the second Business Day before the proposed Funding Date (or
such other time and date as the Borrower and the Agent, with the consent of
the Required Lenders, may agree). Subject to Section 2.4(c), the Borrower
may request offers for up to three different Bid Loan Borrowings in a single
Bid Loan Quote Request, in which case such Bid Loan Quote Request shall be
deemed a separate Bid Loan Quote Request for each such Borrowing. Except as
otherwise provided in this Section 2.2, no Bid Loan Quote Request shall be
given within five Business Days
20
(or such other number of days as the Borrower and the Agent, with the consent
of the Required Lenders, may agree) of any other Bid Loan Quote Request.
(ii) Each Lender may, but shall not be obligated to, in
response to any Bid Loan Quote Request submit one or more written quotes
substantially in the form of Exhibit 2.2(b)(ii), duly completed (each a "Bid
Loan Quote"), each containing an offer to make a Bid Loan for the Interest
Period requested and setting forth the Absolute Rate to be applicable to the
Bid Loan; provided that (A) a Lender may make a single submission containing
one or more Bid Loan Quotes in response to several Bid Loan Quote Requests
given at the same time; and (B) the principal amount of the Bid Loan for
which each such offer is being made shall be at least $2,000,000 and
multiples of $l,000,000 in excess thereof; provided that the aggregate
principal amount of all Bid Loans for which a Lender submits Bid Loan Quotes
(1) may be greater or less than the Revolving Commitment of such Lender but
(2) may not exceed the principal amount of the Bid Loan Borrowing for which
offers were requested. Each Bid Loan Quote by a Lender other than the Agent
must be submitted to the Agent by fax not later than 8:00 a.m. on the Funding
Date (or such other time and date as the Borrower and the Agent, with the
consent of the Required Lenders, may agree); provided that any Bid Loan Quote
may be submitted by the Agent, in its capacity as a Lender, (or its
Applicable Lending Office) only if the Agent (or such Applicable Lending
Office) notifies the Borrower of the terms of the offer contained therein not
later than 7:45 a.m. on the Funding Date. Subject to Sections 3 and 7.2, any
Bid Loan Quote so made shall be irrevocable except with the consent of the
Agent given on the instructions of the Borrower. Unless otherwise agreed by
the Agent and the Borrower, no Bid Loan Quote shall contain qualifying,
conditional or similar language or propose terms other than or in addition to
those set forth in the applicable Bid Loan Quote Request and, in particular,
no Bid Loan Quote may be conditioned upon acceptance by the Borrower of all
(or some specified minimum) of the principal amount of the Bid Loan for which
such Bid Loan Quote is being made.
(iii) The Agent shall, as promptly as practicable after any
Bid Loan Quote is submitted (but in any event not later than 8:30 a.m. on the
Funding Date, or 7:45 a.m. on the Funding Date with respect to any Bid Loan
Quote submitted by the Agent, in its capacity as a Lender, (or its Applicable
Lending Office)), notify the Borrower of the terms (A) of any Bid Loan Quote
submitted by a Lender that is in accordance with Section 2.2(b)(ii) and (B)
of any Bid Loan Quote that amends, modifies or is otherwise inconsistent with
a previous Bid Loan Quote submitted by such Lender with respect to the same
Bid Loan Quote Request. Any subsequent Bid Loan Quote shall be disregarded
by the Agent unless the subsequent Bid Loan Quote is submitted solely to
correct a manifest error in a former Bid Loan Quote. The Agent's notice to
the Borrower shall specify (1) the aggregate principal amount of the Bid Loan
Borrowing for which offers have been received and (2) (A) the respective
principal amounts and (B) the rates of interest (which shall be expressed as
an absolute number and not in terms
21
of a specified margin over the quoting Lender's cost of funds) (the "Absolute
Rate") so offered by each Lender (identifying the Lender that made each such
Bid Loan Quote).
(iv) Not later than 9:00 a.m. on the Funding Date (or such
other time and date as the Borrower and the Agent, with the consent of each
Lender that has submitted a Bid Loan Quote may agree), the Borrower shall
notify the Agent of its acceptance or nonacceptance of the offers so notified
to it pursuant to Section 2.2(b)(iii) (and the failure of the Borrower to
give such notice by such time shall constitute nonacceptance), and the Agent
shall promptly notify each affected Lender. In the case of acceptance, such
notice shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Borrower may accept any Bid Loan
Quote in whole or in part; provided that (A) any Bid Loan Quote accepted in
part shall be at least $1,000,000 and multiples of $1,000,000 in excess
thereof; (B) the aggregate principal amount of each Bid Loan Borrowing may
not exceed the applicable amount set forth in the related Bid Loan Quote
Request; (C) the aggregate principal amount of each Bid Loan Borrowing shall
be at least $2,000,000 and multiples of $1,000,000 and shall not cause the
limits specified in Section 2.2(a) to be violated; (D) acceptance of offers
may be made only in ascending order of Absolute Rates, beginning with the
lowest rate so offered; and (E) the Borrower may not accept any offer where
the Agent has advised the Borrower that such offer fails to comply with
Section 2.2(b)(ii) or otherwise fails to comply with the requirements of this
Agreement (including Section 2.2(a)). If offers are made by two or more
Lenders with the same Absolute Rates for a greater aggregate principal amount
than the amount in respect of which offers are accepted for the related
Interest Period, the principal amount of Bid Loans in respect of which such
offers are accepted shall be allocated by the Borrower among such Lenders as
nearly as possible (in amounts of at least $1,000,000 and multiples of
$500,000 in excess thereof) in proportion to the aggregate principal amount
of such offers. Determinations by the Borrower of the amounts of Bid Loans
shall be conclusive in the absence of manifest error.
(v) Subject to the terms set forth in this Agreement, any
Lender whose offer to make any Bid Loan has been accepted shall, prior to
10:00 a.m. on the date specified for the making of such Loan, make the amount
of such Loan available to the Agent at the Agent's Account in immediately
available funds, for the account of the Borrower. The amount so received by
the Agent shall, subject to the terms and conditions of this Agreement, be
made available to the Borrower on or before 11:00 a.m. on such date by
depositing the same, in immediately available funds, in the Borrower Account.
Section 2.3. Use of Proceeds.
The proceeds of the Loans shall be used by the Borrower only for working
capital, capital expenditures and other lawful general corporate purposes of
the Borrower and its Subsidiaries,
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including (a) loans made by the Borrower to its Subsidiaries and (b) the
payment of commercial paper. No part of the proceeds of the Loans shall be
used directly or indirectly for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock or maintaining or
extending credit to others for such purpose or for any other purpose that
otherwise violates the Margin Regulations. Notwithstanding the foregoing,
the proceeds of the Loans shall not be used to finance any acquisition of all
or substantially all of the Capital Stock of another Person unless the board
of directors (or other comparable governing body) of such Person has duly
approved such acquisition.
Section 2.4. Interest; Interest Periods; Conversion/Continuation.
(a) Interest Rate and Payment.
(i) Each Loan shall bear interest on the unpaid principal
amount thereof, from and including the date of the making of such Loan to and
excluding the due date or the date of any repayment thereof, at the following
rates per annum: (A) for so long as and to the extent that such Loan is a
Base Rate Loan, at the Base Rate; (B) for so long as and to the extent that
such Loan is a Euro-Dollar Rate Loan, at the Euro-Dollar Rate for each
Interest Period applicable thereto plus the Applicable Margin; and (C) if
such Loan is a Bid Loan, at the Absolute Rate quoted by the Lender making
such Bid Loan pursuant to Section 2.2(b)(ii).
(ii) Notwithstanding the foregoing provisions of this Section
2.4(a), (A) during the existence of an Event of Default pursuant to Section
7.1(a)(i), such overdue principal shall bear interest at a rate per annum
equal to the Post-Default Rate, without notice or demand of any kind and (B)
during the existence of any Event of Default (other than pursuant to Section
7.1(a)(i)), any principal, overdue interest or other amount payable under
this Agreement and the other Loan Documents shall, at the request of the
Required Lenders, bear interest at a rate per annum equal to the Post-Default
Rate.
(iii) Accrued interest shall be payable in arrears (A) in the
case of a Base Rate Loan, on the last Business Day of each month; (B) in the
case of a Euro-Dollar Rate Loan, on the last day of each Interest Period
applicable thereto; provided that if the Interest Period applicable to a
Euro-Dollar Rate Loan is longer than three months, interest also shall be
payable on the last day of the third month of such Interest Period; (C) in
the case of a Bid Loan, on the last day of the Interest Period applicable
thereto; and (D) in the case of any Loan, when the Loan shall become due,
whether by reason of maturity, mandatory prepayment, acceleration or
otherwise. The Agent shall provide a billing to the Borrower setting forth
the amount of interest payable in sufficient time for the Borrower to make
timely payments of the correct amount without incurring any penalty or
interest at the Post-Default Rate.
(b) Conversion or Continuation of Revolving Loans.
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(i) Subject to this Section 2.4(b) and Sections 2.4(c) and
2.14, the Borrower shall have the option (A) at any time, to convert all or
any part of its outstanding Base Rate Loans to Euro-Dollar Rate Loans, and
(B) on the last day of the Interest Period applicable thereto, to (1) convert
all or any part of its outstanding Euro-Dollar Rate Loans to Base Rate Loans,
or (2) to continue all or any part of its Euro-Dollar Rate Loans as Loans of
the same Type; provided that, in the case of clause (A) or (B) (2), there
does not exist a Default or an Event of Default at such time. If a Default
or an Event of Default shall exist upon the expiration of the Interest Period
applicable to any Euro-Dollar Rate Loan, such Euro-Dollar Rate Loan
automatically shall be converted into a Base Rate Loan.
(ii) If the Borrower elects to convert or continue a
Revolving Loan under this Section 2.4(b), it shall provide telephonic notice
to the Agent (which shall promptly notify, the Lenders) followed promptly by
a written Notice of Conversion/Continuation substantially in the form of
Exhibit 2.4(b)(ii), duly completed and executed by a Responsible Officer (a
"Notice of Continuation/Conversion") (A) not later than 10:00 a.m. at least
three Euro-Dollar Business Days before the proposed conversion or
continuation date, if the Borrower proposes to convert into, or to continue,
a Euro-Dollar Rate Loan, and (B) otherwise not later than 10:00 a.m. on the
Business Day next preceding the proposed conversion or continuation date.
(iii) No Lender Party shall incur any liability to the
Borrower or any other Lender Party in acting upon any telephonic notice that
such Lender Party believes to have been given by a Responsible Officer or for
otherwise acting in good faith under this Section 2.4(b) in converting or
continuing any Loan (or a part thereof) pursuant to any telephonic notice.
(iv) Any Notice of Conversion/Continuation (or telephonic
notice) shall be irrevocable and the Borrower shall be bound to convert or
continue in accordance therewith. If any request for the conversion or
continuation of a Loan is not made in accordance with this Section 2.4(b), or
if no notice is so given with respect to a Euro-Dollar Rate Loan as to which
the Interest Period expires, then such Euro-Dollar Rate Loan automatically
shall be converted into a Base Rate Loan.
(v) Bid Loans may not be continued or converted but instead
must be repaid in full at the end of the applicable Interest Period.
(c) Interest Periods and Minimum Amounts. Notwithstanding anything
herein to the contrary, (i) all Interest Periods applicable to Euro-Dollar
Rate Loans and Bid Loans shall comply with the definition of "Interest
Period," and (ii) there may be no more than five different Interest Periods
for all Euro-Dollar Rate Loans and Bid Loans outstanding at any one time.
For purposes of the foregoing clause (ii), Interest Periods applicable to
Loans of different Types shall constitute different Interest Periods even if
24
they are coterminous.
(d) Computations. Interest on each Loan and all Fees and other
amounts payable hereunder or under the other Loan Documents shall be computed
on the basis of a 360-day year or, in the case of interest on Base Rate Loans
that are based upon the Prime Rate, a 365 or 366-day year, as the case may
be, for the actual number of days elapsed including the first day but
excluding the last day on which such Loan is outstanding (it being understood
and agreed that if a Loan is borrowed and repaid on the same day, one day's
interest shall be payable with respect to such Loan). Any change in the
interest rate on any Loan or other amount resulting from a change in the rate
applicable thereto (or any component thereof, including the Applicable
Margin) pursuant to the terms hereof shall become effective as of the opening
of business on the day on which such change in the applicable rate (or
component) shall become effective. Each determination of an interest rate by
the Agent pursuant to any provision of this Agreement shall be conclusive and
binding on all parties for all purposes, in the absence of manifest error.
(e) Maximum Lawful Rate of Interest. The rate of interest payable
on any Loan or other amount shall in no event exceed the maximum rate of non-
usurious interest permissible under Applicable Law. If the rate of interest
payable on any Loan or other amount is ever reduced as a result of this
Section 2.4(e) and at any time thereafter the maximum rate permitted by
Applicable Law shall exceed the rate of interest provided for in this
Agreement, then the rate provided for in this Agreement shall be increased to
the maximum rate provided by Applicable Law for such period as is required so
that the total amount of interest received by the Lenders is that which would
have been received by the Lenders but for the operation of the first sentence
of this Section 2.4(e).
Section 2.5. Notes, Etc.
(a) Loans Evidenced by Notes. The Revolving Loans made by each
Lender shall be evidenced by a single Revolving Loan Note payable to such
Lender. The Bid Loans made by each Lender shall be evidenced by a single Bid
Loan Note payable to such Lender. Each Note shall, by its terms, mature in
accordance with the provisions of this Agreement applicable to the relevant
Loans.
