EXHIBIT 10.1
AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
Dated as of August 24, 2004
Among THE MAY DEPARTMENT STORES COMPANY, a New York corporation
(the "Borrower"), THE MAY DEPARTMENT STORES COMPANY, a Delaware corporation
(the "Guarantor"), the banks, financial institutions and other institutional
lenders (the "Initial Lenders") listed on the signature pages hereof,
CITIBANK, N.A. ("Citibank"), as administrative agent (the "Agent") for the
Lenders (as hereinafter defined), JPMORGAN CHASE BANK, as syndication agent,
XXXXXX XXXXXXX BANK, BANK OF AMERICA, N.A., BNP PARIBAS and WACHOVIA BANK
NATIONAL ASSOCIATION, as documentation agents, and CITIGROUP GLOBAL MARKETS
INC., X.X. XXXXXX SECURITIES INC. and XXXXXX XXXXXXX BANK, as joint lead
arrangers and bookrunners.
PRELIMINARY STATEMENTS:
(1) The Borrower is party to a Five Year Credit Agreement dated
as of July 31, 2001 (as amended, supplemented or otherwise modified from time
to time to (but not including) the date of this Amended and Restated Five
Year Credit Agreement (this "Agreement"), the "Existing Credit Agreement")
with the banks, financial institutions and other institutional lenders party
thereto and Citibank, N.A., as Administrative Agent for the lenders.
(2) The parties to this Agreement desire to amend the Existing
Credit Agreement as set forth herein and to restate the Existing Credit
Agreement in its entirety as set forth below.
(3) The Borrower has requested that the Initial Lenders make
loans to it in an aggregate principal amount not exceeding $1,400,000,000, or
after giving effect to any Commitment Increase (as defined below), in an
aggregate principal amount not exceeding $1,600,000,000, at any one time
outstanding to support the Borrower's commercial paper program and for other
general corporate purposes, and the Initial Lenders are prepared to make such
loans upon the terms and conditions hereof. Accordingly, the parties hereto
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this Agreement,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms
defined):
"Advance" means a Revolving Credit Advance or a Competitive Bid
Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
"Agent's Account" means the account of the Agent maintained by
the Agent at Citibank at its office at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Account No. 00000000, Attention: Bank Loan
Syndications.
"Applicable Lending Office" means, with respect to each Lender,
such Lender's Domestic Lending Office in the case of a Base Rate
Advance and such Lender's Eurodollar Lending Office in the case of a
Eurodollar Rate Advance and, in the case of a Competitive Bid Advance,
the office of such Lender notified by such Lender to the Agent as its
Applicable Lending Office with respect to such Competitive Bid Advance.
"Applicable Margin" means, as of any date (a) for Base Rate
Advances, a percentage per annum determined by reference to the Public
Debt Rating in effect on such date as set forth below:
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Moody's Base Rate Advances/ Base Rate Advances/
Usage <= 50% Usage > 50%
Level 1
A or A2 or above 0.000% 0.000%
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but at 0.000% 0.000%
least A- or A3
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but at 0.000% 0.000%
least BBB+ or Baa1
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but at 0.000% 0.000%
least BBB or Baa2
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but at 0.000% 0.000%
least BBB- or Baa3
Xxxxx 0
Xxxxx xxxx Xxxxx 0 0.000% 0.250%
and (b) for Eurodollar Rate Advances, a percentage per annum
determined by reference to the Public Debt Rating in effect on such
date as set forth below:
Public Debt Rating Applicable Margin for Applicable Margin for
S&P/Moody's Eurodollar Rate Advances / Eurodollar Rate Advances /
Usage <= 50% Usage > 50%
Level 1
A or A2 or above 0.220% 0.320%
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but at 0.300% 0.400%
least A- or A3
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but at 0.375% 0.500%
least BBB+ or Baa1
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but at 0.475% 0.600%
least BBB or Baa2
Xxxxx 0
Xxxxx xxxx Xxxxx 0 but at 0.575% 0.825%
least BBB- or Baa3
Xxxxx 0
Xxxxx xxxx Xxxxx 0 1.000% 1.250%
"Applicable Percentage" means, as of any date, a percentage per
annum determined by reference to the Public Debt Rating in effect on
such date as set forth below:
Public Debt Rating Applicable Percentage
S&P/Moody's
2
Level 1 0.080%
A or A2 or above
Xxxxx 0 0.100%
Lower than Level 1 but at least A- or A3
Level 3 0.125%
Lower than Level 2 but at least BBB+ or
Baa1
Xxxxx 0 0.150%
Lower than Level 3 but at least BBB or
Baa2
Xxxxx 0 0.175%
Lower than Level 4 but at least BBB- or
Baa3
Xxxxx 0 0.250%
Lower than Level 5
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Agent, in substantially the form of Exhibit C hereto.
"Assuming Lender" has the meaning specified in Section 2.19(b).
"Assumption Agreement" has the meaning specified in Section
2.19(c)(ii).
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to
the highest of:
(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/8 of 1% or, if
there is no nearest 1/8 of 1%, to the next higher 1/8 of 1%) of
(i) 1/2 of 1% per annum, plus (ii) the rate obtained by dividing
(A) the latest three-week moving average of secondary market
morning offering rates in the United States for three-month
certificates of deposit of major United States money market
banks, such three-week moving average (adjusted to the basis of a
year of 360 days) being determined weekly on each Monday (or, if
such day is not a Business Day, on the next succeeding Business
Day) for the three-week period ending on the previous Friday by
Citibank on the basis of such rates reported by certificate of
deposit dealers to and published by the Federal Reserve Bank of
New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage
equal to 100% minus the average of the daily percentages
specified during such three-week period by the Board of Governors
of the Federal Reserve System (or any successor) for determining
the maximum reserve requirement (including, but not limited to,
any emergency, supplemental or other marginal reserve
requirement) for Citibank with respect to liabilities consisting
of or including (among other liabilities) three-month U.S. dollar
non-personal time deposits in the United States, plus (iii) the
average during such three-week period of the annual assessment
rates estimated by Citibank for determining the then current
annual assessment payable by Citibank to the Federal Deposit
Insurance Corporation (or any successor) for insuring U.S. dollar
deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds Rate.
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"Base Rate Advance" means a Revolving Credit Advance that bears
interest as provided in Section 2.07(a)(i).
"Borrowing" means a Revolving Credit Borrowing or a Competitive
Bid Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances or LIBO
Rate Advances, on which dealings are carried on in the London interbank
market.
"Capital Stock" means the shares of a corporation's common,
preferred and other equity securities issued by such corporation or
that such corporation is authorized to issue.
"Capitalization" means, with respect to the Guarantor, the sum of
its Defined Debt, deferred taxes, deferred investment tax credit and
common stockholders' equity.
"Commitment" means as to any Lender (a) the amount set forth
opposite such Lender's name on the signature pages hereof, (b) if such
Lender has become a Lender hereunder pursuant to an Assumption
Agreement, the amount set forth in such Assumption Agreement or (c) if
such Lender has entered into any Assignment and Acceptance, the amount
set forth for such Lender in the Register maintained by the Agent
pursuant to Section 9.07(d), as such amount may be reduced pursuant to
Section 2.05 or increased pursuant to Section 2.19.
"Commitment Date" has the meaning specified in Section 2.19(b).
"Commitment Increase" has the meaning specified in Section 2.19(a).
"Competitive Bid Advance" means an advance by a Lender to the
Borrower as part of a Competitive Bid Borrowing resulting from the
competitive bidding procedure described in Section 2.03 and refers to a
Fixed Rate Advance or a LIBO Rate Advance.
"Competitive Bid Borrowing" means a borrowing consisting of
simultaneous Competitive Bid Advances from each of the Lenders whose
offer to make one or more Competitive Bid Advances as part of such
borrowing has been accepted under the competitive bidding procedure
described in Section 2.03.
"Competitive Bid Note" means a promissory note of the Borrower
payable to the order of any Lender, in substantially the form of
Exhibit A-2 hereto, evidencing the indebtedness of the Borrower to such
Lender resulting from a Competitive Bid Advance made by such Lender.
"Competitive Bid Reduction" has the meaning specified in Section
2.01.
"Confidential Information" means information that the Borrower or
the Guarantor furnishes to the Agent or any Lender in a writing
designated as confidential, but does not include any such information
that is or becomes generally available to the public or that is or
becomes available to the Agent or such Lender from a source other than
the Borrower or the Guarantor that is not, to the knowledge of the
Agent or such Lender, subject to any legal obligation to keep such
information confidential.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Convert", "Conversion" and "Converted" each refers to a
conversion of Revolving Credit Advances of one Type into Revolving
Credit Advances of the other Type pursuant to Section 2.09 or 2.10.
"Debt" means, without duplication, (i) indebtedness (excluding,
except in the case of Section 6.01(d), interest payable thereon unless
such interest is to be accrued and added to the principal amount of
such indebtedness) for borrowed money or for the deferred purchase
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price of property or services, (ii) obligations as lessee under leases
that shall have been or should be, in accordance with GAAP,
consistently applied, recorded as capital leases and (iii) obligations
under any guarantee in respect of, and obligations (contingent or
otherwise) to purchase or otherwise acquire, or otherwise to assure a
creditor against loss in respect of, indebtedness or obligations of
others of the kinds referred to in clause (i) or (ii) above. There
shall not be included in any Debt of the Guarantor any minority
interest in any Subsidiary of the Guarantor.
"Default" means any Event of Default or any event described in
Section 6.01 that would constitute an Event of Default but for the
requirement that notice be given or time elapse or both.
"Defined Debt" means all Consolidated Debt (excluding accounts
payable, accrued expenses and income taxes payable, in each case to the
extent the same are set forth as current liabilities in the applicable
financial statements), plus all Invested Amounts (as defined in Section
5.02(a), plus the present value of rental payments under operating
leases, as such present value is disclosed in the financial statements
provided to the Lenders under Section 4.01(e) or Section 5.01(h), as
applicable.
"Domestic Lending Office" means, with respect to any Lender, the
office of such Lender specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender,
or such other office of such Lender as such Lender may from time to
time specify to the Borrower and the Agent.
"EBITDAR" means, for any period, net income (or net loss) plus
the sum of (a) interest expense, (b) income tax expense,
(c) depreciation expense, (d) amortization expense and (e) rent
expense, in each case determined in accordance with GAAP for such
period.
"Effective Date" has the meaning specified in Section 3.01.
"Eligible Assignee" means (i) a Lender; and (ii) any other Person
approved by the Agent and the Borrower, such approval not to be
unreasonably withheld or delayed; provided, however, that neither the
Borrower nor an Affiliate of the Borrower shall qualify as an Eligible
Assignee; and provided further that the Borrower's consent shall not be
required following the occurrence and during the continuance of an
Event of Default.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) that is a member of a group of which the Guarantor is a
member and which is under common control within the meaning of the
regulations promulgated under Section 414 of the Internal Revenue Code
of 1986, as amended.
