Exhibit 10.29
[364-Day Agreement] EXECUTION COPY
CREDIT AGREEMENT
Dated as of March 22, 2000
among
ALBERTSON'S, INC.,
BANK OF AMERICA, N.A.
as Administrative Agent,
WACHOVIA BANK, N.A.
as Syndication Agent,
BANK ONE, NA,
as Documentation Agent,
FIRST UNION NATIONAL BANK,
UNION BANK OF CALIFORNIA, N.A.,
U.S. BANK NATIONAL ASSOCIATION, and
XXXXX FARGO BANK, N.A.,
as Senior Managing Agents,
FIRST SECURITY BANK, N.A. and
THE NORTHERN TRUST COMPANY,
as Managing Agent
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
Arranged by
Banc of America Securities LLC,
Sole Lead Arranger
and Sole Book Manager
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS 1
1.01 Certain Defined Terms...............................................1
1.02 Other Interpretive Provisions......................................14
1.03 Accounting Principles..............................................15
ARTICLE II THE CREDITS........................................................15
2.01 Amounts and Terms of Commitments...................................15
2.02 Loan Accounts......................................................16
2.03 Procedure for Committed Borrowing..................................16
2.04 Conversion and Continuation Elections for Committed Borrowings.....17
2.05 Bid Borrowings.....................................................19
2.06 Procedure for Bid Borrowings.......................................19
2.07 Voluntary Termination or Reduction of Commitments..................22
2.08 Optional Prepayments...............................................23
2.09 Repayment..........................................................23
2.10 Interest...........................................................23
2.11 Fees...............................................................24
2.12 Computation of Fees and Interest...................................25
2.13 Payments by the Company............................................25
2.14 Payments by the Banks to the Agent.................................26
2.15 Sharing of Payments, Etc...........................................27
2.16 Revolving Termination Date Extensions..............................27
2.17 Optional Increase in Commitments...................................28
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY............................30
3.01 Taxes..............................................................30
3.02 Illegality.........................................................31
3.03 Increased Costs and Reduction of Return............................32
3.04 Funding Losses.....................................................33
3.05 Inability to Determine Rates.......................................34
3.06 Certificates of Banks and Designated Bidders.......................34
3.07 Base Rate Committed Loans Substituted for Affected Offshore Rate
Committed Loans....................................................34
3.08 Reserves on Offshore Rate Committed Loans..........................35
3.09 Substitution of Banks..............................................35
3.10 Survival...........................................................35
ARTICLE IV CONDITIONS PRECEDENT...............................................36
4.01 Conditions of Initial Loans........................................36
4.02 Conditions to All Borrowings.......................................37
ARTICLE V REPRESENTATIONS AND WARRANTIES......................................38
5.01 Corporate Existence and Power......................................38
i
5.02 Subsidiaries.......................................................38
5.03 Corporate and Governmental Authorization; No Contravention.........38
5.04 Binding Effect.....................................................39
5.05 Litigation.........................................................39
5.06 ERISA Compliance...................................................39
5.07 Use of Proceeds; Margin Regulations................................39
5.08 Title to Properties; Liens.........................................39
5.09 Taxes..............................................................39
5.10 Financial Information..............................................39
5.11 Environmental Matters..............................................40
5.12 Regulated Entities.................................................40
5.13 Insurance..........................................................40
5.14 Full Disclosure....................................................40
5.15 Year 2000..........................................................40
ARTICLE VI AFFIRMATIVE COVENANTS..............................................41
6.01 Information........................................................41
6.02 Conduct of Business and Maintenance of Existence...................42
6.03 Maintenance of Property............................................43
6.04 Insurance..........................................................43
6.05 Payment of Obligations.............................................43
6.06 Compliance with Laws...............................................43
6.07 Inspection of Property, Books and Records..........................43
6.08 Use of Proceeds....................................................43
6.09 Further Assurances.................................................43
ARTICLE VII NEGATIVE COVENANTS................................................44
7.01 Limitation on Liens................................................44
7.02 Disposition of Assets..............................................45
7.03 Limitation on Subsidiary Indebtedness and Swap Contracts...........45
7.04 Use of Proceeds....................................................46
7.05 Minimum Consolidated Tangible Net Worth............................46
ARTICLE VIII EVENTS OF DEFAULT................................................46
8.01 Event of Default...................................................46
8.02 Remedies...........................................................48
8.03 Rights Not Exclusive...............................................49
ARTICLE IX THE AGENT 49
9.01 Appointment and Authorization; "Agent."............................49
9.02 Delegation of Duties...............................................49
9.03 Liability of Agent.................................................49
9.04 Reliance by Agent..................................................50
9.05 Notice of Default..................................................50
9.06 Credit Decision....................................................50
9.07 Indemnification of Agent...........................................51
ii
9.08 Agent in Individual Capacity.......................................51
9.09 Successor Agent....................................................51
9.10 Withholding Tax....................................................52
9.11 Co-Agents..........................................................53
ARTICLE X MISCELLANEOUS.......................................................53
10.01 Amendments and Waivers.............................................53
10.02 Notices............................................................54
10.03 No Waiver; Cumulative Remedies.....................................55
10.04 Costs and Expenses.................................................55
10.05 Company Indemnification............................................55
10.06 Payments Set Aside.................................................56
10.07 Binding Effect; Successors and Assigns.............................56
10.08 Assignments, Participations, Etc...................................56
10.09 Designated Bidders.................................................58
10.10 Confidentiality....................................................58
10.11 Set-off............................................................59
10.12 Notification of Addresses, Lending Offices, Etc....................59
10.13 Counterparts.......................................................59
10.14 Severability.......................................................59
10.15 No Third Parties Benefited.........................................59
10.16 Governing Law and Jurisdiction.....................................59
10.17 Waiver of Jury Trial...............................................60
10.18 Entire Agreement...................................................60
ANNEXES
Annex I Pricing Grid
SCHEDULES
Schedule 2.01 Commitments and Pro Rata Shares
Schedule 10.02 Payment Offices; Addresses for Notices; Lending
Offices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Counsel to the Company
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Invitation for Competitive Bids
Exhibit G Form of Competitive Bid Request
Exhibit H Form of Competitive Bid
iii
Exhibit I Form of Committed Loan Note
Exhibit J Form of Bid Loan Note
Exhibit K Form of Designation Agreement
Exhibit L Form of Commitment Increase Agreement
Exhibit M Form of New Bank Agreement
iv
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of March 22, 2000, among
Albertson's, Inc., a Delaware corporation (the "Company"), the several financial
institutions from time to time party to this Agreement (individually, a "Bank"
and, collectively, the "Banks"), Bank One, NA, as documentation agent (the
"Documentation Agent"), Wachovia Bank, N.A., as syndication agent (in such
capacity, the "Syndication Agent"), First Security Bank, N.A. and The Northern
Trust Company, as managing agents (in such capacity, the "Managing Agents"),
First Union National Bank, Union Bank Of California, N.A., U.S. Bank National
Association and Xxxxx Fargo Bank, N.A., as senior managing agents (in such
capacity, the "Senior Managing Agents"), and Bank of America, N.A., as
administrative agent for itself, the Designated Bidders and the Banks (in such
capacity, the "Agent").
WHEREAS, the Banks have agreed to make available to the Company a
revolving credit and bid loan facility with a term loan option, upon the terms
and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLE I
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following meanings
when used herein (including in the recitals hereof):
"Absolute Rate" has the meaning specified in subsection 2.06(c).
"Absolute Rate Auction" means a solicitation of Competitive Bids
setting forth Absolute Rates pursuant to Section 2.06.
"Absolute Rate Bid Loan" means a Bid Loan that bears interest at a
rate determined with reference to the Absolute Rate.
"Affiliate" means, as to any Person, any other Person which, directly
or indirectly, is in control of, is controlled by, or is under common
control with, such Person. A Person shall be deemed to control another
Person if the controlling Person possesses, directly or indirectly, the
power to direct or cause the direction of the management and policies of
the other Person, whether through the ownership of voting securities,
membership interests, by contract, or otherwise.
"Agent" means BofA in its capacity as administrative agent for the
Banks and the Designated Bidders hereunder, and any successor agent arising
under Section 9.09.
1.
"Agent-Related Persons" means BofA and any successor agent arising
under Section 9.09, together with their respective Affiliates (including,
in the case of BofA, the Lead Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set forth on
Schedule 10.02 or such other address as the Agent may from time to time
specify.
"Aggregate Commitment" means the combined Commitments of the Banks.
"Agreement" means this Credit Agreement.
"Applicable Fee Amount" means with respect to the fees payable
hereunder, the amount set forth opposite the indicated Indebtedness Rating
or Facility Usage Percentage, as the case may be, below the headings
"Facility Fee" and "Utilization Fee" in the pricing grid set forth on Annex
I in accordance with the parameters for calculations of such amount also
set forth on Annex I.
"Applicable Margin" means, with respect to Base Rate Committed Loans
and Offshore Rate Committed Loans, the amount set forth opposite the
indicated Indebtedness Rating below the heading "Base Rate Spread" or
"Offshore Rate Spread" in the pricing grid set forth on Annex I in
accordance with the parameters for calculations of such amounts also set
forth on Annex I.
"Assignee" has the meaning specified in subsection 10.08(a).
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel.
"Bank" has the meaning specified in the introductory clause hereto.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of 1978 (11
U.S.C.ss.101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per annum
above the latest Federal Funds Rate; and (b) the rate of interest in effect
for such day as publicly announced from time to time by BofA as its "prime
rate." The "prime rate" is a rate set by BofA based upon various factors
including BofA's costs and desired return, general economic conditions and
other factors, and is used as a reference point for pricing some loans,
which may be priced at, above, or below such announced rate. Any change in
the prime rate announced by BofA shall take effect at the opening of
business on the day specified in the public announcement of such change.
"Base Rate Committed Loan" means a Committed Loan that bears interest
based on the Base Rate.
2.
"Benefit Arrangement" means at any time an employee benefit plan
within the meaning of Section 3(3) of ERISA which is not a Plan or
Multiemployer Plan and which is maintained or otherwise contributed to by
any member of the ERISA Group.
"Bid Borrowing" means a borrowing of Loans under Article II consisting
of one or more Bid Loans made to the Company on the same day by the Bid
Loan Banks and Designated Bidders participating in such borrowing.
"Bid Loan" means an Absolute Rate Bid Loan by a Bid Loan Bank or a
Designated Bidder to the Company under Section 2.05.
"Bid Loan Bank" means each Bank party hereto.
"Bid Loan Note" has the meaning specified in Section 2.02.
"BofA" means Bank of America, N.A., a national banking association.
"Borrowing" means a Committed Borrowing or a Bid Borrowing.
"Borrowing Date" means any date on which a Committed Borrowing occurs
under Section 2.03 or a Bid Borrowing occurs under Section 2.06.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in New York City or San Francisco are
authorized or required by law to close and, if the applicable Business Day
relates to any Offshore Rate Committed Loan, means such a day on which
dealings are carried on in the applicable offshore Dollar interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any other
law, rule or regulation, whether or not having the force of law, in each
case, regarding capital adequacy of any bank or of any corporation
controlling a bank.
"Change of Control" means any person or group of persons (within the
meaning of Section 13 or 14 of the Exchange Act) shall have acquired
beneficial ownership (within the meaning of Rule 13d-3 promulgated by the
SEC under said Act) of 40% or more of the outstanding shares of common
stock of the Company; or, during any period of twelve consecutive calendar
months, individuals who were directors of the Company on the first day of
such period shall cease to constitute a majority of the board of directors
of the Company.
"Closing Date" means the date occurring on or before March 29, 2000 on
which all conditions precedent set forth in Section 4.01 are satisfied or
waived by all Banks (or, in the case of subsection 4.01(e), waived by the
Person entitled to receive such payment).
"Co-Agents" means each of the Syndication Agent, Documentation Agent,
Senior Managing Agents and Managing Agents, in its respective capacity as a
syndication agent, documentation agent, senior managing agents or managing
agent hereunder.
3.
"Code" means the Internal Revenue Code of 1986.
"Commitment" as to each Bank, has the meaning specified in Section
2.01.
"Committed Borrowing" means a borrowing of Loans under Article II
consisting of Committed Loans of the same Type made on the same day by the
Banks ratably according to their respective Pro Rata Shares and, in the
case of Offshore Rate Committed Loans, having the same Interest Periods.
"Committed Loan" means a Loan made by a Bank to the Company under
Section 2.01.
"Committed Loan Note" has the meaning specified in Section 2.02.
"Company's 1998 Form 10-K" means the Company's Annual Report on Form
10-K for the fiscal year ended January 28, 1999, as filed with the SEC
pursuant to the Exchange Act.
"Competitive Bid" means an offer by a Bid Loan Bank or a Designated
Bidder to make a Bid Loan in accordance with subsection 2.06(c).
"Competitive Bid Request" has the meaning specified in subsection
2.06(a).
"Compliance Certificate" means a certificate substantially in the form
of Exhibit C.
"Consolidated Subsidiary" means at any date any Subsidiary or other
Person the accounts of which would be consolidated with those of the
Company in its consolidated financial statements as of such date.
"Consolidated Tangible Net Worth" means at any date (a) the
consolidated stockholders' equity of the Company and its Consolidated
Subsidiaries as reflected on the Company's consolidated balance sheet, plus
their consolidated deferred investment tax credits as reflected on the
Company's consolidated balance sheet, minus (b) their consolidated
Intangible Assets, all determined as of such date. For purposes of this
definition, "Intangible Assets" means the amount (to the extent reflected
in determining such consolidated stockholders' equity) of (i) all write-ups
(other than write-ups resulting from foreign currency translations and
write-ups of assets of a going concern business made within twelve months
after the acquisition of such business) subsequent to January 28, 1999 in
the book value of any asset owned by the Company or a Consolidated
Subsidiary, (ii) all investments in unconsolidated Subsidiaries and all
equity investments in Persons which are not Subsidiaries and (iii) all
unamortized debt discount and expense, unamortized deferred charges (except
deferred income taxes), goodwill, patents, trademarks, service marks, trade
names, copyrights, organization or developmental expenses and other
intangible items (except leasehold improvements and liquor licenses).
"Conversion/Continuation Date" means any date on which, under Section
2.04, the Company (a) converts Committed Loans of one Type to
4.
another Type, or (b) continues as Committed Loans of the same Type, but
with a new Interest Period, Committed Loans having Interest Periods
expiring on such date.
"Default" means any event or circumstance which, with the giving of
notice, the lapse of time, or both, would (if not cured or otherwise
remedied during such time) constitute an Event of Default.
"Designated Bidder" means an Affiliate of a Bid Loan Bank that is a
Person described in clause (c)(i) or (ii) of the definition of "Eligible
Assignee" and that has become a party hereto pursuant to Section 10.09.
"Designation Agreement" means a Designation Agreement entered into by
a Bank and a Designated Bidder and accepted by the Agent, in substantially
the form of Exhibit K.
"Documentation Agent" means Bank One, NA in its capacity as
documentation agent hereunder.
"Dollars", "dollars" and "$" each mean lawful money of the United
States.
"Eligible Assignee" means (a) a commercial bank organized under the
laws of the United States, or any state thereof, and having a combined
capital and surplus of at least $250,000,000; (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development (the "OECD"), or a
political subdivision of any such country, and having a combined capital
and surplus of at least $250,000,000, provided that such bank is acting
through a branch or agency located in the United States; and (c) a Person
that is primarily engaged in the business of commercial lending and that is
(i) a Subsidiary of a Bank, (ii) a Subsidiary of a Person of which a Bank
is a Subsidiary, or (iii) a Person of which a Bank is a Subsidiary.
"Environmental Laws" means all federal, state, local or foreign laws,
statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests,
licenses, authorizations and permits of, and agreements with, any
Governmental Authorities, in each case relating to the environment or to
emissions, discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances
or wastes into the environment including ambient air, surface water, ground
water, or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or
other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA Group" means the Company and all members of a controlled group
of corporations and all trades or businesses (whether or not incorporated)
5.
under common control which, together with the Company, are treated as a
single employer under Section 414 of the Code.
"Event of Default" means any of the events or circumstances specified
in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Excluded Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholding or similar
charges and all liabilities with respect thereto, other than those taxes
included in the definition of Taxes.
"Existing Credit Facilities" means (i) the Credit Agreement dated as
of March 30, 1999, among the Company, BofA as agent, and the other
financial institutions party thereto, and (ii) the Credit Agreement dated
as of October 5, 1994, among the Company, BofA as co-agent, Xxxxxx Guaranty
Trust Company of New York as agent, and the other financial institutions
party thereto.
"Facility Period" means the period from the Closing Date to the
Revolving Termination Date (or, if Term Loans are made hereunder, the Term
Maturity Date), or, if earlier, the date of termination of the Aggregate
Commitment in its entirety and the repayment of all Loans outstanding
hereunder.
"Federal Funds Rate" means, for any day, the rate set forth in the
weekly statistical release designated as H.15(519), or any successor
publication, published by the Federal Reserve Bank of New York with respect
to the preceding Business Day opposite the caption "Federal Funds
(Effective)"; or, if for any relevant day such rate is not so published
with respect to any such preceding Business Day, the rate for such day will
be the arithmetic mean as determined by the Agent of the rates for the last
transaction in overnight Federal funds arranged prior to 9:00 a.m. (New
York City time) on that day by each of three leading brokers of Federal
funds transactions in New York City selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.12(a).
"Foundation Stock Agreement" means the agreement dated May 21, 1997,
between the Company and the X.X. and Xxxxxxx Xxxxxxxxx Foundation, Inc. and
any successor agreement.
"FRB" means the Board of Governors of the Federal Reserve System, and
any Governmental Authority succeeding to any of its principal functions.
"GAAP" means generally accepted accounting principles as in effect
from time to time.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary
or regulatory authority) thereof, any entity exercising executive,
6.
legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Guaranty Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without
recourse, with respect to any obligation (the "primary obligations") of
another Person (the "primary obligor"), including any obligation of that
Person (i) to purchase, repurchase or otherwise acquire such primary
obligations or any security therefor, (ii) to advance or provide funds for
the payment or discharge of any such primary obligation, or to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency or any balance sheet item, level of
income or financial condition of the primary obligor, (iii) to purchase
property, securities or services primarily for the purpose of assuring the
owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation, or (iv) otherwise to assure or
hold harmless the holder of any such primary obligation against loss in
respect thereof. The amount of any Guaranty Obligation shall be deemed
equal to the stated or determinable amount of the primary obligation in
respect of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof.
"Increased Commitment Date" has the meaning specified in subsection
2.17(b).
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations evidenced by notes,
bonds, debentures or similar instruments, (c) all obligations issued,
undertaken or assumed as the deferred purchase price of property or
services, (d) all obligations with respect to capital leases (but not
obligations with respect to operating leases), (e) all obligations of such
Person to purchase securities or other property which arise out of or in
connection with the sale of the same or substantially similar securities or
property, (f) all non-contingent obligations (and, for purposes of Section
7.01 and the definition of Material Indebtedness all contingent
obligations) of such Person to reimburse any bank or other Person in
respect of amounts paid under any Surety Instrument, (g) all indebtedness
of others of the type referred to in clauses (a) through (f) secured by a
Lien on any asset of such Person, whether or not such indebtedness is
assumed by such Person, (h) all Guaranty Obligations of such Person in
respect of indebtedness of others of the type referred to in clauses (a)
through (f), and (i) all preferred stock of such Person redeemable at the
option of the holder during the Facility Period. Insurance reserves, tax
reserves and interest thereon, salaries payable, taxes payable, dividends
payable, trade accounts payable arising in the ordinary course of business,
deferred investment tax credits, deferred compensation, deferred rents
payable under non-capital leases, benefits payable, unearned income and
other similar liabilities shall not constitute "Indebtedness."
"Indebtedness Rating" has the meaning set forth in Annex I.
"Indemnified Liabilities" has the meaning specified in Section 10.05.
"Indemnified Person" has the meaning specified in Section 10.05.
7.
"Independent Auditor" has the meaning specified in subsection 6.01(a).
"Insolvency Proceeding" means, with respect to any Person, (a) any
case, action or proceeding with respect to such Person before any court or
other Governmental Authority relating to bankruptcy, reorganization,
insolvency, liquidation, receivership, dissolution, winding-up or relief of
debtors, or (b) any general assignment for the benefit of creditors,
composition, marshalling of assets for creditors, or other similar
arrangement in respect of its creditors generally or any substantial
portion of its creditors, in either case undertaken under U.S. Federal,
state or foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than a Base Rate
Committed Loan, the last day of each Interest Period applicable to such
Loan and, as to any Base Rate Committed Loan or Bid Loan, the last Business
Day of each calendar quarter and the Revolving Termination Date and, if
applicable, the Term Maturity Date; provided, however, that (a) if any
Interest Period for an Offshore Rate Committed Loan exceeds three months,
the date that falls three months after the beginning of such Interest
Period and after each Interest Payment Date thereafter is also an Interest
Payment Date, and (b) as to any Bid Loan, such other intervening date(s)
prior to the maturity thereof as may be specified by the Company and agreed
to by the applicable Bid Loan Bank or Designated Bidder in the applicable
Competitive Bid shall also be Interest Payment Dates.
"Interest Period" means, (a) as to any Offshore Rate Committed Loan,
the period commencing on the Borrowing Date of such Loan, or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Committed Loan, and ending on the date one,
two, three or six months thereafter as selected by the Company in its
Notice of Borrowing, Notice of Conversion/Continuation or Competitive Bid
Request, as the case may be; and (b) as to any Absolute Rate Bid Loan, a
period of not less than 7 days and not more than 183 days as selected by
the Company in the applicable Competitive Bid Request;
provided that:
(i) if any Interest Period would otherwise end on a
day that is not a Business Day, that Interest Period shall be
extended to the following Business Day unless, in the case of
an Offshore Rate Committed Loan, the result of such extension
would be to carry such Interest Period into another calendar
month, in which event such Interest Period shall end on the
preceding Business Day;
(ii) no Interest Period applicable to a Term Loan or
portion thereof shall extend beyond any date upon which is due
any scheduled principal payment in respect of the Term Loans
unless the aggregate principal amount of Term Loans
represented by Base Rate Committed Loans, or Offshore Rate
Committed Loans having Interest Periods that will expire on or
before such date, equals or exceeds the amount of such
principal payment;
8.
(iii) any Interest Period pertaining to an Offshore
Rate Committed Loan 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 at the end of such Interest Period; and
(iv) no Interest Period for any Term Loan shall extend
beyond the Term Maturity Date and no Interest Period for any
Revolving Loan shall extend beyond the Revolving Termination
Date.
"Invitation for Competitive Bids" means an Invitation for Competitive
Bids, substantially in the form of Exhibit F.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Lead Arranger" means Banc of America Securities LLC, a Delaware
limited liability company, in its capacity as Sole Lead Arranger and Sole
Book Manager.
"Lending Office" means, (i) as to any Bank, the office or offices of
such Bank specified as its "Lending Office" or "Domestic Lending Office" or
"Offshore Lending Office", as the case may be, on Schedule 10.02; (ii), as
to any Designated Bidder, the office or offices of such Designated Bidder
specified as its "Lending Office" in its Designation Agreement; and (iii)
such other office or offices as such Bank or Designated Bidder may from
time to time notify to the Company and the Agent.
"Lien" means with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, the Company or any Subsidiary
shall be deemed to own subject to a Lien any asset which it has acquired or
holds subject to the interest of a vendor or lessor under any conditional
sale agreement, capital lease or other title retention agreement relating
to such asset.
"Loan" means an extension of credit by a Bank or a Designated Bidder
to the Company under Article II, and may be a Committed Loan or a Bid Loan.
"Loan Documents" means this Agreement, the Notes, any Commitment
Increase Agreement (as defined in Section 2.17), any New Bank Agreement (as
defined in Section 2.17), the Fee Letter and all other documents delivered
to the Agent or any Bank or Designated Bidder in connection herewith.
"Majority Banks" means at any time Banks then having more than 50% of
the Aggregate Commitment or, if the Commitments have been terminated, Banks
then holding more than 50% of the then aggregate unpaid principal amount of
the Loans. For purposes of this definition, each Bank shall be deemed to
hold all outstanding Bid Loans of such Bank's Designated Bidders.
9.
"Managing Agents" means each of First Security Bank, N.A. and The
Northern Trust Company in its capacity as a managing agent hereunder.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"Markus-Stiftung Stock Agreement" means the agreement dated February
15, 1980, among the Company, Xxxx Xxxxxxxx Stiftung (now known as
Markus-Stiftung) and Xxxx Xxxxxxxx, as amended by the First Amendment
thereto dated as of April 11, 1984, the Second Amendment thereto dated as
of September 25, 1989 and the Third Amendment thereto dated as of December
5, 1994 and any successor agreement.
"Material Adverse Effect" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, assets, liabilities
or financial condition of the Company and its Consolidated Subsidiaries
taken as a whole; (b) a material impairment of the ability of the Company
to perform under any Loan Document and to avoid any Event of Default; or
(c) a material adverse effect upon the legality, validity, binding effect
or enforceability against the Company of any Loan Document.