(b) Notation of Amounts and Maturities, Etc. Each Lender is hereby
irrevocably authorized to record on the schedule attached to its Notes (or a
continuation thereof) the information contemplated by such schedule. The
failure to record, or any error in recording, any such information shall not,
however, affect the obligations of the Borrower hereunder or under any Note
to repay the principal amount of the Loans evidenced thereby, together with
all interest accrued thereon. All such notations shall constitute conclusive
evidence of the accuracy of the information so recorded, in the absence of
manifest error.
25
Section 2.6. Fees.
(a) Facility Fee. The Borrower shall pay to the Agent, for the pro
rata benefit of the Lenders, a per annum facility fee (the "Facility Fee")
equal to the Applicable Margin for the Facility Fee, in effect from time to
time, based upon the then Revolving Committed Amount, whether or not used,
for each day from and after the Closing Date until the Revolving Commitment
Termination Date. The Facility Fee shall be payable quarterly in arrears on
the last day of each calendar quarter and on the Revolving Commitment
Termination Date. The Agent shall provide a billing to the Borrower setting
forth the amount of the Facility Fee payable in sufficient time for the
Borrower to make timely payments of the correct amount without incurring any
penalty or interest at the Post-Default Rate.
(b) Utilization Fee. If, on any day, the aggregate principal
amount of all Loans outstanding exceeds 50% of the then Revolving Committed
Amount, the Borrower shall pay to the Agent, for the pro rata benefit of the
Lenders, a per annum utilization fee (the "Utilization Fee") equal to (a) the
Applicable Margin for the Utilization Fee, in effect from time to time,
multiplied by (b) the aggregate principal amount of all Loans outstanding on
such day. The Utilization Fee shall be payable quarterly in arrears on the
last day of each calendar quarter and on the Revolving Commitment Termination
Date. The Agent shall provide a billing to the Borrower setting forth the
amount of each Utilization Fee payable in sufficient time for the Borrower to
make timely payments of the correct amount without incurring any penalty or
interest at the Post-Default Rate.
(c) Other Fees. On the Closing Date and from time to time
thereafter as specified in the Fee Letter, the Borrower shall pay to the
Agent the fees specified in the Fee Letter.
(d) Fees Non-Refundable. All Fees shall be fully earned when
payable hereunder or under the Fee Letter and shall be non-refundable.
Section 2.7. Termination and Reduction of Revolving Commitments.
(a) Each Lender's Revolving Commitment shall terminate without
further action on the part of such Lender on the earlier to occur of (i) the
Maturity Date, and (ii) the date of complete (but not partial) termination of
the Revolving Commitments pursuant to Section 2.7(b) or Section 7.2 (such
earlier date being referred to herein as the "Revolving Commitment
Termination Date").
(b) Upon not less than five Business Days' prior written notice to
the Agent, the Borrower shall have the right, at any time or from time to
time after the Closing Date, to terminate in whole or permanently reduce in
part, without premium or penalty, the Revolving Committed Amount to an amount
not less than the then aggregate principal amount of all outstanding Loans.
Any such termination or partial reduction shall be effective on the date
specified in the Borrower's notice, and any such partial reduction shall be
in a minimum amount of $10,000,000 and in integral multiples of $1,000,000 in
26
excess thereof.
Section 2.8. Repayments and Prepayments.
(a) Repayment. The unpaid principal amount of all Loans, together
with accrued but unpaid interest and all other sums owing thereunder shall be
due and payable in full on the Revolving Commitment Termination Date.
(b) Excess Revolving Loans. If at any time the aggregate principal
amount of all outstanding Loans exceeds the Revolving Committed Amount, the
Borrower shall, not later than the Business Day after the Borrower learns or
is notified of the excess, make mandatory prepayments of the Revolving Loans
as may be necessary so that, after such prepayment, such excess is
eliminated.
(c) Optional Prepayments.
(i) Subject to this Section 2.8(c), the Borrower may, at its
option, at any time or from time to time, prepay Revolving Loans in whole or
in part, without premium or penalty, provided that (A) any prepayment shall
be in an aggregate principal amount of at least $5,000,000 and in integral
multiples of $1,000,000 in excess thereof (or, alternatively, the whole
amount of Revolving Loans then outstanding) and (B) any prepayment of a Euro-
Dollar Rate Loan on a day other than the last day of the Interest Period
applicable thereto shall be made together with the amounts payable pursuant
to Section 2.14. Bid Loans may not be voluntarily prepaid at any time.
(ii) If the Borrower elects to prepay a Revolving Loan under
this Section 2.8(c), it shall deliver to the Agent a notice of optional
prepayment (A) with respect to a Base Rate Loan, not later than 10:00 a.m. on
the proposed repayment date or (B) with respect to a Euro-Dollar Rate Loan,
not later than 10:00 a.m. at least three Euro-Dollar Business Days before the
proposed prepayment date. Any notice of optional prepayment shall be
irrevocable, and the payment amount specified in such notice shall be due and
payable on the date specified in such notice, together with interest accrued
thereon to such date.
(d) Payments Set Aside. To the extent the Agent or any Lender
receives payment of any amount under the Loan Documents, whether by way of
payment by the Borrower, set-off or otherwise, which payment is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
to be repaid to a trustee, receiver or any other party under any bankruptcy
law, other law or equitable cause, in whole or in part, then, to the extent
of such payment received, the Obligations or part thereof intended to be
satisfied thereby shall be revived and continue in full force and effect.
Section 2.9. Manner of Payment.
(a) Except as otherwise expressly provided, the Borrower shall make
each
27
payment under the Loan Documents to the Agent, in Dollars and in immediately
available funds, without any deduction whatsoever, including any deduction
for any setoff, recoupment, counterclaim, or defense, at the Agent's Office,
for the account of the Applicable Lending Offices of the Lenders entitled to
such payment, by depositing such payment in the Agent's Account not later
than 11:00 a.m. on the due date thereof. Any payments received after 11:00
a.m. on any Business Day shall be deemed received on the next succeeding
Business Day. Not later than 12:00 Noon on the day such payment is made, the
Agent shall deliver to each Lender, for the account of the Lender's
Applicable Lending Office, in Dollars and in immediately available funds,
such Lender's share of the payment so made. Delivery shall be made in
accordance with the written instructions satisfactory to the Agent from time
to time given to the Agent by each Lender.
(b) Unless the Agent shall have been notified by the Borrower prior
to the date that a payment is due under the Loan Documents that the Borrower
does not intend to make such payment, the Agent may assume that the Borrower
has made such amount available to the Agent on such date and the Agent, in
reliance on such assumption, may (in its sole discretion but without any
obligation to do so) make available to the Lenders their pro rata share of
the amount due. If such amount is not in fact made available to the Agent by
the Borrower, the Agent shall be able to recover such amounts from the
Lenders. The Agent shall also be able to recover from each Lender or the
Borrower, as the case may be, interest on such amount from the date the
payment was due at a per annum rate equal to (i) for any Lender, during the
period to but excluding two Business Days after demand therefore, the Federal
Funds Rate, and, thereafter at the Base Rate plus two percent (2%) or (ii)
from the Borrower at the applicable rate for such outstanding amount plus any
applicable Post-Default Rate.
(c) If the Agent shall fail to deliver to any other Lender Party
its share of any payment received from the Borrower as and when required by
Section 2.9(a), the Agent shall pay to such Lender its share of such payment
together with interest on such amount at the Federal Funds Rate, for each day
from the date such amount was required to be paid to such Lender until the
date the Agent pays such amount to such Lender.
(d) Subject to Sections 2.10 and 7.3, all payments made by the
Borrower under the Loan Documents shall be applied to the Obligations as the
Borrower may direct; provided that if the Borrower does not provide any such
direction to the Agent, all amounts paid or received shall be applied,
subject to Section 2.10, as the Agent may reasonably deem appropriate.
(e) Whenever any payment to be made hereunder shall be stated to be
due on a day that is not a Business Day, such payment shall instead by made
on the next succeeding Business Day (subject to accrual of interest and fees
for the period of extension), except that, in the case of Euro-Dollar Rate
Loans, if the extension would cause the payment to be made in the next
following calendar month, then such payment shall instead be made on the
preceding Business Day.
28
Section 2.10. Pro Rata Treatment.
Except to the extent otherwise expressly provided herein,
(a) Revolving Loans shall be made by the Lenders pro rata according
to their respective Revolving Commitment Percentages.
(b) Each reduction of the Revolving Committed Amount and each
payment of Revolving Loans, interest on Revolving Loans, Facility Fees and
Utilization Fees shall be applied pro rata among the Lenders according to
their respective Revolving Commitment Percentages.
(c) Each payment by the Borrower of principal of Bid Loans made as
part of the same Borrowing shall be made and applied for the account of the
Lenders holding such Bid Loans pro rata according to the respective unpaid
principal amount of such Bid Loans owed to such Lenders and each payment by
the Borrower of interest on Bid Loans shall be made and applied for the
account of the Lenders holding such Bid Loans pro rata according to the
respective accrued but unpaid interest on the Bid Loans owed to such Lenders.
Section 2.11 Sharing of Payments.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect
of any Loan, or any other obligation owing to such Lender under this
Agreement through the exercise of a right of setoff, banker's lien or
counterclaim, or pursuant to a secured claim under Section 506 of the
Bankruptcy Code or other security or interest arising from, or in lieu of,
such secured claim, received by such Lender under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, in
excess of its pro rata share of such payment as provided for in this
Agreement, such Lender shall promptly pay in cash or purchase from the other
Lenders a participation in such Loans and other obligations in such amounts,
and make such other adjustments from time to time, as shall be equitable to
the end that all Lenders share such payment in accordance with their
respective ratable shares as provided for in this Agreement. The Lenders
further agree among themselves that if payment to a Lender obtained by such
Lender through the exercise of a right of setoff, banker's lien, counterclaim
or other event as aforesaid shall be rescinded or must otherwise be restored,
each Lender which shall have shared the benefit of such payment shall, by
payment in cash or a repurchase of a participation theretofore sold, return
its share of that benefit (together with its share of any accrued interest
payable with respect thereto) to each Lender whose payment shall have been
rescinded or otherwise restored. Except as otherwise expressly provided in
this Agreement, if any Lender or the Agent shall fail to remit to any other
Lender an amount payable by such Lender or the Agent to such other Lender
pursuant to this Agreement on the date when such amount is due, such payments
shall be made together with interest thereon for each date from the date such
amount is due until the date such amount is paid to the Agent or such other
Lender at a rate per annum equal to the Federal Funds Rate. If under any
applicable bankruptcy, insolvency or other similar law, any Lender receives a
secured claim in lieu of a setoff to which this Section 2.11 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of
such secured
29
claim in a manner consistent with the rights of the Lenders under this
Section 2.11 to share in the benefits of any recovery on such secured claim.
Section 2.12. Mandatory Suspension and Conversion of Euro-Dollar
Rate Loans.
Each Lender's obligation to make, continue or convert Loans into Euro-
Dollar Rate Loans shall be suspended, all outstanding Euro-Dollar Rate Loans
shall be converted into Base Rate Loans on the last day of the respective
Interest Periods applicable thereto (or, if earlier, in the case of Section
2.12(b), on the last day that such Lender can lawfully continue to maintain
Euro-Dollar Rate Loans) and all pending requests for the making or
continuation of, or conversion into, Euro-Dollar Rate Loans shall be
considered requests for the making or conversion into Base Rate Loans (or, in
the case of requests for conversion, disregarded) on the same Funding Date or
the end of the currently applicable Interest Period, as applicable, if:
(a) on or prior to the determination of the interest rate for a
Euro-Dollar Rate Loan for any Interest Period, the Agent determines that for
any reason appropriate quotations (as referenced in the definition of
"Interbank Offered Rate" appearing in Section 1.1) are not available to the
Agent in the relevant interbank market for purposes of determining the Euro-
Dollar Rate or a Lender advises the Agent (which shall thereupon notify the
Borrower and the other Lenders) that such rate would not accurately reflect
the cost to such Lender of making, continuing, or converting a Loan into, a
Euro-Dollar Rate Loan for such Interest Period; or
(b) after the date hereof, a Lender notifies the Agent (which shall
thereupon notify the Borrower and the other Lenders) of its determination
that any Regulatory Change makes it unlawful or impossible for such Lender or
its Euro-Dollar Lending Office to make or maintain any Euro-Dollar Rate Loan,
or to comply with its obligations hereunder in respect thereof; provided,
however, that if the Euro-Dollar Lending Office of any affected Lender is
other than the affected Lender's main office, before giving such notice, such
affected Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a
different Euro-Dollar Lending Office if such designation will avoid the need
for giving such notice and will not be otherwise materially disadvantageous
to such Lender.
Section 2.13. Regulatory Changes.