"Eurocurrency Liabilities" has the meaning assigned to that term
in Regulation D of the Board of Governors of the Federal Reserve
System, as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office"
opposite its name on Schedule I hereto or in the Assumption Agreement
or the Assignment and Acceptance pursuant to which it became a Lender
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Agent.
"Eurodollar Rate" means, for any Interest Period for each
Eurodollar Rate Advance comprising part of the same Revolving Credit
Borrowing, an interest rate per annum equal to the rate per annum
(rounded upward to the nearest whole multiple of 1/16 of 1% per annum)
appearing on Telerate Markets Page 3750 (or any successor page) as the
London interbank offered rate for deposits in U.S. dollars at
approximately 11:00 A.M. (London time) two Business Days prior to the
first day of such Interest Period for a term comparable to such
5
Interest Period or, if for any reason such rate is not available, the
average (rounded upward to the nearest whole multiple of 1/16 of 1% per
annum, if such average is not such a multiple) of the rate per annum at
which deposits in U.S. dollars are offered by the principal office of
each of the Reference Banks in London, England to prime banks in the
London interbank market at 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period in an amount substantially
equal to such Reference Bank's Eurodollar Rate Advance comprising part
of such Revolving Credit Borrowing to be outstanding during such
Interest Period and for a period equal to such Interest Period. If the
Telerate Markets Page 3750 (or any successor page) is unavailable, the
Eurodollar Rate for any Interest Period for each Eurodollar Rate
Advance comprising part of the same Revolving Credit Borrowing shall be
determined by the Agent on the basis of applicable rates furnished to
and received by the Agent from the Reference Banks two Business Days
before the first day of such Interest Period, subject, however, to the
provisions of Section 2.09.
"Eurodollar Rate Advance" means a Revolving Credit Advance that
bears interest as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for
all Eurodollar Rate Advances or LIBO Rate Advances comprising part of
the same Borrowing means the reserve percentage applicable two Business
Days before the first day of such Interest Period under regulations
issued from time to time by the Board of Governors of the Federal
Reserve System (or any successor) for determining the actual reserve
requirement (including, without limitation, any emergency, supplemental
or other marginal reserve requirement) for a member bank of the Federal
Reserve System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect to
any other category of liabilities that includes deposits by reference
to which the interest rate on Eurodollar Rate Advances or LIBO Rate
Advances is determined) having a term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day on such
transactions received by the Agent from three Federal funds brokers of
recognized standing selected by it.
"Existing Credit Agreement" has the meaning specified in the
Preliminary Statements.
"Fixed Rate Advances" has the meaning specified in
Section 2.03(a)(i).
"GAAP" has the meaning specified in Section 1.03.
"Increase Date" has the meaning specified in Section 2.19(a).
"Increasing Lender" has the meaning specified in Section 2.19(b).
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Revolving Credit Borrowing and each LIBO
Rate Advance comprising part of the same Competitive Bid Borrowing, the
period commencing on the date of such Eurodollar Rate Advance or LIBO
Rate Advance or the date of the Conversion of any Base Rate Advance
into such Eurodollar Rate Advance and ending on the last day of the
period selected by the Borrower pursuant to the provisions below and,
thereafter, with respect to Eurodollar Rate Advances, each subsequent
period commencing on the last day of the immediately preceding Interest
Period and ending on the last day of the period selected by the
Borrower pursuant to the provisions below. The duration of each such
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Interest Period shall be one, two, three or six months, and subject to
clause (c) of this definition, nine months, as the Borrower may, upon
notice received by the Agent not later than 11:00 A.M. (New York City
time) on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period that
ends after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Revolving
Credit Borrowing or for LIBO Rate Advances comprising part of the
same Competitive Bid Borrowing shall be of the same duration;
(c) in the case of any such Revolving Credit Borrowing,
the Borrower shall not be entitled to select an Interest Period
having duration of nine months unless, by 2:00 P.M. (New York
City time) on the third Business Day prior to the first day of
such Interest Period, each Lender notifies the Agent that such
Lender will be providing funding for such Revolving Credit
Borrowing with such Interest Period (the failure of any Lender to
so respond by such time being deemed for all purposes of this
Agreement as an objection by such Lender to the requested
duration of such Interest Period); provided that, if any or all
of the Lenders object to the requested duration of such Interest
Period, the duration of the Interest Period for such Revolving
Credit Borrowing shall be one, two, three or six months, as
specified by the Borrower requesting such Revolving Credit
Borrowing in the applicable Notice of Revolving Credit Borrowing
as the desired alternative to an Interest Period of nine months;
(d) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day
of such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such
extension would cause the last day of such Interest Period to
occur in the next following calendar month, the last day of such
Interest Period shall occur on the next preceding Business Day;
and
(e) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period
shall end on the last Business Day of such succeeding calendar
month.
"Lenders" means the Initial Lenders, each Assuming Lender that
shall become a party hereto pursuant to Section 2.19, and each Person
that shall become a party hereto pursuant to Section 9.07.
"LIBO Rate" means, for any Interest Period for all LIBO Rate
Advances comprising part of the same Competitive Bid Borrowing, an
interest rate per annum equal to the rate per annum (rounded upward to
the nearest whole multiple of 1/16 of 1% per annum) appearing on
Telerate Markets Page 3750 (or any successor page) as the London
interbank offered rate for deposits in U.S. dollars at approximately
11:00 A.M. (London time) two Business Days prior to the first day of
such Interest Period for a term comparable to such Interest Period or,
if for any reason such rate is not available, the average (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum, if such
average is not such a multiple) of the rate per annum at which deposits
in U.S. dollars offered by the principal office of each of the
Reference Banks in London, England to prime banks in the London
interbank market at 11:00 A.M. (London time) two Business Days before
the first day of such Interest Period in an amount substantially equal
to the amount that would be the Reference Banks' respective ratable
shares of such Borrowing if such Borrowing were to be a Revolving
Credit Borrowing to be outstanding during such Interest Period and for
a period equal to such Interest Period. If the Telerate Markets Page
3750 (or any successor page) is unavailable, the LIBO Rate for any
Interest Period for each LIBO Rate Advance comprising part of the same
Competitive Bid Borrowing shall be determined by the Agent on the basis
7
of applicable rates furnished to and received by the Agent from the
Reference Banks two Business Days before the first day of such Interest
Period, subject, however, to the provisions of Section 2.09.
"LIBO Rate Advances" means a Competitive Bid Advance bearing
interest based on the LIBO Rate.
"Lien" means any lien, security interest or other charge or
encumbrance, or any other type of preferential arrangement.
"Material Adverse Change" means any material adverse change in
the financial condition or results of operations of the Guarantor and
its Subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the financial condition or operations of the Guarantor and its
Subsidiaries taken as a whole or (b) the ability of the Guarantor or
the Borrower to perform its payment obligations under this Agreement or
any Note.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA.
"Note" means a Revolving Credit Note or a Competitive Bid Note.
"Notice of Competitive Bid Borrowing" has the meaning specified
in Section 2.03(a).
"Notice of Revolving Credit Borrowing" has the meaning specified
in Section 2.02(a).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Person" means an individual, partnership, corporation (including
a business trust), joint stock company, trust, unincorporated association,
joint venture, limited liability company or other entity, or a government or
any political subdivision or agency thereof.
"Plan" means an employee benefit plan (other than a Multiemployer
Plan) maintained for employees of the Guarantor or any of its
Subsidiaries or ERISA Affiliates and covered by Title IV of ERISA.
"Public Debt Rating" means, as of any date, the rating that has
been most recently announced by either S&P or Moody's, as the case may
be, for any class of non-credit enhanced long-term senior unsecured
debt issued by the Borrower or, if either such rating agency has issued
more than one such rating, the lowest such rating issued by such rating
agency. For purposes of the foregoing, (a) if only one of S&P and
Moody's shall have in effect a Public Debt Rating, the Applicable
Margin and the Applicable Percentage shall be determined by reference
to the available rating; (b) if neither S&P nor Moody's shall have in
effect a Public Debt Rating, the Applicable Margin and the Applicable
Percentage will be set in accordance with Level 6 under the definition
of "Applicable Margin" and "Applicable Percentage"; (c) if the ratings
established by S&P and Moody's shall fall within different levels, the
Applicable Margin and the Applicable Percentage shall be based upon the
higher rating unless such ratings differ by two or more levels, in
which case the applicable level will be deemed to be one level above
the lower of such levels; (d) if any rating established by S&P or
Moody's shall be changed, such change shall be effective as of the date
on which such change is first announced publicly by the rating agency
making such change; and (e) if S&P or Moody's shall change the basis on
which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the
then equivalent rating by S&P or Moody's, as the case may be.
8
"Reference Banks" means JPMorgan Chase Bank, Citibank, The Bank
Of New York and BNP Paribas, Chicago Branch.
"Register" has the meaning specified in Section 9.07(d).
"Required Lenders" means at any time Lenders owed at least
66-2/3% of the then aggregate unpaid principal amount of the Revolving
Credit Advances owing to Lenders, or, if no such principal amount is
then outstanding, Lenders having at least 66-2/3% of the Commitments.
"Revolving Credit Advance" means an advance by a Lender to the
Borrower as part of a Revolving Credit Borrowing and refers to a Base
Rate Advance or a Eurodollar Rate Advance (each of which shall be a
"Type" of Revolving Credit Advance).
"Revolving Credit Borrowing" means a borrowing consisting of
simultaneous Revolving Credit Advances of the same Type made by each of
the Lenders pursuant to Section 2.01.
"Revolving Credit Note" means a promissory note of the Borrower
payable to the order of any Lender, delivered pursuant to a request
made under Section 2.17 in substantially the form of Exhibit A-1
hereto, evidencing the aggregate indebtedness of the Borrower to such
Lender resulting from the Revolving Credit Advances made by such
Lender.
"S&P" means Standard & Poor's, a division of The XxXxxx-Xxxx
Companies, Inc.
"Specified Intercompany Indebtedness" means any of the following:
(i) any deferred obligation of the Borrower to make any payment in
connection with (a) any dividend or other distribution to shareholders
that shall have been declared by the Borrower, or (b) any purchase,
redemption or other acquisition by the Borrower of any shares of any
class of its Capital Stock or any warrants, rights or options to
acquire any such shares, (ii) indebtedness evidenced by any promissory
note or any other instrument that shall have been distributed by the
Borrower in connection with any dividend or other distribution to
shareholders, or (iii) any other indebtedness or obligation of the
Borrower arising in connection with the making by the Borrower of any
dividend, distribution to shareholders or recapitalization.
"Subordinated Note" means a promissory note made by the Borrower
and containing the subordination terms set forth in Exhibit E hereto.
