EXHIBIT 10.30
EXECUTION COPY
================================================================================
$300,000,000
AMENDED AND RESTATED
REVOLVING CREDIT FACILITY
DATED AS OF NOVEMBER 20, 2001
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
================================================================================
BANC OF AMERICA SECURITIES LLC,
AS SOLE LEAD ARRANGER AND BOOK MANAGER
TABLE OF CONTENTS
PAGE
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ARTICLE 1 DEFINITIONS AND RELATED MATTERS................................................................ 1
Section 1.1 Definitions........................................................................ 1
Section 1.2. Related Matters.................................................................... 17
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.................................................................... 23
Section 2.4. Interest; Interest Periods; Conversion/Continuation................................ 23
Section 2.5. Notes, Etc. ....................................................................... 26
Section 2.6. Fees............................................................................... 26
Section 2.7. Termination and Reduction of Revolving Commitments................................. 27
Section 2.8. Repayments and Prepayments......................................................... 27
Section 2.9. Manner of Payment.................................................................. 28
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................................................................. 35
Section 4.1. Organization, Powers and Good Standing............................................. 35
Section 4.2. Authorization, Binding Effect, No Conflict, Etc. .................................. 36
Section 4.3. Financial Information.............................................................. 36
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................................................................. 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............................................................. 40
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........................................................... 41
Section 5.7. Conduct of Business; Compliance with Law........................................... 42
Section 5.8. Further Assurances................................................................. 42
Section 5.9. Future Information................................................................. 42
Section 5.10. Subordination of Intercompany Debt................................................. 42
ARTICLE 6 NEGATIVE COVENANTS OF THE BORROWER............................................................. 43
Section 6.1. Liens.............................................................................. 43
Section 6.2. Restricted Payments................................................................ 45
Section 6.3. Financial Covenants................................................................ 45
Section 6.4. Restriction on Fundamental Changes................................................. 46
Section 6.5. Asset Dispositions................................................................. 47
Section 6.6. Transactions with Affiliates....................................................... 47
Section 6.7. Limitation on Negative Pledges..................................................... 47
Section 6.8. Limitation on Investments in Xxxxxxxxx.xxx, LLC.................................... 48
ARTICLE 7 EVENTS OF DEFAULT, ETC. ....................................................................... 48
Section 7.1. Events of Default.................................................................. 48
Section 7.2. Remedies........................................................................... 50
Section 7.3 Allocation of Payments After Event of Default...................................... 51
ARTICLE 8 THE AGENT AND THE LENDERS...................................................................... 52
Section 8.1 Appointment and Authorization of Agent............................................. 52
Section 8.2 Delegation of Duties............................................................... 52
Section 8.3 Liability of Agent................................................................. 52
Section 8.4 Reliance by Agent.................................................................. 53
Section 8.5. Notice of Default.................................................................. 53
Section 8.6. Credit Decision; Disclosure of Information by Agent................................ 54
Section 8.7. Indemnification of Agent........................................................... 54
Section 8.8. Agent in its Individual Capacity................................................... 55
Section 8.9. Successor Agent.................................................................... 55
Section 8.10. Lender Parties..................................................................... 56
Section 8.11. Enforcement by the Agent........................................................... 56
Section 8.12. Syndication Agent and Documentation Agent.......................................... 56
ARTICLE 9 MISCELLANEOUS ................................................................................. 56
Section 9.1. Expenses........................................................................... 56
Section 9.2. Indemnity.......................................................................... 57
Section 9.3. Waivers; Modifications in Writing.................................................. 57
Section 9.4. Cumulative Remedies: Failure or Delays............................................. 58
Section 9.5. Notices, Etc. ..................................................................... 58
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Section 9.6. Successors and Assigns; Designations............................................... 59
Section 9.7. Set Off............................................................................ 61
Section 9.8. Survival of Agreements, Representations and Warranties............................. 61
Section 9.9. Execution in Counterparts.......................................................... 61
Section 9.10. Complete Agreement................................................................. 62
Section 9.11. Limitation of Liability............................................................ 62
Section 9.12. WAIVER OF TRIAL BY JURY............................................................ 62
Section 9.13. Confidentiality.................................................................... 62
Section 9.14. Binding Effect; Continuing Agreement............................................... 63
Section 9.15. NO ORAL AGREEMENTS................................................................. 63
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) 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
Schedule 9.5 Borrower Information
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AMENDED AND RESTATED
CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 20, 2001 (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
WHEREAS, the Borrower has requested that the Lenders provide a revolving
credit facility in an aggregate amount of $300,000,000 (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 amends and restates 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
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 LP, 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 and 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:
2
Long Term, Senior,
Unsecured, Non-Credit Applicable Margin for Applicable Margin Applicable Margin
Level Enhanced Debt Rating of Borrower Euro-Dollar Rate Loans for Facility Fees for Utilization Fees
----- -------------------------------- ---------------------- ----------------- --------------------
I. >/= A from S&P .320% 0.08% .100%
or
>/= A2 from Xxxxx'x
II. >/= A- but < A from S&P .400% .100% .125%
or
>/= A3 but < A2 from Xxxxx'x
III. >/= BBB+ but < A- from S&P .500% .125% .125%
or
>/= Baa1 but < A3 from Xxxxx'x
IV. >/= BBB but < BBB+ from S&P .575% .175% .250%
or
>/= Baa2 but < Baa1 from Xxxxx'x
V.