"Material Indebtedness" means Indebtedness (other than the Loans) of
the Company and/or one or more of its Subsidiaries, arising in one or more
related or unrelated transactions, in an aggregate outstanding principal
amount exceeding $30,000,000.
"Material Plan" means at any time a Plan or Plans having aggregate
Unfunded Liabilities in excess of $30,000,000.
"Minimum Amount" means (i) in respect of any Committed Borrowing,
conversion or continuation of Committed Loans, (a) in the case of Base Rate
Committed Loans, an aggregate minimum amount of $5,000,000 or any integral
multiple of $1,000,000 in excess thereof, and (b) in the case of Offshore
Rate Committed Loans, an aggregate minimum amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof, and (ii) in the case of
any reduction of the Commitments under Section 2.07, or optional prepayment
of Committed Loans under Section 2.08, $5,000,000 or any multiple of
$1,000,000 in excess thereof.
"Multiemployer Plan" means at any time an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA, to which any member
of the ERISA Group is then making or accruing an obligation to make
contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to be a
member of the ERISA Group during such five year period.
"Multi-year Credit Agreement" means the Credit Agreement dated as of
the date hereof, among the Company, BofA as agent, and the other financial
institutions party thereto, providing for a five year revolving credit
facility.
"Non-Continuing Bank" means, at any time, each Bank the Revolving
Termination Date of which has not been extended pursuant to Section 2.16.
10.
"Notes" means the Committed Loan Notes and the Bid Loan Notes.
"Notice of Borrowing" means a notice in substantially the form of
Exhibit A.
"Notice of Conversion/Continuation" means a notice in substantially
the form of Exhibit B.
"Obligations" means all advances, debts, liabilities, obligations,
covenants and duties arising under any Loan Document, owing by the Company
to any Bank, any Designated Bidder, the Agent, or any Indemnified Person,
whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter
arising.
"Offshore Rate" means, for any Interest Period, with respect to
Offshore Rate Committed Loans comprising part of the same Borrowing:
(i) the rate of interest per annum determined by the Agent to
be the rate of interest per annum (rounded upwards to the nearest
1/100th of 1%) appearing on Dow Xxxxx Page 3750 (as defined below) for
deposits in Dollars having a maturity comparable to such Interest
Period, at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period, subject to clause
(ii) below; or
(ii) if for any reason the rate is not available as provided
in the preceding clause (i) of this definition, the "Offshore Rate"
instead means the rate of interest per annum determined by the Agent to
be the arithmetic mean (rounded upward to the nearest 1/100th of 1%) of
the rates of interest per annum notified to the Agent by each Reference
Bank as the rate of interest at which deposits in Dollars in the
approximate amount of the Offshore Rate Committed Loan to be made,
continued or converted by such Reference Bank, and having a maturity
comparable to such Interest Period, would be offered to major banks in
the London interbank market or other applicable interbank market at
their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period. As used in this
definition, "Dow Xxxxx Page 3750" means the display designated as
"3750" on the Dow Xxxxx Market Service (formerly known as the Telerate
Service) or any replacement page thereof.
"Offshore Rate Committed Loan" means any Committed Loan that bears
interest based on the Offshore Rate.
"Other Taxes" means any present or future stamp or documentary taxes
or any other excise taxes, charges or similar levies which arise from any
payment made hereunder or from the execution, delivery, performance,
enforcement or registration of, or otherwise with respect to, this
Agreement or any other Loan Documents.
"Participant" has the meaning specified in subsection 10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions under
ERISA.
11.
"Person" means an individual, partnership, corporation, limited
liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority or any
other entity of whatever nature.
"Plan" means at any time an employee pension benefit plan (other than
a Multiemployer Plan) which is covered by Title IV of ERISA or subject to
the minimum funding standards under Section 412 of the Code and either (i)
is maintained, or contributed to, by any member of the ERISA Group for
employees of any member of the ERISA Group or (ii) has at any time within
the preceding five years been maintained, or contributed to, by any Person
which was at such time a member of the ERISA Group for employees of any
Person which was at such time a member of the ERISA Group.
"Pro Rata Share" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at
such time of such Bank's Commitment divided by the Aggregate Commitment
(or, if all Commitments have been terminated, the aggregate principal
amount of such Bank's Loans divided by the aggregate principal amount of
the Loans then held by all Banks). The initial Pro Rata Share of each Bank
is set forth opposite such Bank's name in Schedule 2.01 under the heading
"Pro Rata Share."
"Reference Bank" means each of BofA, Wachovia Bank, N.A. and Bank One,
NA.
"Replacement Bank" has the meaning specified in Section 3.09.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation or determination of an arbitrator or of
a Governmental Authority, in each case applicable to or binding upon the
Person or any of its property or to which the Person or any of its property
is subject.
"Responsible Officer" means, as to any Person, the chief executive
officer, the chief financial officer, or the treasurer or the president of
such Person, or any other officer having substantially the same authority
and responsibility; or, with respect to compliance with financial
covenants, the chief financial officer or the treasurer of such Person, or
any other officer having substantially the same authority and
responsibility.
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Termination Date" means the earlier to occur of:
(a) March 21, 2001 as the same may be extended from time to time
pursuant to Section 2.16; and
(b) the date on which the Commitments terminate in accordance
with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
12.
"Senior Managing Agents" means each of First Union National Bank,
Union Bank Of California, N.A., U.S. Bank National Association and Xxxxx
Fargo Bank, N.A in its capacity as a senior managing agent hereunder.
"Subsidiary" of a Person means any corporation or other business
entity of which more than 50% of the voting stock, membership interests or
other equity interests (in the case of Persons other than corporations), is
owned or controlled directly or indirectly by the Person, or one or more of
the Subsidiaries of the Person, or a combination thereof. Unless the
context otherwise clearly requires, references herein to a "Subsidiary"
refer to a Subsidiary of the Company.
"Surety Instruments" means all letters of credit (including standby
and commercial), banker's acceptances, bank guaranties, shipside bonds,
surety bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in writing,
relating to any transaction that is a rate swap, basis swap, forward rate
transaction, commodity swap, commodity option, equity or equity index swap
or option, bond, note or xxxx option, interest rate option, forward foreign
exchange transaction, cap, collar or floor transaction, currency swap,
cross-currency rate swap, swaption, currency option or any other, similar
transaction (including any option to enter into any of the foregoing) or
any combination of the foregoing, and, unless the context otherwise clearly
requires, any master agreement relating to or governing any or all of the
foregoing.
"Swap Termination Value" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or
after the date such Swap Contracts have been closed out and termination
value(s) determined in accordance therewith, such termination value(s), and
(b) for any date prior to the date referenced in clause (a) the amount(s)
determined as the xxxx-to-market value(s) for such Swap Contracts, as
determined by the Company based upon one or more mid- market or other
readily available quotations provided by any recognized dealer in such Swap
Contracts (which may include any Bank).
"Syndication Agent" means Wachovia Bank, N.A., in its capacity as
syndication agent hereunder.
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the case
of each Bank and the Agent, respectively, (a) income or franchise taxes
imposed on or measured by its net income, (i) by the United States, (ii) by
the jurisdiction under the laws of which such recipient is organized or in
which its principal office is located, (iii) by any jurisdiction solely as
a result of such Bank's activities in or contact with such jurisdiction
unrelated to the transactions contemplated by this Agreement, or (iv) by
the jurisdiction in which in the Lending Office of the recipient is
located, and (b) any branch profits taxes imposed by the United States or
any similar tax imposed by any other jurisdiction in which any recipient is
located.
13.
"Term Loan" has the meaning specified in Section 2.01.
"Term Maturity Date" means the one year anniversary date of the
borrowing date of the Term Loans.
"Type" means, as to any Committed Loan, its nature as an Offshore Rate
Committed Loan or a Base Rate Committed Loan.
"Unfunded Liability" means with respect to any Plan at any time, the
amount (if any) by which (i) the present value of all benefits under such
Plan exceeds (ii) the fair market value of all Plan assets allocable to
such benefits (excluding any accrued but unpaid contributions), all
determined as of the then most recent valuation date for such Plan, but
only to the extent that such excess represents a potential liability of a
member of the ERISA Group to the PBGC or any other Person under Title IV of
ERISA.
"United States" and "U.S." each means the United States of America.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership interests
of which (except directors' qualifying shares) are at the time directly or
indirectly owned by the Company.
1.02 Other Interpretive Provisions.(a) (a) The meanings of defined
terms are equally applicable to the singular and plural forms of the
defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates, indentures, notices and other
writings, however evidenced.
(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding", and the word
"through" means "to and including."
(iv) The term "property" includes any kind of property or asset,
real, personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments
shall be deemed to include all subsequent amendments and other
modifications thereto, but only to the extent such amendments and other
modifications are not prohibited by the terms of any Loan Document, and
(ii) references to any statute or regulation are to be construed as
14.
including all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters.
All such limitations, tests and measurements are cumulative and shall each
be performed in accordance with their terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among the Agent, the Company and the other parties, have been
reviewed by counsel to the Agent, the Company and such other parties, and
are the products of all parties. Accordingly, they shall not be construed
against the Banks or the Agent merely because of the Agent's or Banks'
involvement in their preparation.
1.03 Accounting Principles.(a) (a) Unless the context otherwise
clearly requires, all accounting terms not expressly defined herein shall
be construed, and all financial computations required under this Agreement
shall be made, in accordance with GAAP, applied on a basis consistent
(except for changes concurred in by the Company's Independent Auditor) with
the most recent audited consolidated financial statements of the Company
and its Consolidated Subsidiaries delivered to the Banks, except that
accounting terms used in Sections 7.01, 7.03 and 7.05 shall be interpreted,
and all accounting determinations and calculations required to establish
whether the Company is or was in compliance with the requirements of said
Sections shall be prepared in accordance with generally accepted accounting
principles as in effect on the date hereof, applied on a basis consistent
with the audited consolidated financial statements of the Company and its
Consolidated Subsidiaries referred to in Section 5.10(a).
(b) References herein to "fiscal year" and "fiscal quarter" refer to
such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments.
(a) The Revolving Credit. Each Bank severally agrees, on the terms and
conditions set forth herein, to make loans to the Company (each such loan,
a "Revolving Loan") from time to time on any Business Day during the period
from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth opposite
such Bank's name on Schedule 2.01 under the heading "Commitment" (such
amount as the same may be reduced under Section 2.07 or reduced or
increased as a result of one or more assignments under Section 10.08, such
Bank's "Commitment"); provided, however, that, after giving effect to any
Committed Borrowing of Revolving Loans, the aggregate principal amount of
all outstanding Committed Loans plus the aggregate principal amount of all
15.
Bid Loans outstanding, shall not at any time exceed the Aggregate
Commitment. Within the limits of each Bank's Commitment, and subject to the
other terms and conditions hereof, the Company may borrow under this
Section 2.01, prepay under Section 2.08 and reborrow under this Section
2.01.
(b) The Term Loan Option. Not less than five days and not more than
thirty days prior to the Revolving Termination Date then in effect, and in
lieu of any extension of the Revolving Termination Date under Section
2.16(a), the Company may provide written notice to the Agent, who shall
forward a copy of such notice to each of the Banks, that the Revolving
Loans outstanding as of the Revolving Termination Date shall be converted
into Term Loans. If such notice is given, each Bank severally agrees, on
the terms and conditions hereinafter set forth, to make a term loan (each a
"Term Loan" and, collectively, the "Term Loans") to the Company on the
Revolving Termination Date, in a principal amount up to but not exceeding
such Bank's outstanding Revolving Loans. Any amount of any Bank's Term Loan
repaid may not be reborrowed.
2.02 Loan Accounts.(a) (a) The Loans made by each Bank or Designated
Bidder shall be evidenced by one or more loan accounts or records
maintained by such Bank or Designated Bidder in the ordinary course of
business. The loan accounts or records maintained by the Agent and each
Bank or Designated Bidder shall be conclusive absent manifest error of the
amount of the Loans made by the Banks and Designated Bidders to the Company
and the interest and payments thereon. Any failure so to record or any
error in doing so shall not, however, limit or otherwise affect the
obligation of the Company hereunder to pay any amount owing with respect to
the Loans.
(b) The Committed Loans made by such Bank shall be evidenced by one or
more notes of the Company, substantially in the form of Exhibit I, with
appropriate insertions (the "Committed Loan Notes"), and upon the request
of any Bank or Designated Bidder made through the Agent, the Bid Loans made
by such Bank or Designated Bidder shall be evidenced by one or more notes
of the Company, substantially in the form of Exhibit J, with appropriate
insertions (the "Bid Loan Notes"), instead of or in addition to loan
accounts. Each such Bank or Designated Bidder shall endorse on the
schedules annexed to its Note(s) the date and amount of each Loan made by
it, the maturity (in the case of any Bid Loan) and the amount of each
payment of principal made by the Company with respect thereto. Each such
Bank and Designated Bidder is irrevocably authorized by the Company to
endorse its Note(s) and each Bank's or Designated Bidder's record shall be
conclusive absent manifest error; provided, however, that the failure of a
Bank or Designated Bidder to make, or an error in making, a notation
thereon with respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any such Note to such Bank or
Designated Bidder.
2.03 Procedure for Committed Borrowing.(a) (a) Each Committed
Borrowing shall be made upon the Company's irrevocable written notice
delivered to the Agent in the form of a Notice of Borrowing (which notice
must be received by the Agent prior to 11:00 a.m. (San Francisco time) (i)
at least three Business Days prior to the requested Borrowing Date, in the
case of Offshore Rate Committed Loans, and (ii) on the requested Borrowing
Date, in the case of Base Rate Committed Loans, specifying:
16.
(A) the amount of the Committed Borrowing, which shall be in a
Minimum Amount; (B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Committed Borrowing; and
(D) the duration of the Interest Period applicable to such
Committed Loans included in such notice (subject to the provisions of
the definition of "Interest Period" herein). If the Notice of
Borrowing fails to specify the duration of the Interest Period for any
Committed Borrowing comprised of Offshore Rate Committed Loans, such
Interest Period shall be three months.
(b) The Agent will promptly notify each Bank of its receipt of any
Notice of Borrowing and of the amount of such Bank's Pro Rata Share of that
Committed Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of each
Committed Borrowing available to the Agent for the account of the Company
at the Agent's Payment Office by 1:00 p.m. San Francisco time) on the
Borrowing Date requested by the Company in funds immediately available to
the Agent. The proceeds of each such Committed Borrowing will then be made
available to the Company by the Agent at such office by crediting the
account of the Company on the books of BofA with the aggregate of the
amounts made available to the Agent by the Banks and in like funds as
received by the Agent, or if requested by the Company, by wire transfer in
accordance with written instructions provided to the Agent by the Company
of such funds as received by the Agent, unless on the date of the Committed
Borrowing all or any portion of the proceeds thereof shall then be required
to be applied to the repayment of any outstanding Loans, in which case such
proceeds or portion thereof shall be applied to the payment of such Loans.
(d) After giving effect to any Committed Borrowing, unless the Agent
shall otherwise consent, there may not be more than fifteen different
Interest Periods in effect in respect of all Committed Loans then
outstanding.
2.04 Conversion and Continuation Elections for Committed
Borrowings.(a) (a) The Company may, upon irrevocable written notice to the
Agent in accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of Base Rate
Committed Loans, or as of the last day of the applicable Interest
Period in the case of any other Type of Committed Loans, to convert
into Committed Loans of any other Type any such Committed Loans (or
any part thereof in a Minimum Amount); or
17.
(ii) elect, as of the last day of the applicable Interest Period,
to continue any Offshore Rate Committed Loans having Interest Periods
expiring on such day (or any part thereof in a Minimum Amount);
provided, that if at any time the aggregate amount of Offshore Rate Committed
Loans in respect of any Committed Borrowing is reduced, by payment, prepayment,
or conversion of part thereof to be less than $5,000,000, such Offshore Rate
Committed Loans shall automatically convert into Base Rate Committed Loans, and
on and after such date the right of the Company to continue such Committed Loans
as, and convert such Committed Loans into, Offshore Rate Committed Loans shall
terminate.
(b) The Company shall deliver a Notice of Conversion/Continuation to
be received by the Agent not later than 11:00 a.m. (San Francisco time) (i)
at least three Business Days in advance of the Conversion/ Continuation
Date, if the Committed Loans are to be converted into or continued as
Offshore Rate Committed Loans, and (ii) on the Conversion/Continuation
Date, if the Committed Loans are to be converted into Base Rate Committed
Loans, specifying:
(A) the proposed Conversion/Continuation Date;
(B) the aggregate amount of Committed Loans to be converted
or continued;
(C) the Type of Committed Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base Rate
Committed Loans, the duration of the requested Interest Period
(subject to the provisions of the definition of "Interest Period"
herein).
(c) If upon the expiration of any Interest Period applicable to
Offshore Rate Committed Loans, the Company has failed to select timely a
new Interest Period to be applicable to such Offshore Rate Committed Loans,
or if any Default or Event of Default then exists, the Company shall be
deemed to have elected to convert such Offshore Rate Committed Loans into
Base Rate Committed Loans effective as of the expiration date of such
Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of a
Notice of Conversion/Continuation, or, if no timely notice is provided by
the Company, the Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made
ratably according to the respective outstanding principal amounts of the
Committed Loans held by each Bank with respect to which the notice was
given.
(e) Unless the Majority Banks otherwise consent, during the existence
of a Default or Event of Default, the Company may not elect to have a
Committed Loan converted into or continued as an Offshore Rate Committed
Loan.
18.
(f) After giving effect to any conversion or continuation of Committed
Loans, unless the Agent shall otherwise consent, there may not be more than
fifteen different Interest Periods in effect in respect of all Committed
Loans and Bid Loans together then outstanding.
2.05 Bid Borrowings. In addition to Committed Borrowings pursuant to
Section 2.03, each Bid Loan Bank severally agrees that the Company may, as
set forth in Section 2.06, from time to time request the Bid Loan Banks
prior to the Revolving Termination Date to submit offers to make Bid Loans
to the Company; provided, however, that the Bid Loan Banks may, but shall
have no obligation to, submit such offers and the Company may, but shall
have no obligation to, accept any such offers, and any Bid Loan Bank may
designate Designated Bidders to make such offers from time to time and, if
such offers are accepted by the Company, to make such Bid Loans; and
provided, further, that at no time shall (a) the outstanding aggregate
principal amount of all Bid Loans made by all Bid Loan Banks and Designated
Bidders, plus the outstanding aggregate principal amount of all Committed
Loans made by all Banks, exceed the Aggregate Commitment; or (b) unless the
Agent shall otherwise consent, the number of Interest Periods for Bid Loans
then outstanding, plus the number of Interest Periods for Committed Loans
then outstanding, exceed fifteen.
2.06 Procedure for Bid Borrowings.(a) (a) When the Company wishes to
request the Bid Loan Banks to submit offers to make Bid Loans hereunder, it
shall transmit to the Agent by telephone call followed promptly by
facsimile transmission a notice in substantially the form of Exhibit G (a
"Competitive Bid Request") so as to be received no later than 8:00 a.m.
(San Francisco time) one Business Day prior to the date of a proposed Bid
Borrowing, specifying:
(i) the date of such Bid Borrowing, which shall be a Business
Day;
(ii) the aggregate amount of such Bid Borrowing, which shall be a
minimum amount of $5,000,000 or in integral multiples of $1,000,000 in
excess thereof; and
(iii) the duration of the Interest Period applicable thereto,
subject to the provisions of the definition of "Interest Period"
herein.
Subject to subsection 2.06(c), the Company may not request Competitive Bids for
more than three Interest Periods in a single Competitive Bid Request and may not
request Competitive Bids more than once in any period of five Business Days.
(b) Upon receipt of a Competitive Bid Request, the Agent will promptly
send to the Bid Loan Banks and Designated Bidders by facsimile transmission
an Invitation for Competitive Bids, which shall constitute an invitation by
the Company to each Bid Loan Bank and Designated Bidder to submit
Competitive Bids offering to make the Bid Loans to which such Competitive
Bid Request relates in accordance with this Section 2.06.
(c)(i) Each Bid Loan Bank and Designated Bidder may at its discretion
submit a Competitive Bid containing an offer or offers to make Bid Loans in
response to any Invitation for Competitive Bids. Each Competitive Bid shall
comply with the requirements of this subsection 2.06(c) and shall be
submitted to the Agent by facsimile transmission at the Agent's office for
19.
notices set forth on Schedule 10.02 not later than 7:30 a.m. (San Francisco
time) on the proposed Borrowing Date; provided that Competitive Bids
submitted by the Agent (or any Affiliate of the Agent) in the capacity of a
Bid Loan Bank or Designated Bidder may be submitted, and may only be
submitted, if the Agent or such Affiliate notifies the Company of the terms
of the offer or offers contained therein not later than 7:15 a.m. (San
Francisco time) on the proposed Borrowing Date.
(ii) Each Competitive Bid shall be in substantially the form
of Exhibit H, specifying therein:
(A) the proposed Borrowing Date;
(B) the principal amount of each Bid Loan for which such
Competitive Bid is being made, which principal amount (1) may be
equal to, greater than or less than the Commitment of the quoting
Bid Loan Bank or the quoting Designated Bidder's affiliated Bid
Loan Bank, (2) shall be $5,000,000 or in integral multiples of
$1,000,000 in excess thereof, and (3) may not exceed the
principal amount of Bid Loans for which Competitive Bids were
requested;
(C) the rate of interest per annum expressed in multiples of
1/1000th of one basis point (the "Absolute Rate") offered for
each such Bid Loan and the Interest Period applicable thereto;
and
(D) the identity of the quoting Bid Loan Bank or Designated
Bidder.
A Competitive Bid may contain up to three separate offers by the quoting Bid
Loan Bank or Designated Bidder with respect to each Interest Period specified in
the related Invitation for Competitive Bids.
(iii) Any Competitive Bid shall be disregarded if it:
(A) is not substantially in conformity with Exhibit H or does not
specify all of the information required by subsection (c)(ii) of this
Section;
(B) contains qualifying, conditional or similar language;
(C) proposes terms other than or in addition to those set forth
in the applicable Invitation for Competitive Bids; or
(D) arrives after the time set forth in subsection (c)(i).
(iv) Notwithstanding anything to the contrary contained in this
subsection 2.06(c), a Competitive Bid by BofA may contain, and will not be
disregarded if it does contain, a restriction on the use of proceeds
thereof.
20.
(d) Promptly on receipt and not later than 8:00 a.m. (San Francisco
time) on the proposed Borrowing Date, the Agent will notify the Company of
the terms (i) of any Competitive Bid submitted by a Bid Loan Bank or
Designated Bidder that is in accordance with subsection 2.06(c), and (ii)
of any Competitive Bid that amends, modifies or is otherwise inconsistent
with a previous Competitive Bid submitted by such Bid Loan Bank or
Designated Bidder with respect to the same Competitive Bid Request. Any
such subsequent Competitive Bid shall be disregarded by the Agent unless
such subsequent Competitive Bid is submitted solely to correct a manifest
error in such former Competitive Bid and only if received within the times
set forth in subsection 2.06(c). The Agent's notice to the Company shall
specify (1) the aggregate principal amount of Bid Loans for which offers
have been received for each Interest Period specified in the related
Competitive Bid Request; and (2) the respective principal amounts and
Absolute Rates so offered. Subject only to the provisions of Sections 3.02,
3.05 and 4.02 hereof and the provisions of this subsection (d), any
Competitive Bid shall be irrevocable except with the written consent of the
Agent given on the written instructions of the Company.
(e) Not later than 8:30 a.m. (San Francisco time) on the proposed
Borrowing Date, in the case of an Absolute Rate Auction, the Company shall
notify the Agent of its acceptance or non-acceptance of the offers so
notified to it pursuant to subsection 2.06(d). The Company shall be under
no obligation to accept any offer and may choose to reject all offers. In
the case of acceptance, such notice shall specify the aggregate principal
amount of offers for each Interest Period that is accepted. The Company may
accept any Competitive Bid in whole or in part; provided that:
(i) the aggregate principal amount of each Bid Borrowing may
not exceed the applicable amount set forth in the related
Competitive Bid Request;
(ii) the principal amount of each Bid Borrowing shall be
$5,000,000 or in any integral multiple of $1,000,000 in excess
thereof;
(iii) acceptance of offers may only be made on the basis of
ascending Absolute Rates within each Interest Period; and
(iv) the Company may not accept any offer that is described
in subsection 2.06(c)(iii) or that otherwise fails to comply with
the requirements of this Agreement.
(f) If offers are made by two or more Bid Loan Banks or Designated
Bidders with the same Absolute Rates for a greater aggregate principal
amount than the amount in respect of which such 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 Agent among such
Bid Loan Banks or Designated Bidders as nearly as possible (in such
multiples, not less than $1,000,000, as the Agent may deem appropriate) in
proportion to the aggregate principal amounts of such offers. Determination
by the Agent of the amounts of Bid Loans shall be conclusive in the absence
of manifest error.
21.
(g)(i) The Agent will promptly notify each Bid Loan Bank or Designated
Bidder having submitted a Competitive Bid if its offer has been accepted
and, if its offer has been accepted, of the amount of the Bid Loan or Bid
Loans to be made by it on the Borrowing Date.