"Subsidiary" of any Person means any corporation, partnership,
joint venture, limited liability company, trust or estate of which (or
in which) more than 50% of (a) the issued and outstanding Capital Stock
having ordinary voting power to elect a majority of the Board of
Directors of such corporation (irrespective of whether at the time
Capital Stock of any other class or classes of such corporation shall
or might have voting power upon the occurrence of any contingency),
(b) the interest in the capital or profits of such limited liability
company, partnership or joint venture or (c) the beneficial interest in
such trust or estate is at the time directly or indirectly owned or
controlled by such Person, by such Person and one or more of its other
Subsidiaries or by one or more of such Person's other Subsidiaries.
"Termination Date" means the earlier of (a) August 24, 2009 and
(b) the date of termination in whole of the Commitments pursuant to
Section 2.05 or 6.01.
"Termination Event" means (i) (A) the filing of a notice of
intent to terminate any Plan or the treatment of a Plan amendment as a
termination under Section 4041 of ERISA, or (B) the appointment of a
trustee by the appropriate United States District Court to administer
any Plan, or (C) the institution of proceedings by the PBGC to
terminate any Plan or to appoint a trustee to administer any Plan, or
(D) the occurrence of any event that constitutes grounds either for the
termination of any Plan by the PBGC or for the appointment by the
appropriate United States District Court of a trustee to administer or
liquidate any Plan, provided, however, that the event described in
9
Section 4042(a)(4) of ERISA shall be a Termination Event only if the
Guarantor or any of its Subsidiaries or ERISA Affiliates shall have
received any notice from the PBGC that such event has occurred and
constitutes grounds for the termination of any Plan or the appointment
of such a trustee to administer or liquidate such Plan and such event
shall continue for 30 days after receipt of such notice, or (E) the
withdrawal of the Guarantor or any of its ERISA Affiliates from a Plan
during a plan year in which it was a "substantial employer" as defined
in Section 4001(a)(2) of ERISA; if (ii) (X) any such event (i.e., any
event described in the preceding clauses (A), (B), (C), (D), or (E) of
subsection (i) of this definition of Termination Event) could cause the
imposition of a lien under Section 4068 of ERISA, (Y) the aggregate
amount of vested unfunded benefit liabilities (excluding vested
unfunded benefit liabilities that arise or might arise only as a result
of the termination of any Plan) under all Plans as to which any such
event shall have occurred shall, on the date such event occurred,
exceed 2% of the Consolidated Capitalization as shown on the latest of
the Consolidated financial statements specified in Section 4.01(e) or
delivered to the Lenders pursuant to Section 5.01(h), and (Z) the
Borrower or the Guarantor fails to provide the Lenders with written
assurances reasonably satisfactory to the Required Lenders that no lien
will arise or be imposed under Section 4068 of ERISA.
"Usage" means, as of any date, a fraction, expressed as a
percentage, the numerator of which is the aggregate principal amount of
the Advances outstanding on such date and the denominator of which is
the aggregate Commitments on such date.
"Voting Stock" means Capital Stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
SECTION 1.02. Computation of Time Periods. In this Agreement in
the computation of periods of time from a specified date to a later specified
date, the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the
preparation of the financial statements referred to in Section 4.01(e)
("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. The Revolving Credit Advances. Each Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
Revolving Credit Advances to the Borrower from time to time on any Business
Day during the period from the Effective Date until the Termination Date in
an aggregate amount not to exceed at any time outstanding such Lender's
Commitment provided that the aggregate amount of the Commitments of the
Lenders shall be deemed used from time to time to the extent of the aggregate
amount of the Competitive Bid Advances then outstanding and such deemed use
of the aggregate amount of the Commitments shall be allocated among the
Lenders ratably according to their respective Commitments (such deemed use of
the aggregate amount of the Commitments being a "Competitive Bid Reduction").
Each Revolving Credit Borrowing shall be in an aggregate amount of
$10,000,000 or an integral multiple of $1,000,000 in excess thereof and shall
consist of Revolving Credit Advances of the same Type made on the same day by
the Lenders ratably according to their respective Commitments. Within the
limits of each Lender's Commitment, the Borrower may borrow under this
Section 2.01, prepay pursuant to Section 2.11 and reborrow under this
Section 2.01.
SECTION 2.02. Making the Revolving Credit Advances. (a) Each
Revolving Credit Borrowing shall be made on notice, given not later than
(x) 12:00 noon (New York City time) on the third Business Day prior to the
date of the proposed Revolving Credit Borrowing in the case of a Revolving
Credit Borrowing consisting of Eurodollar Rate Advances or (y) 12:00 noon
(New York City time) on the date of the proposed Revolving Credit Borrowing
in the case of a Revolving Credit Borrowing consisting of Base Rate Advances,
by the Borrower to the Agent, which shall give to each Lender prompt notice
thereof by telecopier or telex. Each such notice of a Revolving Credit
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Borrowing (a "Notice of Revolving Credit Borrowing") shall be by telephone,
confirmed immediately in writing, or telecopier or telex in substantially the
form of Exhibit B-1 hereto, specifying therein the requested (i) date of such
Revolving Credit Borrowing, (ii) Type of Advances comprising such Revolving
Credit Borrowing, (iii) aggregate amount of such Revolving Credit Borrowing,
and (iv) in the case of a Revolving Credit Borrowing consisting of Eurodollar
Rate Advances, initial Interest Period for each such Revolving Credit
Advance. Each Lender shall, before 1:00 P.M. (New York City time) on the
date of such Revolving Credit Borrowing make available for the account of its
Applicable Lending Office to the Agent at the Agent's Account, in same day
funds, such Lender's ratable portion of such Revolving Credit Borrowing.
After the Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Agent will make such
funds available to the Borrower at the Agent's address referred to in
Section 9.02.
(b) Anything in subsection (a) above to the contrary
notwithstanding, the Borrower may not select Eurodollar Rate Advances for any
Revolving Credit Borrowing if the aggregate amount of such Revolving Credit
Borrowing is less than $10,000,000 or if the obligation of the Lenders to
make Eurodollar Rate Advances shall then be suspended pursuant to
Section 2.09 or 2.13.
(c) Each Notice of Revolving Credit Borrowing shall be
irrevocable and binding on the Borrower. In the case of any Revolving Credit
Borrowing that the related Notice of Revolving Credit Borrowing specifies is
to be comprised of Eurodollar Rate Advances, the Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender as a
result of any failure to fulfill on or before the date specified in such
Notice of Revolving Credit Borrowing for such Revolving Credit Borrowing the
applicable conditions set forth in Article III, including, without
limitation, any loss (including loss of anticipated profits), cost or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund the Revolving Credit Advance to be made
by such Lender as part of such Revolving Credit Borrowing when such Revolving
Credit Advance, as a result of such failure, is not made on such date.
(d) Unless the Agent shall have received notice from a Lender
prior to the date of any Revolving Credit Borrowing that such Lender will not
make available to the Agent such Lender's ratable portion of such Revolving
Credit Borrowing, the Agent may assume that such Lender has made such portion
available to the Agent on the date of such Revolving Credit Borrowing in
accordance with subsection (a) of this Section 2.02 and the Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have
so made such ratable portion available to the Agent, such Lender and the
Borrower severally agree to repay to the Agent forthwith on demand such
corresponding amount together with interest thereon, for each day from the
date such amount is made available to the Borrower until the date such amount
is repaid to the Agent, at (i) in the case of the Borrower, the interest rate
applicable at the time to Revolving Credit Advances comprising such Revolving
Credit Borrowing and (ii) in the case of such Lender, the Federal Funds Rate.
If such Lender shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Lender's Revolving Credit Advance as
part of such Revolving Credit Borrowing for purposes of this Agreement.
(e) The failure of any Lender to make the Revolving Credit
Advance to be made by it as part of any Revolving Credit Borrowing shall not
relieve any other Lender of its obligation, if any, hereunder to make its
Revolving Credit Advance on the date of such Revolving Credit Borrowing, but
no Lender shall be responsible for the failure of any other Lender to make
the Revolving Credit Advance to be made by such other Lender on the date of
any Revolving Credit Borrowing.
SECTION 2.03. The Competitive Bid Advances. (a) Each Lender
severally agrees that the Borrower may make Competitive Bid Borrowings under
this Section 2.03 from time to time on any Business Day during the period
from the date hereof until the date occurring 30 days prior to the
Termination Date in the manner set forth below; provided that, following the
making of each Competitive Bid Borrowing, the aggregate amount of the
Advances then outstanding shall not exceed the aggregate amount of the
Commitments of the Lenders (computed without regard to any Competitive Bid
Reduction).
(i) The Borrower may request a Competitive Bid Borrowing under
this Section 2.03 by delivering to the Agent, by telecopier or telex, a
notice of a Competitive Bid Borrowing (a "Notice of Competitive Bid
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Borrowing"), in substantially the form of Exhibit B-2 hereto,
specifying therein the requested (v) date of such proposed Competitive
Bid Borrowing, (w) aggregate amount of such proposed Competitive Bid
Borrowing, (x) in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, Interest Period, or in the case of a Competitive
Bid Borrowing consisting of Fixed Rate Advances, maturity date for
repayment of each Fixed Rate Advance to be made as part of such
Competitive Bid Borrowing (which maturity date may not be earlier than
the date occurring 30 days after the date of such Competitive Bid
Borrowing or later than the Termination Date), (y) interest payment
date or dates relating thereto, and (z) other terms (if any) to be
applicable to such Competitive Bid Borrowing, not later than 12:00 noon
(New York City time) (A) at least one Business Day prior to the date of
the proposed Competitive Bid Borrowing, if the Borrower shall specify
in the Notice of Competitive Bid Borrowing that the rates of interest
to be offered by the Lenders shall be fixed rates per annum (the
Advances comprising any such Competitive Bid Borrowing being referred
to herein as "Fixed Rate Advances") and (B) at least four Business Days
prior to the date of the proposed Competitive Bid Borrowing, if the
Borrower shall instead specify in the Notice of Competitive Bid
Borrowing that the Advances comprising such Competitive Bid Borrowing
shall be LIBO Rate Advances. The Agent shall in turn promptly notify
each Lender of each request for a Competitive Bid Borrowing received by
it from the Borrower by sending such Lender a copy of the related
Notice of Competitive Bid Borrowing.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Competitive Bid Advances
to the Borrower as part of such proposed Competitive Bid Borrowing at a
rate or rates of interest specified by such Lender in its sole
discretion, by notifying the Agent (which shall give prompt notice
thereof to the Borrower), (A) before 9:30 A.M. (New York City time) on
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of Fixed Rate Advances and
(B) before 10:00 A.M. (New York City time) three Business Days before
the date of such proposed Competitive Bid Borrowing, in the case of a
Competitive Bid Borrowing consisting of LIBO Rate Advances of the
minimum amount and maximum amount of each Competitive Bid Advance which
such Lender would be willing to make as part of such proposed
Competitive Bid Borrowing (which amounts may, subject to the proviso to
the first sentence of this Section 2.03(a), exceed such Lender's
Commitment, if any), the rate or rates of interest therefor and such
Lender's Applicable Lending Office with respect to such Competitive Bid
Advance; provided that if the Agent in its capacity as a Lender shall,
in its sole discretion, elect to make any such offer, it shall notify
the Borrower of such offer at least 30 minutes before the time and on
the date on which notice of such election is to be given to the Agent,
by the other Lenders. If any Lender shall elect not to make such an
offer, such Lender shall so notify the Agent before 10:00 A.M.