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, (c) the
Borrower's interest (direct or indirect) in Xxxxxxxxx.xxx, LLC may be sold or
transferred, and (d) 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
46
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, (b) the sale or disposition
(direct or indirect) of Xxxxxxxxx.xxx, LLC and (c) the sale or disposition of
the Borrower's interest in 1700 Seventh LP) constituting, in the aggregate, 10%
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 payments and transfers on account of any
shares of Capital Stock of the Borrower or any Subsidiary otherwise permissible
hereunder, (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) and (iii)
so long as Xxxxxxxxx.xxx, LLC, a Delaware limited liability company, is subject
to subpart (c) of this Section 6.6, supply, service or licensing agreements
between or among Xxxxxxxxx.xxx LLC and its successors on the one hand, and the
Borrower and its other Subsidiaries, on the other hand, so long as such
agreements are fair and reasonable to the Borrower and such other Subsidiaries
under the circumstances.
SECTION 6.7. LIMITATION ON NEGATIVE PLEDGES.
The Borrower will not, nor will it permit its Subsidiaries to, enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its inventory, patents,
copyrights and/or trademarks, whether now owned or hereafter acquired (but not
including such assets which are licensed from third parties to the Borrower or
any Subsidiary), or requiring the grant of any security interest in any of its
inventory and/or intellectual property for such obligation if security is given
for some other obligation except (a) as set forth in
47
the Loan Documents, and (b) as set forth in that Guaranty Agreement dated as of
February 29, 2000 with respect to extensions of credit made to 1700 Seventh
L.P., which guaranty is given by the Borrower in favor of Bank of America, N.A.,
as administrative agent, and (c) in connection with any Lien permitted by
Section 6.1 or any document or instrument governing any such Lien, provided that
any such restriction relates only to the asset or assets subject to such Lien.
SECTION 6.8. LIMITATION ON INVESTMENTS IN XXXXXXXXX.XXX, LLC.
So long as Xxxxxxxxx.xxx, LLC is not a Wholly-Owned Subsidiary, the
Borrower will not, nor will it permit its Subsidiaries to, directly or
indirectly, (A) lend money or extend credit or make advances to, or guaranty any
Debt owed by, Xxxxxxxxx.xxx, LLC, or (B) purchase or acquire any Capital Stock,
obligations or securities of, or any other interest in, or make capital
contributions to, or otherwise make investments in, Xxxxxxxxx.xxx, LLC in an
aggregate amount exceeding $175,000,000 for all such extensions of credit or
investments occurring after the Closing Date.
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
48
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 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 Sections 6.6 through 6.8 inclusive 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;
49
(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 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 that, individually or in the aggregate, involve an
amount or value in excess of $10,000,000 and such judgments, writs,
warrants or other orders shall continue unsatisfied or unstayed for a
period of 60 days;
(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
50
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 shall (i) with the consent of the Required
Lenders, by written notice to the 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 shall, 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
51
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 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
52
(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 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
53
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 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,
54
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 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 9.4 and 9.9 shall inure to its benefit
as to any actions taken or omitted to be taken by it while it was Agent under
55
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.
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.
ARTICLE 9
MISCELLANEOUS
SECTION 9.1. EXPENSES.
The Borrower shall pay on demand:
(a) any and all 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
56
contemplated thereby (subject to, with respect to the expenses incurred
prior to the Closing Date, the limitations agreed to in writing between
the Agent and the Borrower); and
(b) all 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.
SECTION 9.2. INDEMNITY.