(ii) Each Bid Loan Bank or Designated Bidder which has received notice
pursuant to subsection 2.06(g)(i) that its Competitive Bid has been
accepted shall make the amounts of such Bid Loans available to the Agent
for the account of the Company at the Agent's Payment Office, by 11:00 a.m.
(San Francisco time), on such Borrowing Date, in funds immediately
available to the Agent for the account of the Company at the Agent's
Payment Office. The proceeds of such Bid Loans will in each case then be
made available to the Company by the Agent at such office by crediting the
account of the Company on the books of BofA with the aggregate of the
amounts made available to the Agent by the Bid Loan Banks and in like funds
as received by the Agent.
(iii) Promptly following each Bid Borrowing, the Agent will notify
each Bank and Designated Bidder of the ranges of bids submitted and the
highest and lowest Bids accepted for each Interest Period requested by the
Company and the aggregate amount borrowed pursuant to such Bid Borrowing.
(iv) From time to time, the Company and the Bid Loan Banks and
Designated Bidders shall furnish such information to the Agent as the Agent
may request relating to the making of Bid Loans, including the amounts,
interest rates, dates of borrowings and maturities thereof, for purposes of
the allocation of amounts received from the Company for payment of all
amounts owing hereunder.
(h) Nothing in this Section 2.06 shall be construed as a right of
first offer in favor of the Bid Loan Banks or Designated Bidders or
otherwise to limit the ability of the Company to request and accept credit
facilities from any Person (including any of the Bid Loan Banks or
Designated Bidders), provided that no Default or Event of Default would
otherwise arise or exist as a result of the Company executing, delivering
or performing under such credit facilities.
2.07 Voluntary Termination or Reduction of Commitments. The Company
may, upon not less than three Business Days' prior notice to the Agent,
terminate the Commitments, or permanently reduce the Commitments, provided
that the aggregate amount of any partial reduction is in a Minimum Amount;
unless, after giving effect thereto and to any prepayments of any Loans
made on the effective date thereof, the then outstanding principal amount
of the Loans would exceed the amount of the Aggregate Commitment then in
effect. A notice of termination of the Commitments delivered by the Company
may state that such notice is conditioned upon the effectiveness of other
credit facilities, in which case such notice may be revoked by the Company
by notice to the Agent on or prior to the specified date if such condition
is not satisfied. Once reduced in accordance with this Section 2.07, the
Commitments may not be increased. Any reduction of the Commitments shall be
applied to each Bank according to its Pro Rata Share. All accrued
commitment fees to, but not including, the effective date of any reduction
22.
or termination of the Commitments, shall be paid on the effective date of
such reduction or termination.
2.08 Optional Prepayments. (a) Committed Loans. Subject to Section
3.04, the Company may, at any time or from time to time, upon notice to the
Agent, ratably prepay Committed Loans in whole or in part, in Minimum
Amounts. The Company shall deliver a notice of prepayment in accordance
with Section 10.02 to be received by the Agent not later than 10:00 a.m.
(San Francisco time) (i) at least three Business Days in advance of the
prepayment date if the Loans to be prepaid are Offshore Rate Committed
Loans and (ii) at least one Business Day in advance of the prepayment date
if the Loans to be prepaid are Base Rate Committed Loans. Such notice shall
not thereafter be revocable by the Company and the Agent will promptly
notify each Bank thereof and of such Bank's Pro Rata Share of such
prepayment if any. Such notice of prepayment shall specify the date and
amount of such prepayment and the Type(s) of Loans to be prepaid and
whether such prepayment is of Base Rate Committed Loans or Offshore Rate
Committed Loans (or any combination thereof). If such notice is given by
the Company, the Company shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date specified
therein, together with accrued interest to each such date on the amount of
Offshore Rate Committed Loans prepaid and any amounts required pursuant to
Section 3.04.
(b) Bid Loans. Bid Loans may not be voluntarily prepaid.
2.09 Repayment.
(a) The Committed Loans. The Company shall repay to the Agent for the
account of the Banks on the Revolving Termination Date the aggregate
principal amount of Committed Loans outstanding on such date.
(b) The Term Loans. The Company shall repay to the Agent for the
account of the Banks on the Term Maturity Date the aggregate principal
amount of the Term Loans outstanding on the Term Maturity Date.
(c) The Bid Loans. The Company shall repay to the Agent for the
account of each Bid Loan Bank or Designated Bidder, as the case may be,
that makes any Bid Loan the principal amount of such Bid Loan on the last
day of the relevant Interest Period for such Bid Loan.
2.10 Interest.(a) (a) Each Committed Loan shall bear interest on the
outstanding principal amount thereof from the applicable Borrowing Date at
a rate per annum equal to the Offshore Rate or the Base Rate, as the case
may be (and subject to the Company's right to convert to other Types of
Loans under Section 2.04), plus the Applicable Margin. Each Bid Loan shall
bear interest on the outstanding principal amount thereof from the relevant
Borrowing Date at a rate per annum equal to the Absolute Rate.
(b) Interest on each Loan shall be paid in arrears on each Interest
Payment Date. Interest shall also be paid on the date of any prepayment of
Committed Loans under Section 2.08 for the portion of the Loans so prepaid
and upon payment (including prepayment) in full thereof.
23.
(c) Notwithstanding subsection (a) of this Section, if any amount of
principal of or interest on any Loan, or any other amount payable hereunder
or under any other Loan Document is not paid in full when due (whether at
stated maturity, by acceleration, demand or otherwise), the Company agrees
to pay interest on such unpaid principal or other amount, from the date
such amount becomes due until the date such amount is paid in full, and
after as well as before any entry of judgment thereon to the extent
permitted by law, payable on demand, at a rate per annum which is
determined by adding 1% per annum to the Applicable Margin then in effect
for such Loans and, in the case of Obligations not subject to an Applicable
Margin, at a rate per annum equal to the Base Rate, plus the Applicable
Margin then in effect for Base Rate Committed Loans, plus 1% per annum.
(d) Anything herein to the contrary notwithstanding, the obligations
of the Company to any Bank or Designated Bidder hereunder shall be subject
to the limitation that payments of interest shall not be required for any
period for which interest is computed hereunder, to the extent (but only to
the extent) that contracting for or receiving such payment by such Bank or
Designated Bidder would be contrary to the provisions of any law applicable
to such Bank or Designated Bidder limiting the highest rate of interest
that may be lawfully contracted for, charged or received by such Bank or
Designated Bidder, and in such event the Company shall pay such Bank or
Designated Bidder interest at the highest rate permitted by applicable law.
2.11 Fees. (a) Arrangement and Agency Fees. The Company shall pay fees
as required by the letter agreement (the "Fee Letter") between the Company
and the Lead Arranger and Agent dated February 29, 2000.
(b) Competitive Bid Fee. The Company shall pay to the Agent, for the
Agent's own account, a competitive bid fee in the amount set forth in the
Fee Letter, each time the Company requests the Bid Loan Banks to submit
offers to make Bid Loans.
(c) Facility Fee. The Company shall pay to the Agent for the account
of each Bank a facility fee on such Bank's Commitment, regardless of usage,
computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter at a rate per annum equal to the Applicable Fee Amount.
Such facility fee shall accrue from the Closing Date to the Revolving
Termination Date and shall be due and payable quarterly in arrears on the
last Business Day of each quarter following the Closing Date through the
Revolving Termination Date, with the final payment to be made on the
Revolving Termination Date; provided that, in connection with any reduction
or termination of Commitments under Section 2.07, the accrued facility fee
calculated for the period ending on such date shall also be paid on the
date of such reduction or termination, with the following quarterly payment
being calculated on the basis of the period from such reduction or
termination date to such quarterly payment date. The facility fee provided
in this subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more
conditions in Article IV are not met.
(a) Utilization Fee. The Company shall pay to the Agent for the
account of each Bank a utilization fee on the outstanding Loans (including
all Bid Loans) at any time that the aggregate outstanding Loans exceed the
levels of the Aggregate Commitment determined in accordance with Annex I,
at a rate per annum equal to the Applicable Fee Amount. Such utilization
24.
fee shall be computed on a quarterly basis in arrears on the last Business
Day of each calendar quarter, shall accrue from the Closing Date to the
Revolving Termination Date and shall be payable in arrears on the last
Business Day of each quarter commencing on the last Business Day of the
fiscal quarter following the Closing Date through the Revolving Termination
Date, with the final payment to be made on the Revolving Termination Date.
The utilization fee, if applicable, will be added to the Applicable Margin.
2.12 Computation of Fees and Interest. (a) (a) All computations of
interest hereunder when the Base Rate is determined by BofA's "prime rate"
shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest
shall be made on the basis of a 360-day year and actual days elapsed (which
results in more interest being paid than if computed on the basis of a
365-day year). Interest and fees shall accrue during each period during
which interest or such fees are computed from the first day thereof to the
last day thereof.
(b) Each determination of an interest rate by the Agent shall be
conclusive and binding on the Company, the Banks and the Designated Bidders
in the absence of manifest error.
(c) The Agent will, at the request of the Company or any Bank or
designated Bidder, deliver to the Company or such Bank or Designated
Bidder, as the case may be, a statement showing the quotations used by the
Agent in determining any interest rate.
(d) If any Reference Bank's Commitment terminates (other than on
termination of all the Commitments), or for any reason whatsoever any
Reference Bank ceases to be a Bank hereunder, that Reference Bank shall
thereupon cease to be a Reference Bank, and the Offshore Rate shall be
determined on the basis of the rates as notified by the remaining Reference
Banks; provided that if, as a result, there shall only be one Reference
Bank remaining, the Agent (after consultation with the Banks and with the
consent of the Company (which shall not be unreasonably withheld)) shall,
by notice to the Company and the Banks, designate another Bank as a
Reference Bank so that there shall at all times be at least two Reference
Banks.
(e) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any of the
Reference Banks fails to supply such rates to the Agent upon its request,
the rate of interest shall be determined on the basis of the quotations of
the remaining Reference Bank(s).
2.13 Payments by the Company(a) . (a) Except as otherwise expressly
provided herein, all payments by the Company shall be made to the Agent for
the account of the Banks and Designated Bidders at the Agent's Payment
Office, and shall be made from an account of the Company maintained within
the United States, in Dollars, and in immediately available funds, no later
than 12:00 noon (San Francisco time) on the date specified herein. The
Agent will promptly distribute to each Bank (or Designated Bidder) its Pro
Rata Share (or other applicable share as expressly provided herein) of such
payment in like funds as received. Any payment received by the Agent later
than 12:00 noon (San Francisco time) shall be deemed to have been received
on the following Business Day and any applicable interest or fee shall
continue to accrue.
25.
(b) Subject to the provisions set forth in the definition of "Interest
Period" herein, whenever any payment is due on a day other than a Business
Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of
interest or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to the
date on which any payment is due to the Banks or Designated Bidders that
the Company will not make such payment in full as and when required, the
Agent may assume that the Company has made such payment in full to the
Agent on such date in immediately available funds and the Agent may (but
shall not be so required), in reliance upon such assumption, distribute to
each Bank or Designated Bidder on such due date an amount equal to the
amount then due such Bank or Designated Bidder. If and to the extent the
Company has not made such payment in full to the Agent, each Bank or
Designated Bidder shall repay to the Agent on demand such amount
distributed to such Bank or Designated Bidder, together with interest
thereon at the Federal Funds Rate for each day from the date such amount is
distributed to such Bank or Designated Bidder until the date repaid.
2.14 Payments by the Banks to the Agent. (a) Unless the Agent receives
notice from a Bank or Designated Bidder, as the case may be, on or prior to
the Closing Date or, with respect to any Borrowing after the Closing Date,
on the date of such Borrowing, that such Bank or Designated Bidder will not
make available as and when required hereunder to the Agent for the account
of the Company the amount of that Bank's or Designated Bidder's Loan, the
Agent may assume that such Bank or Designated Bidder has made such amount
available to the Agent in immediately available funds on the Borrowing Date
and the Agent may (but shall not be so required), in reliance upon such
assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Bank or Designated Bidder shall not have
made its full amount available to the Agent in immediately available funds
and the Agent in such circumstances has made available to the Company such
amount, that Bank or Designated Bidder shall on the Business Day following
such Borrowing Date make such amount available to the Agent, together with
interest at the Federal Funds Rate for each day during such period. A
notice of the Agent submitted to any Bank or Designated Bidder with respect
to amounts owing under this subsection (a) shall be conclusive, absent
manifest error. If such amount is so made available, such payment to the
Agent shall constitute such Bank's or Designated Bidder's Loan on the
Borrowing Date for all purposes of this Agreement. If such amount is not
made available to the Agent on the Business Day following the Borrowing
Date, the Agent will notify the Company of such failure to fund and, upon
demand by the Agent, the Company shall pay such amount to the Agent for the
Agent's account, together with interest thereon for each day elapsed since
the date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(a) The failure of any Bank or Designated Bidder to make any Loan on
any Borrowing Date shall not relieve any other Bank or Designated Bidder of
any obligation hereunder to make a Loan on such Borrowing Date, but no Bank
or Designated Bidder shall be responsible for the failure of any other Bank
or Designated Bidder to make the Loan to be made by such other Bank or
Designated Bidder on any Borrowing Date.
26.
2.15 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank or Designated Bidder shall obtain on account of
the Loans made by it any payment (whether voluntary, involuntary, through
the exercise of any right of set-off, or otherwise) in excess of its Pro
Rata Share (or other share contemplated hereunder) of (i) payments in
respect of the Committed Loans obtained by all the Banks, or (ii) payments
in respect of Bid Loans having the same Borrowing Date, Interest Payment
Date and maturity date, such Bank or Designated Bidder shall immediately
(a) notify the Agent of such fact, and (b) purchase from the other Banks
and, if applicable, Designated Bidders, such participations in the
Committed Loans or Bid Loans, as applicable, made by them as shall be
necessary to cause such purchasing Bank or Designated Bidder to share the
excess payment pro rata with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from the
purchasing Bank or Designated Bidder, such purchase shall to that extent be
rescinded and each other Bank or Designated Bidder shall repay to the
purchasing Bank or Designated Bidder the purchase price paid therefor,
together with an amount equal to such paying Bank's or Designated Bidder's
ratable share (according to the proportion of (i) the amount of such paying
Bank's or Designated Bidder's required repayment to (ii) the total amount
so recovered from the purchasing Bank or Designated Bidder) of any interest
or other amount paid or payable by the purchasing Bank or Designated Bidder
in respect of the total amount so recovered. The Company agrees that any
Bank or Designated Bidder so purchasing a participation from another Bank
or Designated Bidder may, to the fullest extent permitted by law, exercise
all its rights of payment (including the right of set-off, but subject to
Section 10.11) with respect to such participation as fully as if such Bank
or Designated Bidder were the direct creditor of the Company in the amount
of such participation. The Agent will keep records (which shall be
conclusive and binding in the absence of manifest error) of participations
purchased under this Section 2.16 and will in each case notify the Banks
and, if applicable, Designated Bidders, following any such purchases or
repayments.
2.16 Revolving Termination Date Extensions.
(a) Not less than 30 days and not more than 60 days prior to the
Revolving Termination Date then in effect, and in lieu of the exercise at
such time of the term out option under Section 2.01(b), the Company may
make a written request to the Agent, who shall forward a copy of each such
request to each of the Banks, that the Revolving Termination Date then in
effect be extended to the date which occurs 364 days after the Revolving
Termination Date then in effect. Each request by the Company pursuant to
the immediately preceding sentence shall specify a date (the "Requested
Extension Effective Date"), which shall be not earlier than 20 days after
the giving of the respective notice and not later than 15 days prior to the
Revolving Termination Date then in effect, as the date by which the Banks
should respond to the requested extension request and which would be the
date of the effectiveness of the change to the Revolving Termination Date.
Each request pursuant to the first sentence of this Section 2.16 shall also
be accompanied by a certificate of an officer of the Company stating that
no Default or Event of Default has occurred and is continuing. Each Bank,
acting in its sole discretion and with no obligation to grant any extension
pursuant to this Section 2.16, shall, by written notice to the Company and
the Agent, such notice to be given on or prior to the Requested Extension
Effective Date, advise the Company and the Agent whether or not such Bank
agrees to such extension, provided that any Bank which fails to so notify
the Company and the Agent as provided above shall be deemed to have elected
not to grant such extension. If less than all the Banks shall agree to such
extension, the extension contemplated in this Section may nonetheless occur
27.
with respect to the consenting Banks, provided that any such extension
shall be conditioned upon an agreement to such extension by Banks with at
least 75% of the Aggregate Commitment. The Agent shall notify the Company
and each of the Banks as to which Banks have agreed to such extension and
as to the new Revolving Termination Date as a result thereof, or that such
extension shall not occur, as the case may be.
(b) In the event that the Revolving Termination Date is extended by
some but not all of the Banks, on the existing Revolving Termination Date
for any Bank not extending (each a "Non-Continuing Bank"), the Company
shall either (i) repay all Revolving Loans of such Non-Continuing Bank,
together with all accrued and unpaid interest thereon, and all fees and
other amounts owing to such Non-Continuing Bank, and upon such payment each
such Non-Continuing Bank shall cease to constitute a Bank hereunder, except
with respect to the indemnification provisions under this Agreement, which
shall survive as to such Non-Continuing Bank or (ii) in lieu of an
extension of the Revolving Loan Termination Date under this Section 2.16,
elect to convert the outstanding Revolving Loans into Term Loans pursuant
to Section 2.01(b).
2.17 Optional Increase in Commitments.(a) (a) Effective as of the
Closing Date, or at any time thereafter (prior to the Revolving Termination
Date) but no more than once per month, if no Default or Event of Default
has occurred and is continuing both before and after giving effect to an
increase, the Company shall have the option to increase the Aggregate
Commitment by (i) increasing the Commitment of one or more Banks already
party to this Agreement (each such Bank increasing its Commitment, an
"Increasing Bank"), in each case pursuant to a Commitment Increase
Agreement, in substantially the form of Exhibit L (a "Commitment Increase
Agreement") and/or (ii) adding one or more lending institutions not a party
hereto (each such new bank, a "New Bank") as a party to this Agreement, in
each case pursuant to a New Bank Agreement, in substantially the form of
Exhibit M (a "New Bank Agreement"). The effectiveness of any such increase
is subject to the satisfaction of the following conditions:
(A) that any request for increase of the Commitment of an Increasing
Bank be made through the Agent (it being understood that an Increasing Bank
may accept or reject any increase request in its sole and absolute
discretion);
(B) that the Company shall provide prior written notice of any
proposed increase (whether involving an Increasing Bank or a New Bank) to
the Agent, at least 15 Business Days (or such shorter period as the Agent
may agree to in the given instance) prior to the effectiveness of such
increase, who shall promptly notify the Banks;
(C) in the case of a Commitment increase by an Increasing Bank, that
the Company and such Increasing Bank shall have entered into a Commitment
Increase Agreement, and such Commitment Increase Agreement shall have been
delivered to the Agent;
(D) in the case of an accession hereto by a New Bank, that the Company
and such New Bank shall have entered into a New Bank Agreement, and such
New Bank Agreement shall have been delivered to the Agent;
28.
(E) that the Agent shall have acknowledged and accepted the Commitment
Increase Agreement or New Bank Agreement, as the case may be (such
acknowledgment and acceptance not to be unreasonably withheld);
(F) that each New Bank shall be an Eligible Assignee;
(G) that the Aggregate Commitment, following such increase, shall not
exceed $1,250,000,000;
(H) that any fees payable to any Increasing Bank or New Bank in
connection with such increase shall have been paid; and
(I) that any other amounts then due hereunder in connection therewith,
including any amounts payable under Section 3.04 as a result of any
assignments of Offshore Rate Committed Loans under subsection 2.16(b) on a
day other than the last day of an Interest Period, shall have been paid.
(b) Upon the effectiveness of any Commitment Increase Agreement, the
Commitment of the Increasing Bank party thereto shall be increased in the
amount set forth in the Commitment Increase Agreement, and upon the
effectiveness of any New Bank Agreement, the New Bank party thereto shall
be and become a party hereto and shall constitute a Bank hereunder with the
rights and obligations of a Bank under the Loan Documents (each such date
of effectiveness, an "Increased Commitment Date"). Effective on each
Increased Commitment Date, the amount of Loans then outstanding and held by
each Bank shall be adjusted to reflect any such changes in such Bank's Pro
Rata Share, subject to Section 3.04. Each Bank having Loans then
outstanding and whose Pro Rata Share has been decreased as a result of the
increase in the Aggregate Commitment shall be deemed to have assigned,
without recourse, to any Increasing Banks increasing their Commitments and
New Banks, such portion of such Loans as shall be necessary to effectuate
such adjustment. Each Increasing Bank and New Bank shall (A) be deemed to
have assumed such portion of such Loans and (B) fund on the Increased
Commitment Date such assumed amounts to the Agent for the account of the
assigning Banks in accordance with the provisions hereof.
(c) The Agent shall promptly notify the Banks of the Agent's receipt
of notice of any proposed Commitment increase under clause (B) of
subsection 2.17(a). Additionally, promptly following the Increased
Commitment Date for a Commitment increase the Agent shall cause Schedule
2.01 to be modified to accurately reflect the Commitments and Pro Rata
Shares of the Banks, whereupon such amended Schedule 2.01 shall be
substituted for the pre-existing Schedule 2.01, be deemed a part of this
Agreement without any further action or consent of any party and be
promptly distributed to each Bank and the Company by the Agent. Within five
Business Days of any Increased Commitment Date (whether as to an Increasing
Bank or a New Bank), the Company shall execute and deliver to the Agent (i)
a replacement Committed Loan Note in favor of each Increasing Bank,
29.
evidencing the increased Commitment of such Increasing Bank, and (ii) a new
Committed Loan Note in favor of each New Bank, in the principal amount of
such New Bank's Commitment. Additionally, the Agent shall promptly notify
each Increasing Bank and New Bank of the amount of its funding obligations
under subsection 2.17(b).
(d) Any fees paid by the Company for any such increase shall not be
required to be ratable and shall be paid only to Increasing Banks, or New
Banks, as the case may be, as shall be separately agreed from time to time
by the Company and any such Increasing Bank or New Bank.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.(a) (a) Unless otherwise required by applicable law, any
and all payments by the Company to each Bank, each Designated Bidder, or
the Agent under this Agreement and any other Loan Document shall be made
free and clear of, and without deduction or withholding for, any Taxes.
(b) If the Company shall be required by law to deduct or withhold any
United States federal Taxes from or in respect of any sum payable hereunder
to any Bank, any Designated Bidder or the Agent, and subject to Section
9.10, then:
(i) the sum payable shall be increased as necessary so that, after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section),
such Bank, such Designated Bidder or the Agent, as the case may be,
receives and retains an amount equal to the sum it would have received and
retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and withholdings; and
(iii) the Company shall pay the full amount deducted or withheld to
the relevant taxing authority in accordance with applicable law.
(c) In addition, the Company shall pay any Other Taxes.
(d) The Company agrees to indemnify and hold harmless each Bank, each
Designated Bidder and the Agent for the full amount of Other Taxes, and,
subject to Section 9.10, Taxes referred to in Subsection 3.01(b). Without
limiting the generality of the foregoing, if the Company fails to pay any
Other Taxes or any such Taxes when due to the appropriate taxing authority
or fails to remit to the Banks and the Agent the required documentary
evidence referred to in Subsection 3.01(c) and the Company received from
the Agent or the affected Bank prior notice of its obligation to make the
payment of Other Taxes or such Taxes, the Company agrees to indemnify and
hold harmless each Bank and the Agent for any incremental taxes, interest
30.
or penalties that may become payable by any Bank or the Agent as a result
of any such failure. Payment pursuant to this indemnification shall be made
within 30 days after the date such Bank or the Agent makes written demand
therefor setting forth in reasonable detail the basis of the Company's
obligation to indemnify such Bank or the Agent pursuant to this Section
3.01.
(e) Within 60 days after the date of any payment of any Taxes or Other
Taxes pursuant to Subsection 3.01(a), (b) or (c), the Company shall furnish
to each Bank, each Designated Bidder and the Agent, at its address referred
to in Section 10.02, documentary evidence reasonably satisfactory to each
Bank, each Designated Bidder and the Agent of payment thereof, but only to
the extent such documentary evidence is furnished to the Company by the
relevant taxing authority.
(f) If the Company is required to pay any additional amount to the
Agent, any Designated Bidder or any Bank or any taxing authority for the
account of the Agent, any Designated Bidder or any Bank pursuant to this
Section 3.01, the Company shall have the right, upon notice to such Bank or
such Designated Bidder, to (i) prepay, on a non-pro rata basis, the
principal amount or any portion thereof held by such Bank or such
Designated Bidder plus all interest, fees, and other amounts owing to such
Bank or such Designated Bidder as of the date of such prepayment (including
any amounts owing under Section 3.04), or (ii) require such Bank or such
Designated Bidder to use reasonable efforts to designate a different
Lending Office for funding or booking its Loan (or any Loan participation)
hereunder or to assign its rights and obligations hereunder to another of
its offices, branches or Affiliates, if, in the sole judgment of such Bank,
such designation or assignment (A) would eliminate or reduce amounts
payable pursuant to Subsection 3.01(b) in the future and (B) would not
subject such Bank or such Designated Bidder to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Bank or such
Designated Bidder. With respect to the foregoing clause (ii) the Company
hereby agrees to pay all reasonable costs and expenses incurred by any Bank
or any Designated Bidder in connection with any such designation or
assignment.