(New York City time) on the date on which notice of such election is to
be given to the Agent by the other Lenders, and such Lender shall not
be obligated to, and shall not, make any Competitive Bid Advance as
part of such Competitive Bid Borrowing; provided that the failure by
any Lender to give such notice shall not cause such Lender to be
obligated to make any Competitive Bid Advance as part of such proposed
Competitive Bid Borrowing.
(iii) The Borrower shall, in turn, (A) before 12:00 noon
(New York City time) on the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
Fixed Rate Advances and (B) before 12:30 P.M. (New York City time)
three Business Days before the date of such proposed Competitive Bid
Borrowing, in the case of a Competitive Bid Borrowing consisting of
LIBO Rate Advances, either:
(x) cancel such Competitive Bid Borrowing by giving the
Agent notice to that effect, or
(y) accept one or more of the offers made by any Lender
or Lenders pursuant to paragraph (ii) above, in its sole
discretion, by giving notice to the Agent of the amount of each
Competitive Bid Advance (which amount shall be equal to or
greater than the minimum amount, and equal to or less than the
maximum amount, notified to the Borrower by the Agent on behalf
of such Lender for such Competitive Bid Advance pursuant to
paragraph (ii) above) to be made by each Lender as part of such
Competitive Bid Borrowing, and reject any remaining offers made
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by Lenders pursuant to paragraph (ii) above by giving the Agent
notice to that effect. The Borrower shall accept the offers made
by any Lender or Lenders to make Competitive Bid Advances in
order of the lowest to the highest rates of interest offered by
such Lenders. If two or more Lenders have offered the same
interest rate, the amount to be borrowed at such interest rate
will be allocated among such Lenders in proportion to the amount
that each such Lender offered at such interest rate.
(iv) If the Borrower notifies the Agent that such Competitive
Bid Borrowing is cancelled pursuant to paragraph (iii)(x) above, the
Agent shall give prompt notice thereof to the Lenders and such
Competitive Bid Borrowing shall not be made.
(v) If the Borrower accepts one or more of the offers made
by any Lender or Lenders pursuant to paragraph (iii)(y) above, the
Agent shall in turn promptly notify (A) each Lender that has made an
offer as described in paragraph (ii) above, of the date and aggregate
amount of such Competitive Bid Borrowing and whether or not any offer
or offers made by such Lender pursuant to paragraph (ii) above have
been accepted by the Borrower, (B) each Lender that is to make a
Competitive Bid Advance as part of such Competitive Bid Borrowing, of
the amount of each Competitive Bid Advance to be made by such Lender
as part of such Competitive Bid Borrowing, and (C) each Lender that is
to make a Competitive Bid Advance as part of such Competitive Bid
Borrowing, upon receipt, that the Agent has received forms of
documents appearing to fulfill the applicable conditions set forth in
Article III. Each Lender that is to make a Competitive Bid Advance as
part of such Competitive Bid Borrowing shall, before 12:00 noon (New
York City time) on the date of such Competitive Bid Borrowing
specified in the notice received from the Agent pursuant to clause (A)
of the preceding sentence or any later time when such Lender shall
have received notice from the Agent pursuant to clause (C) of the
preceding sentence, make available for the account of its Applicable
Lending Office to the Agent at the Agent's Account, in same day funds,
such Lender's portion of such Competitive Bid Borrowing. Upon
fulfillment of the applicable conditions set forth in Article III and
after receipt by the Agent of such funds, the Agent will make such
funds available to the Borrower at the Agent's address referred to in
Section 9.02. Promptly after each Competitive Bid Borrowing the Agent
will notify each Lender of the amount of the Competitive Bid
Borrowing, the consequent Competitive Bid Reduction and the dates upon
which such Competitive Bid Reduction commenced and will terminate.
(vi) If the Borrower notifies the Agent that it accepts one or
more of the offers made by any Lender or Lenders pursuant to
paragraph (iii)(y) above, such notice of acceptance shall be
irrevocable and binding on the Borrower. The Borrower shall indemnify
each Lender against any loss, cost or expense incurred by such Lender
as a result of any failure to fulfill on or before the date specified
in the related Notice of Competitive Bid Borrowing for such Competitive
Bid Borrowing the applicable conditions set forth in Article III,
including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund
the Competitive Bid Advance to be made by such Lender as part of such
Competitive Bid Borrowing when such Competitive Bid Advance, as a
result of such failure, is not made on such date.
(b) Each Competitive Bid Borrowing shall be in an aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and, following the making of each Competitive Bid Borrowing, the Borrower
shall be in compliance with the limitation set forth in the proviso to the
first sentence of subsection (a) above.
(c) Within the limits and on the conditions set forth in this
Section 2.03, the Borrower may from time to time borrow under this
Section 2.03, repay or prepay pursuant to subsection (d) below, and reborrow
under this Section 2.03, provided that a Competitive Bid Borrowing shall not
be made within two Business Days of the date of any other Competitive Bid
Borrowing.
(d) The Borrower shall repay to the Agent for the account of
each Lender that has made a Competitive Bid Advance, on the maturity date of
each Competitive Bid Advance (such maturity date being that specified by the
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Borrower for repayment of such Competitive Bid Advance in the related Notice
of Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above
and provided in the Competitive Bid Note evidencing such Competitive Bid
Advance), the then unpaid principal amount of such Competitive Bid Advance.
The Borrower shall have no right to prepay any principal amount of any
Competitive Bid Advance unless, and then only on the terms, specified by the
Borrower for such Competitive Bid Advance in the related Notice of
Competitive Bid Borrowing delivered pursuant to subsection (a)(i) above and
set forth in the Competitive Bid Note evidencing such Competitive Bid
Advance.
(e) The Borrower shall pay interest on the unpaid principal
amount of each Competitive Bid Advance from the date of such Competitive Bid
Advance to the date the principal amount of such Competitive Bid Advance is
repaid in full, at the rate of interest for such Competitive Bid Advance
specified by the Lender making such Competitive Bid Advance in its notice
with respect thereto delivered pursuant to subsection (a)(ii) above, payable
on the interest payment date or dates specified by the Borrower for such
Competitive Bid Advance in the related Notice of Competitive Bid Borrowing
delivered pursuant to subsection (a)(i) above, as provided in the Competitive
Bid Note evidencing such Competitive Bid Advance. Upon the occurrence and
during the continuance of an Event of Default under Section 6.01(a), the
Borrower shall pay interest on the amount of unpaid principal of each
Competitive Bid Advance owing to a Lender, payable in arrears on the date or
dates interest is payable thereon, at a rate per annum equal at all times to
2% per annum above the rate per annum required to be paid on such Competitive
Bid Advance under the terms of the Competitive Bid Note evidencing such
Competitive Bid Advance unless otherwise agreed in such Competitive Bid Note.
(f) The indebtedness of the Borrower resulting from each
Competitive Bid Advance made to the Borrower as part of a Competitive Bid
Borrowing shall be evidenced by a separate Competitive Bid Note of the
Borrower payable to the order of the Lender making such Competitive Bid
Advance.
SECTION 2.04. Fees. (a) Facility Fee. The Borrower agrees to
pay to the Agent for the account of each Lender a facility fee on the
aggregate amount of such Lender's Commitment from the Effective Date in the
case of each Initial Lender and from the effective date specified in the
Assumption Agreement or in the Assignment and Acceptance pursuant to which it
became a Lender in the case of each other Lender until the Termination Date
at a rate per annum equal to the Applicable Percentage in effect from time to
time, payable in arrears quarterly on the last day of each January, April,
July and October, commencing October 31, 2004, and on the Termination Date.
(b) Agent's Fees. The Borrower shall pay to the Agent for its
own account such fees as may from time to time be agreed between the Borrower
and the Agent.
SECTION 2.05. Optional Termination or Reduction of the
Commitments. The Borrower shall have the right, upon at least three Business
Days' notice to the Agent, to terminate in whole or permanently reduce
ratably in part the unused portions of the respective Commitments of the
Lenders, provided that each partial reduction shall be in the aggregate
amount of $10,000,000 or an integral multiple of $1,000,000 in excess thereof
and provided further that the aggregate amount of the Commitments of the
Lenders shall not be reduced to an amount that is less than the aggregate
principal amount of the Competitive Bid Advances then outstanding.
SECTION 2.06. Repayment of Revolving Credit Advances. The
Borrower shall repay to the Agent for the ratable account of the Lenders on
the Termination Date the aggregate principal amount of the Revolving Credit
Advances then outstanding.
SECTION 2.07. Interest on Revolving Credit Advances. (a)
Scheduled Interest. The Borrower shall pay interest on the unpaid principal
amount of each Revolving Credit Advance owing to each Lender from the date of
such Revolving Credit Advance until such principal amount shall be paid in
full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Revolving
Credit Advance is a Base Rate Advance, a rate per annum equal at all
times to the sum of (x) the Base Rate in effect from time to time plus
(y) the Applicable Margin in effect from time to time, payable in
arrears quarterly on the last day of each January, April, July and
14
October during such periods and on the date such Base Rate Advance
shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Revolving Credit Advance is a Eurodollar Rate Advance, a rate per annum
equal at all times during each Interest Period for such Revolving
Credit Advance to the sum of (x) the Eurodollar Rate for such Interest
Period for such Revolving Credit Advance plus (y) the Applicable Margin
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default under Section 6.01(a), the Agent may, and
upon the request of the Required Lenders shall, require the Borrower to pay
interest ("Default Interest") on the unpaid principal amount of each
Revolving Credit Advance owing to each Lender, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above, at a rate per annum
equal at all times to 2% per annum above the rate per annum required to be
paid on such Revolving Credit Advance pursuant to clause (a)(i) or (a)(ii)
above, provided, however, that following acceleration of the Advances
pursuant to Section 6.01, Default Interest shall accrue and be payable
hereunder whether or not previously required by the Agent.