(a) Increased Costs. If, on or after the date hereof, any
Regulatory Change shall impose, modify, or deem applicable any reserve,
special deposit, compulsory loan, insurance or similar requirement (other
than any such requirement with respect to any Euro-Dollar Rate Loan to the
extent included in the Euro-Dollar Reserve Requirement), against, or any fees
or charges in respect of, assets held by, deposits with or other liabilities
for the account of, commitments of, advances or Loans by or other credit
extended by, any Lender Party (or its Applicable Lending Office) or shall
impose on any Lender Party (or its Applicable Lending Office) or on the
relevant interbank market any other condition affecting any Euro-Dollar Rate
Loan, or any obligation to make Euro-Dollar Rate Loans, and the effect of the
foregoing is (i) to increase the cost to such
30
Lender Party (or its Applicable Lending Office) of making, issuing, renewing
or maintaining any Euro-Dollar Rate Loan or its Revolving Commitment in
respect thereof or (ii) to reduce the amount of any sum received or
receivable by such Lender Party (or its Applicable Lending Office) hereunder
or under any other Loan Document with respect thereto, then, the Borrower
shall from time to time pay to such Lender Party, within 15 days after
request by such Lender Party, such additional amounts as are necessary, in
such Lender Party's reasonable determination, to compensate such Lender Party
for such increased cost or reduction; provided, however, that if the Euro-
Dollar Lending Office of any affected Lender is other than the affected
Lender's main office, before giving such notice, such affected Lender agrees
to use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to designate a different Euro-Dollar Lending Office
if such designation will avoid the need for giving such notice and will not
be otherwise materially disadvantageous to such Lender.
(b) Capital Costs. If a Regulatory Change after the date hereof
regarding capital adequacy (including the adoption or becoming effective of
any treaty, law, rule, regulation or guideline adopted pursuant to or arising
out of the July 1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital
Measurement and Capital Standards") has or would have the effect of reducing
the rate of return on the capital of or maintained by any Lender or any
company controlling such Lender as a consequence of such Lender's Loans or
obligations hereunder and other commitments of this type to a level below
that which such Lender or company could have achieved but for such Regulatory
Change (taking into account such Lender's or company's policies with respect
to capital adequacy), then the Borrower shall from time to time pay to such
Lender, within 15 days after request by such Lender, such additional amounts
as are necessary in such Lender's reasonable determination to compensate such
Lender or company for such reduction in return, to the extent such Lender or
company determines such reduction to be attributable to the existence of
obligations for the account of the Borrower.
Section 2.14. Compensation for Funding Losses.
The Borrower shall pay to any Lender, upon demand by such Lender, such
amount or amounts as such Lender reasonably determines is or are necessary to
compensate it for any loss, cost, expense or liabilities incurred (including
any loss, cost, expense or liability incurred by reason of the liquidation or
redeployment of deposits) by it as a result of (a) any payment, prepayment or
conversion of any Euro-Dollar Rate Loan for any reason (including by reason
of a prepayment pursuant to Section 2.8(b) or an acceleration pursuant to
Section 7.2, but excluding any prepayment pursuant to Section 2.1(e)) on a
date other than the last day of an Interest Period applicable to such Euro-
Dollar Rate Loan, or (b) any Euro-Dollar Rate Loan for any reason not being
made (other than a wrongful failure to fund by such Lender or failure to make
such a Loan due to circumstances described in Section 2.12), converted or
continued, or any payment of principal of or interest thereon not being made,
on the date therefor determined in accordance with the applicable provisions
of this Agreement or (c) for any prepayment of a Bid Loan due to acceleration
pursuant to Section 7.2 or otherwise. Notwithstanding the foregoing, the
Borrower shall not be responsible to any Lender for any costs hereunder that
result from the application of
31
Section 2.12 or from any wrongful actions or omissions or default (including
under Section 2.1(e)) of such Lender.
Section 2.15. Certificates Regarding Yield Protection, Etc.
Any request by any Lender Party for payment of additional amounts
pursuant to Sections 2.13, 2.14 and 2.16 shall be accompanied by a
certificate of such Lender Party setting forth the basis and amount of such
request. In determining the amount of such payment, such Lender Party may
use such reasonable attribution or averaging methods as it deems appropriate
and practical.
Section 2.16 Taxes.
(a) Tax Liabilities Imposed on a Lender. Any and all payments by
the Borrower hereunder or under any of the Loan Documents shall be made, in
accordance with the terms hereof and thereof, subject to the provisions of
this Section 2.16 and Section 2.17, free and clear of and without deduction
for any and all Taxes other than Excluded Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender, (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 2.16) such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with Applicable Law, and (iv) the Borrower shall
deliver to such Lender evidence of such payment to the relevant Governmental
Authority. Notwithstanding any other provision of this Section 2.16, the
Borrower shall not be required to pay any additional amounts pursuant to this
Section 2.16(a) with respect to Taxes that are attributable to such Lender's
failure to fully comply with Section 2.16(c) and/or the certifications
provided by such Lender being inaccurate.
(b) Other Taxes. In addition, the Borrower agrees to pay, upon
written notice from a Lender and prior to the date when penalties attach
thereto, all other Taxes (other than Excluded Taxes) that arise from any
payment made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement.
(c) Foreign Lender. Each Lender (which, for purposes of this
Section 2.16, shall include any Affiliate of a Lender that makes any Euro-
Dollar Loan pursuant to the terms of this Agreement) that is not a "United
States person" (as such term is defined in Section 7701(a)(30) of the Code)
shall submit to the Borrower and the Agent on or before the Closing Date (or,
in the case of a Person that becomes a Lender after the Closing Date by
assignment, promptly upon such assignment), two duly completed and signed
copies of (A) either (1) Form W-8BEN or Form W-8ECI of the United States
Internal Revenue Service, or a successor applicable form, certifying that
such Lender is entitled to benefits under an income tax treaty to which the
United States is a party which reduces to zero the rate of withholding tax on
payments of interest or certifying that the income receivable
32
pursuant to this Agreement is effectively connected with the conduct of a
trade or business in the United States, or (B) an Internal Revenue Service
Form W-8 or W-9, or a successor applicable form, entitling such Lender to
receive a complete exemption from United States backup withholding tax. Each
such Lender shall, from time to time after submitting either such form,
submit to the Borrower and the Agent such additional duly completed and
signed copies of such forms (or such successor forms or other documents as
shall be adopted from time to time by the relevant United States taxing
authorities) as may be (1) reasonably requested in writing by the Borrower or
the Agent and (2) appropriate under then current United States laws or
regulations. Upon the reasonable request of the Borrower or the Agent, each
Lender that has not provided the forms or other documents, as provided above,
on the basis of being a United States person shall submit to the Borrower and
the Agent a certificate to the effect that it is such a "United States
person."
Section 2.17. Applicable Lending Office; Discretion of Lenders as to
Manner of Funding.
Each Lender may make, carry or transfer Euro-Dollar Rate Loans at, to,
or for the account of an Affiliate of the Lender, provided that such Lender
shall not be entitled to receive, nor shall the Borrower be required to pay,
any greater amount under Sections 2.13 or 2.16 as a result of the transfer of
any such Loan than such Lender would be entitled to receive, or the Borrower
obligated to pay, immediately prior thereto unless (a) such transfer occurred
at a time when circumstances giving rise to the claim for such greater amount
did not exist or (b) such claim would have arisen even if such transfer had
not occurred. Notwithstanding any other provision of this Agreement, each
Lender shall be entitled to fund and maintain its funding of all or any part
of its Euro-Dollar Rate Loans in any manner it sees fit, it being understood,
however, that for purposes of this Agreement, all determinations hereunder
shall be made as if each Lender had actually funded and maintained each Euro-
Dollar Rate Loan through the purchase of deposits in the relevant interbank
market having a maturity corresponding to such Loan's Interest Period and
bearing interest at the applicable rate.
ARTICLE 3
CONDITIONS TO LOANS
Section 3.1. Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement shall
be subject to satisfaction (or waiver) of the following conditions:
(a) Loan Documents. The Agent shall have received duly executed
copies of (i) this Agreement and (ii) the Notes, all of which shall be in
form and substance satisfactory to the Agent.
33
(b) Corporate Documents. The Agent shall have received the
following:
(i) Charter Documents. Copies of the articles or certificate
of incorporation of the Borrower certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the state of its
incorporation and certified by a secretary or assistant secretary of the
Borrower to be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of the Borrower certified
by a secretary or assistant secretary of the Borrower to be true and correct
as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the board of
directors of the Borrower or an authorized committee thereof, approving and
adopting the transactions contemplated herein and authorizing execution and
delivery of the Loan Documents, certified by a secretary or assistant
secretary of the Borrower to be true and correct and in full force and effect
as of the Closing Date.
(iv) Good Standing. Copies of a certificate of good standing,
existence or its equivalent with respect to the Borrower certified as of a
recent date by the appropriate Governmental Authority of the state of its
incorporation.
(v) Incumbency. An incumbency certificate of the Borrower
certified by a secretary or assistant secretary of the Borrower to be true
and correct as of the Closing Date.
(c) Opinion of Counsel. The Agent shall have received an opinion
or opinions (which shall cover, among other things, authority, legality,
validity, binding effect and enforceability), satisfactory to the Agent,
addressed to the Lender Parties and dated as of the Closing Date, from legal
counsel to the Borrower.
(d) Closing Officer's Certificate. The Agent shall have received a
certificate executed by the chief financial officer of the Borrower in the
form of Exhibit 3.1(d).
(e) Annual Financial Statements. The Agent shall have received the
annual audited financial statements of the Borrower and its Subsidiaries for
the fiscal year ending January 31, 2004.
(f) Material Adverse Change. As of the Closing Date, there shall
not have occurred a Material Adverse Change since January 31, 2004.
(g) Litigation. Except as disclosed in Schedule 4.5, there are no
actions, suits or proceedings pending or, to the best knowledge of the
Borrower, threatened against or affecting the Borrower, any Subsidiary or any
of its properties before any Governmental Authority (i) in which there is a
reasonable possibility of an adverse determination that could result in a
material liability or have a Material Adverse Effect or (ii) that in any
34
manner draws into question the validity, legality or enforceability of any
Loan Document or any transaction contemplated thereby.
(h) Fees, Expenses and Interest Paid. The Borrower shall have paid
all Fees and expenses due and owing pursuant to the terms of this Agreement
for which the Borrower shall have been billed on or before the Closing Date.
(i) Existing Credit Agreement. The Existing Credit Agreement shall
be terminated and all amounts owing there under, if any, shall have been paid
in full.
(i) General. All other documents and legal matters in connection
with the transactions contemplated by this Agreement shall have been
delivered or executed or recorded in form and substance satisfactory to the
Agent, and the Agent shall have received all such counterpart originals or
certified copies thereof as the Agent may reasonably request.
Section 3.2. Conditions Precedent to Loans.
The obligation of the Lenders to make any Loan on any Funding Date shall
be subject to the following conditions precedent:
(a) Closing Date. The conditions precedent set forth in Section
3.1 shall have been satisfied or waived in writing by the Lenders as of the
Closing Date.
(b) Notice of Borrowing. The Borrower shall have delivered to the
Agent, (i) in the case of a Revolving Loan, a Notice of Borrowing, duly
executed and completed in accordance with Section 2.1, and the Borrower shall
have otherwise complied with all of the terms of Section 2.1 or (ii) in the
case of a Bid Loan, a Bid Loan Quote Request, duly executed and completed, in
accordance with Section 2.2, and the Borrower shall have otherwise complied
with all of the terms of Section 2.2.
(c) Representations and Warranties. All of the representations and
warranties of the Borrower contained in the Loan Documents (other than the
representation set forth in Section 4.4 of the Credit Agreement) shall be
true and correct in all material respects on and as of the Funding Date as
though made on and as of that date.
(d) No Default. No Default or Event of Default shall exist or
result from the making of the Loan.
(e) Satisfaction of Conditions. Each borrowing of a Loan shall
constitute a representation and warranty by the Borrower as of the Funding
Date that the conditions contained in Sections 3.2(c) and 3.2(d) have been
satisfied.
35
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender Parties as follows:
Section 4.1. Organization, Powers and Good Standing.
Each of the Borrower and, except as would not reasonably be expected to
have a Material Adverse Effect, its Subsidiaries (a) is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization, as shown on Schedule 4.1, and (b) has all requisite power and
authority and the legal right to own and operate its properties, to carry on
its business as heretofore conducted, to enter into the Loan Documents to
which it is a party and to carry out the transactions contemplated hereby and
thereby. Except as would not reasonably be expected to have a Material
Adverse Effect, each of the Borrower and its Subsidiaries possesses all
Governmental Approvals, in full force and effect, free from burdensome
restrictions, that are necessary for the ownership, maintenance and operation
of its properties and conduct of its business as now conducted, and is not in
violation thereof. Each of the Borrower and its Subsidiaries is duly
qualified, in good standing and authorized to do business in each state or
other jurisdiction where the nature of its business activities conducted or
properties owned or leased requires it to be so qualified and where any
failure to be so qualified, individually or in the aggregate, could have a
Material Adverse Effect. All Subsidiaries of the Borrower are listed on
Schedule 4.1, which may be updated by the Borrower from time to time.
Section 4.2. Authorization, Binding Effect, No Conflict, Etc.
(a) Authorization, Binding Effect, Etc. The execution, delivery and
performance by the Borrower of each Loan Document have been duly authorized
by all necessary corporate action on the part of the Borrower; and each such
Loan Document has been duly executed and delivered by the Borrower and is the
legal, valid and binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as enforcement may be limited by
equitable principles and by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to creditors' rights generally.
(b) No Conflict. The execution, delivery and performance by the
Borrower of each Loan Document, and the consummation of the transactions
contemplated thereby, do not and will not (i) violate any provision of the
charter or other organizational documents of the Borrower, (ii) except for
consents that have been obtained and are in full force and effect, conflict
with, result in a breach of, or constitute (or, with the giving of notice or
lapse of time or both, would constitute) a default under, or require the
approval or consent of any Person pursuant to, any Material Contractual
Obligation of the Borrower (including the Investment Agreement), (iii)
violate any Applicable Law binding on the Borrower, or (iv) result in or
require the creation or imposition of any Lien on any assets or properties of
the Borrower or any of its Subsidiaries.