(a) The Borrower shall indemnify, defend and hold harmless each
Lender Party and its Affiliates and the officers, directors, employees,
agents, attorneys, successors and assigns of each Lender Party and its
Affiliates (collectively, the "Indemnitees") from and against (i)
subject to the provisions of Section 2.16, any and all transfer taxes,
documentary taxes, assessments or charges made by any Governmental
Authority by reason of the execution and delivery of the Loan Documents
or the making of the Loans (provided that any Lender claiming any
additional amounts payable pursuant to this Section 9.2(a)(i) shall use
reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions) to change the jurisdiction of its Applicable
Lending Office if the making of such a change would avoid the need for,
or reduce the amount of, any such additional amounts that may thereafter
accrue and would not, in the reasonable judgment of such Lender, be
otherwise materially disadvantageous to such Lender), and (ii) any and
all liabilities, losses, damages, penalties, judgments, claims, costs
and expenses of any kind or nature whatsoever (including reasonable
attorneys' fees, including allocated costs of in-house counsel, and
disbursements in connection with any actual or threatened investigative,
administrative or judicial proceeding, whether or not such Indemnitee
shall be designated a party thereto) that may be imposed on, incurred by
or asserted against such Indemnitee, in any manner relating to or
arising out of the Loan Documents, the Loans, or the use or intended use
of the proceeds of the Loans (the "Indemnified Liabilities"); provided
that no Indemnitee shall have the right to be indemnified or held
harmless hereunder for its own gross negligence or willful misconduct as
determined by a final judgment of a court of competent jurisdiction.
(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. All
Indemnified Liabilities shall be payable on demand.
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
57
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, 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 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.
All notices and other communications under this Agreement shall be in
writing and (except for financial statements, other related informational
documents, materials sent to security holders and/or to the SEC and routine
communications, which may be sent by first-class mail,
58
postage prepaid) shall be personally delivered or sent by prepaid courier, by
overnight, registered or certified mail (postage prepaid), or by telex or
telecopy, and shall be deemed effective when delivered to the intended recipient
thereof. Unless otherwise specified in a notice sent or delivered in accordance
with this Section 9.5, all notices and other communications shall be given to
the parties hereto at their respective addresses (or to their respective telex
or telecopier numbers) indicated on Schedule 1.1(a) (in the case of the Lender
Parties) or Schedule 9.5 (in the case of the Borrower).
SECTION 9.6. SUCCESSORS AND ASSIGNS; DESIGNATIONS.
(a) This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and permitted
assigns. The Borrower may not assign or transfer any interest hereunder
without the prior written consent of each Lender Party.
(b) Subject to the terms of this Section 9.6(b), each Lender
shall have the right at any time to assign (an "Assignment") all or any
portion of such Lender's Revolving Commitment and Loans to one or more
banks or other financial institutions; provided, however, that (i) each
Assignment to any Person that is not then a Lender with a Revolving
Commitment shall be of a portion of the Loans and Revolving Commitments
at least equal to $10,000,000 (or, if less, all of the assigning
Lender's Loans and Revolving Commitment) and, unless otherwise agreed by
the Agent, shall be of a constant, and not a varying, percentage of all
of the assigning Lender's rights and obligations under this Agreement
and the other Loan Documents; (ii) no Assignment (other than an
Assignment to a Person that is then a Lender with a Revolving Commitment
or an Affiliate of such a Lender) shall be effective without the consent
of the Borrower (unless a Default or Event of Default then exists in
which case no consent of the Borrower is required) and the Agent, which
consents shall not be unreasonably withheld or delayed; (iii) the
parties to the Assignment shall execute and deliver to the Agent an
Assignment and Assumption substantially in the form of Exhibit 9.6(b)
(an "Assignment and Assumption"); and (iv) the assignee shall pay to the
Agent a processing and recordation fee of $3,500. From and after the
date on which the conditions in the foregoing clauses and the Assignment
and Assumption have been satisfied, the assignee shall be a "Lender"
hereunder and, to the extent that rights and obligations hereunder have
been assigned to it, shall have the rights and obligations of the
assigning Lender hereunder, and the assigning Lender shall, to the
extent that rights and obligations hereunder have been assigned by it,
relinquish its rights and be released from its obligations under this
Agreement (and, in the case of an assignment covering all or the
remaining portion of the assigning Lender's rights and obligations under
this Agreement, shall cease to be a party hereto).
(c) Each Lender shall have the right at any time to grant or sell
participations (each a "Participation") in all or any portion of such
Lender's Revolving Commitment and Loans to one or more banks or other
financial institutions without the consent of the Borrower or any other
Lender Party, subject to the terms and conditions set forth in this
Section 9.6(c). If any Lender sells or grants a Participation, (i) such
Lender shall make
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and receive all payments for the account of its participant, (ii) such
Lender's obligations under this Agreement shall remain unchanged, (iii)
such Lender shall continue to be the sole holder of its Notes and other
Loan Documents subject to the Participation and shall have the sole
right to enforce its rights and remedies under the Loan Documents, (iv)
the Borrower and the other Lender Parties shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under the Loan Documents, and (v) the agreement
evidencing the Participation shall not restrict such Lender's ability to
agree to any amendment of the terms of the Loan Documents, or to
exercise or refrain from exercising any powers or rights that such
Lender may have under or in respect of the Loan Documents, except that
the participant may be granted the right to consent to (A) any reduction
of the rate or amount, or any extension of the stated maturity or due
date, of any principal, interest or Fees payable by the Borrower and
subject to the Participation, or (B) any increase in the amount or
extension of the stated termination or reduction date of the affected
Revolving Commitment. A participant shall have the rights of the Lenders
under Sections 2.12, 2.13, 2.14 and 2.16 subject to the obligations
imposed by such Sections; provided that amounts payable to any
participant shall not exceed the amounts that would have been payable
under such Sections to the Lender granting the Participation, had such
Participation not been granted.