SECTION 2.08. Additional Interest on Eurodollar Rate Advances
and LIBO Rate Advances. The Borrower shall pay to each Lender, so long as
such Lender shall be required under regulations of the Board of Governors of
the Federal Reserve System to maintain reserves with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities, additional
interest on the unpaid principal amount of each Eurodollar Rate Advance and
each LIBO Rate Advance of such Lender to the Borrower, from the date of such
Advance until maturity of such Advance, at an interest rate per annum equal
at all times during the Interest Period for such Advance to the difference
obtained by subtracting (i) the Eurodollar Rate or the LIBO Rate, as the case
may be, for such Interest Period from (ii) the rate obtained by dividing such
rate referred to in clause (i) above by that percentage equal to 100% minus
the Reserve Percentage of such Lender for such Interest Period, payable on
each date on which interest is payable on such Advance. Such additional
interest shall be determined by such Lender. A certificate as to the amount
of such additional interest, submitted to the Borrower and the Agent by such
Lender, shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.09. Interest Rate Determination. (a) Each Reference
Bank agrees to furnish to the Agent timely information for the purpose of
determining each Eurodollar Rate and each LIBO Rate. If any one or more of
the Reference Banks shall not furnish such timely information to the Agent
for the purpose of determining any such interest rate, the Agent shall
determine such interest rate on the basis of timely information furnished by
the remaining Reference Banks. The Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Agent for purposes of Section 2.07(a)(i) or (ii), and the rate, if any,
furnished by each Reference Bank for the purpose of determining the interest
rate under Section 2.07(a)(ii).
(b) If, with respect to any Eurodollar Rate Advances, the
Required Lenders at least one Business Day before the date of any proposed
Revolving Credit Advance, notify the Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to
such Required Lenders of making, funding or maintaining their respective
Eurodollar Rate Advances for such Interest Period, the Agent shall forthwith
so notify the Borrower and the Lenders, whereupon (i) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance, and (ii) the obligation of
the Lenders to make, or to Convert Revolving Credit Advances into, Eurodollar
Rate Advances shall be suspended until the Agent shall notify the Borrower
and the Lenders that the circumstances causing such suspension no longer
exist.
(c) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Agent will forthwith so notify the Borrower and the Lenders and such
Advances will automatically, on the last day of the then existing Interest
Period therefor, Convert into Base Rate Advances.
15
(d) Upon the occurrence and during the continuance of any Event
of Default, (i) each Eurodollar Rate Advance will automatically, on the last
day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (ii) the obligation of the Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended.
(e) If Telerate Markets Page 3750 is unavailable and fewer than
two Reference Banks furnish timely information to the Agent for determining
the Eurodollar Rate or LIBO Rate for any Eurodollar Rate Advances or LIBO
Rate Advances, as the case may be,
(i) the Agent shall forthwith notify the Borrower and the
Lenders that the interest rate cannot be determined for such Eurodollar
Rate Advances or LIBO Rate Advances, as the case may be,
(ii) with respect to Eurodollar Rate Advances, each such Advance
will automatically, on the last day of the then existing Interest
Period therefor, Convert into a Base Rate Advance (or if such Advance
is then a Base Rate Advance, will continue as a Base Rate Advance), and
(iii) the obligation of the Lenders to make Eurodollar Rate
Advances or LIBO Rate Advances or to Convert Revolving Credit Advances
into Eurodollar Rate Advances shall be suspended until the Agent shall
notify the Borrower and the Lenders that the circumstances causing such
suspension no longer exist.
SECTION 2.10. Optional Conversion of Revolving Credit Advances.
The Borrower may on any Business Day, upon notice given to the Agent not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Conversion and subject to the provisions of
Sections 2.09 and 2.13, Convert all Revolving Credit Advances of one Type
comprising the same Borrowing into Revolving Credit Advances of the other
Type; provided, however, that any Conversion of Base Rate Advances into
Eurodollar Rate Advances shall be in an amount not less than the minimum
amount specified in Section 2.02(b). Each such notice of a Conversion shall,
within the restrictions specified above, specify (i) the date of such
Conversion, (ii) the Revolving Credit Advances to be Converted, and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for each such Advance. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
SECTION 2.11. Prepayments of Revolving Credit Advances. The
Borrower may, upon notice at least two Business Days' prior to the date of
such prepayment, in the case of Eurodollar Rate Advances, and not later than
11:00 A.M. (New York City time) on the date of such prepayment, in the case
of Base Rate Advances, to the Agent stating the proposed date and aggregate
principal amount of the prepayment, and if such notice is given the Borrower
shall, prepay the outstanding principal amount of the Revolving Credit
Advances comprising part of the same Revolving Credit Borrowing in whole or
ratably in part, together with accrued interest to the date of such
prepayment on the principal amount prepaid; provided, however, that in the
event of any such prepayment of a Eurodollar Rate Advance, the Borrower shall
be obligated to reimburse the Lenders in respect thereof pursuant to
Section 9.04(c).
SECTION 2.12. Increased Costs. (a) If, due to either (i) at
any time after August 24, 2004, the introduction of or any change (other than
any change by way of imposition or increase of reserve requirements referred
to in Section 2.08) in or in the interpretation of any law or regulation or
(ii) the compliance with any guideline or request from any central bank or
other governmental authority (whether or not having the force of law), there
shall be any increase in the cost to any Lender of agreeing to make or
making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances
made to the Borrower (excluding for purposes of this Section 2.12 any such
increased costs resulting from (i) Taxes or Other Taxes (as to which Section
2.15 shall govern) and (ii) changes in the basis of taxation of overall net
income or overall gross income by the United States or by the foreign
jurisdiction or state under the laws of which such Lender is organized or has
its Applicable Lending Office or any political subdivision thereof), then the
Borrower shall from time to time, upon demand by such Lender (with a copy of
such demand to the Agent), pay to the Agent for the account of such Lender
additional amounts sufficient to reimburse such Lender for such increased
cost. A certificate as to the amount of such increased cost, submitted to
the Borrower and the Agent by such Lender, shall be conclusive and binding
for all purposes, absent manifest error.
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(b) If either (i) at any time after August 24, 2004, the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) compliance by any Lender with any guideline, order or
request from any central bank, court or administrative or governmental
authority (whether or not having the force of law) affects or would affect
the amount of capital required or expected to be maintained by any Lender or
any corporation controlling such Lender, or has the effect of reducing the
rate of return on such Lender's or such corporation's capital, and such
Lender determines that the amount of such capital is increased by or based
upon, or such rate of return is reduced as a consequence of, such Lender's
making, funding or maintaining Eurodollar Rate Advances or LIBO Rate Advances
hereunder, or such Lender's commitments hereunder, then, upon demand by such
Lender (with a copy of such demand to the Agent), the Borrower shall
immediately pay to the Agent for the account of such Lender, from time to
time as specified by such Lender, additional amounts sufficient to compensate
such Lender in the light of such circumstances, to the extent that such
Lender reasonably determines such increase in capital to be allocable to such
Lender's making, funding or maintaining Eurodollar Rate Advances or LIBO Rate
Advances hereunder, or such Lender's commitment to lend hereunder. A
certificate as to such amounts submitted to the Borrower and the Agent by
such Lender shall be conclusive and binding for all purposes, absent manifest
error.
SECTION 2.13. Illegality. Notwithstanding any other provision
of this Agreement, if any Lender shall notify the Agent that the introduction
of or any change in or in the interpretation of any law or regulation makes
it unlawful, or any central bank or other governmental authority asserts that
it is unlawful, for any Lender or its Eurodollar Lending Office to perform
its obligations hereunder to make Eurodollar Rate Advances or LIBO Rate
Advances or to fund or maintain Eurodollar Rate Advances or LIBO Rate
Advances hereunder, (a) each Eurodollar Rate Advance or LIBO Rate Advance of
such Lender, as the case may be, will automatically, upon such demand or, if
permitted by law, at the end of each applicable Interest Period, Convert into
a Base Rate Advance or an Advance that bears interest at the rate set forth
in Section 2.07(a)(i), as the case may be, and (b) the obligation of such
Lender to make Eurodollar Rate Advances or LIBO Rate Advances or to Convert
Revolving Credit Advances into Eurodollar Rate Advances shall be suspended
until the Agent shall notify the Borrower and the Lender that the
circumstances causing such suspension no longer exist.
SECTION 2.14. Payments and Computations. (a) The Borrower
shall make each payment hereunder without set-off or counterclaim not later
than 11:00 A.M. (New York City time) on the day when due in U.S. dollars to
the Agent at the Agent's Account in same day funds. The Agent will promptly
thereafter cause to be distributed like funds relating to the payment of
principal or interest or facility fees ratably (other than amounts payable
pursuant to Section 2.03, 2.12, 2.15 or 9.04(c)) to the Lenders for the
account of their respective Applicable Lending Offices, and like funds
relating to the payment of any other amount payable to any Lender to such
Lender for the account of its Applicable Lending Office, in each case to be
applied in accordance with the terms of this Agreement. Upon any Assuming
Lender becoming a Lender hereunder as a result of a Commitment Increase
pursuant to Section 2.19, and upon the Agent's receipt of such Lender's
Assumption Agreement and recording of the information contained therein in
the Register, from and after the applicable Increase Date the Agent shall
make all payments hereunder and under any Notes issued in connection
therewith in respect of the interest assumed thereby to the Assuming Lender.
Upon its acceptance of an Assignment and Acceptance and recording of the
information contained therein in the Register pursuant to Section 9.07(c),
from and after the effective date specified in such Assignment and
Acceptance, the Agent shall make all payments hereunder and under the Notes
in respect of the interest assigned thereby to the Lender assignee
thereunder, and the parties to such Assignment and Acceptance shall make all
appropriate adjustments in such payments for periods prior to such effective
date directly between themselves.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under
the Note held by such Lender, to charge from time to time against any or all
of the Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate shall
be made by the Agent on the basis of a year of 365 or 366 days, as the case
may be, and all computations of interest based on the Eurodollar Rate, the
LIBO Rate or the Federal Funds Rate or in respect of Fixed Rate Advances and
of facility fees shall be made by the Agent on the basis of a year of 360
days, in each case for the actual number of days (including the first day but
excluding the last day) occurring in the period for which such interest or
facility fees are payable. Each determination by the Agent of an interest
rate hereunder shall be conclusive and binding for all purposes, absent
manifest error.
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(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or facility
fee, as the case may be; provided, however, that, if such extension would
cause payment of interest on or principal of Eurodollar Rate Advances or LIBO
Rate Advances to be made in the next following calendar month, such payment
shall be made on the next preceding Business Day.
(e) Unless the Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Lenders
hereunder that the Borrower will not make such payment in full, the Agent may
assume that the Borrower has made such payment in full to the Agent on such
date and the Agent may, in reliance upon such assumption, cause to be
distributed to each Lender on such due date an amount equal to the amount
then due such Lender. If and to the extent the Borrower shall not have so
made such payment in full to the Agent, each Lender shall repay to the Agent
forthwith on demand such amount distributed to such Lender together with
interest thereon, for each day from the date such amount is distributed to
such Lender until the date such Lender repays such amount to the Agent, at
the Federal Funds Rate.