(g) Each Bank and each Designated Bidder agrees that it will (i) take
all reasonable actions requested in writing by the Company that are without
material cost or risk to such Bank to maintain all exemptions, if any,
available to it from withholding taxes (whether available by treaty or
existing administrative waiver), and (ii) to the extent reasonable and
without material cost or risk to it, otherwise cooperate with the Company
to minimize any amounts payable by the Company under this Section 3.01.
(h) Each non-United States Bank and each non-United States Designated
Bidder represents and warrants to the Agent and the Company as of the date
hereof that under applicable law and treaties such Bank or such Designated
Bidder is entitled to claim the benefit of complete exemption from
imposition of United States withholding tax or that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a
trade or business in the United States.
3.02 Illegality.(a) If any Bank determines that the introduction of
any Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has
asserted that it is unlawful, for any Bank or its applicable Lending Office
31.
to make Offshore Rate Committed Loans, then, on notice thereof by such Bank
to the Company through the Agent, any obligation of that Bank to make
Offshore Rate Committed Loans or convert Base Rate Committed Loans into
Offshore Rate Committed Loans shall be suspended until such Bank notifies
the Agent and the Company that the circumstances giving rise to such
determination no longer exist.
(b) If a Bank determines that it is unlawful for such Bank to maintain
any Offshore Rate Committed Loan, the Company shall, upon its receipt of
notice of such fact and demand from such Bank (with a copy to the Agent),
prepay in full such Offshore Rate Committed Loans of that Bank then
outstanding, together with interest accrued thereon and amounts required
under Section 3.04, either on the last day of the Interest Period thereof,
if such Bank may lawfully continue to maintain such Offshore Rate Committed
Loans to such day, or immediately, if such Bank may not lawfully continue
to maintain such Offshore Rate Committed Loan. If the Company is required
so to prepay any Offshore Rate Committed Loan, then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount
of such repayment, a Base Rate Committed Loan.
(c) If the obligation of any Bank to make or maintain Offshore Rate
Committed Loans has been so terminated or suspended, the Company may elect,
by giving notice to such Bank through the Agent that all Loans which would
otherwise be made by such Bank as Offshore Rate Committed Loans shall be
instead Base Rate Committed Loans.
(d) Before giving any notice to the Agent under this Section 3.02, the
affected Bank shall designate a different Lending Office with respect to
its Offshore Rate Committed Loans if such designation will avoid the need
for giving such notice or making such demand and will not, in the judgment
of such Bank, be illegal or otherwise disadvantageous to such Bank.
3.03 Increased Costs and Reduction of Return.(a) (a) If any Bank
determines that, due to either (i) the introduction of or any change in or
in the interpretation of any law or regulation (other than any such
introduction or change in respect of any law or regulation relating to
Taxes or Excluded Taxes which shall be governed solely by Section 3.01) or
(ii) the compliance by such Bank with any guideline or request from any
central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to such Bank of
agreeing to make or making, funding or maintaining any Offshore Rate
Committed Loans, by an amount deemed by such Bank to be material, then the
Company shall be liable for, and shall from time to time, within 15 days
after demand by such Bank (with a copy of such demand to be sent to the
Agent), pay to the Agent for the account of such Bank, additional amounts
as are sufficient to compensate such Bank for such increased costs.
(b) If any Bank or Designated Bidder shall have determined that (i)
the introduction of any Capital Adequacy Regulation, (ii) any change in any
Capital Adequacy Regulation, (iii) any change in the interpretation or
administration of any Capital Adequacy Regulation by any central bank or
other Governmental Authority charged with the interpretation or
administration thereof, or (iv) compliance by such Bank or Designated
32.
Bidder (or its Lending Office) or any corporation controlling such Bank or
Designated Bidder with any Capital Adequacy Regulation, affects or would
affect the amount of capital required or expected to be maintained by such
Bank or Designated Bidder or any corporation controlling such Bank or
Designated Bidder and (taking into consideration such Bank's, such
Designated Bidder's or such corporation's policies with respect to capital
adequacy and such Bank's or Designated Bidder's desired return on capital)
determines that the amount of such capital is increased as a consequence of
its Commitment, Loans, credits or obligations under this Agreement, by an
amount deemed by such Bank or such Designated Bidder to be material, then,
within 15 days after demand by such Bank or Designated Bidder to the
Company through the Agent, the Company shall pay to such Bank or Designated
Bidder, as the case may be, from time to time as specified by such Bank or
Designated Bidder, such additional amounts as are sufficient to compensate
such Bank or Designated Bidder for such increase.
(c) Each Bank and each Designated Bidder will promptly notify the
Company and the Agent of any event of which it has knowledge, occurring
after the date hereof, which will entitle such Bank or such Designated
Bidder to compensation pursuant to this Section and will designate a
different Lending Office if such designation will avoid the need for, or
reduce the amount of, such compensation and will not, in the sole judgment
of such Bank or such Designated Bidder, be otherwise disadvantageous to
such Bank or such Designated Bidder. Notwithstanding the foregoing
subsections (a) and (b) of this Section 3.03, the Company shall only be
obligated to compensate any Bank or any Designated Bidder for any amount
arising or accruing during (i) any time or period commencing not more than
30 days prior to the date on which such Bank or such Designated Bidder
notifies the Agent and the Company that it proposes to demand such
compensation and identifies to the Agent and the Company the statute,
regulation or other basis upon which the claimed compensation is or will be
based and (ii) any time or period during which, because of the retroactive
application of such statute, regulation or other such basis, such Bank or
such Designated Bidder did not know that such amount would arise or accrue.
3.04 Funding Losses. The Company shall reimburse each Bank and each
Designated Bidder, and hold each Bank and each Designated Bidder harmless
from, any loss or expense which such Bank or such Designated Bidder may
sustain or incur as a consequence of:
(a) the failure of the Company to make on a timely basis any payment
of principal of any Offshore Rate Committed Loan;
(b) the failure of the Company to borrow, continue or convert a
Committed Loan after the Company has given (or is deemed to have given) a
Notice of Borrowing or a Notice of Conversion/Continuation;
(c) the failure of the Company to make any prepayment of any Committed
Loan in accordance with any notice delivered under Section 2.08;
(d) the prepayment (including pursuant to Section 2.08 or 3.02(b)) or
other payment (including after acceleration thereof) of any Offshore Rate
Committed Loan or Absolute Rate Bid Loan on a day that is not the last day
of the relevant Interest Period; or
(e) the conversion under Section 2.04 of any Offshore Rate Committed
Loan to a Base Rate Committed Loan on a day that is not the last day of the
relevant Interest Period;
33.
including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Offshore Rate
Committed Loans or from fees payable to terminate the deposits from which
such funds were obtained. For purposes of calculating amounts payable by
the Company to the Banks and the Designated Bidders under this Section and
under subsection 3.03(a), each Offshore Rate Committed Loan made by a Bank
or Designated Bidder (and each related reserve, special deposit or similar
requirement) shall be conclusively deemed to have been funded at the London
interbank offered rate used in determining the Offshore Rate for such
Offshore Rate Committed Loan by a matching deposit or other borrowing in
the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Offshore Rate Committed Loan is in
fact so funded.
3.05 Inability to Determine Rates. If on or prior to the first day of
any Interest Period:
(a) the Agent is advised by the Reference Banks that deposits in
Dollars (in the applicable amounts) are not being offered to the Reference
Banks in the relevant market for such Interest Period, or
(b) the Majority Banks advise the Agent that the Offshore Rate, as
determined by the Agent, will not adequately and fairly reflect the cost to
such Banks of funding their Offshore Rate Committed Loans for such Interest
Period, the Agent will promptly so notify the Company and each Bank.
Thereafter, the obligation of the Banks to make or maintain Offshore Rate
Committed Loans hereunder shall be suspended until the Agent upon the
instruction of the Majority Banks revokes such notice in writing. Upon
receipt of such notice, the Company may revoke any Notice of Borrowing or
Notice of Conversion/Continuation then submitted by it. If the Company does
not revoke such Notice as to any such proposed Committed Loans, the Banks
shall make, convert or continue any such Committed Loans, as proposed by
the Company, in the amount specified in the applicable Notice submitted by
the Company, but such Committed Loans shall be made, converted or continued
as Base Rate Committed Loans instead of Offshore Rate Committed Loans.
3.06 Certificates of Banks and Designated Bidders. Any Bank or
Designated Bidder claiming reimbursement or compensation under this Article
III shall deliver to the Company (with a copy to the Agent) a certificate
setting forth in reasonable detail the amount payable to such Bank or such
Designated Bidder hereunder and such certificate shall be conclusive and
binding on the Company in the absence of manifest error. In determining any
amount due under this Article III, a Bank or Designated Bidder may use any
reasonable averaging and attribution methods.
3.07 Base Rate Committed Loans Substituted for Affected Offshore Rate
Committed Loans. If (i) the obligation of any Bank to make Offshore Rate
Committed Loans has been suspended pursuant to Section 3.02 or (ii) any
Bank has demanded compensation under Section 3.03(a) and the Company shall,
by at least five Business Days' prior notice to such Bank through the
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Company that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
34.
(a) all Loans which would otherwise be made by such Bank as Offshore
Rate Committed Loans, shall be made instead as Base Rate Committed Loans
(on which interest and principal shall be payable contemporaneously with
the related Offshore Rate Committed Loans of the other Banks); and
(b) after each of its Offshore Rate Committed Loans has been repaid,
all payments of principal which would otherwise be applied to repay such
Offshore Rate Committed Loans shall be applied to repay its Base Rate
Committed Loans instead.
3.08 Reserves on Offshore Rate Committed Loans. The Company shall pay
to each Bank, as long as such Bank shall be required under regulations of
the FRB to maintain reserves with respect to liabilities or assets
consisting of or including Eurocurrency funds or deposits (currently known
as "Eurocurrency liabilities"), additional costs on the unpaid principal
amount of each Offshore Rate Committed Loan equal to the actual costs of
such reserves allocated to such Offshore Rate Committed Loan by the Bank
(as determined by the Bank in good faith, which determination shall be
conclusive), payable on each date on which interest is payable on such
Committed Loan, provided the Company shall have received at least 15 days'
prior written notice (with a copy to the Agent) of such additional interest
from the Bank. If a Bank fails to give notice 15 days prior to the relevant
Interest Payment Date, such additional interest shall be payable 15 days
from receipt of such notice.
3.09 Substitution of Banks. Upon the receipt by the Company from any
Bank (an "Affected Bank") of a claim for compensation under Section 3.03,
upon notice to the Agent from any Bank that it shall not consent to a
request by the Company for an extension of the Revolving Termination Date
pursuant to subsection 2.16(a), or if the Company is required to pay any
additional amount to the Agent or any Bank pursuant to Section 3.01, the
Company may: (i) request one or more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Commitment; or (ii)
designate a replacement commercial bank (which shall be an Eligible
Assignee) satisfactory to the Company to acquire and assume all or a
ratable part of such Affected Bank's Loans and Commitment (a "Replacement
Bank"); provided, however, that the Company shall be liable for the payment
upon demand of all costs and other amounts arising under Section 3.04 that
result from the acquisition of any Affected Bank's Loan and/or Commitment
(or any portion thereof) by a Bank or Replacement Bank, as the case may be,
on a date other than the last day of the applicable Interest Period with
respect to any Offshore Rate Committed Loan then outstanding. Any such
designation of a Replacement Bank under clause (i) shall be effected in
accordance with, and subject to the terms and conditions of, the assignment
provisions contained in Section 10.08, and shall in any event be subject to
the prior written consent of the Agent (which consent shall not be
unreasonably withheld).
3.10 Survival. The agreements and obligations of the Company in this
Article III shall survive the payment of all other Obligations.
35.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of each Bank to make
its initial Committed Loan hereunder, and the obligation of each Bid Loan
Bank and Designated Bidder to receive through the Agent the initial
Competitive Bid Request, is subject to the condition that the Agent shall
have received on or before the Closing Date all of the following, in form
and substance satisfactory to the Agent and each Bank, and in sufficient
copies for each Bank:
(a) Credit Agreement and Notes. This Agreement executed by each party
hereto, and the Committed Loan Notes executed by the Company;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of the Company
authorizing the transactions contemplated hereby, certified as of the
Closing Date by the Secretary or an Assistant Secretary of the Company; and
(ii) A certificate of the Secretary or Assistant Secretary of the
Company, dated the Closing Date, certifying the names, titles and true
signatures of the officers of the Company authorized to execute, deliver
and perform, as applicable, this Agreement, and all other Loan Documents to
be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation and the bylaws of the
Company as in effect on the Closing Date, certified by the Secretary or
Assistant Secretary of the Company as of the Closing Date; and
(ii) good standing certificates for the Company from the Secretary of
State (or similar, applicable Governmental Authority) of its state of
incorporation and the state of its principal offices;
(d) Legal Opinions.
(i) an opinion of Xxxxxx X. Xxxxxx, Executive Vice-President and
General Counsel to the Company, dated as of the Closing Date and addressed
to the Agent and the Banks, substantially in the form of Exhibit D; and
(ii) a favorable opinion of Xxxxxxx, Phleger & Xxxxxxxx LLP, special
counsel to the Agent, dated as of the Closing Date.
(e) Payment of Fees. Evidence of payment by the Company of all accrued
and unpaid fees, costs and expenses to the extent then due and payable on
the Closing Date, together with Attorney Costs of BofA and the Lead
Arranger to the extent invoiced prior to or on the Closing Date, plus such
additional amounts of Attorney Costs as shall constitute BofA's reasonable
36.
estimate of Attorney Costs incurred or to be incurred by it through the
closing proceedings (provided that such estimate shall not thereafter
preclude final settling of accounts between the Company and BofA),
including any such costs, fees and expenses arising under or referenced in
Sections 2.12 and 10.04;
(f) Certificate. A certificate signed by a Responsible Officer, dated
as of the Closing Date, stating that:
(i) the representations and warranties contained in Article V are true
and correct on and as of such date, as though made on and as of such date;
(ii) no Default or Event of Default exists or would result from the
initial Borrowing; and
(iii) there has occurred since January 28, 1999 (or since the date of
any Form 10-Q or other public disclosure document filed by the Company with
the SEC prior to the Closing Date, to the extent any such event or
circumstance is disclosed in such document), no event or circumstance that
has resulted or could reasonably be expected to result in a Material
Adverse Effect;
(g) Existing Credit Facilities. Evidence satisfactory to the Agent
that the commitments to extend credit under the Existing Credit Facilities
have been terminated and that all principal, interest, charges and fees due
thereunder have been paid or that arrangements reasonably satisfactory to
the Agent for the payment thereof have been made by the Company (the
Company and each Bank party hereto that is a lender under the Existing
Credit Facilities acknowledging that such commitments shall be terminated
simultaneously with the closing hereunder);
(h) Documents and Actions Relating to the Multi-year Credit Agreement.
A certificate of a Responsible Officer of the Company certifying that all
conditions precedent to the closing of the Multi-year Credit Agreement
shall have been satisfied in accordance with the terms and conditions
thereof (other than any conditions relating to the closing of the
transactions contemplated by this Agreement); and
(i) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Bank may reasonably request.
4.02 Conditions to All Borrowings. The obligation of each Bank to make
any Committed Loan to be made by it, and the obligation of any Bid Loan
Bank or Designated Bidder to make any Bid Loan as to which the Company has
accepted the relevant Competitive Bid (including its initial Loan), is
subject to the satisfaction of the following conditions precedent on the
relevant Borrowing Date:
(a) Notice of Borrowing. As to any Committed Loan, the Agent shall
have received a Notice of Borrowing;
37.
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct on
and as of such Borrowing Date with the same effect as if made on and as of
such Borrowing Date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they shall be
true and correct as of such earlier date; and except that this subsection
(b) shall be deemed instead to refer to the last day of the most recent
quarter and year for which financial statements have then been delivered,
and to the most recent Form 10-K filed by the Company with the SEC, in
respect of the representations and warranties made in Section 5.10(a));
(c) No Material Adverse Effect. There has occurred since January 28,
1999 (or since the date of any Form 10-Q or other public disclosure
document filed by the Company with the SEC prior to the Closing Date, to
the extent any such event or circumstance is disclosed in such document),
no event or circumstance that has resulted or could reasonably be expected
to result in a Material Adverse Effect; and
(d) No Existing Default. No Default or Event of Default shall exist or
shall result from such Borrowing.
Each Notice of Borrowing and Competitive Bid Request submitted by the Company
hereunder shall constitute a representation and warranty by the Company
hereunder, as of the date of each such notice or request and as of each
Borrowing Date, that the conditions in this Section 4.02 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence and Power. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of
Delaware, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
5.02 Subsidiaries. Each of the Company's corporate Subsidiaries is a
corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation, and has all corporate powers
and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted.
5.03 Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Company of the Loan Documents
are within the Company's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or
filing with, any Governmental Authority and do not contravene, or
constitute a default under, any provision of applicable law or regulation
or of the certificate of incorporation or by-laws of the Company or of any
agreement, judgment, injunction, order, decree or other instrument binding
upon the Company or result in the creation or imposition of any Lien on any
asset of the Company or any of its Subsidiaries.
38.
5.04 Binding Effect. This Agreement and each other Loan Document to
which the Company is a party constitutes a valid and binding agreement of
the Company, and each Note, when executed and delivered in accordance with
this Agreement, will constitute a valid and binding obligation of the
Company, enforceable against the Company in accordance with their
respective terms.
5.05 Litigation. Except as disclosed in the Company's 1998 Form 10-K,
there is no action, suit or proceeding pending against, or to the knowledge
of the Company threatened against or affecting, the Company or any of its
Subsidiaries before any court or arbitrator or any Governmental Authority
in which there is a reasonable possibility of an adverse decision which
could have a Material Adverse Effect.
5.06 ERISA Compliance. Each member of the ERISA Group has fulfilled
its obligations under the minimum funding standards of ERISA and the Code
with respect to each Plan and is in compliance in all material respects
with the presently applicable provisions of ERISA and the Code with respect
to each Plan.
5.07 Use of Proceeds; Margin Regulations. The proceeds of the Loans
are to be used solely for the purposes set forth in and permitted by
Section 6.08 and Section 7.04.
5.08 Title to Properties; Liens. The Company and each Subsidiary have
good record and marketable title in fee simple to, or valid leasehold
interests in, all real property necessary or used in the ordinary conduct
of their respective businesses, except for such defects in title as could
not, individually or in the aggregate, have a Material Adverse Effect. The
property of the Company and its Subsidiaries is subject to no Liens, other
than Liens permitted under Section 7.01.
5.09 Taxes. The Company and its Subsidiaries have filed all United
States Federal income tax returns and all other material tax returns which
are required to be filed by them and have paid all taxes due pursuant to
such returns or pursuant to any assessment received by the Company or any
Subsidiary, other than any such taxes being contested in good faith and for
which appropriate reserves have been established on the books and records
of the Company in accordance with GAAP. The charges, accruals and reserves
on the books of the Company and its Subsidiaries in respect of taxes or
other governmental charges are, in the opinion of the Company, adequate.
5.10 Financial Information(a) . (a) The consolidated balance sheet of
the Company and its Consolidated Subsidiaries as of January 28, 1999 and
the related consolidated statements of earnings, cash flows and
stockholders' equity for the fiscal year then ended, reported on by
Deloitte & Touche and set forth or as incorporated by reference in the
Company's 1998 Form 10-K, a copy of which has been delivered to each of the
Banks, fairly present, in conformity with GAAP, the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows for such fiscal
year.
(b) The unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of October 29, 1999 and the related unaudited
39.
consolidated statements of earnings and cash flows for the thirty-nine
weeks then ended, set forth in the Company's quarterly report for the third
quarter ended October 29, 1999 filed with the SEC on Form 10-Q, a copy of
which has been delivered to each of the Banks, fairly present, in
conformity with GAAP applied on a basis consistent with the financial
statements referred to in Subsection 5.10(a), the consolidated financial
position of the Company and its Consolidated Subsidiaries as of such date
and their consolidated results of operations and cash flows for such
thirty-nine week period (subject to normal year-end adjustments).
(c) Since January 28, 1999 (or since the date of any Form 10-Q or
other public disclosure document filed by the Company with the SEC prior to
the Closing Date, to the extent any such event or circumstance is disclosed
in such document), there has been no Material Adverse Effect.
5.11 Environmental Matters. In the ordinary course of its business,
the Company considers the effect of Environmental Laws on the business,
operations and properties of the Company and its Subsidiaries as such
business, operations and properties exist at the time. On this basis, the
Company has reasonably concluded that Environmental Laws at the time in
effect are unlikely to have a Material Adverse Effect.
5.12 Regulated Entities. The Company is not an "Investment Company"
within the meaning of the Investment Company Act of 1940. The Company is
not subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Interstate Commerce Act, any state public
utilities code, or any other Federal or state statute or regulation
limiting its ability to incur Indebtedness.
5.13 Insurance. The properties of the Company and its Consolidated
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Company, in such amounts, with such
deductibles (and with such risk retention) and covering such risks as are
customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Company or such Subsidiary
operates.
5.14 Full Disclosure. All information heretofore furnished by the
Company to the Agent or any Bank for purposes of or in connection with this
Agreement or any transaction contemplated hereby is, and all such
information hereafter furnished by the Company to the Agent or any Bank
will be, true and accurate in all material respects on the date as of which
such information is stated or certified.
5.15 Year 2000. The Company has (a) completed a review and assessment
of critical areas within its and each of its Subsidiaries' business and
operations (including those affected by customers and vendors) that could
be adversely affected by the "Year 2000 Problem" (that is, the risk that
computer applications and devices containing imbedded computer chips used
by the Company or any of its Subsidiaries (or their respective customers
and vendors) may be unable to recognize and perform properly date-sensitive
functions involving certain dates prior to and after December 31, 1999),
(b) developed a plan and timeline for addressing the Year 2000 Problem on a
timely basis, and (c) substantially completed implementation of that plan
in accordance with that timetable. The Year 2000 Problem has not resulted
in, and the Company reasonably believes that the Year 2000 Problem will not
result in, a Material Adverse Effect.
40.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Majority Banks
waive compliance in writing:
6.01 Information. The Company will deliver to each of the Banks:
(a) as soon as available and in any event within 120 days after the
end of each fiscal year of the Company, a consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of the end of such fiscal year
and the related consolidated statements of earnings, cash flows and
stockholders' equity for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on
in a manner acceptable to the SEC by Deloitte & Touche or other independent
public accountants of nationally recognized standing (the "Independent
Auditor"). Such report shall not be qualified as to (i) going concern or
(ii) any limitation in the scope of the audit;
(b) as soon as available and in any event within 60 days after the end
of each of the first three quarters of each fiscal year of the Company, a
consolidated balance sheet of the Company and its Consolidated Subsidiaries
as of the end of such quarter and the related consolidated statements of
earnings for such quarter and for the portion of the Company's fiscal year
ended at the end of such quarter and the related consolidated statement of
cash flows for the portion of the Company's fiscal year ended at the end of
such quarter, setting forth in comparative form the corresponding
statements for the corresponding portions of the Company's previous fiscal
year, all certified (subject to normal year-end adjustments) as to fairness
of presentation, GAAP and consistency by the chief financial officer or the
chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a Compliance
Certificate of the chief financial officer or the chief accounting officer
of the Company;
(d) simultaneously with the delivery of each set of financial
statements referred to in subsection (a), a statement of the Independent
Auditor which reported on such statements (i) whether anything has come to
their attention to cause them to believe that any Default existed on the
date of such statements and (ii) confirming the calculations set forth in
the Compliance Certificate delivered simultaneously therewith pursuant to
subsection (c);
(e) forthwith upon the occurrence of any Default, a certificate of the
chief financial officer or the chief accounting officer of the Company
setting forth the details thereof and the action which the Company is
taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of the
Company generally, copies of all financial statements, reports and proxy
statements so mailed and not previously delivered to each Bank pursuant to
this Section 6.01;
41.