(d) Each Lender may at any time assign or pledge any portion of
its rights under the Loan Documents to a Federal Reserve Bank and no
such assignment or pledge shall be subject to the provisions of Sections
9.6(b) or 9.6(c).
(e) Subject to the terms and conditions of Section 9.13, each
Lender shall have the right at any time to furnish one or more potential
assignees or participants with any information concerning the Borrower
and its Subsidiaries that has been supplied by the Borrower or any such
Subsidiary to any Lender Party. The Borrower shall supply all reasonably
requested information and execute and deliver all such instruments and
take all such further action (including, in the case of an Assignment,
the execution and delivery of replacement Notes) as the Agent may
reasonably request in connection with any Assignment or Participation
arrangement.
(f) Notwithstanding anything to the contrary contained herein, so
long as any action in accordance with this Section 9.6(f) 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
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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(f) 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 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.
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
Section 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. Faxed signatures to this Agreement shall be binding for
all purposes.
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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.
SECTION 9.13. CONFIDENTIALITY.
Each Lender Party agrees that it shall keep confidential any non-public
information from time to time supplied to it under any Loan Document; provided,
however, that nothing herein shall prevent the disclosure of any such
information to (a) the extent a Lender Party in good faith believes such
disclosure is required by Applicable Law, (b) counsel for a Lender Party or to
its accountants, (c) bank examiners or auditors or comparable Persons, (d) any
Affiliate of a Lender Party with reason to need to know such information
pursuant to such Lender Party's performance under the Loan Documents, (e) any
other Lender Party, or any assignee, transferee or participant, or any potential
assignee, transferee or participant, of all or any portion of any Lender Party's
rights under this Agreement who is notified of the confidential nature of the
information or (f) any other Person in connection with any litigation concerning
this Agreement or the transactions contemplated hereby to which any one or more
of the Lender Parties is a party and for which such disclosure is necessary in
the prosecution or defense of such case; provided, however, that disclosures
under subparts (b), (c), (d) and (e) shall be made with a clear designation that
the information is being disclosed on a confidential basis`. No Lender Party
shall have any obligation under this Section 9.13 to the extent any such
information becomes available on a non-confidential basis from a source other
than the Borrower which source such Lender Party reasonably believes to be
authorized to make such information public.
62
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.
63
SIGNATURE PAGE
NORDSTROM, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
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/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------
Title: V.P Treasurer
------------------------------------
SIGNATURE PAGE
NORDSTROM, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
AGENT: BANK OF AMERICA, N.A.,
By: /s/ Xxx Xxxxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxxxx
------------------------------------
Title: Vice-President
------------------------------------
LENDERS: BANK OF AMERICA, N.A.
By: /s/ Xxx Xxxxxxxxxx
------------------------------------
Name: Xxx Xxxxxxxxxx
------------------------------------
Title: Vice-President
------------------------------------
SIGNATURE PAGE
NORDSTROM, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
BANK ONE, NA, individually as a Lender
and in its capacity as Syndication Agent
By: /s/ Xxxxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxxxxxx
------------------------------------
Title: Vice-President
------------------------------------
SIGNATURE PAGE
NORDSTROM, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
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
------------------------------------
SIGNATURE PAGE
NORDSTROM, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
KEY BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------------
Title: Vice-President
------------------------------------
SIGNATURE PAGE
NORDSTROM, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
------------------------------------
Title: Senior Vice-President
------------------------------------
SIGNATURE PAGE
NORDSTROM, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
THE BANK OF NEW YORK
By: /s/ Xxxxxxxxx Xxxx Xxxxx
------------------------------------
Name: Xxxxxxxxx Xxxx Fuiks
------------------------------------
Title: Vice-President
------------------------------------
SIGNATURE PAGE
NORDSTROM, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
FIFTH THIRD BANK
By: /s/ Xxxx Xxxxxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxxxxx
------------------------------------
Title: Large Corporate Officer
------------------------------------
SIGNATURE PAGE
NORDSTROM, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
------------------------------------
Title: Vice-President
------------------------------------