SECTION 2.15. Taxes. (a) Any and all payments by the Borrower
hereunder (other than payments made under Section 2.03) or under the
Revolving Credit Notes shall be made, in accordance with Section 2.14, free
and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges, or withholdings, and all liabilities
with respect thereto excluding, in the case of each Lender and the Agent,
taxes imposed on its net income and franchise taxes imposed on it by the
United States of America or any political subdivision thereof or therein
(including Puerto Rico) and, in the case of each Lender, taxes imposed on its
net income and franchise taxes imposed on it as a result of making any
Revolving Credit Advance, by the jurisdiction of such Lender's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings, and liabilities
being hereinafter referred to as "Taxes"). If the Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable hereunder
(other than sums payable under Section 2.03) or under any Revolving Credit
Note to any Lender or the Agent, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 2.15)
such Lender or the Agent (as the case may be) receives an amount equal to the
sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions, and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes,
charges, or similar levies which arise from any payment made hereunder (other
than payments under Section 2.03) or under the Revolving Credit Notes or from
the execution, delivery or registration of, or otherwise with respect to,
this Agreement, the Revolving Credit Notes (hereinafter referred to as "Other
Taxes").
(c) The Borrower will indemnify each Lender and the Agent for
the full amount of Taxes and Other Taxes (including, without limitation, any
taxes imposed by any jurisdiction on amounts payable under this Section 2.15)
paid by such Lender or Agent (as the case may be) and any liability
(including penalties, interest, and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Lender or the Agent (as the case may be) makes written demand
therefor. A certificate as to any additional amount payable to any Lender
under this Section 2.15 submitted to the Borrower and the Agent (if a Lender
is so submitting) by such Lender or the Agent shall show in reasonable detail
the amount payable and the calculations used to determine such amount and
shall, absent manifest error, be final, conclusive and binding upon all
parties hereto. Each Lender agrees that, to the extent that any Taxes are
otherwise required to be paid or deducted or withheld pursuant to this
Section 2.15 in respect of any payments under this Agreement and such Lender
or the Agent is entitled to claim an exemption in respect of all or a portion
of such Taxes, such Lender or the Agent, as applicable, shall provide the
Borrower with all necessary certificates as are required to obtain the
benefits of such exemption. With respect to such deduction or withholding
for or on account of any Taxes and to confirm that all such Taxes have been
paid to the appropriate authorities, the Borrower shall promptly (and in any
event not later than 30 days after receipt) furnish to each Lender such
certificates, receipts and other documents as may be required (in the
judgment of such Lender) to establish any tax credit to which such Lender may
be entitled.
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(d) Within 30 days after the date of any payment of Taxes or
Other Taxes by the Borrower, the Borrower will furnish to the Agent, at its
address referred to in Section 9.02, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Within thirty days following the date hereof (or, in the
case of any assignee, on the effective date of its becoming a "Lender"
hereunder), each Lender organized under the laws of a jurisdiction outside
the United States shall provide the Administrative Agent with the forms
prescribed by the Internal Revenue Service of the United States certifying
such Lender's exemption from United States withholding taxes with respect to
all payments to be made to such Lender hereunder and under any of the Notes,
and each such Lender shall thereafter provide the Agent with such supplements
and amendments thereto and such additional forms as may from time to time be
required by applicable law. Each Lender represents that, as of August 24,
2004, no Taxes are required to be withheld from payments made to such Lender
by the Borrower hereunder.
(f) If any Lender benefits from or utilizes foreign tax credits
as a result of payments required to be made by the Borrower hereunder, such
Lender shall credit against future payments to such Lender by the Borrower an
amount equal to the amount of tax eligible for such credit or, if no such
future payments are due, refund such amount to the Borrower.
(g) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.15 shall survive the payment in full of principal
and interest hereunder and under the Revolving Credit Notes and the
termination of this Agreement.
(h) Any Lender claiming any additional amounts payable pursuant
to this Section 2.15 agrees to use best efforts (consistent with its internal
policy and legal and regulatory restrictions) to change the jurisdiction of
its Eurodollar Lending Office if the making of such a change would avoid the
need for, or reduce the amount of, any such additional amounts that may
thereafter accrue and would not, in the reasonable judgment of such Lender,
otherwise materially adversely affect such Advances or such Lender.
SECTION 2.16. Sharing of Payments, Etc. If any Lender shall
obtain any payment (whether voluntary, involuntary, through the exercise of
any right of set-off, or otherwise) on account of the Revolving Credit
Advances owing to it (other than pursuant to Section 2.12, 2.15 or 9.04(c))
in excess of its ratable share of payments on account of the Revolving Credit
Advances obtained by all the Lenders, such Lender shall forthwith purchase
from the other Lenders such participations in the Revolving Credit Advances
owing to them as shall be necessary to cause such purchasing Lender to share
the excess payment ratably with each of them; provided, however, that if all
or any portion of such excess payment is thereafter recovered from such
purchasing Lender, such purchase from each Lender shall be rescinded and such
Lender shall repay to the purchasing Lender the purchase price to the extent
of such recovery together with an amount equal to such Lender's ratable share
(according to the proportion of (i) the amount of such Lender's required
repayment to (ii) the total amount so recovered from the purchasing Lender)
of any interest or other amount paid or payable by the purchasing Lender in
respect of the total amount so recovered. The Borrower agrees that any
Lender so purchasing a participation from another Lender pursuant to this
Section 2.16 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such
participation as fully as if such Lender were the direct creditor of the
Borrower in the amount of such participation.
SECTION 2.17. Evidence of Debt. (a) Each Lender shall maintain
in accordance with its usual practice an account or accounts evidencing the
indebtedness of the Borrower to such Lender resulting from each Revolving
Credit Advance owing to such Lender from time to time, including the amounts
of principal and interest payable and paid to such Lender from time to time
hereunder in respect of Revolving Credit Advances. The Borrower agrees that
upon notice by any Lender to the Borrower (with a copy of such notice to the
Agent) to the effect that a Revolving Credit Note is required or appropriate
in order for such Lender to evidence (whether for purposes of pledge,
enforcement or otherwise) the Revolving Credit Advances owing to, or to be
made by, such Lender, the Borrower shall promptly execute and deliver to such
Lender a Revolving Credit Note payable to the order of such Lender in a
principal amount up to the Commitment of such Lender.
(b) The Register maintained by the Agent pursuant to Section
9.07(d) shall include a control account, and a subsidiary account for each
Lender, in which accounts (taken together) shall be recorded (i) the date and
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amount of each Borrowing made hereunder, the Type of Advances comprising such
Borrowing and, if appropriate, the Interest Period applicable thereto, (ii)
the terms of each Assumption Agreement and each Assignment and Acceptance
delivered to and accepted by it, (iii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to
each Lender hereunder and (iv) the amount of any sum received by the Agent
from the Borrower hereunder and each Lender's share thereof.
(c) Entries made in good faith by the Agent in the Register
pursuant to subsection (b) above, and by each Lender in its account or
accounts pursuant to subsection (a) above, shall be prima facie evidence of
the amount of principal and interest due and payable or to become due and
payable from the Borrower to, in the case of the Register, each Lender and,
in the case of such account or accounts, such Lender, under this Agreement,
absent manifest error; provided, however, that the failure of the Agent or
such Lender to make an entry, or any finding that an entry is incorrect, in
the Register or such account or accounts shall not limit or otherwise affect
the obligations of the Borrower under this Agreement.
SECTION 2.18. Use of Proceeds. The proceeds of the Advances
shall be available (and the Borrower agrees that it shall use such proceeds)
for general corporate purposes, including, without limitation, acquisitions.
SECTION 2.19. Increase in the Aggregate Commitments. (a) The
Borrower may, at any time but in any event not more than once in any calendar
year prior to the Termination Date, by notice to the Agent, request that the
aggregate amount of the Commitments be increased by an amount of $10,000,000
or an integral multiple thereof (each a "Commitment Increase") to be
effective as of a date that is at least 30 days prior to the scheduled
Termination Date then in effect (the "Increase Date") as specified in the
related notice to the Agent; provided, however that (i) in no event shall the
aggregate amount of the Commitments at any time exceed $1,600,000,000 and
(ii) on the date of any request by the Borrower for a Commitment Increase and
on the related Increase Date, no Default has occurred and is continuing.
(b) The Agent shall promptly notify the Lenders of a request by
the Borrower for a Commitment Increase, which notice shall include (i) the
proposed amount of such requested Commitment Increase, (ii) the proposed
Increase Date and (iii) the date by which Lenders wishing to participate in
the Commitment Increase must commit to an increase in the amount of their
respective Commitments (the "Commitment Date"). Each Lender that is willing
to participate in such requested Commitment Increase (each an "Increasing
Lender") shall, in its sole discretion, give written notice to the Agent on
or prior to the Commitment Date of the amount by which it is willing to
increase its Commitment. The Borrower may contemporaneously extend offers to
one or more Eligible Assignees (each such Eligible Assignee, an "Assuming
Lender") to participate in any portion of the requested Commitment Increase;
provided, however, that the Commitment of each such Assuming Lender shall be
in an amount of $10,000,000 or an integral multiple thereof. The requested
Commitment Increase shall be allocated first, among the Lenders willing to
participate therein in such amounts as are agreed between the Borrower and
the Agent and second, any remaining amount of the requested Commitment
Increase shall be allocated among the Assuming Lenders in such amounts as are
agreed between the Borrower and the Agent.
(c) On each Increase Date, each Assuming Lender to which any of
the requested Commitment Increase is allocated pursuant to Section 2.19(b)
shall become a Lender party to this Agreement as of such Increase Date and
the Commitment of each Increasing Lender for such requested Commitment
Increase shall be so increased by such amount (or by the amount allocated to
such Lender pursuant to the last sentence of Section 2.19(b)) as of such
Increase Date; provided, however, that the Agent shall have received on or
before such Increase Date the following, each dated such date:
(i) (A) certified copies of resolutions of the Board of
Directors of the Borrower or the Executive Committee of such Board
authorizing certain officers of the Borrower to act generally on behalf
of the Borrower and (B) an opinion of counsel for the Borrower (which
may be in-house counsel), in substantially the form of Exhibit D-1
hereto;
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(ii) an agreement in form and substance satisfactory to the
Borrower and the Agent (an "Assumption Agreement") from each Assuming
Lender, if any, duly executed by such Eligible Assignee, the Agent and
the Borrower; and
(iii) confirmation from each Increasing Lender of the increase in
the amount of its Commitment in a writing satisfactory to the Borrower
and the Agent. n each Increase Date, upon fulfillment of the conditions set
forth in the immediately preceding sentence of this Section 2.19(c), the Agent
shall notify the Lenders (including, without limitation, each Assuming Lender)
and the Borrower, on or before 1:00 P.M. (New York City time), by telecopier or
telex, of the occurrence of the Commitment Increase to be effected on such
Increase Date and shall record in the Register the relevant information with
respect to each Increasing Lender and each Assuming Lender on such date.
ARTICLE III
CONDITIONS TO EFFECTIVENESS AND LENDING
SECTION 3.01. Conditions Precedent to Effectiveness of this
Agreement. This Agreement shall become effective on and as of the first date
(the "Effective Date") on which the following conditions precedent have been
satisfied:
(a) The Borrower shall have paid all accrued fees and expenses
of the Agent and the Lenders (including the accrued fees and expenses
of counsel to the Agent and to JPMorgan Chase Bank, as syndication
agent).