36
(c) Governmental Approvals. No Governmental Approval is or will be
required in connection with the execution, delivery and performance by the
Borrower of any Loan Document or the transactions contemplated thereby.
Section 4.3. Financial Information.
The balance sheets of the Borrower and its consolidated Subsidiaries as
of January 31, 2003 and January 31, 2004 and the related statements of
earnings, stockholder's equity and cash flow for the Fiscal Years then ended,
certified by the Borrower's independent certified public accountants, which
are included in the Borrower's Annual Report on Form 10-K for the Fiscal Year
ended January 31, 2004, were prepared in accordance with GAAP consistently
applied and fairly present the financial position of the Borrower and its
consolidated Subsidiaries as of the respective dates thereof and the results
of operations and cash flow for the periods then ended. Neither the Borrower
nor any of its consolidated Subsidiaries on such dates had any liabilities
for Taxes or long-term leases, forward or long-term commitments or unrealized
losses from any unfavorable commitments that are not reflected in the
foregoing statements or in the notes thereto and that, individually or in the
aggregate, are material.
Section 4.4. No Material Adverse Changes.
Since January 31, 2004, there has been no Material Adverse Change.
Section 4.5. Litigation.
Except as disclosed in Schedule 4.5, there are no actions, suits or
proceedings pending or, to the best knowledge of the Borrower, threatened
against or affecting the Borrower, any Subsidiary or any of its properties
before any Governmental Authority (a) in which there is a reasonable
possibility of an adverse determination that could result in a material
liability or have a Material Adverse Effect or (b) that in any manner draws
into question the validity, legality or enforceability of any Loan Document
or any transaction contemplated thereby.
Section 4.6. Agreements: Applicable Law.
Neither the Borrower nor any Subsidiary is in material violation of any
Applicable Law, or in default under its charter documents, bylaws or other
organizational or governing documents or any of its Material Contractual
Obligations.
Section 4.7. Taxes.
All United States federal income tax returns and all other material tax
returns required to be filed by the Borrower or any Subsidiary have been
filed and all Taxes due pursuant to such returns have been paid, except such
Taxes, if any, as are being contested in good faith and as to which adequate
reserves have been established in accordance with GAAP. To the best
knowledge of the Borrower, there has not been asserted or proposed to be
asserted any Tax deficiency against the Borrower or any Subsidiary that would
be material to the Borrower and its Subsidiaries taken as a whole and that is
not reserved against on the financial books of the
37
Borrower.
Section 4.8. Governmental Regulation.
The Borrower is neither an "investment company" registered or required
to be registered under the Investment Company Act of 1940, as amended, or a
company controlled by such a company, nor is the Borrower subject to any
federal or state, statute or regulation limiting its ability to incur Debt
for money borrowed (other than the Margin Regulations).
Section 4.9. Margin Regulations/Proceeds of Loans.
Neither the Borrower nor any Subsidiary is engaged principally, or as
one of its important activities, in the business of extending credit for the
purposes of purchasing or carrying Margin Stock. The value of all Margin
Stock held by the Borrower and its Subsidiaries constitutes less than 25% of
the value, as determined in accordance with the Margin Regulations, of all
assets of the Borrower. The proceeds of the Loans have been used solely in
accordance with Section 2.3.
Section 4.10. Employee Benefit Plans.
The Borrower and all members of the Controlled Group have fulfilled
their obligations under the minimum funding standards of ERISA with respect
to each Plan and have not incurred any liability to the PBGC in connection
with any Plan.
During the five-year period prior to the date this representation is
made or deemed made, no ERISA Event has occurred and is continuing with
respect to any Plan (whether or not terminated). Neither the Borrower nor
any member of the Controlled Group is required to make or accrue a
contribution or has within any of the preceding five plan years made or
accrued an obligation to make contributions to any Multiemployer Plan. The
fair market value of the assets of each Plan is at least equal to the present
value of the "benefit liabilities" (within the meaning of Section 4001(a)(16)
of ERISA), whether or not vested, under such Plan determined in accordance
with Financial Accounting Standards Board Statement 87 using the actuarial
assumptions and methods used by the actuary to such Plan in its valuation of
such Plan.
Section 4.11. Disclosure.
All information in any document, certificate or written statement
furnished to the Lender Parties by or on behalf of the Borrower with respect
to the business, assets, prospects, results of operation or financial
condition of the Borrower or any Subsidiary for use in connection with the
transactions contemplated by this Agreement has been true and correct in all
material respects on and as of the date made or given and has not omitted a
material fact necessary in order to make such information not misleading in
light of the circumstances under which such information was furnished. There
is no fact known to the Borrower (other than matters of a general economic
nature) that has had or could reasonably be expected to have a Material
Adverse Effect and that has not been disclosed herein or in such other
documents, certificates or statements.
38
Section 4.12. Solvency.
The Borrower is, individually and on a consolidated basis with its
Subsidiaries, Solvent.
Section 4.13. Title to Properties.
The Borrower and each of its Subsidiaries is the owner of, and has good
and marketable title to, or has a valid license or lease to use, all of its
material properties and assets, and none of such properties or assets is
subject to any Liens other than Permitted Liens.
ARTICLE 5
AFFIRMATIVE COVENANTS OF THE BORROWER
So long as any portion of the Revolving Commitments shall be in effect
and until all Obligations are paid and performed in full:
Section 5.1. Financial Statements and Other Reports.
The Borrower shall deliver to the Agent (which shall promptly provide
copies to each Lender), for the benefit of the Lenders:
(a) as soon as practicable and in any event within the earlier of
(i) 90 days after the end of each Fiscal Year or (ii) two Business Days after
the date the Borrower files its Form 10-K with the SEC, the consolidated
balance sheet of the Borrower and its consolidated Subsidiaries as of the end
of such year and the related statements of earnings, stockholder's equity and
cash flow for such Fiscal Year, setting forth in each case in comparative
form the figures for the previous Fiscal Year, all in reasonable detail and
accompanied by an unqualified report thereon of Deloitte & Touche LLP or
other independent certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the Required
Lenders, which report shall state that such financial statements fairly
present the financial position of the Borrower and its consolidated
Subsidiaries as of the date indicated and its results of operations and cash
flows for the periods indicated in conformity with GAAP (except as otherwise
stated therein) and that the examination by such accountants in connection
with such financial statements has been made in accordance with generally
accepted auditing standards.
(b) as soon as practicable and in any event within 60 days after
the end of each Fiscal Quarter (other than the last Fiscal Quarter of any
Fiscal Year) a consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as of the end of such quarter and the related
statements of earnings, stockholder's equity and cash flow for such quarter
and the portion of the Fiscal Year ended at the end of such quarter, setting
forth in each case in comparative form the figures for the corresponding
periods of the prior Fiscal Year, all in reasonable detail and certified by
the Borrower's chief financial officer or controller as fairly presenting the
financial condition of the Borrower and its
39
consolidated Subsidiaries as of the dates indicated and its results of
operations and cash flows for the periods indicated, subject to normal year-
end adjustments.
(c) together with each delivery of financial statements pursuant to
Sections 5.1(a) and 5.1(b), a certificate of the chief financial officer or
the president of the Borrower, substantially in the form of Exhibit 5.1(c) (a
"Compliance Certificate"), duly executed and completed, setting forth the
calculations required to establish compliance with Section 6.3, as of the
date of such financial statements. The financial statements required by
Sections 5.1(a) and 5.1(b) and the Compliance Certificate required by this
Section 5.1(c) shall be delivered in printed form.
(d) within five Business Days after the Borrower becomes aware of
the occurrence of any Default or Event of Default, a certificate of a Senior
Officer of the Borrower setting forth the details thereof and the action that
the Borrower is taking or proposes to take with respect thereto.
(e) promptly upon their becoming available, copies of all material
reports, notices and proxy statements sent or made available by the Borrower
to its security holders, and all material registration statements (other than
the exhibits thereto) and annual, quarterly or monthly reports, if any, filed
by the Borrower with the SEC.
(f) within five Business Days after the Borrower becomes aware of
the occurrence of an ERISA Event, a statement of a Senior Officer of the
Borrower setting forth the details thereof and the action that the Borrower
is taking or proposes to take with respect thereto, together with a copy of
the notice, if any, of such event given or required to be given to the PBGC;
within five days of the date the Borrower or any member of the Controlled
Group becomes obliged to make or accrue a contribution to a Multiemployer
Plan, a statement of a Senior Officer of the Borrower setting forth the
details thereof and the action that the Borrower is taking or proposes to
take with respect thereto.
(g) within five Business Days after the Borrower obtains knowledge
thereof, notice of all litigation or proceedings commenced or threatened
affecting the Borrower or any Subsidiary (i) that could reasonably be
expected to have a Material Adverse Effect or (ii) that questions the
validity or enforceability of any Loan Document.
(h) promptly notify the Agent of any move of its principal
executive office from the State of
Washington.
(i) from time to time such additional information regarding the
Borrower and its Subsidiaries or the business, assets, liabilities,
prospects, results of operation or financial condition of any such Person as
the Agent, on behalf of any Lender Party, may reasonably request.
40
Section 5.2. Records and Inspection.
The Borrower shall, and shall cause each Subsidiary to, maintain
adequate books, records and accounts as may be required or necessary to
permit the preparation of financial statements required to be delivered
hereunder in accordance with sound business practices and GAAP. The Borrower
shall, and shall cause each Subsidiary to, permit such Persons as the Agent
may designate, at reasonable times during the Borrower's regular office hours
as often as may reasonably be requested and under reasonable circumstances,
to (a) visit and inspect any of its properties, (b) inspect and copy its
books and records, and (c) discuss with its officers and its independent
accountants, its business, assets, liabilities, results of operation or
financial condition; provided that the Agent shall not have access to
consumer information or any other similar restricted information if such
access is prohibited by Applicable Law.
Section 5.3. Corporate Existence, Etc.
The Borrower shall, and shall (except as otherwise permitted under
Section 6.4) cause each Subsidiary to, at all times preserve and keep in full
force and effect its corporate existence and all rights and franchises
material to the Borrower and to the Borrower and its Subsidiaries taken as a
whole.
Section 5.4 Payment of Taxes and Claims.
The Borrower shall, and shall cause each Subsidiary to, pay and
discharge (a) all Taxes imposed upon it or any of its properties or in
respect of any of its franchises, business, income or property before any
material penalty shall be incurred with respect to such Taxes, and (b) all
claims of any kind (including claims for labor, material and supplies) that,
if unpaid, might by Applicable Law become a Lien upon any material portion of
the property of the Borrower and its Subsidiaries; provided, however, that,
unless and until foreclosure, distraint, levy, sale or similar proceedings
shall have commenced, the Borrower need not pay or discharge any such Tax or
claim so long as the validity or amount thereof is being contested in good
faith and by appropriate proceedings and so long as any reserves or other
appropriate provisions as may be required by GAAP shall have been made
therefor.
Section 5.5. Maintenance of Properties.
The Borrower shall, and shall cause each Subsidiary to, maintain or
cause to be maintained in good repair, working order and condition (ordinary
wear and tear excepted), all properties and other assets useful or necessary
to its business, and from time to time the Borrower shall make or cause to be
made all appropriate repairs, renewals and replacements thereto except, in
each case, to the extent the failure to do so could not reasonably be
expected to have a Material Adverse Effect. The Borrower shall, and shall
cause each of its Subsidiaries to, use reasonable efforts to prevent offsets
of and defenses to its receivables and other rights to payment.
41
Section 5.6. Maintenance of Insurance.
The Borrower shall, and shall cause each Subsidiary to, maintain with
financially sound and reputable insurance companies insurance (or adequate
self insurance) in at least such amounts, of such character and against at
least such risks as is usually maintained by companies of established repute
engaged in the same or a similar business in the same general area.
Section 5.7. Conduct of Business; Compliance with Law.
The Borrower shall not change the general character of its business as
conducted at the Closing Date or engage, directly or through a Subsidiary, in
any type of business not reasonably related to its business as normally
conducted. The Borrower shall maintain its right to carry on business in any
jurisdiction where it is doing business at such time and remain in and
continuously operate the same lines of business presently engaged in except
for periodic shutdown in the ordinary course of business and interruptions
caused by strike, labor dispute, catastrophe, acts of war or terrorism or any
other events over which it has no control. The Borrower shall, and shall
cause each of its Subsidiaries to, conduct its business in compliance in all
material respects with all Applicable Law and all its Material Contractual
Obligations.
Section 5.8. Further Assurances.
At any time and from time to time, upon the request of the Agent, the
Borrower shall execute and deliver such further documents and do such other
acts and things as the Agent may reasonably request in order to effect fully
the purposes of the Loan Documents and any other agreement contemplated
thereby and to provide for payment and performance of the Obligations in
accordance with the terms of the Loan Documents.
Section 5.9. Future Information.
All data, certificates, reports, statements, documents and other
information the Borrower shall furnish to the Lender Parties in connection
with the Loan Documents shall, at the time the information is furnished, not
contain any untrue statement of a material fact, shall be complete and
correct in all material respects to the extent necessary to give the Lender
Parties sufficient and accurate knowledge of the subject matter thereof, and
shall not omit to state a material fact necessary in order to make the
statements contained therein not misleading in light of the circumstances
under which such information is furnished.