(g) promptly upon the filing thereof, copies of all registration
statements (other than the exhibits thereto and any registration statements
on Form S-8 or its equivalent) and reports on Forms 10-K, l0-Q and 8-K (or
their equivalents) which the Company shall have filed with the SEC and not
previously delivered to each Bank pursuant to this Section 6.01;
(h) if and when any member of the ERISA Group (i) gives or is required
to give notice to the PBGC of any "reportable event" (as defined in Section
4043 of ERISA) with respect to any Plan which might constitute grounds for
a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any
such reportable event, a copy of the notice of such reportable event given
or required to be given to the PBGC; (ii) receives notice of complete or
partial withdrawal liability under Title IV of ERISA, or notice that any
Multiemployer Plan is in reorganization, is insolvent or has been
terminated, a copy of such notice; (iii) receives notice from the PBGC
under Title IV of ERISA of an intent to terminate, impose liability (other
than for premiums under Section 4007 of ERISA) in respect of, or appoint a
trustee to administer any Plan, a copy of such notice; (iv) applies for a
waiver of the minimum funding standard under Section 412 of the Code, a
copy of such application; (v) gives notice of intent to terminate any Plan
under Section 4041(c) of ERISA, a copy of such notice and other information
filed with the PBGC; (vi) gives notice of withdrawal from any Plan pursuant
to Section 4063 of ERISA, a copy of such notice; or (vii) fails to make any
payment or contribution to any Plan or Multiemployer Plan or in respect of
any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien
or the posting of a bond or other security, a certificate of the chief
financial officer or the chief accounting officer of the Company setting
forth details as to such occurrence and action, if any, which the Company
or applicable member of the ERISA Group is required or proposes to take;
and
(i) from time to time such additional information regarding the
consolidated financial position of the Company as the Agent, at the request
of any Bank, may reasonably request.
As to any information contained in materials furnished pursuant to
subsection 6.01(g), the Company shall not be separately required to furnish
such information under subsection (a) or (b) above, but the foregoing shall
not be in derogation of the obligation of the Company to furnish the
information and materials described in subsection (a) and (b) above at the
times specified therein.
6.02 Conduct of Business and Maintenance of Existence. The Company
will continue, and will cause each Subsidiary to continue, to engage in
business of the same general type as now conducted by the Company and its
Subsidiaries, and will preserve, renew and keep in full force and effect,
and will cause each Subsidiary to preserve, renew and keep in full force
and effect their respective corporate existence and their respective
rights, privileges and franchises necessary or desirable in the normal
conduct of business; provided that the Company may (a) discontinue
operations or dispose of property in the normal conduct of its business and
(b) cause the dissolution of Subsidiaries or the merger of a Subsidiary
into the Company or into another Subsidiary as it may from time to time
reasonably deem necessary or desirable in the conduct of its business.
42.
6.03 Maintenance of Property. The Company will keep, and will cause
each Subsidiary to keep, all property useful and necessary in its business
in good working order and condition, ordinary wear and tear excepted;
provided that the Company and each of its Subsidiaries may discontinue
operations and dispose of property in the normal conduct of its business.
6.04 Insurance. The Company will maintain, and will cause each
Subsidiary to maintain with financially sound and reputable insurance
companies, insurance on all their real and personal property in at least
such amounts and against at least such risks (and with such risk retention)
as are usually insured against by companies of established repute engaged
in the same or similar business as the Company or such Subsidiary, and the
Company will promptly furnish to the Banks such information as to insurance
carried as may be reasonably requested in writing by the Agent.
6.05 Payment of Obligations. The Company will pay and discharge, and
will cause each Subsidiary to pay and discharge, at or before maturity, all
their respective material obligations and liabilities, including tax
liabilities, except where the same may be contested in good faith by
appropriate proceedings, and will maintain, and will cause each Subsidiary
to maintain, in accordance with GAAP, appropriate reserves for the accrual
of any of the same.
6.06 Compliance with Laws. The Company will comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of Governmental
Authorities (including Environmental Laws and ERISA), except where the
necessity of compliance therewith is contested in good faith by appropriate
proceedings and non-compliance during the period of such contest could not
reasonably be expected to have a Material Adverse Effect.
6.07 Inspection of Property, Books and Records. The Company will keep,
and will cause each Subsidiary to keep, proper books of record and account
in which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities. Upon the
occurrence and during the continuance of a Default, the Company will
permit, and will cause each Subsidiary to permit, representatives of any
Bank at such Bank's expense, to examine any of their respective books and
records (except as they relate to the Company's trade secrets or other
proprietary information of the Company other than any information required
to be delivered to the Banks by the Company under Section 6.01) and to
discuss their respective finances and accounts with their respective
officers, employees and independent public accountants, all at such
reasonable times and as often as may reasonably be desired.
6.08 Use of Proceeds. The proceeds of the Loans made under this
Agreement will be used by the Company for commercial paper back-up
liquidity and other lawful corporate purposes.
6.09 Further Assurances. Promptly upon request by the Agent or the
Majority Banks, the Company shall do, execute, acknowledge, and deliver,
any and all such further acts, certificates, assurances and other
instruments the Agent or such Banks, as the case may be, may reasonably
require from time to time in order to carry out more effectively the
purposes of this Agreement or any other Loan Document.
43.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Majority Banks
waive compliance in writing:
7.01 Limitation on Liens. Neither the Company nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing Indebtedness
outstanding on the date of this Agreement in an aggregate principal amount
not exceeding $500,000,000;
(b) any Lien existing on any specific tangible asset or assets of any
Person at the time such Person becomes a Consolidated Subsidiary and not
created in contemplation of such event, subject to subsection 7.01(e);
(c) any Lien on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring such
asset, provided that (i) in the case of land acquired for the purpose of
constructing new business or operating facilities thereon, (A) such Lien
attaches to such land within 24 months after the acquisition thereof and
(B) construction of such new business or operating facilities thereon is
substantially complete within 24 months after the acquisition of such land
and (ii) in the case of any asset other than an asset of the type described
in the preceding clause (i), such Lien attaches to such asset concurrently
with or within 180 days after the acquisition thereof;
(d) any Lien on any specific tangible asset or assets of any Person
existing at the time such Person is merged or consolidated with or into the
Company or a Consolidated Subsidiary and not created in contemplation of
such event, subject to subsection 7.01(e);
(e) any Lien existing on any specific tangible asset or assets prior
to the acquisition thereof by the Company or a Consolidated Subsidiary and
not created in contemplation of such acquisition; provided that in the case
of any Lien permitted under this subsection (e) or under subsections (b)
and (d), any such Lien does not by its terms cover any such tangible assets
after the time the Company directly or indirectly acquires such assets
which were not covered immediately prior thereto, and any such Lien does
not by its terms secure any Indebtedness other than Indebtedness existing
immediately prior to the time of acquisition of such assets;
(f) any Lien arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of the
foregoing clauses of this Section, provided that such Indebtedness is not
increased and is not secured by any additional assets;
44.
(g) Liens arising in the ordinary course of its business which (i) do
not secure Indebtedness and (ii) do not in the aggregate materially detract
from the value of its assets or materially impair the use thereof in the
operation of its business;
(h) Liens arising from the Company's or a Subsidiary's pledging of
equipment, not otherwise permitted by the foregoing clauses of this
Section, securing Indebtedness in an aggregate principal amount at any time
outstanding not to exceed $500,000,000; and
(i) Liens on real property; provided that the aggregate value of real
property owned by the Company (not including for purposes of this proviso
any real property acquired or held by the Company subject to the interest
of a lessor under a capital lease relating to such real property), as
determined on a lower of cost or Fair Market Value basis (as defined
below), exceeds the aggregate principal amount of Indebtedness secured by
Liens on such real property in an amount not less than $250,000,000.
For the purposes of Section 7.01, "Fair Market Value" means with
respect to any real property of the Company or any Subsidiary at any date
the open market cash purchase price that an informed and willing purchaser
would pay for such real property in an arm's-length transaction to a
willing and informed owner under no compulsion to sell, all as determined
(i) if no Default has occurred and is continuing, at the option of the
Majority Banks either (A) in good faith by the Board of Directors of the
Company or (B) by an appraisal conducted by an independent appraiser
satisfactory to the Agent and the Company, the cost of such appraisal to be
shared equally by the Company and the Banks, and (ii) if a Default has
occurred and is continuing, by an appraisal conducted by an independent
appraiser satisfactory to the Agent and the Company, the cost of such
appraisal to be borne solely by the Company.
7.02 Disposition of Assets. The Company will not (i) consolidate or
merge with or into any other Person or (ii) directly or indirectly sell,
lease or otherwise transfer all or any substantial part of the assets of
the Company and its Consolidated Subsidiaries, considered as a whole, to
any other Person; provided that the Company may merge with another Person
if (A) the Company is the Person surviving such merger and (B) immediately
after giving effect to such merger, no Default shall have occurred and be
continuing.
7.03 Limitation on Subsidiary Indebtedness and Swap Contracts. The
Company shall not permit any Subsidiary to create, incur, assume, suffer to
exist, or otherwise become or remain directly or indirectly liable with
respect to, any Indebtedness or Swap Contracts except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) endorsements for collection or deposit in the ordinary course of
business;
(c) Swap Contracts outstanding as of the Closing Date or entered into
thereafter in the ordinary course of business;
(d) Surety Instruments in the ordinary course of business;
(e) Indebtedness existing on the Closing Date in an amount not to
exceed $3,200,000,000;
45.
(f) Indebtedness secured by Liens permitted by subsections 7.01(b),
(c), (d), (e) and (i);
(g) capital leases entered into by any Subsidiary after the Closing
Date to finance the acquisition of equipment;
(h) Indebtedness of Wholly-Owned Consolidated Subsidiaries of the
Company to the Company or to other Wholly-Owned Consolidated Subsidiaries
of the Company; and
(i) additional Indebtedness incurred after the Closing Date not
exceeding $500,000,000 in aggregate principal amount at any time
outstanding.
7.04 Use of Proceeds.
(a) The Company shall not, and shall not suffer or permit any
Subsidiary to, use any portion of the Loan proceeds, directly or
indirectly, (i) to purchase or carry Margin Stock, (ii) to repay or
otherwise refinance Indebtedness of the Company or others incurred to
purchase or carry Margin Stock, (iii) to extend credit for the purpose of
purchasing or carrying any Margin Stock or (iv) for any other purpose which
violates Regulations T, U or X of the FRB.
(b) The Company shall not, directly or indirectly, use any portion of
the Loan proceeds to purchase during the underwriting period, or for thirty
days thereafter, Ineligible Securities underwritten by the Arranger. The
Arranger is a wholly-owned subsidiary of BankAmerica Corporation and a
registered broker-dealer which is permitted to underwrite and deal in
certain Ineligible Securities; and "Ineligible Securities" means securities
which may not be underwritten or dealt in by member banks of the Federal
Reserve System under Section 16 of the Banking Act of 1933 (12 U.S.C. ss.
24, Seventh).
7.05 Minimum Consolidated Tangible Net Worth. The Company shall not
permit its Consolidated Tangible Net Worth at any time to be less than
$2,100,000,000; provided that upon (a) the purchase from time to time of
common stock of the Company by the Company from one or more of the X.X. and
Xxxxxxx Xxxxxxxxx Foundation, Inc., or donees pursuant to the terms of the
Foundation Stock Agreement, or (b) the purchase from time to time of common
stock of the Company by the Company from Xxxx Xxxxxxxx or from
Markus-Stiftung pursuant to the terms of the Markus-Stiftung Stock
Agreement, Consolidated Tangible Net Worth shall be increased, for purposes
of subsequent calculations hereunder, by an amount (the "CTNW Adjustment")
equal to the excess (if any) of (i) the amount by which the purchase price
of such common stock reduces Consolidated Tangible Net Worth over (ii) the
amount by which Consolidated Tangible Net Worth has been increased through
the sale of common stock subsequent to the date of such purchase, excluding
the effect of the exercise of employee stock options, all as determined in
accordance with GAAP.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default. Any of the following shall constitute an "Event
of Default":
46.
(a) Non-Payment. The Company fails to make, (i) when and as required
to be made herein, payments of any amount of principal of any Loan, or (ii)
within five Business Days after the same becomes due, payment of any
interest, fee or any other amount payable hereunder or under any other Loan
Document; or
(b) Representation or Warranty. Any representation, warranty,
certification or statement made by the Company in this Agreement or in any
certificate, financial statement or other document delivered pursuant to
this Agreement shall prove to have been incorrect in any material respect
on or as of the date made (or deemed made); or
(c) Specific Defaults. The Company shall fail to observe or perform
any covenant contained in Sections 7.01 through 7.05, inclusive; or
(d) Other Defaults. The Company shall fail to observe or perform any
covenant or agreement contained in this Agreement (other than those covered
by clause (a), (b) or (c) above) for 15 Business Days after the earlier of
(i) the date upon which the chief financial officer, chief accounting
officer or other senior officer of the Company knew or reasonably should
have known of such failure or (ii) notice thereof has been given to the
Company by the Agent at the request of any Bank; or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails to make
any payment in respect of any Material Indebtedness (other than in respect
of Swap Contracts), when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and such failure continues
after the applicable grace or notice period, if any, specified in the
relevant document on the date of such failure; or (B) fails to perform or
observe any other condition or covenant, or any other event shall occur or
condition exist, under any agreement or instrument relating to any Material
Indebtedness, and such failure continues after the applicable grace or
notice period, if any, specified in the relevant document on the date of
such failure if the effect of such failure, event or condition is to cause,
or to permit the holder or holders of such Material Indebtedness or
beneficiary or beneficiaries of such Material Indebtedness (or a trustee or
agent on behalf of such holder or holders or beneficiary or beneficiaries)
to cause such Material Indebtedness to be declared to be due and payable,
or to be prepaid prior to its stated maturity, or to become payable, or
cash collateral in respect thereof to be demanded; or (ii) there occurs
under any Swap Contract an Early Termination Date (as defined in such Swap
Contract) resulting from (1) any event of default under such Swap Contract
as to which the Company or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (2) any Termination Event (as so defined)
as to which the Company or any Subsidiary is an Affected Party (as so
defined), and, in either event, the Swap Termination Value owed by the
Company or such Subsidiary as a result thereof is greater than $30,000,000;
or
(f) Insolvency; Voluntary Proceedings. The Company or any Subsidiary
(i) ceases or fails to be solvent, or generally fails to pay, or admits in
writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise;
(ii) voluntarily ceases to conduct its business in the ordinary course;
(iii) consents to or commences a voluntary Insolvency Proceeding with
respect to itself, or (iv) takes any corporate action to authorize any of
the foregoing; or
47.
(g) Involuntary Proceedings. (i) An involuntary Insolvency Proceeding
shall be commenced or filed against the Company or any Subsidiary, or any
writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Company's or any
Subsidiary's properties, and any such proceeding or petition shall not be
dismissed, or such writ, judgment, warrant of attachment, execution or
similar process shall not be released, vacated or fully bonded within 60
days after commencement, filing or levy; (ii) the Company or any Subsidiary
admits the material allegations of a petition against it in any Insolvency
Proceeding, or an order for relief (or similar order under non-U.S. law) is
ordered in any Insolvency Proceeding; or (iii) the Company or any
Subsidiary acquiesces in the appointment of a receiver, trustee, custodian,
conservator, liquidator, mortgagee in possession (or agent therefor), or
other similar Person for itself or a substantial portion of its property or
business; or
(h) ERISA. Any member of the ERISA Group shall fail to pay when due an
amount or amounts aggregating in excess of $30,000,000 which it shall have
become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any
member of the ERISA Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA
to terminate, to impose liability (other than for premiums under Section
4007 of ERISA) in respect of or to cause a trustee to be appointed to
administer any Material Plan; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated; or there shall occur a complete or
partial withdrawal from, or a default, within the meaning of Section
4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans which
could cause one or more members of the ERISA Group to incur a current
payment obligation in excess of $30,000,000; or
(i) Monetary Judgments. A judgment or order for the payment of money
in excess of $30,000,000 shall be rendered against the Company or any
Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of 30 days; or
(j) Change of Control. There occurs any Change of Control.
8.02 Remedies. If any Event of Default occurs, then, and in every such
event, the Agent shall (i) if requested or consented to by the Majority
Banks, by notice to the Company terminate the Commitments and they shall
thereupon terminate, (ii) if requested or consented to by the Majority
Banks, by notice to the Company declare the Loans (together with accrued
interest thereon and all other amounts owing under the Loan Documents) to
be, and the Loans (and such interest and other amounts) shall thereupon
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Company and
(iii) if requested or consented to by the Majority Banks, exercise on
behalf of itself and the Banks all rights and remedies available to it and
the Banks under the Loan Documents or applicable law; provided that in the
case of any of the Events of Default specified in subsections (f) or (g)
(in the case of clause (i) of subsection (g) upon the expiration of the
60-day period mentioned therein), without any notice to the Company or any
other act by the Agent or the Banks, the Commitments shall thereupon
terminate and the Loans (together with accrued interest thereon and all
other amounts owing under the Loan Documents) shall become immediately due
48.
and payable without presentment, demand, protest or other notice of any
kind, all of which are hereby waived by the Company.
8.03 Rights Not Exclusive. The rights provided for in this Agreement
and the other Loan Documents are cumulative and are not exclusive of any
other rights, powers, privileges or remedies provided by law or in equity,
or under any other instrument, document or agreement now existing or
hereafter arising.
ARTICLE IX
THE AGENT
9.01 Appointment and Authorization; "Agent." Each Bank hereby
irrevocably (subject to Section 9.09) 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 in this Agreement 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 Bank, 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" in this Agreement 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.
9.02 Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or
attorney-in-fact that it selects with reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall (i)
be liable 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 (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any of the
Banks for any recital, statement, representation or warranty made by the
Company or any Subsidiary or Affiliate of the Company, or any officer
thereof, contained in this Agreement 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 Company 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 Bank to ascertain
or to inquire as to the observance or performance of any of the agreements
49.
contained in, or conditions of, this Agreement or any other Loan Document,
or to inspect the properties, books or records of the Company or any of the
Company's Subsidiaries or Affiliates.
9.04 Reliance by Agent. (a) (a) The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution,
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 Company), independent accountants and
other experts selected by the Agent. The Agent shall be fully justified in
failing or refusing to take any action under this Agreement or any other
Loan Document unless it shall first receive such advice or concurrence of
the Majority Banks as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Banks 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
Majority Banks and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Bank that has executed this Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied
with, each document or other matter either sent (or made available) by the
Agent to such Bank for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Bank.
9.05 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 Banks, unless
the Agent shall have received written notice from a Bank or the Company
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 Banks 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
requested by the Banks in accordance with Article VIII; provided, however,
that unless and until the Agent has received any such request, 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 Banks.
9.06 Credit Decision. Each Bank acknowledges that none of the
Agent-Related Persons has made any representation or warranty to it, and
that no act by the Agent hereinafter taken, including any review of the
affairs of the Company and its Subsidiaries, shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any Bank.
Each Bank 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 Company and its
Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to the Company hereunder. Each Bank
50.
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 Company. Except for notices, reports and other
documents expressly herein required to be furnished to the Banks by the
Agent, the Agent shall not have any duty or responsibility to provide any
Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company or any Subsidiary which may come into the
possession of any of the Agent-Related Persons.
9.07 Indemnification of Agent. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand
the Agent-Related Persons (to the extent not reimbursed by or on behalf of
the Company and without limiting the obligation of the Company to do so),
in accordance with the Banks' Pro Rata Shares, from and against any and all
Indemnified Liabilities; provided, however, that no Bank shall be liable
for the payment to the Agent-Related Persons of any portion of such
Indemnified Liabilities resulting from such Person's gross negligence or
willful misconduct. Without limitation of the foregoing, each Bank shall
reimburse the Agent upon demand for its ratable share of any costs or
out-of-pocket expenses (including Attorney Costs) 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, to the extent that the
Agent is not reimbursed for such expenses by or on behalf of the Company.
The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
9.08 Agent in Individual Capacity. BofA 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 Company
and its Subsidiaries and Affiliates as though BofA were not the Agent
hereunder and without notice to or consent of the Banks. The Banks
acknowledge that, pursuant to such activities, BofA or its Affiliates may
receive information regarding the Company or its Affiliates (including
information that may be subject to confidentiality obligations in favor of
the Company or such Subsidiary) and acknowledge that the Agent shall be
under no obligation to provide such information to them. With respect to
its Loans, BofA shall have the same rights and powers under this Agreement
as any other Bank and may exercise the same as though it were not the
Agent, and the terms "Bank" and "Banks" include BofA in its individual
capacity.
9.09 Successor Agent. The Agent may, and at the request of the
Majority Banks shall, resign as Agent upon 30 days' notice to the Banks. If
the Agent resigns under this Agreement, the Majority Banks shall appoint
from among the Banks a successor agent for the Banks which successor agent
shall be approved by the Company (such approval not to be unreasonably
withheld). If no successor agent is appointed prior to the effective date
of the resignation of the Agent, the Agent may appoint, after consulting
with the Banks and the Company, a successor agent from among the Banks.
Upon the acceptance of its appointment as successor agent hereunder, such
51.
successor agent shall succeed to all the rights, powers and duties of the
retiring Agent and the term "Agent" shall mean such successor 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 IX and Sections 10.04 and 10.05 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 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 Banks shall perform all of
the duties of the Agent hereunder until such time, if any, as the Majority
Banks appoint a successor agent as provided for above.
9.10 Withholding Tax.
(a) Each Bank organized under the laws of a jurisdiction outside the
United States shall, on or prior to the date of its execution and delivery
of this Agreement, and on the Assignment and Acceptance Date pursuant to
which it becomes a party to this Agreement in the case of each other Bank,
and from time to time thereafter if requested in writing by the Company or
the Agent (but only so long thereafter as such Bank remains lawfully able
to do so), provide the Agent and the Company with (i) an accurate,
complete, and duly executed Internal Revenue Service form W-8BEN or W-8ECI,
as appropriate, or any successor or substitute form prescribed or permitted
by the Internal Revenue Service, certifying that such Bank is entitled to
claim the benefit of complete exemption from imposition of United States
withholding tax under an income tax treaty to which the United States is a
party in respect of payments made under this Agreement or certifying that
the income receivable pursuant to this Agreement is effectively connected
with the conduct of a trade or business in the United States and (ii) in
the event that, by virtue of a change in law or regulations, such forms are
no longer valid evidence of a Person's exemption from withholding which is
reasonably satisfactory to the Company, other appropriate evidence
supporting such Person's exemption from withholding as the Company may
reasonably request.
(b) For any period with respect to which a Bank or an Assignee has
failed to provide the Company with the appropriate form described in
Subsection 9.10(a) (other than if such failure is due to a change in law
occurring after the date on which a form originally was required to be
provided or if such form otherwise is not required under Subsection
9.10(a)), such Bank or Assignee shall not be entitled to indemnification
under Section 3.01(b) or (d) with respect to Taxes imposed by the United
States.
(c) If any Bank claims exemption from, or reduction of, withholding
tax under a United States tax treaty by providing IRS Form W-8BEN and such
Bank sells, assigns, grants a participation in, or otherwise transfers all
or part of the Obligations of the Company owing to such Bank, such Bank
agrees to notify the Company and Agent of the percentage amount in which it
is no longer the beneficial owner of Obligations of the Company owing to
such Bank. To the extent of such percentage amount, the Agent will treat
such Bank's IRS Form W-8BEN as no longer valid.
(d) If any Bank claiming exemption from United States withholding tax
by filing IRS Form W-8ECI with the Agent sells, assigns, grants a
participation in, or otherwise transfers all or part of the Obligations of
52.
the Company owing to such Bank, such Bank agrees to undertake sole
responsibility for complying with the withholding tax requirements imposed
by Sections 1441 and 1442 of the Code.
(e) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such
Bank an amount equivalent to the applicable withholding tax after taking
into account such reduction. However, if the forms or other documentation
required by subsection (a) of this Section are not delivered to the Company
and Agent, then the Company or Agent may withhold from any interest payment
to such Bank not providing such forms or other documentation an amount
equivalent to the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction.
(f) If the IRS or any other Governmental Authority of the United
States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered or was not properly
executed, or because such Bank failed to notify the Agent of a change in
circumstances which rendered the exemption from, or reduction of,
withholding tax ineffective, or for any other reason) such Bank shall
indemnify the Company or the Agent, as the case may be, fully for all
amounts paid, directly or indirectly, by the Company or the Agent, as the
case may be, as tax or otherwise, including penalties and interest, and
including any taxes imposed by any jurisdiction on the amounts payable to
the Company or the Agent, as the case may be, under this Section, together
with all costs and expenses (including Attorney Costs). The obligation of
the Banks under this subsection shall survive the payment of all
Obligations and the resignation or replacement of the Agent.
9.11 Co-Agents. None of the Banks identified on the facing page or
signature pages of this Agreement as a "Documentation Agent," "Syndication
Agent," "Senior Managing Agent" or "Managing Agent" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Banks as such. Without limiting the
foregoing, none of the Banks so identified shall have or be deemed to have
any fiduciary relationship with any Bank. Each Bank acknowledges that it
has not relied, and will not rely, on any of the Banks so identified in
deciding to enter into this Agreement or in taking or not taking action
hereunder.
ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any provision
of this Agreement or any other Loan Document, and no consent with respect
to any departure by the Company or any applicable Subsidiary therefrom,
shall be effective unless the same shall be in writing and signed by the
Majority Banks (or by the Agent at the written request of the Majority
Banks) and the Company and acknowledged by the Agent, and then any such
waiver or consent shall be effective only in the specific instance and for
the specific purpose for which given; provided, however, that no such
waiver, amendment, or consent shall, unless in writing and signed by all
the Banks and the Company and acknowledged by the Agent, do any of the
following:
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(a) increase or extend the Commitment of any Bank (or reinstate any
Commitment terminated pursuant to Section 8.02);
(b) postpone or delay any date fixed by this Agreement or any other
Loan Document for any payment of principal, interest, fees or other amounts
due to the Banks (or any of them) hereunder or under any other Loan
Document (including the date of any mandatory prepayment hereunder);
(c) reduce the principal of, or the rate of interest specified herein
on any Loan, or (subject to clause (ii) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Loans which is required for the Banks or any
of them to take any action hereunder; or
(e) amend this Section 10.01, subsection 2.04(e), Section 2.16,
Section 2.17, the definition of "Majority Banks" herein, or any provision
herein providing for consent or other action by all Banks or some specified
amount of Banks;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the Agent in addition to the Majority Banks
or all the Banks, as the case may be, affect the rights or duties of the
Agent under this Agreement or any other Loan Document and (ii) the Fee
Letter may be amended, or rights or privileges thereunder waived, in a
writing executed by the parties thereto.
10.02 Notices.(a) (a) All notices, requests, consents, approvals,
waivers and other communications shall be in writing (including, unless the
context expressly otherwise provides, by facsimile transmission) and
mailed, faxed or delivered, to the address or facsimile number specified
for notices on Schedule 10.02; or, as directed to the Company or the Agent,
to such other address as shall be designated by such party in a written
notice to the other parties, and as directed to any other party, at such
other address as shall be designated by such party in a written notice to
the Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered
for overnight (next-day) delivery, or transmitted in legible form by
facsimile machine, respectively, or if mailed, upon the third Business Day
after the date deposited into the mails, or if delivered, upon delivery;
except that notices pursuant to Article II or IX to the Agent shall not be
effective until actually received by the Agent.
(c) Any agreement of the Agent and the Banks herein to receive certain
notices by telephone or facsimile is solely for the convenience and at the
request of the Company. The Agent and the Banks shall be entitled to rely
on the authority of any Person purporting to be a Person authorized by the
Company to give such notice and the Agent and the Banks shall not have any
liability to the Company or other Person on account of any action taken or
not taken by the Agent or the Banks in reliance upon such telephonic or
facsimile notice. The obligation of the Company to repay the Loans shall
not be affected in any way or to any extent by any failure by the Agent and
54.
the Banks to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Agent and the Banks of a confirmation which is
at variance with the terms understood by the Agent and the Banks to be
contained in the telephonic or facsimile notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Agent, any Designated Bidder or any
Bank, any right, remedy, power or privilege hereunder, shall operate as a
waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Agent)
within five Business Days after demand (subject to subsection 4.01(e)) for
all reasonable costs and expenses incurred by BofA (including in its
capacity as Agent) and the Lead Arranger in connection with (i) the
development, preparation, delivery and execution of, and any amendment,
supplement, waiver or modification to (in each case, whether or not
consummated), this Agreement, any Loan Document and any other documents
prepared in connection herewith or therewith and (ii) the consummation of
the transactions contemplated hereby and thereby, including reasonable
Attorney Costs incurred by BofA (including in its capacity as Agent) with
respect thereto; and
(b) pay or reimburse the Agent, the Lead Arranger, each Designated
Bidder and each Bank within five Business Days after demand (subject to
subsection 4.01(e)) for all costs and expenses (including Attorney Costs)
incurred by them in connection with the enforcement, attempted enforcement,
or preservation of any rights or remedies under this Agreement or any other
Loan Document during the existence of an Event of Default or after
acceleration of the Loans (including in connection with any "workout" or
restructuring regarding the Loans, and including in any Insolvency
Proceeding or appellate proceeding).
10.05 Company Indemnification. Whether or not the transactions
contemplated hereby are consummated, the Company shall indemnify, defend
and hold the Agent-Related Persons, and each Bank, each Designated Bidder
and each of its respective officers, directors, employees, counsel, agents
and attorneys-in-fact (each an "Indemnified Person") harmless from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, charges, expenses and disbursements
(including Attorney Costs) of any kind or nature whatsoever which may at
any time (including at any time following repayment of the Loans and the
termination, resignation or replacement of the Agent or replacement of any
Bank) be imposed on, incurred by or asserted against any such Person in any
way relating to or arising out of this Agreement, the other Loan Documents
or any document contemplated by or referred to therein, or the transactions
contemplated hereby, or any action taken or omitted by any such Indemnified
Person under or in connection with any of the foregoing, including with
respect to any investigation, litigation or proceeding (including any
Insolvency Proceeding or appellate proceeding) related to or arising out of
this Agreement or the Loans or the use of the proceeds thereof, whether or
not any Indemnified Person is a party thereto (all the foregoing,
collectively, the "Indemnified Liabilities"); provided that the Company
shall have no obligation hereunder to any Indemnified Person with respect
to Indemnified Liabilities to the extent resulting from the gross
55.
negligence or willful misconduct of such Indemnified Person. The agreements
in this Section and in Section 10.04 shall survive payment of all other
Obligations.
10.06 Payments Set Aside. To the extent that the Company makes a
payment to the Agent, any Designated Bidder or any Bank or the Agent, any
Designated Bidder or any Bank exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof are
subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent, such Designated Bidder or such Bank in its discretion) to be repaid
to a trustee, receiver or any other party, in connection with any
Insolvency Proceeding or otherwise, then (a) to the extent of such recovery
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not
been made or such set-off had not occurred, and (b) each Bank and each
Designated Bidder severally agrees to pay to the Agent upon demand its pro
rata share of any amount so recovered from or repaid by the Agent.
10.07 Binding Effect; Successors and Assigns. This Agreement shall
become effective when it shall have been executed by the Company, the Agent
and the Banks and thereafter shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns, except
that the Company may not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the
Agent and each Bank.
10.08 Assignments, Participations, Etc.(a) (a) Any Bank may, with the
written consent of the Company and the Agent (which in each case shall not
be unreasonably withheld), at any time assign and delegate to one or more
Eligible Assignees (each an "Assignee") all, or any ratable part of all, of
the Loans, the Commitment and the other rights and obligations of such Bank
hereunder; provided, however, that (i) no written consent of the Company
shall be required during the existence of a Default or an Event of Default;
(ii) no written consent of the Company or the Agent shall be required in
connection with any assignment and delegation by a Bank to an Eligible
Assignee that is a United States Affiliate of such Bank or another Bank;
and (iii) except in connection with an assignment of all of a Bank's rights
and obligations with respect to its Commitment and Loans, any such
assignment (A) to an Eligible Assignee that is a Bank or an Affiliate of a
Bank hereunder shall be equal to or greater than $5,000,000 or (B) to an
Eligible Assignee that is not a Bank or an Affiliate of a Bank hereunder
shall be equal to or greater than $10,000,000; and (iv) each such partial
assignment shall be of a ratable part of the Loans, the Commitment and the
other interests, rights and obligations hereunder of such assigning Bank;
and provided further, however, that the Company and the Agent may continue
to deal solely and directly with such Bank in connection with the interest
so assigned to an Assignee until (A) such Bank and its Assignee shall have
delivered to the Company and the Agent an Assignment and Acceptance
Agreement substantially in the form of Exhibit E (an "Assignment and
Acceptance") together with any Note or Notes subject to such assignment;
(B) a written notice of such assignment, together with payment
instructions, addresses and related information with respect to the
Assignee, in substantially the form of the Notice of Assignment and
Acceptance attached as Schedule 1 to the Assignment and Acceptance, shall
have been given to the Company and the Agent by such Bank and the Assignee;
and (C) the assignor Bank or Assignee shall have paid to the Agent a
processing fee in the amount of $3,500; and (D) the Agent and the Company
each shall have provided any required consent to such assignment in
accordance with this Section.
56.
(b) From and after the date that the Agent notifies the assignor Bank
that the Agent has received (and, if required, provided its consent with
respect thereto and, if necessary, received any other consents required
under this Section 10.08) an executed Assignment and Acceptance and payment
of the above-referenced processing fee (such date referred to herein as the
"Assignment and Acceptance Date", (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have
been assigned to it pursuant to such Assignment and Acceptance, shall have
the rights and obligations of a Bank under the Loan Documents, (ii) this
Agreement shall be deemed to be amended to the extent, but only to the
extent, necessary to reflect the addition of the Assignee and the resulting
adjustment of the Commitments arising therefrom, and (iii) the assignor
Bank shall, to the extent that rights and obligations hereunder and under
the other Loan Documents have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Loan Documents; provided, however, that the assignor
Bank shall not relinquish its rights under Article III or under Sections
10.04 and 10.05 (and any equivalent provisions of the other Loan Documents)
to the extent such rights relate to the time prior to the effective date of
the Assignment and Acceptance. The Commitment allocated to each Assignee
shall reduce the Commitment of the assigning Bank pro tanto.
(c) Within five Business Days after the Company's receipt of notice
from the Agent that it has received (and, if necessary, consented to) an
executed Assignment and Acceptance and payment of the processing fee (and
provided that the Company consents to such assignment in accordance with
subsection 10.08(a)), the Company shall execute and deliver to the Agent
any new Notes requested by such Assignee evidencing such Assignee's
assigned Loans and Commitment and, if the assignor Bank has retained a
portion of its Loans and its Commitment, replacement Notes as requested by
the assignor Bank evidencing the Loans and Commitment retained by the
assignor Bank (such Notes to be in exchange for, but not in payment of, the
Notes held by such Bank, if any).
(d) Any Bank or Designated Bidder may at any time sell to one or more
commercial banks or other Persons not Affiliates of the Company (a
"Participant") participating interests in any Loans, the Commitment of that
Bank and the other interests of that Bank or Designated Bidder (the
"Originator") hereunder and under the other Loan Documents; provided,
however, that (i) the Originator's obligations under this Agreement shall
remain unchanged, (ii) the Originator shall remain solely responsible for
the performance of such obligations, (iii) the Company and the Agent shall
continue to deal solely and directly with the Originator in connection with
the Originator's rights and obligations under this Agreement and the other
Loan Documents, and (iv) no Bank shall transfer or grant any participating
interest under which the Participant has rights to approve any amendment
to, or any consent or waiver with respect to, this Agreement or any other
Loan Document, except to the extent such amendment, consent or waiver would
require unanimous consent of the Banks as described in the first proviso to
Section 10.01. In the case of any such participation, the Participant shall
not have any rights under this Agreement, or any of the other Loan
Documents, and all amounts payable by the Company hereunder shall be
determined as if such Originator had not sold such participation; except
that, if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have
the right of set-off in respect of its participating interest in amounts
57.
owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Bank or Designated
Bidder (as the case may be) under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any Bank or
Designated Bidder may at any time create a security interest in, or pledge,
all or any portion of its rights under and interest in this Agreement and
any Note held by it in favor of any Federal Reserve Bank in accordance with
Regulation A of the FRB or U.S. Treasury Regulation 31 CFR ss.203.14, and
such Federal Reserve Bank may enforce such pledge or security interest in
any manner permitted under applicable law.
10.09 Designated Bidders. Any Bid Loan Bank may designate one
Designated Bidder to have a right to offer and make Bid Loans pursuant to
Section 2.06; provided, however, that (i) no such Bid Loan Bank may make
more than one such designation, (ii) each such Bid Loan Bank making any
such designation shall retain the right to make Bid Loans, and (iii) the
parties to each such designation shall execute and deliver to the Agent a
Designation Agreement. Upon its receipt of an appropriately completed
Designation Agreement executed by a designating Bid Loan Bank and a
designee representing that it is a Designated Bidder, the Agent will accept
such Designation Agreement and give prompt notice thereof to the Company,
whereupon such designation of such Designated Bidder shall become effective
and such Designated Bidder shall become a party to this Agreement as a
"Designated Bidder."
10.10 Confidentiality. Each Bank and each Designated Bidder agrees to
take and to cause its Affiliates to take normal and reasonable precautions
and exercise due care to maintain the confidentiality of all information
identified as "confidential" or "secret" by the Company and provided to it
by the Company or any Subsidiary, or by the Agent on the Company's or such
Subsidiary's behalf, under this Agreement or any other Loan Document, and
neither it nor any of its Affiliates shall use any such information other
than in connection with or in enforcement of this Agreement and the other
Loan Documents or in connection with other business now or hereafter
existing or contemplated with the Company or any Subsidiary; except to the
extent such information (i) was or becomes generally available to the
public other than as a result of disclosure by such Bank or Designated
Bidder, or (ii) was or becomes available on a non-confidential basis from a
source other than the Company, provided that such source is not bound by a
confidentiality agreement with the Company known to such Bank or Designated
Bidder; provided, however, that any Bank or Designated Bidder may disclose
such information (A) at the request or pursuant to any requirement of any
Governmental Authority to which such Bank or Designated Bidder is subject
or in connection with an examination of such Bank or Designated Bidder by
any such authority; (B) pursuant to subpoena or other court process; (C)
when required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent required in connection with any
litigation or proceeding to which the Agent, any Bank, Designated Bidder or
their respective Affiliates may be party; (E) to the extent required in
connection with the exercise of any remedy hereunder or under any other
Loan Document; (F) to such Bank's or Designated Bidder's independent
auditors, legal counsel and other professional advisors; (G) to any
Participant or Assignee, actual or potential, provided that such Person
agrees in writing to keep such information confidential to the same extent
required of the Banks hereunder; (H) as to any Bank or Designated Bidder or
its Affiliate, as expressly permitted under the terms of any other document
or agreement regarding confidentiality to which the Company or any
58.
Subsidiary is party or is deemed party with such Bank or Designated Bidder
or such Affiliate; and (I) to its Affiliates.
10.11 Set-off. In addition to any rights and remedies of the Banks
provided by law, if an Event of Default exists or the Loans have been
accelerated, each Bank and Designated Bidder is authorized at any time and
from time to time, without prior notice to the Company, any such notice
being waived by the Company to the fullest extent permitted by law, to set
off and apply any and all deposits (general or special, time or demand,
provisional or final) at any time held by, and other indebtedness at any
time owing by, such Bank or Designated Bidder to or for the credit or the
account of the Company against any and all Obligations owing to such Bank
or Designated Bidder, now or hereafter existing. Each Bank and Designated
Bidder agrees promptly to notify the Company and the Agent after any such
set-off and application made by such Bank or Designated Bidder; provided,
however, that the failure to give such notice shall not affect the validity
of such set-off and application. Any Bank having outstanding both Committed
Loans and Bid Loans at any time a right of set-off is exercised by such
Bank and applying such setoff to the Loans shall apply the proceeds of such
set-off first to such Bank's Committed Loans, until its Committed Loans are
reduced to zero, and thereafter to its Bid Loans.
10.12 Notification of Addresses, Lending Offices, Etc. Each Bank and
each Designated Bidder shall notify the Agent in writing of any changes in
the address to which notices to such Bank or Designated Bidder should be
directed, of addresses of any Lending Office, of payment instructions in
respect of all payments to be made to it hereunder and of such other
administrative information as the Agent shall reasonably request.
10.13 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.14 Severability. The illegality or unenforceability of any
provision of this Agreement or any instrument or agreement required
hereunder shall not in any way affect or impair the legality or
enforceability of the remaining provisions of this Agreement or any
instrument or agreement required hereunder.
10.15 No Third Parties Benefited. This Agreement is made and entered
into for the sole protection and legal benefit of the Company, the Banks,
the Designated Bidders, the Agent, the Agent-Related Persons, the
Indemnified Persons and their permitted successors and assigns, and no
other Person shall be a direct or indirect legal beneficiary of, or have
any direct or indirect cause of action or claim in connection with, this
Agreement or any of the other Loan Documents.
10.16 Governing Law and Jurisdiction.(a) (a) THIS AGREEMENT AND THE
NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF
THE STATE OF NEW YORK; PROVIDED THAT THE COMPANY, THE AGENT AND THE BANKS
SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW
YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY
59.
EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT,
THE DESIGNATED BIDDERS AND THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF
ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF
THE COMPANY, THE AGENT, THE DESIGNATED BIDDERS AND THE BANKS IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR
BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN
RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE COMPANY, THE
AGENT, THE DESIGNATED BIDDERS AND THE BANKS EACH WAIVE PERSONAL SERVICE OF
ANY SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER
MEANS PERMITTED BY NEW YORK LAW.
10.17 Waiver of Jury Trial. THE COMPANY, THE BANKS, THE DESIGNATED
BIDDERS AND THE AGENT EACH WAIVE THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY
OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO
THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR OTHER LITIGATION OF ANY
TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER PARTY OR ANY
AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT TO
CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS, THE
DESIGNATED BIDDERS AND THE AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF
ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE
FOREGOING, THE PARTIES FURTHER AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL
BY JURY IS WAIVED BY OPERATION OF THIS SECTION AS TO ANY ACTION,
COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN WHOLE OR IN PART, TO
CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT OR THE OTHER
LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER SHALL APPLY
TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.18 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the
Company, the Banks, the Designated Bidders and the Agent, and supersedes
all prior or contemporaneous agreements and understandings of such Persons,
oral or written, relating to the subject matter hereof and thereof.
(remainder of page intentionally left blank)
60.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered in San Francisco, California by their proper and
duly authorized officers as of the day and year first above written.
XXXXXXXXX'X, INC.
By:
Title:
BANK OF AMERICA, N.A., as Agent
By:
Title:
BANK OF AMERICA, N.A., as a Bank
By:
Title:
BANK ONE, NA, as Documentation Agent and as
a Bank
By:
Title:
WACHOVIA BANK, N.A., as Syndication Agent
and as a Bank
By:
Title:
BANCA DI ROMA, SAN XXXXXXXXX XXXXXX
By:
Title:
THE BANK OF NEW YORK
By:
Title:
BANK OF OKLAHOMA, N.A.
By:
Title:
FIRSTAR BANK, NATIONAL ASSOCIATION
By:
Title:
FIRST UNION NATIONAL BANK
By:
Title:
FIRST SECURITY BANK, N.A.
By:
Title:
THE HUNTINGTON NATIONAL BANK
By:
Title:
INTERNATIONAL BANK OF COMMERCE
By:
Title:
KEYBANK NATIONAL ASSOCIATION
By:
Title:
THE NORTHERN TRUST COMPANY
By:
Title:
SOUTHTRUST BANK, N.A.
By:
Title:
SUNTRUST BANK
By:
Title:
UMB BANK, N.A.
By:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
Title:
XXXXX FARGO BANK, N.A.
By:
Title:
XXXXXXX XXXXX BANK USA
By:
Title:
ANNEX I
PRICING GRID
Applicable Margin and Applicable Fee Amount (Facility Fee): The Facility Fee and
the Applicable Margin for Offshore Rate Committed Loans and Base Rate Committed
Loans shall be, at any time, the rate per annum set forth in the tables below.
"Indebtedness Rating" means the long term unsecured senior, non-credit enhanced
debt rating of the Company by Standard & Poor's Ratings Group or Xxxxx'x
Investors Service Inc. (in the case of a split rating, the higher rating will
apply, unless the split results in a difference of more than one rating, in
which case the rating one rating below the highest rating will apply). If the
Term Loan option is utilized, the rate of interest on all Loans outstanding will
include the Applicable Margin plus 25 basis points. Any change in the Applicable
Margin or Applicable Fee Amount for the Facility Fee shall become effective five
Business Days after any public announcement of Indebtedness Rating requiring
such a change.
Indebtedness Offshore
Rating Facility Fee Rate Spread Base Rate Spread
------ ------------ ----------- ----------------
------------------------------ ---------------------- ------------------------- -----------------------------
------------------------------ ---------------------- ------------------------- -----------------------------
=> A or A2 6.5 bps 18.5 bps 0 bps
------------------------------ ---------------------- ------------------------- -----------------------------
------------------------------ ---------------------- ------------------------- -----------------------------
=> A- or A3 7.5 bps 22.5 bps 0 bps
------------------------------ ---------------------- ------------------------- -----------------------------
------------------------------ ---------------------- ------------------------- -----------------------------
=> BBB+ or Baa1 8.5 bps 26.5 bps 0 bps
------------------------------ ---------------------- ------------------------- -----------------------------
------------------------------ ---------------------- ------------------------- -----------------------------
< BBB+ or Baa1 10.0 bps 35.0 bps 0 bps
------------------------------ ---------------------- ------------------------- -----------------------------
Applicable Fee Amount (Utilization Fee): The Utilization Fee applicable to Loans
shall be, at any time, the rate per annum set forth in the table below,
determined in accordance with usage:
--------------------------------------------------------------------------------
------------------------- ----------------------
Facility
Usage % Utilization Fee
------------------------- ----------------------
------------------------- ----------------------
50% 10.0 bps
------------------------- ----------------------
If usage shall equal or exceed the applicable percentage specified above, the
utilization fee corresponding to such percentage shall apply with respect to all
outstanding Loans.
Annex 1-1.
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
BANK COMMITMENT PRO RATA
SHARE
BANK OF AMERICA, N.A. $135,000,000 14.594594595%*
WACHOVIA BANK, N.A. $125,000,000 13.513513514%*
BANK ONE, NA $125,000,000 13.513513514%*
XXXXX FARGO BANK, N.A. $75,000,000 8.108108108%*
U.S. BANK NATIONAL ASSOCIATION $75,000,000 8.108108108%*
FIRST UNION NATIONAL BANK $75,000,000 8.108108108%*
UNION BANK OF CALIFORNIA, N.A. $75,000,000 8.108108108%*
THE NORTHERN TRUST COMPANY $42,500,000 4.594594595%*
FIRST SECURITY BANK, N.A. $42,500,000 4.594594595%*
SUNTRUST BANK, CENTRAL FLORIDA $25,000,000 2.702702703%*
KEYBANK NATIONAL ASSOCIATION $25,000,000 2.702702703%*
THE HUNTINGTON NATIONAL BANK $25,000,000 2.702702703%*
THE BANK OF NEW YORK $12,500,000 1.351351351%*
INTERNATIONAL BANK OF COMMERCE $12,500,000 1.351351351%*
UMB BANK, N.A. $12,500,000 1.351351351%*
SOUTHTRUST BANK, N.A. $12,500,000 1.351351351%*
BANCA DI ROMA, SAN XXXXXXXXX XXXXXX $12,500,000 1.351351351%*
FIRSTAR BANK, NATIONAL ASSOCIATION $12,500,000 1.351351351%*
BANK OF OKLAHOMA, N.A. $5,000,000 0.540540541%*
TOTAL $925,000,000.00 100%
* [9 DECIMAL PTS.]
--------------------------------------------------------------------------------
S-2.01-1.
SCHEDULE 10.02
PAYMENT OFFICES; ADDRESSES FOR NOTICES; LENDING OFFICES
COMPANY
Address for Notices:
Xxxxxxxxx'x, Inc.
000 Xxxx Xxxxxx Xxxx.
Xxx 00
Xxxxx, Xxxxx 00000
Attention: Finance Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF AMERICA, N.A.
as Agent
Notices for Borrowing, Conversions/Continuations, and Payments:
Bank of America, N.A.
Mail Code: CA4-706-05-09
Agency Services #5596
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Other Notices:
Bank of America, N.A.
Retail Industry Group #33751
Mail Code: CA5-705-41-89
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-1.
Agent's Payment Office:
Bank of America, N.A.
Attention: Agency Services #5596
Reference: Xxxxxxxxx'x, Inc.
For credit to Acct. No. 3750836479
ABA No. 000000000
BANK OF AMERICA, N.A.
as a Bank
Domestic and Offshore Lending Office:
(Borrowing Notices, Notices of Conversion/Continuation and Payments)
Bank of America, N.A.
Mail Code: CA4-706-05-09
0000 Xxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All other Notices:
Bank of America, N.A.
Retail Industry Group # 33751
Mail Code: CA5-705-41-89
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
WACHOVIA BANK, N.A.
as Syndication Agent and as a Bank
Domestic and Offshore Lending Office:
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx XX
XX-XX 370
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-2.
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
Wachovia Bank, N.A.
000 Xxxxxxxxx Xxxxxx XX
XX-XX 370
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK ONE, NA
as Documentation Agent and as a Bank
Domestic and Offshore Lending Office:
Bank One, NA
One Bank One Plaza
IL1-0088, 14th Floor
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Bank One, NA
One Bank One Plaza
IL1-0086, 14th Floor
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
XXXXX FARGO BANK, N.A.
as Senior Managing Agent and as a Bank
Domestic and Offshore Lending Office:
Xxxxx Fargo Bank, N.A.
000 Xxxxxxxx Xxxxxxxxx, 00xx Xxxxx
XXX X00-00-000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-3.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Xxxxx Fargo Bank, N.A.
000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
U.S. BANK NATIONAL ASSOCIATION
as Senior Managing Agent and as a Bank
Domestic and Offshore Lending Office:
U.S. Bank National Association
000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
Attention: Xxxxx X'Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
U.S. Bank National Association
000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRST UNION NATIONAL BANK
as Senior Managing Agent and as a Bank
Domestic and Offshore Lending Office:
First Union National Bank
000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-4.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
First Union National Bank
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
UNION BANK OF CALIFORNIA, N.A.
as Senior Managing Agent and as a Bank
Domestic and Offshore Lending Office:
Union Bank of California, N.A.