(b) On the Effective Date, the following statements shall be
true and the Agent shall have received for the account of each Lender a
certificate signed by a duly authorized officer of the Borrower, dated
the Effective Date, stating that:
(i) The representations and warranties contained in
Section 4.01 are true and correct in all material respects on and
as of the Effective Date, and
(ii) No event has occurred and is continuing that
constitutes a Default.
(c) The Agent shall have received on or before the Effective
Date the following, each dated such day, in form and substance
satisfactory to the Agent and (except for the Revolving Credit Notes)
in sufficient copies for each Lender:
(i) The Revolving Credit Notes to the order of the
Lenders to the extent requested by any Lender pursuant to Section
2.17.
(ii) Certified copies of the resolutions of the Board of
Directors of each of the Borrower and the Guarantor authorizing
certain officers of the Borrower to act generally on behalf of
the Borrower, and of all documents evidencing other necessary
corporate action and governmental approvals, if any, with respect
to this Agreement and the Notes.
(iii) A certificate of the Secretary or an Assistant
Secretary of each of the Borrower and the Guarantor certifying
the names and true signatures of the officers of such Person
authorized to sign this Agreement and the Notes and the other
documents to be delivered by it hereunder.
(iv) A favorable opinion of Xxxxxx & Xxxxxxx LLP, special
counsel for the Borrower and the Guarantor, substantially in the
form of Exhibit D-1 hereto and as to such other matters as any
Lender through the Agent may reasonably request.
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(v) A favorable opinion of the General Counsel of the
Borrower and the Guarantor, substantially in the form of
Exhibit D-2 hereto and as to such other matters as any Lender
through the Agent may reasonably request.
(vi) A favorable opinion of Shearman & Sterling LLP,
counsel for the Agent, in form and substance satisfactory to the
Agent.
(d) The Borrower shall have terminated the commitments (or such
commitments shall have expired), and paid in full all Debt, interest,
fees and other amounts outstanding, under the Five Year Credit
Agreement dated as of July 31, 2001, as amended, among the Borrower,
the Guarantor, the lenders parties thereto, Citibank, as administrative
agent for the lenders, and The Bank of New York, Bank One, NA, First
Union National Bank and The Chase Manhattan Bank, as co-syndication
agents for the lenders, and each of the Lenders that is a party to such
credit agreement hereby waives, upon execution of this Agreement, the
requirement of prior notice under such credit agreement relating to the
termination of commitments thereunder.
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing. The obligation of each Lender to make a Revolving Credit Advance
on the occasion of each Revolving Credit Borrowing shall be subject to the
conditions precedent that the Effective Date shall have occurred and on the
date of such Revolving Credit Borrowing (a) the following statements shall be
true (and each of the giving of the applicable Notice of Revolving Credit
Borrowing and the acceptance by the Borrower of the proceeds of such
Revolving Credit Borrowing shall constitute a representation and warranty by
the Borrower that on the date of such Borrowing such statements are true):
(i) the representations and warranties contained in
Section 4.01 (except the representations set forth in subsection (e)
thereof and in subsection (f) thereof) are true and correct in all
material respects on and as of such date, before and after giving
effect to such Revolving Credit Borrowing and to the application of
proceeds therefrom, as though made on and as of such date, and
(ii) no event has occurred and is continuing, or would result
from such Revolving Credit Borrowing or from the application of the
proceeds therefrom that constitutes a Default;
and (b) the Agent shall have received such other approvals, opinions or
documents as any Lender through the Agent may reasonably request.
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing. The obligation of each Lender that is to make a Competitive Bid
Advance on the occasion of a Competitive Bid Borrowing to make such
Competitive Bid Advance as part of such Competitive Bid Borrowing is subject
to the conditions precedent that (i) the Agent shall have received the
written confirmatory Notice of Competitive Bid Borrowing with respect
thereto, (ii) on or before the date of such Competitive Bid Borrowing, but
prior to such Competitive Bid Borrowing, the Agent shall have received a
Competitive Bid Note payable to the order of such Lender for each of the one
or more Competitive Bid Advances to be made by such Lender as part of such
Competitive Bid Borrowing, in a principal amount equal to the principal
amount of the Competitive Bid Advance to be evidenced thereby and otherwise
on such terms as were agreed to for such Competitive Bid Advance in
accordance with Section 2.03, and (iii) on the date of such Competitive Bid
Borrowing the following statements shall be true (and each of the giving of
the applicable Notice of Competitive Bid Borrowing and the acceptance by the
Borrower of the proceeds of such Competitive Bid Borrowing shall constitute a
representation and warranty by the Borrower that on the date of such
Competitive Bid Borrowing such statements are true):
(a) the representations and warranties contained in
Section 4.01 (except the representations set forth in subsection (e)
thereof and in subsection (f) thereof) are true and correct in all
material respects on and as of the date of such Competitive Bid
Borrowing, before and after giving effect to such Competitive Bid
Borrowing and to the application of the proceeds therefrom, as though
made on and as of such date, and
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(b) no event has occurred and is continuing, or would result
from such Competitive Bid Borrowing or from the application of the
proceeds therefrom, that constitutes a Default.
SECTION 3.04. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be
consented to or approved by or acceptable or satisfactory to the Lenders
unless an officer of the Agent responsible for the transactions contemplated
by this Agreement shall have received notice from such Lender prior to the
date that the Borrower, by notice to the Lenders, designates as the proposed
Effective Date, specifying its objection thereto. The Agent shall promptly
notify the Lenders of the occurrence of the Effective Date.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Guarantor
and the Borrower. Each of the Guarantor and, with respect to itself and its
Subsidiaries, the Borrower represents and warrants as follows:
(a) Each of the Guarantor and the Borrower is a corporation
duly, organized, validly existing and in good standing under the laws
of the jurisdiction indicated for it in the recital of parties to this
Agreement.
(b) The execution, delivery and performance by each of the
Guarantor and the Borrower of this Agreement and, in the case of the
Borrower, the Notes to be delivered by it, are each within the
Guarantor's and the Borrower's corporate powers, have been duly
authorized by all necessary corporate action, and do not contravene
(i) the Guarantor's or the Borrower's charter or by-laws or (ii) any
law, judgment, order or injunction or any contractual restriction
binding on or affecting the Guarantor or the Borrower. The execution,
delivery and performance by each of the Guarantor and the Borrower will
not result in or require the creation of any Lien, claim or other
charge or encumbrance upon or with respect to any of the Guarantor's or
the Borrower's property or interests in property.
(c) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for the due execution, delivery
and performance by the Guarantor or the Borrower of this Agreement or,
in the case of the Borrower, the Notes to be delivered by it.
(d) This Agreement has been duly executed and delivered by the
Guarantor and the Borrower, and each of the Notes to be delivered by it
when delivered hereunder will have been, duly executed and delivered by
the Borrower. This Agreement is, and each of the Notes when delivered
hereunder will be, the legal, valid and binding obligation of the
Borrower, and this Agreement is the legal, valid and binding obligation
of the Guarantor, in each case enforceable against the Borrower and the
Guarantor in accordance with their respective terms, subject to the
effect of any applicable bankruptcy, insolvency, reorganization or
moratorium or similar laws affecting the rights of creditors generally
and subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(e) The Consolidated balance sheet of the Guarantor and its
Subsidiaries as at January 31, 2004, and the related Consolidated
statements of income and cash flows of the Guarantor and its
Subsidiaries for the fiscal year then ended, accompanied by an opinion
of Deloitte & Touche LLP independent public accountants, and the
Consolidated balance sheet of the Guarantor and its Subsidiaries as at
May 1, 2004, and the related Consolidated statements of income of the
Guarantor and its Subsidiaries for the three months then ended, duly
certified by the chief financial officer of the Guarantor, copies of
which have been furnished to each Lender, fairly present, subject, in
the case of said balance sheet as at May 1, 2004, and said statements
of income for the three months then ended, to year-end audit
23
adjustments, the Consolidated financial condition of the Guarantor and
its Subsidiaries as at such dates and the Consolidated results of the
operations of the Guarantor and its Subsidiaries for the periods ended
on such dates, all in accordance with generally accepted accounting
principles consistently applied. Since January 31, 2004, there has
been no Material Adverse Change. The developments relating to the
recent acquisition of the Xxxxxxxx Xxxxx'x department store group
announced in the Guarantor's reports on Form 8-K filed with the
Securities and Exchange Commission on June 10, 2004, July 13, 2004,
July 14, 2004, July 22, 2004 and August 2, 2004 have been disclosed to
the Lenders, and each Lender agrees that such developments do not
constitute a Material Adverse Change.
(f) There is no pending or, to the best of the Borrower's or
the Guarantor's knowledge, threatened action or proceeding to which the
Guarantor or any of its Subsidiaries is or would be a party before any
court, governmental agency, or arbitrator, that would, if adversely
determined, have a Material Adverse Effect. Neither the Guarantor nor
any of its Subsidiaries is in default under any order of any court,
arbitrator or governmental body, or under any instrument, document or
agreement binding upon the Guarantor, any of its Subsidiaries or any of
their respective properties, which default (alone or together with all
other such defaults) would have a Material Adverse Effect.
(g) Neither the Guarantor nor any of its Subsidiaries or ERISA
Affiliates has incurred any withdrawal liability under ERISA to any
Multiemployer Plan that would have a Material Adverse Effect.
(h) Not more than twenty-five percent (25%) of the value of the
assets subject to any "arrangement" (as such term is used in section
221.2(g)(1) of Regulation U of the Board of Governors of the Federal
Reserve System) under this Agreement or the Notes is represented by
Margin Stock.
(i) Neither the Borrower nor the Guarantor is an "investment
company", or a company "controlled" by an "investment company", within
the meaning of the Investment Company Act of 1940, as amended.
ARTICLE V
COVENANTS OF THE GUARANTOR
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid or any Lender shall have any Commitment hereunder, the
Guarantor will:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, except to the extent that the
failure to do so would not have a Material Adverse Effect.
(b) Payment of Taxes. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, all taxes, assessments and governmental charges or levies
imposed upon it or upon its property; provided, however, that neither
the Guarantor nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or levy that is being
contested in good faith and by proper proceedings and as to which
appropriate reserves are being maintained, unless and until any Lien
resulting therefrom attaches to its property and such Lien is not
otherwise permitted by this Agreement.
(c) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses
and owning similar properties in the same general areas in which the
Guarantor or such Subsidiary operates; provided, however, that the
24
Guarantor and its Subsidiaries may self-insure to the same extent as
other companies engaged in similar businesses and owning similar
properties in the same general areas in which the Guarantor or such
Subsidiary operates.