42
ARTICLE 6
NEGATIVE COVENANTS OF THE BORROWER
So long as any portion of the Revolving Commitments shall be in effect
and until all Obligations are paid and performed in full:
Section 6.1. Liens.
The Borrower shall not, and shall not permit any Subsidiary to, directly
or indirectly, create, incur, assume or permit to exist any Lien on or with
respect to any asset of the Borrower or any Subsidiary, whether now owned or
hereafter acquired, except:
(a) Liens securing the Obligations and Existing Liens;
(b) (i) Liens for Taxes, assessments or charges of any Governmental
Authority for claims that are not material and are not yet due or are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with GAAP (and as to which foreclosure, distraint, levy, sale or
similar proceedings have not yet commenced with respect to the property
subject to any such Lien on account thereof); (ii) statutory Liens of
landlords and Liens of carriers, warehousemen, mechanics, materialmen,
bankers and other Liens imposed by law and created in the ordinary course of
business for amounts that are not material and are not yet due or are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with GAAP (and as to which foreclosure, distraint, levy, sale or
similar proceedings have not yet commenced with respect to the property
subject to any such Lien on account thereof); (iii) Liens incurred and
deposits made in the ordinary course of business in connection with workers'
compensation, unemployment insurance and other types of social security
benefits or to secure the performance (including by way of surety bonds or
appeal bonds) of tenders, bids, leases, contracts, statutory obligations or
similar obligations or arising as a result of progress payments under
contracts, in each case in the ordinary course of business and not relating
to the repayment of Debt; (iv) easements, rights-of-way, covenants, consents,
reservations, encroachments, variations and other restrictions, conditions
(including those conditions commonly referred to as "CC&Rs"), charges or
encumbrances (whether or not recorded) that do not materially interfere with
the ordinary conduct of the Borrower's business; (v) building restrictions,
zoning laws and other statutes, laws, rules, regulations, ordinances and
restrictions; (vi) leases, subleases, easements or similar use rights granted
in the ordinary course of business to others not materially interfering with
the business of, and consistent with past practices of, the Borrower and
(vii) construction, operation and reciprocal easement agreements entered into
in the ordinary course of business that do not materially interfere with the
ordinary conduct of the Borrower's business and not relating to the repayment
of Debt (viii) customary rights of set off, revocation, refund or charge-back
under deposit agreements or under the Uniform Commercial Code in favor of
banks or other financial institutions where the Borrower or any Subsidiary
maintains
43
deposits in the ordinary course of business; (ix) Liens on accounts
receivable of the Borrower for which collection attempts are being undertaken
by a third party at the request of the Borrower; (x) Liens arising from
precautionary Uniform Commercial Code financing statements regarding
operating leases and (xi) Liens arising by operation of law on insurance
polices and proceeds thereof to secure premiums thereunder;
(c) any attachment or judgment Lien, not otherwise constituting an
Event of Default, in existence less than 30 days after the entry thereof or
with respect to which (i) execution has been stayed, (ii) payment is covered
in full by insurance and the insurer has not denied coverage, or (iii) the
Borrower is in good faith prosecuting an appeal or other appropriate
proceedings for review and has set aside on its books such reserves as may be
required by GAAP with respect to such judgment or award;
(d) precautionary Uniform Commercial Code financing statements
regarding consignments, provided that any such financing statements do not
describe any property other than the assets acquired through the consignment
and proceeds thereof;
(e) Liens securing Debt of the Borrower or any Subsidiary used to
finance the acquisition of fixed assets (including, without limitation,
equipment and vehicles) of the Borrower or such Subsidiary, the construction
of additional buildings or the expansion otherwise of their respective
facilities and Debt consisting of Capitalized Leases; provided that such Debt
(i) does not exceed the cost to the Borrower or such Subsidiary of the assets
acquired with the proceeds of such Debt or the value of the assets subject to
such Capital Leases, (ii) in the case of new construction or expansion of
existing facilities, is either a construction or permanent loan secured by
the facilities constructed and/or the real property on which such facilities
are located and related equipment and fixtures, leases, rents, reserves and
other personal property (which for this purpose shall not include inventory
and intellectual property) to the extent located on or commonly considered to
be part of the real property as applicable, and (iii) in the case of other
asset financing, is incurred within twelve months following the date of the
acquisition (which for this purpose shall, in the case of a construction
project, be the date that construction is completed and the asset constructed
is placed into service or in the case of a sale/leaseback transaction the
date of disposition); provided that any such Lien does not encumber any
property other than the assets acquired with the proceeds of such Debt or the
assets subject to such Capital Lease, related reserve funds, related personal
property (which for this purpose shall not include inventory and intellectual
property) and proceeds of any of the foregoing;
(f) Liens existing on assets of any Person at the time such assets
are acquired; provided such Lien does not encumber any assets other than the
assets subject to such Lien at the time such assets are acquired and proceeds
thereof and such Lien was not created in contemplation of such acquisition;
(g) Liens arising from the sale or securitization of receivables, to
the extent the Debt arising from such securitization is not otherwise
prohibited hereunder at the time such Debt was incurred;
44
(h) any Lien constituting a renewal, extension or replacement of any
Existing Lien or any Lien permitted by clauses (e) or (f) of this Section
6.1, provided such Lien is limited to all or a part of the property subject
to the Lien extended, renewed or replaced;
(i) Liens granted by a Subsidiary of the Borrower in favor of the
Borrower or another Subsidiary of the Borrower;
(j) covenants contained in the following agreements which require
the grant of security for the obligations evidenced thereby if security is
given for some other obligation: (i) that certain Indenture dated as of
March 11, 1998 between the Borrower and Xxxxx Fargo Bank West, National
Association (formerly known as Norwest Bank Colorado, National Association),
as Trustee, as in effect on the Closing Date, (ii) that certain senior
Indenture dated as of January 13, 1999 between the Borrower and Xxxxx Fargo
Bank West, National Association, as Trustee, as in effect on the Closing
Date; (iii) that certain subordinated Indenture dated as of January 13, 1999
between the Borrower and Xxxxx Fargo Bank West, National Association, as
Trustee, as in effect on the Closing Date; and (iv) that certain Indenture
dated as of November 15, 1984 between Nordstrom Credit, Inc. and Xxxxx Fargo
Bank West, National Association (formerly known as First Interstate Bank of
Denver, N.A.), as Trustee, as in effect on the Closing Date; provided,
however, that this clause (j) shall not be deemed to restrict additional Debt
from being issued under any of the foregoing agreements or any supplement
thereto so long as the covenants contained therein relating to the grant of
security therefore are not modified in a manner adverse to the Lenders;
(k) leases, licenses, subleases or sublicenses granted to others
(including, without limitation, licenses of intellectual property) not
interfering in any material respect with the business of the Borrower and its
Subsidiaries; and
(l) other Liens incidental to the conduct of the business or the
ownership of the assets of the Borrower or any Subsidiary that (i) were not
incurred in connection with borrowed money, (ii) do not in the aggregate
materially detract from the value of the assets subject thereto or materially
impair the use thereof in the operation of such business, (iii) do not
encumber intellectual property and (iv) do not secure obligations aggregating
in excess of $200,000,000.
Section 6.2. Restricted Payments.
The Borrower shall not, and shall not permit any Subsidiary to, declare,
pay or make, or agree to declare, pay or make, any Restricted Payment, except
(a) Restricted Payments by any Subsidiary to the Borrower, (b) Restricted
Payments (other than purchases or other acquisition for value of any Capital
Stock of the Borrower or any Subsidiary) so long as no Default or Event of
Default then exists or would result therefrom (assuming for this purpose that
compliance with Section 6.3 is being measured as of the end of the
immediately preceding Fiscal Quarter giving pro forma effect to the
Restricted Payment) and (c) purchases or other acquisitions for value of any
Capital Stock of the Borrower or any Subsidiary.
45
Section 6.3. Leverage Ratio.
As of the last day of each Fiscal Quarter, for the twelve month period
ending on such date, the Borrower shall not permit the ratio of (i) the sum
of (A) Funded Debt as of the last day of such period and (B) the product of
(1) Rent Expense for such period times (2) six to (ii) EBITDAR for such
period (the "Leverage Ratio") to be greater than 4.0 to 1.0.
Section 6.4. Restriction on Fundamental Changes.
The Borrower shall not, and shall not permit any Subsidiary to enter
into any merger, consolidation, reorganization or recapitalization,
liquidate, wind up or dissolve or sell, lease, transfer or otherwise dispose
of, in one transaction or a series of transactions, all or substantially all
of its or their business or assets, whether now owned or hereafter acquired;
provided that as long as no Default or Event of Default shall exist either
before or after giving effect thereto (a) any Solvent Subsidiary or other
Solvent Person (other than the Borrower) may be merged or consolidated with
or into the Borrower (so long as the Borrower is the surviving entity) or any
Subsidiary, (b) any Subsidiary may be liquidated, wound up or dissolved so
long as it does not cause or could not be reasonably expected to cause a
Material Adverse Effect and (c) in addition to transactions permitted under
Section 6.5 (which permitted transactions shall not be restricted by this
Section 6.4), all or substantially all of any Subsidiary's business or assets
may be sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to the Borrower or another Subsidiary.
Section 6.5. Asset Dispositions.
The Borrower shall not, and shall not (except as permitted by Section
6.4(c)) permit any Subsidiary to, sell, lease, transfer or otherwise dispose
of during any Fiscal Year property or other assets (other than (a) sales of
inventory in the ordinary course of business and (b) the sale or disposition
of the Borrower's interest in 1700 Seventh LP) constituting, in the
aggregate, 20% or more of the consolidated assets of the Borrower and its
Subsidiaries, as calculated on a book value basis. Notwithstanding the
foregoing limitation, the Borrower and its Subsidiaries shall be permitted to
sell their receivables in a transaction to securitize such receivables, and
such sales of receivables shall not be included in the computation above.
Section 6.6. Transactions with Affiliates.
The Borrower shall not, and shall not permit any Subsidiary to, directly
or indirectly, enter into any transaction (including the purchase, sale,
lease, or exchange of any property or the rendering of any service) with any
Affiliate of the Borrower, unless (a) such transaction is not otherwise
prohibited by this Agreement, (b) such transaction is in the ordinary course
of business and (c) if such transaction is other than with a Wholly-Owned
Subsidiary, such transaction is on fair and reasonable terms no less
favorable to the Borrower or its Subsidiary, as the case may be, than those
terms which might be obtained at the time in a comparable arm's length
transaction with a Person who is not an Affiliate or, if such transaction is
not one which by its nature could be obtained from such other Person, is on
fair and reasonable terms and was negotiated in good faith; provided that
this Section 6.6 shall not restrict (i) dividends, distributions and other
46
payments and transfers on account of any shares of Capital Stock of the
Borrower or any Subsidiary otherwise permissible hereunder and (ii)
transactions pursuant to (A) the Investment Agreement, (B) the Recourse
Agreement and (C) any agreement between the Borrower and any Affiliate of the
Borrower pursuant to which the Borrower sells or discounts accounts
receivable in the ordinary course of its business (including agreements under
which the Borrower has an obligation to repurchase from or indemnify the
purchaser with respect to accounts discounted or sold by the Borrower).
ARTICLE 7
EVENTS OF DEFAULT, ETC.
Section 7.1. Events of Default.
The occurrence of any one or more of the following events, acts or
occurrences shall constitute an event of default (each an "Event of
Default"):
(a) Failure to Make Payments. The Borrower (i) shall fail to pay as
and when due (whether at stated maturity, upon acceleration, upon required
prepayment or otherwise) any principal of any Loan, or (ii) shall fail to pay
any interest, Fees or other amounts (other than principal) payable under the
Loan Documents within five days of the date when due under the Loan
Documents;
(b) Default in Other Debt. (i) The Borrower or any Subsidiary shall
default in the payment (whether at stated maturity, upon acceleration, upon
required prepayment or otherwise), beyond any period of grace provided
therefor, of any principal of or interest on any other Debt with a principal
amount (individually or in the aggregate) in excess of $10,000,000, or (ii)
any other breach or default (or other event or condition), beyond any period
of grace provided therefor, shall occur under any agreement, indenture or
instrument relating to any such other Debt with a principal amount
(individually or in the aggregate) in excess of $10,000,000, if the effect of
such breach or default (or such other event or condition) is to cause, or to
permit, the holder or holders of such other Debt (or a Person on behalf of
such holder or holders) to cause (upon the giving of notice or otherwise),
such other Debt to become or be declared due and payable, or required to be
prepaid, redeemed, purchased or defeased (or an offer of prepayment,
redemption, purchase or defeasance be made), prior to its stated maturity
(other than by a scheduled mandatory prepayment); provided, however, that if
any such breach or default described in this Section 7.1(b) is cured or
waived prior to any action being taken pursuant to Section 7.2(a) or 7.2(b),
the Event of Default under this Agreement in respect of such breach or
default shall be deemed cured to the extent of such cure or waiver;
(c) Breach of Certain Covenants.