Commercial Customer Service Unit
0000 Xxxxxx Xxxxxx
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Union Bank of California, N.A.
000 Xxxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE NORTHERN TRUST COMPANY
as Managing Agent and as a Bank
Domestic and Offshore Lending Office:
The Northern Trust Company
00 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Honda
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-5.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
The Northern Trust Company
00 Xxxxx XxXxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRST SECURITY BANK, N.A.
as Managing Agent and as a Bank
Domestic and Offshore Lending Office:
First Security Bank, N.A.
Commercial Loan Account Center
X.X. Xxx 0000
Xxxxx, Xxxxx 00000-0000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
First Security Bank, N.A.
Idaho Corporate Banking
000 Xxxxx 0xx Xxxxxx
Xxxxx, Xxxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE BANKS
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
Domestic and Offshore Lending Office:
Suntrust Bank, Central Florida, N.A.
000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-6.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Suntrust Bank, Central Florida, N.A.
000 Xxxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
KEYBANK NATIONAL ASSOCIATION
Domestic and Offshore Lending Office:
KeyBank National Association
000 Xxxx Xxxxxxxxxx Xxxxxxxxx
Xxxxx, Xxxxx 00000
Attention: Specialty Services Team
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
KeyBank National Association
000 Xxxxx Xxxxxx
XX00-00-0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE HUNTINGTON NATIONAL BANK
Domestic and Offshore Lending Office:
The Huntington National Bank
7450 Huntington Park Drive
Mail Code HZ0338
Xxxxxxxx, Xxxx 00000
Attention: Xxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-7.
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
Huntington National Bank
000 Xxxxx Xxxxxxxxx Xxxxxx
Mail Code FL631
Xxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
THE BANK OF NEW YORK
Domestic and Offshore Lending Office:
The Bank of New York
Xxx Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/1483
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
The Bank of New York
Xxx Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000/1483
INTERNATIONAL BANK OF COMMERCE
Domestic and Offshore Lending Office:
International Bank of Commerce
000 Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxxxxx X. XxXxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-8.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
International Bank of Commerce
000 Xxxx Xxxxxx
Xxx Xxxxxxx, Xxxxx 00000
Attention: Xxxxxx Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
UMB BANK, N.A.
Domestic and Offshore Lending Office:
UMB Bank, n.a.
0000 Xxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
UMB Bank, n.a.
0000 Xxxxx Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SOUTHTRUST BANK
Domestic and Offshore Lending Office:
SouthTrust Bank
000 Xxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-9.
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
SouthTrust Bank
000 Xxxx Xxxxxxxxx Xxxxxx, 00xx Xx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANCA DI ROMA, SAN XXXXXXXXX XXXXXX
Domestic and Offshore Lending Office:
Banca di Roma, San Xxxxxxxxx Xxxxxx
Xxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
Banca di Roma, San Xxxxxxxxx Xxxxxx
Xxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
FIRSTAR BANK, NATIONAL ASSOCIATION
Domestic and Offshore Lending Office:
Firstar Bank, National Association
Commercial Loan Operations
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-10.
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Firstar Bank, National Association
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Mail Location 8160
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
BANK OF OKLAHOMA, N.A.
Domestic and Offshore Lending Office:
Bank Of Oklahoma, N.A.
X.X. Xxx 0000
Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Bank Of Oklahoma, N.A.
Xxx Xxxxxxxx Xxxxx
Xxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
S-10.02-11.
EXHIBIT A
FORM OF NOTICE OF BORROWING
Date: ______________
To: Bank of America, N.A.,
as Agent
Ladies and Gentlemen:
The undersigned, Xxxxxxxxx'x, Inc. (the "Company"), refers to the
Credit Agreement, dated as of March 22, 2000 (as extended, renewed, amended or
restated from time to time, the "364-Day Credit Agreement"), among the Company,
the several financial institutions from time to time party thereto (the
"Banks"), the Co-Agents party thereto, and Bank of America, N.A., as Agent (the
"Agent"), the terms defined therein being used herein as therein defined, and
hereby gives you notice irrevocably, pursuant to Section 2.03 of the 364-Day
Credit Agreement, of the Committed Borrowing specified below:
1. The Business Day of the proposed Committed Borrowing is ____________________.
2. The aggregate amount of the proposed Committed Borrowing is $_______________.
3. The Committed Borrowing is to be comprised of $___________ of [Base Rate
Committed Loans] [Offshore Rate Committed Loans].
4. [The duration of the Interest Period for the Offshore Rate Committed Loans
included in the Committed Borrowing shall be _____ months.]
The undersigned hereby certifies that the following statements are true
on the date hereof, and will be true on the date of the proposed Committed
Borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) the representations and warranties of the Company
contained in Article V of the 364-Day Credit Agreement are true
and correct as though made on and as of such date, except to the
extent such representations and warranties expressly refer to an
earlier date, in which case they are true and correct as of such
date, and except that this notice shall be deemed instead to
refer to the last day of the most recent year for which financial
statements have then been delivered in respect of the
representation and warranty made in Section 5.10(a) of the
364-Day Credit Agreement;
(b) no Default or Event of Default has occurred and is
continuing, or would result from such proposed Borrowing;
(c) there has occurred since January 28, 1999 no event or
circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect; and
A-1.
(d) after giving effect to the proposed Committed Borrowing,
the aggregate principal amount of all outstanding Committed Loans
plus the aggregate principal amount of all Bid Loans outstanding,
shall not at any time exceed the Aggregate Commitment.
XXXXXXXXX'X, INC.
By:
Title:
A-2.
EXHIBIT B
FORM OF NOTICE OF CONVERSION/CONTINUATION
Date: _______________
To: Bank of America, N.A.,
as Agent
Ladies and Gentlemen:
The undersigned, Albertson's (the "Company"), refers to the Credit
Agreement, dated as of March 22, 2000 (as extended, renewed, amended or restated
from time to time, the "364-Day Credit Agreement"), among the Company, the
several financial institutions from time to time party thereto (the "Banks"),
the Co-Agents party thereto, and Bank of America, N.A., as Agent (the "Agent"),
the terms defined therein being used herein as therein defined, and hereby gives
you notice irrevocably, pursuant to Section 2.04 of the 364-Day Credit
Agreement, of the [conversion] [continuation] of Committed Loans specified
below:
1. The Conversion/Continuation Date is ______________.
2. The aggregate amount of the Committed Loans to be [converted] [continued]
is $_______________.
3. The Committed Loans are to be [converted into] [continued as] [Offshore
Rate Committed Loans] [Base Rate Committed Loans].
4. [The duration of the Interest Period for the [Offshore Rate Committed
Loans] included in the [conversion] [continuation] shall be [____ months].]
XXXXXXXXX'X, INC.
By:
Title:
B-1.
EXHIBIT C
FORM OF COMPLIANCE CERTIFICATE
XXXXXXXXX'X, INC.
Financial Statements Date: ______________
Reference is made to that certain Credit Agreement dated as of March
22, 2000 (as extended, renewed, amended or restated from time to time, the
"364-Day Credit Agreement"), among ______________ (the "Company"), the several
financial institutions from time to time party thereto (the "Banks"), the
Co-Agents party thereto, and Bank of America, N.A., as Agent (in such capacity,
the "Agent"). Unless otherwise defined herein, capitalized terms used herein
have the respective meanings assigned to them in the 364-Day Credit Agreement.
The undersigned Responsible Officer of the Company hereby certifies as
of the date hereof that he/she is the [_______________] of the Company, and
that, as such, he/she is authorized to execute and deliver this Certificate to
the Banks and the Agent on the behalf of the Company and its consolidated
Subsidiaries, and that:
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by subsection 6.01(a) of the 364-Day Credit
Agreement.]
1. Attached hereto are true and correct copies of the audited
consolidated balance sheet of the Company and its Consolidated Subsidiaries as
at the end of the fiscal year ended _______________ and the related consolidated
statements of income or operations, shareholders' equity and cash flows for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on in a manner acceptable to the SEC,
accompanied by the unqualified opinion of the Independent Auditor, which opinion
(a) shall state that such consolidated financial statements present fairly the
financial position for the periods indicated in conformity with GAAP applied on
a basis consistent with prior years and (b) is not qualified as to (i) going
concern, or (ii) any limitation in the scope of audit.
or
[Use the following paragraph if this Certificate is delivered in connection with
the financial statements required by subsection 6.01(b) of the 364-Day Credit
Agreement.]
1. Attached hereto are true and correct copies of the unaudited consolidated
balance sheet of the Company and its Consolidated Subsidiaries as of the end of
the fiscal quarter ended _________ and the related consolidated statements of
income, shareholders' equity and cash flows for the period commencing on the
first day and ending on the last day of such quarter, which are complete and
accurate in all material respects and fairly present, in accordance with GAAP
(subject to ordinary, good faith year-end audit adjustments), the financial
position, the results of operations and the cash flows of the Company and the
Consolidated Subsidiaries.
C-1
2. The undersigned has reviewed and is familiar with the terms of the 364-Day
Credit Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and condition (financial or
otherwise) of the Company and its Subsidiaries during the accounting period
covered by the attached financial statements.
3. The Company and its Subsidiaries, during such period, have observed,
performed or satisfied all of the covenants and other agreements, and satisfied
every condition in the 364-Day Credit Agreement to be observed, performed or
satisfied by the Company and its Subsidiaries, and the undersigned has no
knowledge of any Default or Event of Default.
4. The financial covenant analyses and information set forth on Schedule 1
attached hereto are true and accurate on and as of the date of this Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as the
____________ of the Company as of ___________, _______.
XXXXXXXXX'X, INC.
By:
Title:
C-2
SCHEDULE 1
to the Compliance Certificate
XXXXXXXXX'X, INC.
364-DAY CREDIT AGREEMENT DATED AS OF MARCH 22, 2000
Dated _________________
For the fiscal quarter ended __________
(in thousands)
Consolidated Tangible Net Worth Calculation:
Common stock $___________
Capital in excess ___________
Retained earnings ___________
Stockholders' equity ___________
Plus: Deferred investment tax credits ___________
Minus: Intangible assets:
(specify) ___________
Plus: CTNW Adjustments, if any:
(specify) ___________
Consolidated Tangible Net Worth $__________
Section 7.05: Consolidated Tangible Net Worth shall be not
less than $2.1 billion $__________
1
EXHIBIT D
FORM OF LEGAL OPINION OF COMPANY'S COUNSEL
[Form of opinion of Xxxxxx X. Xxxxxx, Esq.,
Executive Vice-President and General Counsel to the Company]
March 22, 2000
To the Banks and the Agent Referred to Below
c/o Bank of America N.A., as Agent
Re: Albertson's, Inc.
Ladies and Gentlemen:
I have acted as counsel for Albertson's, Inc. (the "Company")
in connection with the Credit Agreement, dated as of March 22, 2000 (the
"364-Day Credit Agreement") among the Company, the financial institutions party
thereto (the "Banks"), the Documentation Agent and the Syndication Agent party
thereto, and Bank of America N.A., as Agent (the "Agent").
This opinion is being delivered to you pursuant to Section
4.01(d) of the 364-Day Credit Agreement. Capitalized terms used herein and not
otherwise defined herein shall have the same meanings herein as ascribed thereto
in the 364-Day Credit Agreement.
I have examined originals or copies, certified or otherwise
identified to my satisfaction, of the Loan Documents and such other documents,
corporate records, certificates of public officials and other instruments and
have conducted such other investigations of fact and law as I have deemed
necessary or advisable for purposes of this opinion.
In my examination I have assumed the legal capacity of all
natural persons, the genuineness of all signatures, including endorsements, the
authority of all persons signing each of the documents on behalf of the parties
thereto (other than the Company), the authenticity of all documents submitted to
me as originals, the conformity to original documents of all documents submitted
to me as certified or photostatic copies, and the authenticity of the originals
of such copies. As to any facts material to this opinion which I did not
independently establish or verify, I have relied upon oral or written statements
and representations of officers and other representatives of the Company and
others, and factual representations contained in the Loan Documents.
I am a member of the Bar of the State of Idaho, and I express
no opinion as to the laws of any jurisdiction, or the effect of any such laws on
the opinions herein stated, other than (i) the laws of the State of Idaho, (ii)
the General Corporation Law of the State of Delaware (the "Delaware Statute")
with respect to the opinions set forth in paragraph 1 hereof, and (iii) the
federal laws of the United States of America to the extent specifically referred
to herein.
Upon the basis of the foregoing, I am of the opinion that:
D-1
1. The Company is a corporation duly incorporated, validly existing
and in good standing under the Delaware Statute, and has all corporate
powers and all material governmental licenses, authorizations, consents and
approvals required to carry on its business as now conducted. The Company
is qualified as a foreign corporation and is in good standing in the State
of Idaho.
2. The execution, delivery and performance by the Company of the Loan
Documents are within the Company's corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in
respect of, or filing with, any governmental body, agency or official and
do not contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of incorporation or
by-laws of the Company or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Company or result in the
creation or imposition of any Lien on any asset of the Company or any of
its Subsidiaries.
3. The Loan Documents have been duly executed and delivered by the
Company and constitute valid and binding agreements of the Company, in each
case enforceable in accordance with their terms, except as the same may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and by general principles of equity. Insofar as this
opinion addresses instruments or agreements expressed to be governed by New
York law, it is my opinion (i) that an Idaho court would give effect to
such choice of New York Law and (ii) in any event, the conclusion stated in
this paragraph would be correct as a matter of Idaho law.
4. Except as disclosed in the Company's 1998 Form 10-K, there is no
action, suit or proceeding pending against, or to the best of my knowledge
threatened against or affecting, the Company or any of its Subsidiaries
before any court or arbitrator or any governmental body, agency or
official, in which there is a reasonable possibility of an adverse decision
which could materially adversely effect the business, consolidated
financial position or consolidated reports of operations of the Company and
its Consolidated Subsidiaries, considered as a whole or which in any manner
draws into question the validity of the Loan Documents.
5. The Company is not an "investment company," or a company
"controlled" by an "investment company," within the meaning of the
Investment Company Act of 1940, as amended.
This opinion is being furnished only to you solely for your benefit in
connection with the 364-Day Credit Agreement and is not to be used,
circulated, quoted, referred to or relied upon by any other person or for
any other purpose without my prior express written consent; provided, the
Agent and each Bank may deliver a copy to its legal counsel in connection
with the 364-Day Credit Agreement, to any prospective Assignee or
Participant of any Bank and to any successor Agent, and such legal counsel,
any Assignee or Participant and any successor Agent shall be entitled to
rely hereon, it being understood that this opinion is rendered only as of
the date hereof.
Very truly yours,
D-2
EXHIBIT E
FORM OF ASSIGNMENT AND ACCEPTANCE
This ASSIGNMENT AND ACCEPTANCE AGREEMENT (this "Assignment and
Acceptance") dated as of _____________ is made between __________________ (the
"Assignor") and ________________ (the "Assignee").
RECITALS
WHEREAS, the Assignor is party to that certain Credit Agreement dated
as of March 22, 2000 (as amended, restated, modified, supplemented or renewed
from time to time, the "364-Day Credit Agreement"), among Albertson's, Inc. (the
"Company"), the several financial institutions from time to time party thereto
(including the Assignor, the "Banks"), the Co-Agents party thereto, and Bank of
America, N.A., as agent for the Banks (the "Agent"). Any terms defined in the
364-Day Credit Agreement and not defined in this Assignment and Acceptance are
used herein as defined in the 364-Day Credit Agreement;
WHEREAS, as provided under the 364-Day Credit Agreement, the Assignor
has committed to making Loans to the Company in an aggregate amount not to
exceed $__________ (the "Commitment");
WHEREAS, [the Assignor has made Loans in the aggregate principal amount
of $__________ to the Company consisting of $___________ principal amount of
Committed Loans [and $____________ principal amount of Bid Loans]] [no Loans are
outstanding under the 364-Day Credit Agreement]; and
WHEREAS, the Assignor wishes to assign to the Assignee [part of the]
[all] rights and obligations of the Assignor under the 364-Day Credit Agreement
in respect of its Commitment, [together with a corresponding portion of each of
its outstanding Loans], in an amount equal to ___% of the Assignor's Commitment
and Loans, on the terms and subject to the conditions set forth herein, and the
Assignee wishes to accept assignment of such rights and to assume such
obligations from the Assignor on such terms and subject to such conditions;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements contained herein, the parties hereto agree as follows:
Assignment and Acceptance.
(a) Subject to the terms and conditions of this Assignment and
Acceptance, (i) the Assignor hereby sells, transfers and assigns to the
Assignee, and (ii) the Assignee hereby purchases, assumes and undertakes
from the Assignor, without recourse and without representation or warranty
(except as provided in this Assignment and Acceptance) ___% (the
"Assignee's Percentage Share") of (A) the Commitment [and the Loans] of the
Assignor and (B) all related rights, benefits, obligations, liabilities and
indemnities of the Assignor under and in connection with the 364-Day Credit
Agreement and the Loan Documents.
E-1
(b) With effect on and after the Effective Date (as defined in Section
5 hereof), the Assignee shall be a party to the 364-Day Credit Agreement
and succeed to all of the rights and be obligated to perform all of the
obligations of a Bank under the 364-Day Credit Agreement, including the
requirements concerning confidentiality and the payment of indemnification,
with a Commitment in the amount set forth in subsection (c) below. The
Assignee agrees that it will perform in accordance with their terms all of
the obligations which by the terms of the 364-Day Credit Agreement are
required to be performed by it as a Bank. It is the intent of the parties
hereto that the Commitment of the Assignor shall, as of the Effective Date,
be reduced by an amount equal to the portion thereof assigned to the
Assignee hereunder, and the Assignor shall relinquish its rights and be
released from its obligations under the 364-Day Credit Agreement to the
extent such obligations have been assumed by the Assignee; provided,
however, that the Assignor shall not relinquish its rights under Article
III or Sections 10.04 and 10.05 of the 364-Day Credit Agreement to the
extent such rights relate to the time prior to the Effective Date.
(c) After giving effect to the assignment and assumption set forth
herein, on the Effective Date: (i) the Assignee's Commitment will be
$__________; and (ii) the Assignee's aggregate outstanding Committed Loans
will be $_______________ [and its aggregate outstanding Bid Loans will be
$___________].
(d) After giving effect to the assignment and assumption set forth
herein, on the Effective Date: (i) the Assignor's Commitment will be
$__________; and (ii) the Assignor's aggregate outstanding Committed Loans
will be $_______________ [and its aggregate outstanding Bid Loans will be
$___________].
Payments.
(e) As consideration for the sale, assignment and transfer
contemplated in Section 1 hereof, the Assignee shall pay to the Assignor on
the Effective Date in immediately available funds an amount equal to
$__________, representing the Assignee's Percentage Share of the principal
amount of all Loans previously made by the Assignor to the Company under
the 364-Day Credit Agreement and outstanding on the Effective Date.
(f) The [Assignor] [Assignee] further agrees to pay to the Agent a
processing fee in the amount specified in Section 10.08 of the 364-Day
Credit Agreement.
Reallocation of Payments. Any interest, fees and other payments accrued
to the Effective Date with respect to the Commitment [and Loans] of the Assignor
shall be for the account of the Assignor. Any interest, fees and other payments
accrued on and after the Effective Date with respect to the portion of such
Commitment [and Loans] assigned to the Assignee shall be for the account of the
Assignee. Each of the Assignor and the Assignee agrees that it will hold in
trust for the other party any interest, fees and other amounts which it may
receive to which the other party is entitled pursuant to the preceding sentence
and pay to the other party any such amounts which it may receive promptly upon
receipt.
Independent Credit Decision. The Assignee: (a) acknowledges that it has
received a copy of the 364-Day Credit Agreement and the Schedules and Exhibits
thereto, together with copies of the most recent financial statements referred
E-2
to in Section 5.10 or Section 6.01 of the 364-Day Credit Agreement, and such
other documents and information as it has deemed appropriate to make its own
credit and legal analysis and decision to enter into this Assignment and
Acceptance; and (b) agrees that it will, independently and without reliance upon
the Assignor, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit and legal decisions in taking or not taking action under the 364-Day
Credit Agreement.
Effective Date; Notices.
(g) As between the Assignor and the Assignee, the effective date for
this Assignment and Acceptance shall be ______________ (the "Effective
Date"); provided that the following conditions precedent have been
satisfied on or before the Effective Date:
(i) this Assignment and Acceptance shall be executed and delivered by
the Assignor and the Assignee;
(ii) any consent of the Company and the Agent required under Section
10.08 of the 364-Day Credit Agreement for the effectiveness of the
assignment hereunder by the Assignor to the Assignee shall have been duly
obtained and shall be in full force and effect as of the Effective Date;
(iii) the Assignee shall pay to the Assignor all amounts due to the
Assignor under this Assignment and Acceptance;
(iv) the processing fee referred to in Section 2(b) hereof and in
Section 10.08 of the 364-Day Credit Agreement shall have been paid to the
Agent; and
(v) the Assignor and Assignee shall have complied with the other
requirements of Section 10.08 of the 364-Day Credit Agreement and with the
requirements of Sections 9.10 and 10.10 of the 364-Day Credit Agreement (in
each case to the extent applicable).
(h) Promptly following the execution of this Assignment and
Acceptance, the Assignor shall deliver to the Company and the Agent for
acknowledgement by the Agent, a Notice of Assignment substantially in the
form attached hereto as Schedule 1.
Agent. The Assignee hereby appoints and authorizes the Assignor to
take such action as agent on its behalf and to exercise such powers under
the 364-Day Credit Agreement as are delegated to the Agent by the Banks
pursuant to the terms of the 364-Day Credit Agreement. [The Assignee shall
assume no duties or obligations held by the Assignor in its capacity as
Agent under the 364-Day Credit Agreement.] [INCLUDE ONLY IF ASSIGNOR IS
AGENT]
Withholding Tax. The Assignee (a) represents and warrants to the
Assignor, the Agent and the Company that under applicable law and treaties
no tax will be required to be withheld by the Bank with respect to any
payments to be made to the Assignee hereunder, and (b) agrees to furnish
(if it is organized under the laws of any jurisdiction other than the
United States or any State thereof) to the Agent and the Company prior to
E-3
the time that the Agent or Company is required to make any payment of
interest or fees under the 364-Day Credit Agreement, duplicate executed
originals of either U.S. Internal Revenue Service Form W-8BEN or U.S.
Internal Revenue Service Form W-8ECI (wherein the Assignee claims
entitlement to the benefits of a tax treaty that provides for a complete
exemption from U.S. federal income withholding tax on all payments
hereunder) and agrees to provide new Forms W-8BEN or W-8ECI upon the
expiration of any previously delivered form or comparable statements in
accordance with applicable U.S. law and regulations and amendments thereto,
duly executed and completed by the Assignee, as and when required under the
364-Day Credit Agreement.
Representations and Warranties.
(i) The Assignor represents and warrants that (i) it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any Lien or other adverse claim; (ii) it
is duly organized and existing and it has the full power and authority to
take, and has taken, all action necessary to execute and deliver this
Assignment and Acceptance and any other documents required or permitted to
be executed or delivered by it in connection with this Assignment and
Acceptance and to fulfill its obligations hereunder; (iii) no notices to,
or consents, authorizations or approvals of, any Person are required (other
than those referred to in Section 5(a)(ii) hereof and any already given or
obtained) for its due execution, delivery and performance of this
Assignment and Acceptance, and apart from any agreements or undertakings or
filings required by the 364-Day Credit Agreement, no further action by, or
notice to, or filing with, any Person is required of it for such execution,
delivery or performance; and (iv) this Assignment and Acceptance has been
duly executed and delivered by it and constitutes the legal, valid and
binding obligation of the Assignor, enforceable against the Assignor in
accordance with the terms hereof, subject, as to enforcement, to
bankruptcy, insolvency, moratorium, reorganization and other laws of
general application relating to or affecting creditors' rights and to
general equitable principles.
(j) The Assignor makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with the 364-Day Credit Agreement
or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the 364-Day Credit Agreement or any other
instrument or document furnished pursuant thereto. The Assignor makes no
representation or warranty in connection with, and assumes no
responsibility with respect to, the solvency, financial condition or
statements of the Company, or the performance or observance by the Company,
of any of its respective obligations under the 364-Day Credit Agreement or
any other instrument or document furnished in connection therewith.
(k) The Assignee represents and warrants that (i) it is duly organized
and existing and it has full power and authority to take, and has taken,
all action necessary to execute and deliver this Assignment and Acceptance
and any other documents required or permitted to be executed or delivered
by it in connection with this Assignment and Acceptance, and to fulfill its
obligations hereunder; (ii) no notices to, or consents, authorizations or
approvals of, any Person are required (other than those referred to in
Section 5(a)(ii) hereof and any already given or obtained) for its due
execution, delivery and performance of this Assignment and Acceptance; and
apart from any agreements or undertakings or filings required by the
364-Day Credit Agreement, no further action by, or notice to, or filing
with, any Person is required of it for such execution, delivery or
E-4
performance; (iii) this Assignment and Acceptance has been duly executed
and delivered by it and constitutes the legal, valid and binding obligation
of the Assignee, enforceable against the Assignee in accordance with the
terms hereof, subject, as to enforcement, to bankruptcy, insolvency,
moratorium, reorganization and other laws of general application relating
to or affecting creditors' rights and to general equitable principles; and
(iv) it is an Eligible Assignee.