(i) The Borrower shall fail to perform, comply with or observe
any agreement, covenant or obligation under Section 2.3, under Sections 6.2
through 6.5 inclusive, or under Section 5.1(d) or 5.3 (insofar as it requires
the preservation
47
of the corporate existence of the Borrower);
(ii) The Borrower shall fail to perform, comply with or observe
any agreement, covenant or obligation under Section 6.1 or under Section 6.6
and such failure shall not have been remedied within ten days; or
(iii) The Borrower shall fail to perform, comply with or
observe any agreement, covenant or obligation under Sections 5.1(a), (b) or
(c) and such failure shall not have been remedied within five days;
(d) Other Defaults Under Loan Documents. The Borrower shall fail to
perform, comply with or observe any agreement, covenant or obligation under
any provision of any Loan Document (other than those provisions referred to
in Sections 7.l(a), 7.1(b) and 7.1(c)) and such failure shall not have been
remedied within 30 days after the earlier to occur of (i) the Borrower's
knowledge thereof or (ii) written notice thereof by the Agent to the
Borrower; or
(e) Breach of Representation or Warranty. Any representation or
warranty or certification made or furnished by the Borrower under any Loan
Document shall prove to have been false or incorrect in any material respect
when made (or deemed made);
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. There
shall be commenced against the Borrower or any of its Subsidiaries, an
involuntary case seeking the liquidation or reorganization of the Borrower or
any of its Subsidiaries under Chapter 7 or Chapter 11, respectively, of the
Bankruptcy Code or any similar proceeding under any other Applicable Law or
an involuntary case or proceeding seeking the appointment of a receiver,
liquidator, sequestrator, custodian, trustee or other officer having similar
powers over the Borrower or any of its Subsidiaries or to take possession of
all or a substantial portion of its property or to operate all or a
substantial portion of its business, and any of the following events occurs:
(i) the Borrower or any of its Subsidiaries consents to the institution of
the involuntary case or proceeding; (ii) the petition commencing the
involuntary case or proceeding is not timely controverted; (iii) the petition
commencing the involuntary case or proceeding remains undismissed and
unstayed for a period of 60 days; or (iv) an order for relief is issued or
entered therein;
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The
Borrower or any of its Subsidiaries shall institute a voluntary case seeking
liquidation or reorganization under Chapter 7 or Chapter 11, respectively, of
the Bankruptcy Code or any similar proceeding under any other Applicable Law,
or shall consent thereto; or shall consent to the conversion of an
involuntary case to a voluntary case; or shall file a petition, answer a
complaint or otherwise institute any proceeding seeking, or shall consent to
or acquiesce in the appointment of, a receiver, liquidator, sequestrator,
custodian, trustee or other officer with similar powers over the Borrower or
any of its Subsidiaries or to take possession of all or a substantial portion
of its property or to operate all or a substantial portion of its business;
or shall make a general assignment for
48
the benefit of creditors; or shall generally not pay, or shall admit in
writing its inability to pay, its debts as they become due; or the board of
directors of the Borrower or any of its Subsidiaries (or any committee
thereof) shall adopt any resolution or otherwise authorize action to approve
any of the foregoing;
(h) Judgments and Attachments. The Borrower or any Subsidiary shall
suffer any money judgments, writs or warrants of attachment or similar
processes (collectively, "Judgments") that, individually or in the aggregate,
involve an amount or value in excess of $10,000,000 and such Judgments shall
continue unsatisfied or unstayed for a period of 60 days; provided that no
Event of Default shall exist if (i) payment of the Judgments are covered in
full by insurance and the insurer has affirmed such coverage or (ii) the
Borrower is in good faith prosecuting an appeal of such Judgments and has (A)
deposited funds as required for such appeal, if any and (B) reserved amounts
on its books for such Judgments as required in accordance with GAAP.
(i) ERISA. The Borrower or any member of the Controlled Group
shall fail to pay when due any material amount or amounts that it shall have
become liable to pay to the PBGC or to a Plan under Title IV of ERISA; or a
proceeding shall be instituted by a fiduciary of any such Plan or Plans
against the Borrower or any member of the Controlled Group to enforce Section
515 of ERISA; or any ERISA Event shall occur which could reasonably be
expected to have a Material Adverse Effect; or the Borrower or any member of
the Controlled Group shall partially or completely withdraw from any
Multiemployer Plan; or any Multiemployer Plan to which Borrower or any member
of its Controlled Group becomes obligated to make or accrue a contribution is
placed in reorganization or terminates;
(j) Change of Control. A Change of Control shall occur; or
(k) Termination of Loan Documents, Etc. Any Loan Document, or any
material provision thereof, shall cease to be in full force and effect for
any reason, or the Borrower shall contest or purport to repudiate or disavow
any of its obligations under, or the validity of enforceability of, any Loan
Document or any material provision thereof.
Section 7.2. Remedies.
Upon the occurrence of an Event of Default:
(a) If an Event of Default occurs under Section 7.1(f) or 7.1(g),
then the Revolving Commitments shall automatically and immediately terminate,
and the obligation of the Lenders to make any Loan hereunder shall cease, and
the unpaid principal amount of the Loans and all other Obligations shall
automatically become immediately due and payable, without presentment,
demand, protest, notice or other requirements of any kind, all of which are
hereby expressly waived by the Borrower.
(b) If an Event of Default occurs, other than under Section 7.1(f)
or 7.1(g), the Agent may (i) with the consent of the Required Lenders, by
written notice to the
49
Borrower, declare that the Revolving Commitments and all pending Bid Loan
Quotes (whether or not accepted) are terminated, whereupon the obligation of
the Lender Parties to make any Loan hereunder shall cease, and/or (ii) with
the consent of the Required Lenders, declare the unpaid principal amount of
the Loans and all other Obligations to be, and the same shall thereupon
become, due and payable, without presentment, demand, protest, any additional
notice or other requirements of any kind, all of which are hereby expressly
waived by the Borrower.
(c) The Agent may, with the consent of the Required Lenders, enforce
any and all rights and interests created and existing under the Loan
Documents, including, without limitation, all rights of set-off.
Notwithstanding the fact that enforcement powers reside primarily with
the Agent, each Lender has, to the extent permitted by law, a separate right
of payment and shall be considered a separate "creditor" holding a separate
"claim" within the meaning, and for the purposes, of Section 101(5) of the
Bankruptcy Code or any other insolvency statute.
Section 7.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Agreement, after the
occurrence and during the continuance of an Event of Default, all amounts
collected or received by the Agent or any Lender on account of amounts
outstanding under any of the Loan Documents shall be paid over or delivered
as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation reasonable attorneys' fees) of the Agent or any
of the Lenders in connection with enforcing the rights of the Lenders under
the Loan Documents and any protective advances made by the Agent or any of
the Lenders, pro rata as set forth below;
SECOND, to the payment of any fees owed to the Agent or any Lender, pro
rata as set forth below;
THIRD, to the payment of all accrued interest payable to the Lenders
hereunder, pro rata as set forth below;
FOURTH, to the payment of the outstanding principal amount of the Loans
and all other obligations which shall have become due and payable under the
Loan Documents, pro rata as set forth below; and
FIFTH, the payment of the surplus, if any, to whoever may be lawfully
entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding
Loans held by such Lender bears to the aggregate then outstanding Loans) of
amounts available to be
50
applied.
ARTICLE 8
THE AGENT AND THE LENDERS
Section 8.1 Appointment and Authorization of Agent.
Each Lender hereby irrevocably (subject to Section 8.9) appoints,
designates and authorizes the Agent to take such action on its behalf under
the provisions of this Agreement and each other Loan Document and to exercise
such powers and perform such duties as are expressly delegated to it by the
terms of this Agreement or any other Loan Document, together with such powers
as are reasonably incidental thereto. Notwithstanding any provision to the
contrary contained elsewhere herein or in any other Loan Document, the Agent
shall not have any duties or responsibilities, except those expressly set
forth herein, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Lender or participant, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities shall be read
into this Agreement or any other Loan Document or otherwise exist against the
Agent. Without limiting the generality of the foregoing sentence, the use of
the term "Agent" herein and in the other Loan Documents with reference to the
Agent is not intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law. Instead,
such term is used merely as a matter of market custom, and is intended to
create or reflect only an administrative relationship between independent
contracting parties.
Section 8.2 Delegation of Duties.
The Lender Parties agree that the Agent may execute any of its duties
under this Agreement or any other Loan Document with respect to the Lender
Parties by or through agents, employees or attorneys-in-fact and shall be
entitled to advice of counsel and other consultants or experts concerning all
matters pertaining to such duties. The Lender Parties agree that the Agent
shall not be responsible to the other Lender Parties for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
Section 8.3 Liability of Agent.
No Agent-Related Person shall (a) be liable to any Lender Party for any
action taken or omitted to be taken by any of them under or in connection
with this Agreement or any other Loan Document or the transactions
contemplated hereby and thereby (except for its own gross negligence or
willful misconduct in connection with its duties expressly set forth herein),
or (b) be responsible in any manner to any Lender or participant for any
recital, statement, representation or warranty made by the Borrower or any
officer thereof, contained herein or in any other Loan Document, or in any
certificate, report, statement or other document referred to or provided for
in, or received by the Agent under or in connection with, this Agreement or
any other Loan Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Loan Document,
or for any failure of the Borrower or any other
51
party to any Loan Document to perform its obligations hereunder or
thereunder. No Agent-Related Person shall be under any obligation to any
Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of the Borrower or any Affiliate thereof.
Section 8.4 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, communication, signature, resolution,
representation, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel to the Borrower), independent
accountants and other experts selected by the Agent. As among the Lender
Parties, the Agent shall be fully justified in failing or refusing to take
any action under any Loan Document unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders or all the Lenders, if required hereunder,
and such request and any action taken or failure to act pursuant thereto
shall be binding upon all the Lenders and participants. Where this Agreement
expressly permits or prohibits an action unless the Required Lenders
otherwise determine, the Agent shall, and in all other instances, the Agent
may, but shall not be required to, initiate any solicitation for the consent
or a vote of the Lenders.
(b) For purposes of determining compliance with the conditions
specified in Section 3.1, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with,
each document or other matter either sent by the Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to a Lender.
Section 8.5. Notice of Default.
The Agent shall not be deemed to have knowledge or notice of the
occurrence of any Default or Event of Default, except with respect to
defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Lenders, unless the Agent shall have
received written notice from a Lender or the Borrower referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". The Agent will notify the Lenders of its
receipt of any such notice. The Agent shall take such action with respect to
such Default or Event of Default as may be directed by the Required Lenders
in accordance with Section 7.2; provided, however, that unless and until the
Agent has received any such direction, the Agent may (but shall not be
obligated to) take such action, or
52
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Lenders.
Section 8.6. Credit Decision; Disclosure of Information by Agent.
Each Lender acknowledges that no Agent-Related Person has made any
representation or warranty to it, and that no act by the Agent hereinafter
taken, including any consent to and acceptance of any assignment or review of
the affairs of the Borrower or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by any Agent-Related Person to any
Lender as to any matter, including whether Agent-Related Persons have
disclosed material information in their possession. Each Lender represents
to the Agent that it has, independently and without reliance upon any Agent-
Related Person and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries, and all Applicable
Laws relating to the transactions contemplated hereby, and made its own
decision to enter into this Agreement and to extend credit to the Borrower
hereunder. Each Lender also represents that it will, independently and
without reliance upon any Agent-Related Person and based on such documents
and information as it shall deem appropriate at the time, continue to make
its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders
by the Agent herein, the Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the
business, prospects, operations, property, financial and other condition or
creditworthiness of the Borrower or any of its Affiliates which may come into
the possession of any Agent-Related Person.
Section 8.7. Indemnification of Agent.
Whether or not the transactions contemplated hereby are consummated, the
Lenders shall indemnify upon demand each Agent-Related Person (to the extent
not reimbursed by or on behalf of the Borrower and without limiting the
obligation of the Borrower to do so), pro rata, and hold harmless each Agent-
Related Person from and against any and all claims, damages, losses,
liabilities, costs, and expenses (including, without limitation, reasonable
attorneys' fees) that may be incurred by or asserted or awarded against any
Agent-Related Person, in each case arising out of or in connection with or by
reason of (including, without limitation, in connection with any
investigation, litigation, or proceeding or preparation of defense in
connection therewith) the Loan Documents, any of the transactions
contemplated herein and therein or the actual or proposed use of the proceeds
of the Loans, except to the extent such claim, damage, loss, liability, cost,
or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Agent-Related Person's
gross negligence or willful misconduct; provided, however, that no action
taken in accordance with the directions of the Required Lenders shall be
deemed to constitute gross negligence or willful misconduct for purposes of
this Section 8.7. Without limitation of the foregoing, each Lender shall
reimburse the Agent upon demand for its ratable share of any costs or out-of-
pocket expenses (including
53
reasonable attorneys fees and the allocated costs of internal counsel)
incurred by the Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein and therein,
to the extent that the Agent is not reimbursed for such expenses by or on
behalf of the Borrower. The undertaking in this Section 8.7 shall survive
termination of the Revolving Commitments, the payment of all Obligations
hereunder and the resignation or replacement of the Agent.
Section 8.8. Agent in its Individual Capacity.
Bank of America and its Affiliates may make loans to, issue letters of
credit for the account of, accept deposits from, acquire equity interests in
and generally engage in any kind of banking, trust, financial advisory,
underwriting or other business with the Borrower and its Affiliates as though
Bank of America were not the Agent hereunder and without notice to or consent
of the Lenders. The Lenders acknowledge that, pursuant to such activities,
Bank of America or its Affiliates may receive information regarding the
Borrower or its Affiliates (including information that may be subject to
confidentiality obligations in favor of the Borrower or such Affiliate) and
acknowledge that the Agent shall be under no obligation to provide such
information to them. With respect to its Loans, Bank of America shall have
the same rights and powers under this Agreement as any other Lender and may
exercise such rights and powers as though it were not the Agent, and the
terms "Lender" and "Lenders" include Bank of America in its individual
capacity.
Section 8.9. Successor Agent.
The Agent may resign as Agent upon 30 days' notice to the Lenders and
the Borrower. If the Agent resigns under this Agreement, the Required
Lenders shall appoint from among the Lenders a successor administrative agent
for the Lenders the appointment of which successor administrative agent shall
require the consent of the Borrower at all times other than during the
existence of a Default or an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed). If no successor
administrative agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting with the
Lenders and the Borrower, a successor administrative agent from among the
Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, such successor administrative agent shall succeed to all the
rights, powers and duties of the retiring Agent and the term "Agent" shall
mean such successor administrative agent and the retiring Agent's
appointment, powers and duties as Agent shall be terminated. After any
retiring Agent's resignation hereunder as Agent, the provisions of this
Article 8 and Sections 9.1 and 9.2 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement. If no successor administrative agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Lenders shall perform all of the duties of the Agent
hereunder until such time, if any, as the Required Lenders appoint a
successor administrative agent with the consent of the Borrower as provided
for above.
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Section 8.10. Lender Parties.
The provisions of this Article 8 are solely for the benefit of the Agent
and the other Lender Parties and the Borrower shall not have any rights to
rely on or enforce or be obligated under any of the provisions hereof (except
that the provisions of Section 8.9 are also for the benefit of the Borrower).
In performing its functions and duties under the Loan Documents, the Agent
shall act solely as agent of the Lenders and does not assume and shall not be
deemed to have assumed any obligation toward or relationship of agency or
trust with or for the Borrower.
Section 8.11. Enforcement by the Agent.
Each Lender agrees that, except with the prior written consent of the
Agent or as provided in Section 9.7, no Lender Party shall have any right
individually to enforce any Loan Document or any provision thereof, or make
demand thereunder, it being agreed that such rights and remedies may only be
exercised by the Agent for the ratable benefit of the Lenders upon the terms
of this Agreement.
Section 8.12. Syndication Agent and Documentation Agent.
Neither the Syndication Agent nor the Documentation Agent, in such
capacity, shall have any right, power, obligation, liability, duty or
responsibility whatsoever under the Loan Documents, and neither the
Syndication Agent nor the Documentation Agent shall be deemed to have any
fiduciary relationship with any Lender. Each Lender acknowledges that it has
not relied, and will not rely, on either the Syndication Agent or the
Documentation Agent in deciding to enter into this Agreement or in taking or
not taking any action hereunder.
Section 8.13. Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Borrower, the Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans and all other
Obligations that are owing and unpaid and to file such other documents as may
be necessary or advisable in order to have the claims of the Lenders and the
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Agent and their respective
agents and counsel and all other amounts due the Lenders and the Agent)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Lender to make such payments to the Agent and, in the event that the
Agent shall consent to the making of such payments directly to the Lenders,
to pay to the Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Agent and its agents and counsel, and any
other amounts due the Agent under the Loan Documents.
Nothing contained herein shall be deemed to authorize the Agent to
authorize or consent to or accept or adopt on behalf of any Lender any plan
of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Agent to vote in
respect of the claim of any Lender in any such proceeding.
ARTICLE 9
MISCELLANEOUS
Section 9.1. Expenses.
The Borrower shall pay on demand:
(a) any and all reasonable attorneys' fees and disbursements
(including allocated costs of in-house counsel) and out-of-pocket costs and
expenses incurred by the Agent in connection with the development, drafting,
negotiation and administration of the Loan Documents, any amendments thereto
and the syndication and closing of the transactions contemplated thereby; and
(b) all reasonable costs and expenses (including fees and
disbursements of in-house and other attorneys, appraisers and consultants)
incurred by the Lender Parties in any workout, restructuring or similar
arrangements or, after an Event of Default, in connection with the
protection, preservation, exercise or enforcement of any of the terms of the
Loan Documents or in connection with any foreclosure, collection or
bankruptcy proceedings.
The foregoing costs and expenses shall include all out-of-pocket
expenses incurred by the Agent and the cost of independent public accountants
and other outside experts retained by the Agent or any Lender. All amounts
due under this Section 9.1 shall be payable within ten Business Days after
demand therefor. The agreements in this Section shall survive the
termination of the Revolving Commitments and repayment of all other
Obligations.
Section 9.2. Indemnity.
(a) Whether or not the transactions contemplated hereby are
consummated, the Borrower shall indemnify and hold harmless each Agent-
Related Person, each Lender and their respective Affiliates, directors,
officers, employees, counsel, agents and attorneys-in-fact (collectively the
"Indemnitees") from and against any and all liabilities,
56
obligations, losses, damages, penalties, claims, demands, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorney
costs) of any kind or nature whatsoever which may at any time be imposed on,
incurred by or asserted against any such Indemnitee in any way relating to or
arising out of or in connection with (i) the execution, delivery,
enforcement, performance or administration of any Loan Document or any other
agreement, letter or instrument delivered in connection with the transactions
contemplated thereby or the consummation of the transactions contemplated
thereby, (ii) any Revolving Commitment or Loan or the use or proposed use of
the proceeds therefrom, or (iii) any claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort
or any other theory (including any investigation of, preparation for, or
defense of any pending or threatened claim, investigation, litigation or
proceeding) and regardless of whether any Indemnitee is a party thereto (all
the foregoing, collectively, the "Indemnified Liabilities"); provided that
such indemnity shall not, as to any Indemnitee, be available to the extent
that such liabilities, obligations, losses, damages, penalties, claims,
demands, actions, judgments, suits, costs, expenses or disbursements are
determined by a final judgment of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Indemnitee.
Notwithstanding anything in the Loan Documents to the contrary, no Indemnitee
shall have any liability (whether direct or indirect, in contract, tort or
otherwise) arising from the use by others of information or other materials
obtained through electronic telecommunications or other information
transmission systems, except to the extent such damages were caused by the
gross negligence or willful misconduct of such Indemnitee as determined in a
final judgment by a court of competent jurisdiction nor shall any Indemnitee
have any liability for any indirect or consequential damages relating to this
Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date).
All amounts due under this Section 9.2 shall be payable within ten Business
Days after demand therefor. The agreements in this Section shall survive the
resignation of the Agent, the replacement of any Lender, the termination of
the Revolving Commitments and the repayment, satisfaction or discharge of all
the other Obligations.
(b) To the extent that the undertaking to indemnify and hold
harmless set forth in Section 9.2(a) may be unenforceable as violative of any
Applicable Law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of each of the Indemnified
Liabilities that is permissible under Applicable Law.
Section 9.3. Waivers; Modifications in Writing.
No amendment of any provision of this Agreement or any other Loan
Document (including a waiver thereof or consent relating thereto) shall be
effective unless the same shall be in writing and signed by the Agent and the
Required Lenders and, except as to a waiver or consent requested by or to the
benefit of the Borrower, the Borrower, provided further:
(a) no amendment, waiver, consent, forbearance or other agreement
that has the effect of (i) reducing the rate or amount, or extending the
stated maturity or due date,
57
of any amount payable by the Borrower to any Lender Party under the Loan
Documents, (other than as a result of waiving the applicability of the Post-
Default Rate of interest), (ii) increasing the amount, or extending the
stated termination or reduction date, of any Lender's Revolving Commitment
hereunder or subjecting any Lender Party to any additional obligation to
extend credit (it being understood and agreed that a waiver of any Default or
Event of Default or a waiver of any mandatory reduction in the Revolving
Commitments shall not constitute a change in the terms of any Revolving
Commitment of any Lender), (iii) altering the rights and obligations of the
Borrower to prepay the Loans, or (iv) changing this Section 9.3 or the
definition of the term "Required Lenders" or any other percentage of Lenders
specified in this Agreement to be the applicable percentage to act on
specified matters shall be effective unless the same shall be signed by or on
behalf of each of the Lenders affected thereby;
(b) no amendment that modifies Article 8 or otherwise has the effect
of (i) increasing the duties or obligations of the Agent, (ii) increasing the
standard of care or performance required on the part of the Agent, or (iii)
reducing or eliminating the indemnities or immunities to which the Agent is
entitled (including any amendment of this Section 9.3), shall be effective
unless the same shall be signed by or on behalf of the Agent; and
(c) any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Except as required herein, no notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances. Any amendment effected in accordance with
this Section 9.3 shall be binding upon each present and future Lender Party
and the Borrower.
Section 9.4. Cumulative Remedies: Failure or Delays.
The rights and remedies provided for under this Agreement are cumulative
and are not exclusive of any rights and remedies that may be available to the
Lender Parties under Applicable Law or otherwise. No failure or delay on the
part of any Lender Party in the exercise of any power, right or remedy under
the Loan Documents shall impair such power, right or remedy or operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude other or further exercise thereof or of any other
power, right or remedy.
Section 9.5. Notices, Etc.
(a) General. Unless otherwise expressly provided herein, all
notices and other communications provided for hereunder shall be in writing
(including by facsimile transmission). All such written notices shall be
mailed certified or registered mail, faxed or delivered to the applicable
address, facsimile number or (subject to subsection (b) below) electronic
mail address, and all notices and other communications expressly permitted
hereunder to be given by telephone shall be made to the applicable telephone
number, as follows:
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(i) if to the Borrower or the Agent to the address, facsimile
number, electronic mail address or telephone number specified for such Person
on Schedule 1.1(a) or to such other address, facsimile number, electronic
mail address or telephone number as shall be designated by such party in a
notice to the other parties; and
(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its administrative
questionnaire provided by the Agent or to such other address, facsimile
number, electronic mail address or telephone number as shall be designated by
such party in a notice to the Borrower and the Agent.
Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when
received; notices sent by facsimile shall be deemed to have been given when
sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on
the next business day for the recipient). Notices delivered through
electronic communications to the extent provided in subsection (b) below,
shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other communications to
the Lenders hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant
to procedures approved by the Agent; provided that the foregoing shall not
apply to notices to any Lender pursuant to Article II if such Lender has
notified the Agent that it is incapable of receiving notices under such
Article by electronic communication. The Agent or the Borrower may, in its
discretion, agree to accept notices and other communications to it hereunder
by electronic communications pursuant to procedures approved by it in
writing, provided that approval of such procedures may be limited to
particular notices or communications and neither the Borrower nor the Agent
shall have any obligation to agree to accept any electronic notices.
(c) Effectiveness of Facsimile Documents and Signatures. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness
of any such documents and signatures shall, subject to applicable Law, have
the same force and effect as manually-signed originals and shall be binding
on the Borrower, the Agent and the Lenders. The Agent may also require that
any such documents and signatures be confirmed by a manually-signed original
thereof; provided, however, that the failure to request or deliver the same
shall not limit the effectiveness of any facsimile document or signature.
(d) Reliance by Agent and Lenders. The Agent and the Lenders shall
be entitled to rely and act upon any notices (including telephonic notices)
purportedly given by or on behalf of the Borrower even if such notices were
not made in a manner specified herein, were incomplete or were not preceded
or followed by any other form of notice
59
specified herein. The Borrower shall indemnify each Agent-Related Person and
each Lender from all reasonable losses, costs, expenses and liabilities
resulting from the reliance by such Person on each notice purportedly given
by or on behalf of the Borrower. All telephonic notices to and other
communications with the Agent may be recorded by the Agent, and each of the
parties hereto hereby consents to such recording.
Section 9.6. Successors and Assigns; Designations.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or
otherwise transfer any of its rights or obligations hereunder without the
prior written consent of each Lender and no Lender may assign or otherwise
transfer any of its rights or obligations hereunder except (i) to an Eligible
Assignee in accordance with the provisions of subsection (b) of this Section,
(ii) by way of participation in accordance with the provisions of subsection
(d) of this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section (and
any other attempted assignment or transfer by any party hereto shall be null
and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Indemnitees) any legal or equitable right,
remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its Revolving Commitment and the Loans at the
time owing to it); provided that (i) except in the case of an assignment of
the entire remaining amount of the assigning Lender's Revolving Commitment
and the Loans at the time owing to it or in the case of an assignment to a
Lender or an Affiliate of a Lender or an Approved Fund with respect to a
Lender, the aggregate amount of the Revolving Commitment (which for this
purpose includes Loans outstanding thereunder) subject to each such
assignment, determined as of the date the Assignment and Assumption with
respect to such assignment is delivered to the Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date, shall not
be less than $10,000,000 unless each of the Agent and, so long as no Event of
Default has occurred and is continuing, the Borrower otherwise consents (each
such consent not to be unreasonably withheld or delayed); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Lender's rights and obligations under this Agreement with respect
to the Loans or the Revolving Commitment assigned; (iii) any assignment of a
Revolving Commitment must be approved by the Agent (such approval not to be
unreasonably withheld) unless the Person that is the proposed assignee is
itself a Lender (whether or not the proposed assignee would otherwise qualify
as an Eligible Assignee); and (iv) the parties to each assignment shall
execute and deliver to the Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500 paid by the assignor or the
assignee. Subject to acceptance and recording thereof by the Agent pursuant
to
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subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be
a party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.13, 2.14, 2.16, 9.1 and
9.2 with respect to facts and circumstances occurring prior to the effective
date of such assignment and shall continue to retain the obligations with
respect thereto as well). Upon request, the Borrower (at its expense) shall
execute and deliver applicable Note(s) to the assignee Lender, and the
assignor Lender shall surrender and cancel any Notes, if requested. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this
Section.