Further Assurances.
(a) The Company shall ensure that all written information, exhibits
and reports furnished to the Agent or the Banks do not and will not contain
any untrue statement of a material fact and do not and will not omit to
state any material fact or any fact necessary to make the statements
contained therein not misleading in light of the circumstances in which
made, and will promptly disclose to the Agent and the Banks and correct any
defect or error that may be discovered therein or in any Loan Document or
in the execution, acknowledgement or recordation thereof.
(b) Promptly upon request by the Agent or the Majority Banks, the
Company shall (and shall cause any of its Subsidiaries to) do, execute,
acknowledge, and deliver, any and all such further acts, certificates,
assurances and other instruments the Agent or such Banks, as the case may
be, may reasonably require from time to time in order to carry out more
effectively the purposes of this Agreement or any other Loan Document.
Miscellaneous.
(l) Any amendment or waiver of any provision of this Assignment and
Acceptance shall be in writing and signed by the parties hereto. No failure
or delay by either party hereto in exercising any right, power or privilege
hereunder shall operate as a waiver thereof and any waiver of any breach of
the provisions of this Assignment and Acceptance shall be without prejudice
to any rights with respect to any other or further breach thereof.
(m) All payments made hereunder shall be made without any set-off or
counterclaim
(n) The Assignor and the Assignee shall each pay its own costs and
expenses incurred in connection with the negotiation, preparation,
execution and performance of this Assignment and Acceptance.
(o) This Assignment and Acceptance may be executed in any number of
counterparts and all of such counterparts taken together shall be deemed to
constitute one and the same instrument.
(p) THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK. THE ASSIGNOR AND THE
ASSIGNEE EACH IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY
STATE OR FEDERAL COURT SITTING IN NEW YORK OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS ASSIGNMENT AND ACCEPTANCE AND
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING
E-5
MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL COURT. EACH
PARTY TO THIS ASSIGNMENT AND ACCEPTANCE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT IT MAY EFFECTIVELY DO SO, ANY OBJECTION, INCLUDING ANY
OBJECTION TO THE LAYING OF VENUE OR BASED ON THE GROUNDS OF FORUM NON
CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF THIS ASSIGNMENT AND
ACCEPTANCE OR ANY DOCUMENT RELATED HERETO, AND PERSONAL SERVICE OF ANY
SUMMONS, COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS
PERMITTED BY NEW YORK LAW.
(q) THE ASSIGNOR AND THE ASSIGNEE EACH HEREBY KNOWINGLY, VOLUNTARILY
AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN
CONNECTION WITH THIS ASSIGNMENT AND ACCEPTANCE, AND ANY RELATED DOCUMENTS
AND AGREEMENTS, OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY
ACTION, PROCEEDING OR OTHER LITIGATION OF ANY TYPE BROUGHT BY EITHER OF THE
PARTIES AGAINST THE OTHER PARTY, WHETHER WITH RESPECT TO CONTRACT CLAIMS,
TORT CLAIMS, OR OTHERWISE. EACH OF THE PARTIES ALSO AGREES THAT ANY SUCH
CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A COURT TRIAL WITHOUT A JURY.
[Other provisions to be added as may be negotiated between the Assignor and the
Assignee, provided that such provisions are not inconsistent with the 364-Day
Credit Agreement.]
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Assignment and Acceptance to be executed and delivered by their duly
authorized officers as of the date first above written.
[ASSIGNOR]
By:
Title:
[ASSIGNEE]
By:
Title:
E-6
SCHEDULE 1
to the Assignment and Acceptance
NOTICE OF ASSIGNMENT AND ACCEPTANCE
Date: ___________________
Bank of America, N.A.,
as Agent
Bank of America, N.A.
Retail Industry Group #33751
[Mail Code: CA5-705-41-89]
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (415)
Xxxxxxxxx'x, Inc.
000 Xxxx Xxxxxx Xxxx.
Xxx 00
Xxxxx, XX 00000
Attention: Finance Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of March 22, 2000 (as
amended, restated, modified, supplemented or renewed from time to time, the
"364-Day Credit Agreement") among Albertson's, Inc. (the "Company"), the Banks
referred to therein, the Co-Agents party thereto, and Bank of America, N.A., as
Agent for the Banks (the "Agent"). Terms defined in the 364-Day Credit Agreement
are used herein as therein defined.
1. We hereby give you notice of[, and request the consent of [the
Company and] the Agent to,] the assignment by ________________________ (the
"Assignor") to ____________________ (the "Assignee") of ____% of the right,
title and interest of the Assignor in and to the 364-Day Credit Agreement
(including, without limitation, ____% of the right, title and interest of the
Assignor in and to the Commitment of the Assignor [and all outstanding Loans
made by the Assignor]) pursuant to that certain Assignment and Acceptance
Agreement, dated as of ___________ (the "Assignment and Acceptance") between
Assignor and Assignee, a copy of which Assignment and Acceptance is attached
hereto. Before giving effect to such assignment the Assignor's Commitment is
$___________. [The Assignor has made Loans in the aggregate principal amount of
$__________ to the Company consisting of $___________ principal amount of
1.
Committed Loans [and $____________ principal amount of Bid Loans].] [No Loans
are outstanding under the 364-Day Credit Agreement.]
2. The Assignee agrees that, upon receiving the consent of the Company
and the Agent to such assignment (if applicable) and from and after the
Effective Date (as such term is defined in Section 5 of the Assignment and
Acceptance), the Assignee shall be bound by the terms of the 364-Day Credit
Agreement, with respect to the interest in the 364-Day Credit Agreement assigned
to it as specified above, as fully and to the same extent as if the Assignee
were the Bank originally holding such interest in the 364-Day Credit Agreement.
3. The following administrative details apply to the Assignee:
(A) Lending Office(s):
Assignee name:
Address:
Attention:
Telephone: ( )
------
Facsimile: ( )
------
Assignee name:
Address:
Attention:
Telephone: ( )
------
Facsimile: ( )
------
(B) Notice Address:
Assignee name:
Address:
Attention:
Telephone: ( )
------
Facsimile: ( )
------
(C) Payment Instructions:
Account No.:
At:
2.
Reference:
Attention:
4. You are entitled to rely upon the representations, warranties and
covenants of each of the Assignor and Assignee contained in the
Assignment and Acceptance.
5. This Notice of Assignment and Acceptance may be executed by the
Assignor and the Assignee in separate counterparts, each of which when so
executed and delivered shall be deemed to be an original and all of which taken
together shall constitute one and the same notice and agreement.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused this
Notice of Assignment and Acceptance to be executed by their respective duly
authorized officials, officers or agents as of the date first above mentioned.
Very truly yours,
Adjusted Commitment: [ASSIGNOR]
-------------------
$ By:
------------------------------
Title:
Adjusted Pro Rata Share:
-----------------------
-------%
Commitment: [ASSIGNEE]
----------
$ ] By:
-------------------------------
Title:
Pro Rata Share:
--------------
-------%
[CONSENTED TO this _____ day of ___________________:
XXXXXXXXX'X, INC.
By:
3.
Title: ]
------------------------------------
ACKNOWLEDGED [AND CONSENTED TO] this ____ day of ________:
BANK OF AMERICA, N.A., as Agent
By:
Title:
4.
EXHIBIT F
FORM OF INVITATION FOR COMPETITIVE BIDS
Via Facsimile
Date: __________________
To the Bid Loan Banks and Designated Bidders Listed on Annex A Attached Hereto
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement dated as of March
22, 2000 (as extended, renewed, amended or restated from time to time, the
"364-Day Credit Agreement"), among _______________ (the "Company"), the Banks
party thereto, the Co-Agents party thereto, and Bank of America, N.A., as Agent
for the Banks (the "Agent"). Capitalized terms used herein have the meanings
specified in the 364-Day Credit Agreement.
Pursuant to subsection 2.06(b) of the 364-Day Credit Agreement, you are
hereby invited to submit offers to make Bid Loans to the Company based on the
following specifications:
1. Date of Bid Borrowing: _______________;
2. Aggregate amount of Bid Borrowing: $___________________;
3. The Bid Loans shall be Absolute Rate Bid Loans; and
4. Interest Period[s] and requested Interest Payment Dates, if any:
[____________________], [________________] and [_______________].
All Competitive Bids shall be in the form of Exhibit H to the 364-Day
Credit Agreement and shall be received by the Agent no later than 7:30 a.m. (San
Francisco time) on ___________, 2000; provided that terms of the offer or offers
contained in any Competitive Bid(s) to be submitted by the Agent (or any
Affiliate of the Agent) in the capacity of a Bid Loan Bank or Designated Bidder
shall be notified to the Company not later than 7:15 a.m. (San Francisco time)
on ___________.
BANK OF AMERICA, N.A., as Agent
By:
Title:
F-1
ANNEX A
to the Invitation for Competitive Bids
List of Bid Loan Banks and Designated Bidders
[Bank]
Facsimile: (415) 622-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
[Bank]
Facsimile: (___) ___-____
1
EXHIBIT G
FORM OF COMPETITIVE BID REQUEST
Date: _______________
To: Bank of America, N.A.,
as Agent
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of March 22, 2000
(as extended, renewed, amended or restated from time to time, the "364-Day
Credit Agreement"), among Xxxxxxxxx'x, Inc. (the "Company"), the Banks party
thereto, the Co-Agents party thereto, and Bank of America, N.A., as Agent for
the Banks (the "Agent"). Capitalized terms used herein have the meanings
specified in the 364-Day Credit Agreement.
This is a Competitive Bid Request for Bid Loans pursuant to Section
2.06 of the 364-Day Credit Agreement as follows:
(i) The Business Day of the proposed Bid Borrowing is: ______________.
(ii) The aggregate amount of the proposed Bid Borrowing is: $_____________.
(iii) The proposed Bid Borrowing to be made pursuant to Section 2.06 shall be
comprised of Absolute Rate Bid Loans.
(iv) The Interest Period[s] and Interest Payment Dates, if any, for the Bid
Loans comprised in the Bid Borrowing shall be: _______________,
[_________________] and [___________________].
[The undersigned hereby certifies that the following statements are
true on the date hereof, and will be true on the date of the proposed Bid
Borrowing, before and after giving effect thereto and to the application of the
proceeds therefrom:
(a) the representations and warranties of the Company contained in Article
V of the 364-Day Credit Agreement are true and correct as though made
on and as of such date (except to the extent such representations and
warranties expressly refer to an earlier date, in which case they are
true and correct as of such date and except that this notice shall be
deemed instead to refer to the last day of the most recent quarter and
year for which financial statements have then been delivered in respect
of the representation and warranty made in Section 5.10(a) of the
364-Day Credit Agreement);
(b) no Default or Event of Default has occurred and is continuing, or
would result from such proposed Bid Borrowing; and
G-1
(c) after giving effect to the Bid Borrowing requested hereby the
outstanding aggregate principal amount of all Bid Loans made by all Bid
Loan Banks and Designated Bidders, plus the outstanding aggregate
principal amount of all Committed Loans made by all Banks, will not
exceed the Aggregate Commitment.
XXXXXXXXX'X, INC.
By: ______________________________
Title: _____________________________
G-2
EXHIBIT H
FORM OF COMPETITIVE BID
Date: _______________
To: Bank of America, N.A.,
as Agent
Ladies and Gentlemen:
Reference is made to the Credit Agreement dated as of March 22, 2000
(as extended, renewed, amended or restated from time to time, the "364-Day
Credit Agreement"), among Xxxxxxxxx'x, Inc. (the "Company"), the Banks party
thereto, the Co-Agents party thereto, and Bank of America, N.A., as Agent for
the Banks (the "Agent"). Capitalized terms used herein have the meanings
specified in the 364-Day Credit Agreement.
In response to the Competitive Bid Request of the Company dated
___________ and in accordance with subsection 2.06(c)(ii) of the 364-Day Credit
Agreement, the undersigned [Bank] [Designated Bidder] offers to make Bid Loan[s]
thereunder in the following principal amounts[s], at the following interest
rates and for the following Interest Period[s], with Interest Payment Dates as
specified by the Company:
Date of Bid Borrowing: _____________________
Aggregate Maximum Bid Amount: $________________
Offer 1 (Maximum Bid Amount: $________________)
Principal Amount $______ Principal Amount $______ Principal Amount $______
Interest: Interest: Interest:
[Absolute Rate __%] [Absolute Rate __%] [Absolute Rate __%]
Interest Period ________ Interest Period ________ Interest Period ________
Offer 2 (Maximum Bid Amount: $________________)
Principal Amount $______ Principal Amount $______ Principal Amount $______
H-1
Interest: Interest: Interest:
[Absolute Rate __%] [Absolute Rate __%] [Absolute Rate __%]
Interest Period ________ Interest Period ________ Interest Period ________
Principal Amount $______ Principal Amount $______ Principal Amount $______
Interest: Interest: Interest:
[Absolute Rate __%] [Absolute Rate __%] [Absolute Rate __%]
Interest Period ________ Interest Period ________ Interest Period ________
[NAME OF BANK/DESIGNATED BIDDER]
By: _____________________
Title: __________________
H-2
EXHIBIT I
FORM OF COMMITTED LOAN NOTE
U.S. $___________________ Date: _______________
FOR VALUE RECEIVED, the undersigned, Xxxxxxxxx'x, Inc., a Delaware
corporation (the "Company"), hereby promises to pay to the order of
_________________________ (the "Bank") the principal sum of ___________________
Dollars ($_____________) or, if less, the aggregate unpaid principal amount of
all Committed Loans made by the Bank to the Company pursuant to the Credit
Agreement, dated as of March 22, 2000 (as amended, restated, supplemented or
otherwise modified from time to time, the "364-Day Credit Agreement"), among the
Company, the Bank, the other financial institutions from time to time party
thereto (the "Banks"), the Documentation Agent and the Syndication Agent party
thereto, and Bank of America, N.A., as Agent for the Banks (the "Agent"), on the
dates and in the amounts provided in the 364-Day Credit Agreement. The Company
further promises to pay interest on the unpaid principal amount of the Committed
Loans evidenced hereby from time to time at the rates, on the dates, and
otherwise as provided in the 364-Day Credit Agreement.
The Bank is authorized to endorse the amount of each Committed Loan,
the date on which each Committed Loan is made, and each payment of principal
with respect thereto on the schedule annexed hereto and made a part hereof, or
on continuations thereof which shall be attached hereto and made a part hereof;
provided that any failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Company under the 364-Day Credit Agreement and this Promissory Note (this
"Note").
This Note is one of the Committed Loan Notes referred to in, and is
entitled to the benefits of, the 364-Day Credit Agreement, which 364-Day Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
Terms defined in the 364-Day Credit Agreement are used herein with
their defined meanings therein unless otherwise defined herein.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
XXXXXXXXX'X, INC.
By:
Title:
I-1
SCHEDULE
to Committed Loan Note
Date Loan Disbursed Amount of Loan Principal Payment Date Principal Paid
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I-2
EXHIBIT J
FORM OF BID LOAN NOTE
Date: ________________
FOR VALUE RECEIVED, the undersigned, Xxxxxxxxx'x, Inc., a Delaware
corporation (the "Company"), hereby promises to pay to the order of
_________________________ (the "Bank") the aggregate unpaid principal amount of
all Bid Loans made by the Bank to the Company pursuant to the Credit Agreement,
dated as of March 22, 2000 (as amended, restated, supplemented or otherwise
modified from time to time, the "364-Day Credit Agreement"), among the Company,
the Bank, the other financial institutions from time to time party thereto (the
"Banks"), the Co-Agents party thereto, and Bank of America, N.A., as Agent for
the Banks (the "Agent"), on the dates and in the amounts provided in the 364-Day
Credit Agreement. The Company further promises to pay interest on the unpaid
principal amount of the Bid Loans evidenced hereby from time to time at the
rates, on the dates, and otherwise as provided in the 364-Day Credit Agreement.
The Bank is authorized to endorse the amount of and the date on which
each Bid Loan is made, the maturity date therefor and each payment of principal
with respect thereto on the schedules annexed hereto and made a part hereof, or
on continuations thereof which shall be attached hereto and made a part hereof;
provided that any failure to endorse such information on such schedule or
continuation thereof shall not in any manner affect any obligation of the
Company under the 364-Day Credit Agreement and this Promissory Note (this
"Note").
This Note is one of the Bid Loan Notes referred to in, and is entitled
to the benefits of, the 364-Day Credit Agreement, which 364-Day Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events and also for
prepayments on account of principal hereof prior to the maturity hereof upon the
terms and conditions therein specified.
Terms defined in the 364-Day Credit Agreement are used herein with
their defined meanings therein unless otherwise defined herein.
This Note shall be governed by, and construed and interpreted in
accordance with, the laws of the State of New York.
XXXXXXXXX'X, INC.
By: ______________________________
Title: _____________________________
J-1
SCHEDULE
to Bid Loan Note
Date Loan Disbursed Amount of Loan Maturity Date Principal Payment Date Principal Paid
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J-2
EXHIBIT K
FORM OF DESIGNATION AGREEMENT
Dated ______________
Reference is made to the Credit Agreement dated as of March
22, 2000 (as extended, renewed, amended or restated from time to time, the
"364-Day Credit Agreement") among _______________________ (the Company"), the
Banks party thereto, the Co-Agents party thereto, and Bank of America, N.A., as
Agent for the Banks (the "Agent"). Capitalized terms used herein have the
meanings specified in the 364-Day Credit Agreement.
_________________ (the "Designator") and ___________________
the ("Designee") agree as follows:
1. The Designator hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Bid Loans pursuant to Section
2.06 of the 364-Day Credit Agreement.
2. The Designator makes no representation or warranty and assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the 364-Day Credit Agreement or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
364-Day Credit Agreement or any other instrument or document furnished pursuant
thereto or (ii) the financial condition of the Company or the performance or
observance by the Borrower of any of its obligations under the 364-Day Credit
Agreement or any other instrument or document furnished pursuant thereto.
3. The Designee (i) confirms that it has received a copy of the 364-Day Credit
Agreement, together with copies of the financial statements referred to in
Section 5.10 or Section 6.01 thereof and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into this Designation Agreement; (ii) agrees that it will, independently and
without reliance upon the Agent, the Designator or any other Bank and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
the 364-Day Credit Agreement; (iii) confirms that it is an entity qualified to
be a Designated Bidder; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under the 364-Day
Credit Agreement as are delegated to the Agent by the terms thereof, together
with such powers as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the 364-Day Credit Agreement are required to be performed by it as a
Designated Bidder; (vi) agrees to and accepts all duties, obligations and
responsibilities of a Bank set forth in Article IX of the 364-Day Credit
Agreement and confirms that said Article shall otherwise apply to the Designated
Bidder as if it were a Bank named therein; and (vii) specifies as its Lending
Office with respect to Bid Loans (and address for notices) the offices set forth
beneath its name on the signature page hereof.
4. Following the execution of this Designation Agreement by the Designator and
its Designee, it will be delivered to the Agent for acceptance by the Agent. The
K-1
effective date of this Designation Agreement shall be the date of acceptance
thereof by the Agent (the "Effective Date").
5. Upon such acceptance and recording by the Agent, as of the Effective Date,
the Designee shall be a party to the 364-Day Credit Agreement as a "Designated
Bidder" with a right to make Bid Loans pursuant to Section 2.06 of the 364-Day
Credit Agreement and the rights and obligations of a Designated Bidder related
thereto.
6. THIS DESIGNATION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this
Designation Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
[NAME OF DESIGNATOR]
By:
Title:
[NAME OF DESIGNEE]
By:
Title:
Lending Office(s) (and address for notices):
Attn.:
Tel.:
Fax:
K-2
Attn.:
Tel.:
Fax:
Accepted [as of] the ___ day of ____________, _______
BANK OF AMERICA, N.A., as Agent
By:
Title:
K-3
EXHIBIT L
FORM OF COMMITMENT INCREASE AGREEMENT
Date: ___________________
Bank of America, N.A.,
as Agent and as a Bank
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of March 22, 2000 (as extended,
renewed, amended or restated from time to time, the "364-Day Credit Agreement")
among Xxxxxxxxx'x, Inc. (the Company"), the Banks party thereto, the Co-Agents
party thereto, and Bank of America, N.A., as Agent for the Banks (the "Agent").
Terms defined in the 364-Day Credit Agreement are used herein as therein
defined.
This Commitment Increase Agreement is made and delivered pursuant to
Section 2.17 of the 364-Day Credit Agreement.
Subject to the terms and conditions of Section 2.17 of the 364-Day Credit
Agreement, _______________________________ (the "Increasing Bank") will increase
its Commitment to an amount equal to $___________, on the Increased Commitment
Date applicable to it. The Increasing Bank hereby confirms and agrees that with
effect on and after such Increased Commitment Date, the Commitment of the
Increasing Bank shall be increased to the amount set forth above, and the
Increasing Bank shall have all of the rights and be obligated to perform all of
the obligations of a Bank under the 364-Day Credit Agreement with a Commitment
in the amount set forth above.
Effective on the Increased Commitment Date applicable to it, the Increasing
Bank (i) accepts and assumes from the assigning Bank(s), without recourse, such
assignment of Loans as shall be necessary to effectuate the adjustments in the
Pro Rata Shares of the Banks contemplated by Section 2.17 of the 364-Day Credit
Agreement, and (ii) agrees to fund on such Increased Commitment Date such
assumed amounts to the Agent for the account of the assigning Bank(s) in
accordance with the provisions of the 364-Day Credit Agreement, in the amount
notified to the Increasing Bank by the Agent.
This Commitment Increase Agreement shall constitute a Loan Document under
the 364-Day Credit Agreement.
THIS COMMITMENT INCREASE AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
L-1
IN WITNESS WHEREOF, the Increasing Bank has caused this Commitment
Increase Agreement to be duly executed and delivered in _____________,
______________, by its proper and duly authorized officer as of the day and year
first above written.
[INCREASING BANK]
By: ___________________________
Title: ________________________
CONSENTED TO as of _________:
XXXXXXXXX'X, INC.
By:
Title:
ACKNOWLEDGED AND CONSENTED TO as of ____________:
BANK OF AMERICA, N.A.,
as Agent
By:
Title:
L-2
EXHIBIT M
FORM OF NEW BANK AGREEMENT
Date: ___________________
Bank of America, N.A.
as Agent
Ladies and Gentlemen:
We refer to the Credit Agreement dated as of March 22, 2000 (as
extended, renewed, amended or restated from time to time, the "364-Day Credit
Agreement") among Xxxxxxxxx'x, Inc. (the Company"), the Banks party thereto, the
Co-Agents party thereto, and Bank of America, N.A., as Agent for the Banks (the
"Agent"). Terms defined in the 364-Day Credit Agreement are used herein as
therein defined.
This New Bank Agreement is made and delivered pursuant to Section 2.17
of the Credit Agreement.
Subject to the terms and conditions of Section 2.17 of the 364-Day
Credit Agreement, _________________________ (the "New Bank") will become a party
to the 364-Day Credit Agreement as a Bank, with a Commitment equal to
$___________, on the Increased Commitment Date applicable to it. The New Bank
hereby confirms and agrees that with effect on and after such Increased
Commitment Date, the New Bank shall be and become a party to the 364-Day Credit
Agreement as a Bank and have all of the rights and be obligated to perform all
of the obligations of a Bank thereunder with a Commitment in the amount set
forth above.
Effective on the Increased Commitment Date applicable to it, the New
Bank (i) accepts and assumes from the assigning Bank(s), without recourse, such
assignment of Loans as shall be necessary to effectuate the adjustments in the
Pro Rata Shares of the Banks contemplated by Section 2.17 of the 364-Day Credit
Agreement, and (ii) agrees to fund on such Increased Commitment Date such
assumed amounts to the Agent for the account of the assigning Bank(s) in
accordance with the provisions of the 364-Day Credit Agreement, in the amount
notified to the New Bank by the Agent.
The following administrative details apply to the New Bank:
(A) Lending Office(s):
Bank name:
Address:
M-1.
Attention:
Telephone: ( )
------
Facsimile: ( )
------
Bank name:
Address:
Attention:
Telephone: ( )
------
Facsimile: ( )
------
(B) Notice Address:
Bank name:
Address:
Attention:
Telephone: ( )
------
Facsimile: ( )
------
M-2
(C) Payment Instructions:
Account No.:
At:
Reference:
Attention:
This New Bank Agreement shall constitute a Loan Document under the
364-Day Credit Agreement.
THIS NEW BANK AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the New Bank has caused this New Bank Agreement to
be duly executed and delivered in _____________, ______________, by its proper
and duly authorized officer as of the day and year first above written.
[NEW BANK]
By: ___________________________
Title: ________________________
CONSENTED TO as of ___________:
XXXXXXXXX'X, INC.
By:
Title:
ACKNOWLEDGED AND CONSENTED TO as of _________:
M-3
BANK OF AMERICA, N.A.,
as Agent
By:
Title:
M-4