(c) The Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the
Lenders, and the Revolving Commitments of, and principal amounts of the Loans
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, absent
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Borrower, at any reasonable time and from time to time upon reasonable prior
notice, and the Borrower may also receive a copy of the Register upon
request. In addition, at any time that a request for a consent for a material
or other substantive change to the Loan Documents is pending, any Lender
wishing to consult with other Lenders in connection therewith may request and
receive from the Agent a copy of the Register.
(d) Any Lender may at any time, without the consent of, or notice
to, the Borrower or the Agent, sell participations to any Person (other than
a natural person or the Borrower or any of the Borrower's Affiliates or
Subsidiaries or any competitor of the Borrower or any of its Affiliates or
Subsidiaries or any Affiliate of a competitor of the Borrower or any of its
Affiliates or Subsidiaries) (each, a "Participant") in all or a portion of
such Lender's rights and/or obligations under this Agreement (including all
or a portion of its Revolving Commitment and/or the Loans; provided that (i)
such Lender's obligations under this Agreement shall remain unchanged, (ii)
such Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, shall be the sole holder of the Note(s),
if any, and Loan Documents subject to the participation and shall have the
sole right to enforce its rights and remedies under the Loan Documents and
(iii) the Borrower, the Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights
and
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obligations under this Agreement and the other Loan Documents. Any agreement
or instrument pursuant to which a Lender sells such a participation shall
provide that such Lender shall retain the sole right to enforce this
Agreement and the other Loan Documents and to approve any amendment,
modification or waiver of any provision of this Agreement; provided that such
agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, waiver or other
modification that would change the amount, interest rate or maturity of the
Loans or any other matter that requires unanimous consent of all of the
Lenders. Subject to subsection (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.13, 2.14 and
2.16 to the same extent as if it were a Lender and had acquired its interest
by assignment pursuant to subsection (b) of this Section.
(e) A Participant shall not be entitled to receive any greater
payment under Section 2.13 or 2.14 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such
Participant, unless the sale of the participation to such Participant is made
with the Borrower's prior written consent. A Participant that would be a
foreign Lender if it were a Lender shall not be entitled to the benefits of
Section 2.13 unless the Borrower is notified of the participation sold to
such Participant and the Borrower is provided with evidence satisfactory to
the Borrower that such Participant has agreed, for the benefit of the
Borrower, to comply with Sections 2.15, 2.16 and 2.17 to the same extent as
if it were a Lender and had acquired its interest pursuant to subsection (b)
of this Section.
(f) Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement (or under its
Note(s), if any) to secure obligations of such Lender, including any pledge
or assignment to secure obligations to a Federal Reserve Bank; provided that
no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
(g) As used herein, the following terms have the following
meanings:
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a natural
person) approved by (i) the Agent and (ii) unless an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed; it being understood that it shall be
reasonable for the Borrower to withhold consent to a new assignee Lender if
as a result of such assignment the Borrower would incur additional costs,
including without limitation, under Sections 2.13 and 2.16, and the assignee
Lender shall provide such information, if requested by the Borrower, in
connection with any proposed assignment.); provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or any of the
Borrower's Affiliates or Subsidiaries or any competitor of the Borrower or
any affiliate of a competitor of the Borrower.
"Fund" means any Person (other than a natural person) that is (or
will be)
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engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its
business.
"Approved Fund" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, so
long as any action in accordance with this Section 9.6(h) does not cause
increased costs or expenses for the Borrower, any Lender (a "Granting
Lender") may grant to a special purpose funding vehicle (an "SPC") the option
to fund all or any part of any Loan that such Granting Lender would otherwise
be obligated to fund pursuant to this Agreement; provided that (i) nothing
herein shall constitute a commitment by any SPC to fund any Loan, (ii) if an
SPC elects not to exercise such option or otherwise fails to fund all or any
part of such Loan, the Granting Lender shall be obligated to fund such Loan
pursuant to the terms hereof, (iii) no SPC shall have any voting rights
pursuant to Section 9.3 and (iv) with respect to notices, payments and other
matters hereunder, the Borrower, the Agent and the Lenders shall not be
obligated to deal with an SPC, but may limit their communications and other
dealings relevant to such SPC to the applicable Granting Lender. The funding
of a Loan by an SPC hereunder shall utilize the Revolving Commitment of the
Granting Lender to the same extent that, and as if, such Loan were funded by
such Granting Lender. Each party hereto hereby agrees that no SPC shall be
liable for any indemnity or payment under this Agreement for which a Lender
would otherwise be liable for so long as, and to the extent, the Granting
Lender provides such indemnity or makes such payment. Notwithstanding
anything to the contrary contained in this Agreement, any SPC may disclose
any non-public information relating to its funding of Loans to any rating
agency, commercial paper dealer or provider of any surety or guarantee to
such SPC so long as such disclosure is clearly designated as being made on a
confidential basis. This Section 9.6(h) may not be amended without the prior
written consent of each Granting Lender, all or any part of whose Loan is
being funded by an SPC at the time of such amendment.
Section 9.7. Set Off.
In addition to any rights now or hereafter granted under Applicable Law
and to the extent not prohibited by law or Contractual Obligation of such
Lender Party, during the existence of any Event of Default, each Lender Party
is hereby irrevocably authorized by the Borrower, at any time or from time to
time, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, including certificates of deposit,
whether matured or unmatured, but not including trust accounts) and any other
indebtedness, in each case whether direct or indirect or contingent or
matured or unmatured at any time held or owing by such Lender Party to or for
the credit or the account of the Borrower, against and on account of the
Obligations, irrespective of whether or not such Lender Party shall have made
any demand for payment, provided that such Lender Party shall, promptly
following such set off or application, give notice to the Borrower thereof,
which notice shall contain an explanation of the basis for the set off or
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application.
Section 9.8. Survival of Agreements, Representations and Warranties.
All agreements, representations and warranties made herein shall survive
the execution and delivery of this Agreement and the other Loan Documents,
the closing and the extensions of credit hereunder and shall continue until
payment and performance of any and all Obligations. Any investigation at any
time made by or on behalf of the Lender Parties shall not diminish the right
of the Lender Parties to rely on such agreements, representations and
warranties made herein unless a Lender has actual knowledge contrary thereto
prior to its reliance. Without limitation, the agreements and obligations of
the Borrower contained in Sections 2.13, 2.16, 9.1, and 9.2 and the
obligations of the Lenders under Sections 2.15, 2.16 and 8.7 shall survive
the payment in full of all other Obligations.
Section 9.9. Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each of
which counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but
one and the same Agreement.
Section 9.10. Complete Agreement.
This Agreement, together with the other Loan Documents and the Fee
Letter, represents the entire agreement of the parties hereto and supercedes
all prior agreements and understandings, oral or written, if any, including
any commitment letters or correspondence relating to the Loan Documents or
the transactions contemplated therein.
Section 9.11. Limitation of Liability.
No claim shall be made by the Borrower or any Lender Party against any
party hereto or the Affiliates, directors, officers, employees or agents of
any party hereto for any special, indirect, consequential or punitive damages
in respect of any claim for breach of contract or under any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith;
and the Borrower and each Lender Party waives, releases and agrees not to xxx
upon any claim for any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor.
Section 9.12. WAIVER OF TRIAL BY JURY.
THE BORROWER AND THE LENDER PARTIES WAIVE THE RIGHT TO A TRIAL BY JURY
IN ANY ACTION UNDER THIS AGREEMENT OR ANY ACTION ARISING OUT OF THE
TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF WHICH PARTY INITIATES SUCH
ACTION OR ACTIONS.
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Section 9.13. Confidentiality.
Each of the Agent and the Lenders agrees to maintain the confidentiality
of the Information (as defined below), except that Information may be
disclosed (a) to its Affiliates and to its Affiliates' respective partners,
directors, officers, employees, agents, advisors and representatives (it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to
keep such Information confidential); (b) to the extent requested by any
regulatory authority purporting to have jurisdiction over it; (c) to the
extent required by applicable laws or regulations or by any subpoena or
similar legal process; (d) to any other party to this Agreement; (e) in
connection with the exercise of any remedies hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder;
(f) subject to an agreement containing provisions substantially the same as
those of this Section, to (i) any Eligible Assignee of or Participant in, or
any prospective Eligible Assignee of or Participant in, any of its rights or
obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's
or prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Loan Parties; (g) with the consent
of the Borrower; (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or (ii) becomes
available to the Agent or any Lender on a nonconfidential basis from a source
other than the Borrower; or (i) to the National Association of Insurance
Commissioners or any other similar organization; provided that with respect
to clause (c) above, the Agent or the Lender, as applicable, will use
reasonable efforts to notify the Borrower prior to any such disclosure. In
addition, the Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement (to the extent such
information constitutes public information pursuant to the Borrower's SEC
disclosure) to market data collectors, similar service providers to the
lending industry, and service providers to the Agent and the Lenders in
connection with the administration and management of this Agreement, the
other Loan Documents and the Revolving Commitments. For the purposes of this
Section, "Information" means all information received from the Borrower or
any of its Subsidiaries relating to the Borrower or any Subsidiary or any of
their respective businesses, including, without limitation, inventions,
improvements, trade secrets, processes, data, software programs, techniques,
marketing plans, strategies, forecasts, unpublished copyrightable material,
customer lists, customer information, sources of supply, prospects or
projections, manufacturing techniques, formulas, research or experimental
work, work in process and all information regarding transactions between the
Borrower or any Subsidiary and its customers, including without limitation,
sales documents, transactions receipts, customer names, account numbers,
transaction amounts and dates, other than any such information that is
available to the Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower or any. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information
except to the extent that Applicable Law imposes additional requirements in
which case such Person shall be required to abide by such additional
requirements.
In addition, the Agent may disclose to any agency or organization that
assigns standard
65
identification numbers to loan facilities such basic information describing
the facilities provided hereunder as is necessary to assign unique
identifiers (and, if requested, supply a copy of this Agreement), it being
understood that the Person to whom such disclosure is made will be informed
of the confidential nature of such Information and instructed to make
available to the public only such Information as such person normally makes
available in the course of its business of assigning identification numbers.
Section 9.14. Binding Effect; Continuing Agreement.
(a) This Agreement shall become effective at such time when all
of the conditions set forth in Section 3.1 have been satisfied or waived by
the Lenders and it shall have been executed by the Borrower, the Agent, and
each Lender, and thereafter this Agreement shall be binding upon and inure to
the benefit of the Borrower, the Agent and each Lender and their respective
successors and assigns.
(b) This Agreement shall be a continuing agreement and shall
remain in full force and effect until all Loans, interest, Fees and other
Obligations have been paid in full and the Revolving Commitments are
terminated. Upon termination, the Borrower shall have no further obligations
(other than the indemnification provisions that survive) under the Loan
Documents; provided that should any payment, in whole or in part, of the
Obligations be rescinded or otherwise required to be restored or returned by
the Agent or any Lender, whether as a result of any proceedings in bankruptcy
or reorganization or any similar reason, then the Loan Documents shall
automatically be reinstated and all amounts required to be restored or
returned and all costs and expenses incurred by the Agent or any Lender in
connection therewith shall be deemed included as part of the Obligations.
Section 9.15. NO ORAL AGREEMENTS.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
Section 9.16. USA Patriot Act Notice.
Each Lender and the Agent (for itself and not on behalf of any Lender)
hereby notifies the Borrower that pursuant to the requirements of the USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Act"), it is required to obtain, verify and record information that
identifies the Borrower, which information includes the name and address of
the Borrower and other information that will allow such Lender or the Agent,
as applicable, to identify the Borrower in accordance with the Act.
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IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart
of this Agreement to be duly executed and delivered as of the date first
above written.
BORROWER: NORDSTROM, INC.
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Name: Xxxxx Xxxxxxx
---------------------------------
Title: Director of Treasury
---------------------------------
AGENT: BANK OF AMERICA, N.A., in its
capacity as Administrative Agent
By: /s/ Xxxxx X. Oxford
---------------------------------
Name: Xxxxx X. Oxford
---------------------------------
Title: Vice President
---------------------------------
LENDERS: BANK OF AMERICA, N.A.
By: /s/ Xxx Honey
---------------------------------
Name: Xxx Honey
---------------------------------
Title: Vice President
---------------------------------
BANK ONE, NA, individually as a Lender
and in its capacity as Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
---------------------------------
Title: Director
---------------------------------
U.S. BANK NATIONAL ASSOCIATION,
individually as a Lender and in its capacity
as Documentation Agent
By: /s/ Xxxxx X. Xxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxx
---------------------------------
Title: Vice President
---------------------------------
KEY BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
---------------------------------
Title: Senior Vice President
---------------------------------
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxxxx X. Chichicoco
---------------------------------
Title: Vice President
---------------------------------
THE BANK OF NEW YORK
By: /s/ Xxxxxxxx X.X. Xxxxxxx
---------------------------------
Name: Xxxxxxxx X.X. Xxxxxxx
---------------------------------
Title: Vice President
---------------------------------
FIFTH THIRD BANK
By: /s/ Andy Ruschze
---------------------------------
Name: Andy Ruschze
---------------------------------
Title: Vice President
---------------------------------
THE NORTHERN TRUST COMPANY
By: /s/ Xxxx X. Xxxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxxx
---------------------------------
Title: Vice President
---------------------------------