(d) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiaries to preserve and maintain,
its corporate existence, rights (charter and statutory) and franchises;
provided, however, that the Guarantor and its Subsidiaries may
consummate any merger or consolidation permitted under Section 5.02(b)
and provided further that neither the Guarantor nor any of its
Subsidiaries shall be required to preserve any right or franchise where
the failure to do so would not have a Material Adverse Effect.
(e) Visitation Rights. At any reasonable time and from time to
time upon reasonable notice, permit the Agent or any of the Lenders or
any agents or representatives thereof, to examine the records and books
of account of, and visit the properties of, the Guarantor and any of
its Subsidiaries, and to discuss the affairs, finances and accounts of
the Guarantor and any of its Subsidiaries with any of their financial
officers.
(f) Keeping of Books. Keep, and cause each of its Subsidiaries
to keep, proper books of record and account in such detail as is
necessary to allow the delivery of the reports required by clause (h)
below, in which full and correct entries shall be made of all financial
transactions and the assets and business of the Guarantor and each such
Subsidiary in accordance with generally accepted accounting principles
in effect from time to time.
(g) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiaries to maintain and preserve, all of its
properties that are used in the conduct of its business in good working
order and condition, ordinary wear and tear excepted, except where the
failure to do so would not have a Material Adverse Effect.
(h) Reporting Requirements. Furnish to the Lenders:
(i) 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 Guarantor, the Consolidated balance sheet of the
Guarantor and its Subsidiaries as of the end of such quarter and
the Consolidated statement of income of the Guarantor and its
Subsidiaries for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, duly
certified (subject to year-end audit adjustments) by the chief
financial officer of the Guarantor as having been prepared in
accordance with generally accepted accounting principles and
certificates of the chief financial officer of the Guarantor as
to compliance with the terms of this Agreement and setting forth
in reasonable detail the calculations necessary to demonstrate
compliance with Section 5.03, provided that in the event of any
change in generally accepted accounting principles used in the
preparation of such financial statements, the Guarantor shall
also provide, if necessary for the determination of compliance
with Section 5.03, a statement of reconciliation conforming such
financial statements to GAAP;
(ii) as soon as available and in any event within 120 days
after the end of each fiscal year of the Guarantor, a copy of the
annual audit report for such year for the Guarantor and its
Subsidiaries, containing the Consolidated balance sheet of the
Guarantor and its Subsidiaries as of the end of such fiscal year
and Consolidated statements of income and cash flows of the
Guarantor and its Subsidiaries for such fiscal year, in each case
accompanied by an opinion acceptable to the Required Lenders by
Deloitte & Touche LLP or other independent public accountants
acceptable to the Required Lenders and certificates of the chief
financial officer of the Guarantor as to compliance with the
terms of this Agreement and setting forth in reasonable detail
the calculations necessary to demonstrate compliance with Section
5.03, provided that in the event of any change in generally
accepted accounting principles used in the preparation of such
financial statements, the Guarantor shall also provide, if
necessary for the determination of compliance with Section 5.03,
a statement of reconciliation conforming such financial
statements to GAAP;
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(iii) as soon as possible and in any event within five days
after the occurrence of each Default continuing on the date of
such statement, a statement of the chief financial officer of the
Borrower or the Guarantor setting forth details of such Default
and the action that the Borrower and the Guarantor has taken and
proposes to take with respect thereto;
(iv) promptly after the sending or filing thereof, copies
of all reports that the Guarantor sends to any of its
securityholders, and copies of all reports and registration
statements that the Guarantor or any Subsidiary files with the
Securities and Exchange Commission or any national securities
exchange; and
(v) such other information respecting the condition,
financial or otherwise, or operations of the Guarantor or any of
its Subsidiaries as any Lender through the Agent may from time to
time reasonably request.
(i) Ownership of the Borrower. Maintain at all times ownership
by the Guarantor, directly or indirectly, of (i) all of the issued and
outstanding common stock of the Borrower and (ii) all other issued and
outstanding Voting Stock of the Borrower.
(j) Assets of the Borrower. Cause 51% or more of the
Guarantor's Consolidated total assets, as at the end of each fiscal
quarter, to be owned by the Borrower and Subsidiaries of the Borrower.
(k) Specified Intercompany Indebtedness. Cause all Specified
Intercompany Indebtedness to be (i) subordinate in right of payment to
the prior payment in full of all obligations and liabilities of the
Borrower arising under this Agreement or in connection herewith, (ii)
structured in a manner such that no principal amount thereof shall be
due or payable by the Borrower at any time prior to the later to occur
of the termination of this Agreement and the repayment in full of all
obligations and liabilities of the Borrower arising hereunder or in
connection herewith and (iii) evidenced by a Subordinated Note. Upon
the execution by the Borrower of any Subordinated Note, the Borrower
shall provide a certified copy thereof to the Agent, who will provide a
copy to each Lender.
SECTION 5.02. Negative Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the
Guarantor will not:
(a) Liens, Etc. Create or suffer to exist, or permit any of
its Subsidiaries to create or suffer to exist, any Lien securing Debt
on or with respect to any of its properties, whether now owned or
hereafter acquired, or assign, or permit any of its Subsidiaries to
assign, any right to receive income to secure any Debt, other than:
(i) the Liens existing on the Effective Date, provided
that the aggregate principal amount of Debt secured by the Liens
referred to in this clause (i) shall not exceed $130,000,000,
(ii) other Liens secured by real estate assets, provided
that the aggregate principal amount of the Debt secured by the
Liens referred to in this clause (ii) shall not exceed ten
percent of the Guarantor's total assets (as shown on the most
recent financial statements delivered in accordance with Section
5.01(h)) at any time outstanding,
(iii) other Liens securing Debt in an aggregate principal
amount not to exceed two percent of the Guarantor's total assets
(as shown on the most recent financial statements delivered in
accordance with Section 5.01(h)) at any time outstanding,
provided that no such Liens shall encumber any current assets of
the Guarantor or any of its Subsidiaries, provided, further, that
for purposes of the foregoing proviso the current portion of a
long-term receivable subject to a Lien will not be treated as a
current asset,
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(iv) other Liens, or assignments of the right to receive
income, arising under an asset securitization (including, without
limitation, an asset securitization in a transaction with a bank-
sponsored conduit) entered into by one or more "Unrestricted
Subsidiaries" (as defined below) in an aggregate "Invested
Amount" not to exceed $1,000,000,000 at any time outstanding,
(v) Liens in favor of the Guarantor or any of its
Subsidiaries, and
(vi) the replacement, extension or renewal of any Lien
permitted by clause (i) above upon or in the same property
theretofore subject thereto or the replacement, extension or
renewal (without increase in the amount or change in any direct
or contingent obligor) of the Debt secured thereby.
For purposes of clause (iv) above, "Unrestricted Subsidiary"
means any Subsidiary created or acquired by the Borrower after
June 17, 1996 the primary business of which consists of financing
operations in connection with leasing and conditional sales
transactions on behalf of the Borrower and its Subsidiaries, and/or
purchasing accounts receivable and/or making loans secured by accounts
receivable or inventory, or which is otherwise primarily engaged in
the business of a finance company and each other "Unrestricted
Subsidiary" as defined in the Indenture dated as of June 17, 1996
among the Borrower, the Guarantor and Bank One Trust Company, National
Association (successor in interest to The First National Bank of
Chicago), as trustee, as such Indenture may be amended from time to
time, and "Invested Amounts" means the amounts invested by investors
that are not Affiliates of the Borrower in connection with a
securitization transaction (including, without limitation, an asset
securitization in a transaction with a bank-sponsored conduit) and
paid to the Borrower or any of its Subsidiaries, as reduced by the
aggregate amounts received by such investors and applied to reduce
such invested amounts.
(b) Mergers, Etc. Merge or consolidate with or into, or
convey, transfer, lease or otherwise dispose of (whether in one
transaction or in a series of transactions) all or substantially all of
the Guarantor's assets on a consolidated basis (whether now owned or
hereafter acquired) to, any Person, or permit any of its Subsidiaries
to do so, except that (i) any Subsidiary of the Guarantor may merge or
consolidate with or into, or dispose of assets to, any other Subsidiary
of the Guarantor, (ii) any Subsidiary of the Guarantor may merge into
or dispose of assets to the Guarantor and (iii) the Guarantor may merge
with any other Person so long as the Borrower is the surviving
corporation, provided, in each case, that (x) no Default shall have
occurred and be continuing at the time of such proposed transaction or
would result therefrom and (y)(1) in the case of any such merger or
consolidation to which both the Guarantor and the Borrower are parties,
either the Guarantor or the Borrower is the surviving corporation and
such surviving corporation is not a Subsidiary of any other Person, (2)
in the case of any such merger or consolidation to which the Guarantor
(but not the Borrower) is a party, the Guarantor is the surviving
corporation and is not a Subsidiary of any other Person, (3) in the
case of any such merger or consolidation to which the Borrower (but not
the Guarantor) is a party, the Borrower is the surviving corporation
and (4) except as provided in clause (1) above, in the case of any such
merger or consolidation to which any Subsidiary of the Guarantor is a
party, the surviving corporation is a wholly-owned Subsidiary of the
Guarantor.
(c) Subordinated Notes. (i) Amend or modify any term or
provision of any Subordinated Note; provided that the Borrower may from
time to time, without the prior written consent of the Required
Lenders, agree to any amendment of (or any replacement Subordinated
Note for) any Subordinated Note that (A) amends the interest rate
applicable thereto in order to more accurately reflect market rates
then in effect, (B) extends the maturity date of such Subordinated
Note, or (C) otherwise does not, in the reasonable judgment of the
Agent, adversely affect the interests of the Lenders hereunder; or (ii)
create or suffer to exist any lien, security interest or other charge
or encumbrance upon or with respect to any Subordinated Note; or (iii)
assign, participate or otherwise transfer any interest in any
Subordinated Note; provided that a Subordinated Note may be assigned,
participated or otherwise transferred by the Guarantor or by any of its
Subsidiaries to the Guarantor or to any wholly-owned Subsidiary of the
Guarantor that shall have agreed in writing to observe the covenants
set forth in clause (i), (ii) and (iii) of this Section 5.02(c) with
respect to such Subordinated Note.
27
SECTION 5.03. Financial Covenants. So long as any Advance shall
remain unpaid or any Lender shall have any Commitment hereunder, the
Guarantor will:
(a) Fixed Charge Coverage Ratio. Maintain at the end of each
fiscal quarter a ratio of Consolidated EBITDAR of the Guarantor and its
Subsidiaries for the most recently ended period of 12 fiscal months to
the sum of (i) interest payable on, and amortization of debt discount
in respect of, all Debt during such period plus (ii) rentals payable
under leases of real or personal, or mixed, property during such
period, in each case, by the Guarantor and its Subsidiaries of not less
than 2.50 : 1.00.
(b) Ratio of Defined Debt to Capitalization. Maintain a ratio
of Consolidated Defined Debt to Consolidated Capitalization that is not
greater than 0.68 : 1.00 at the end of each fiscal quarter.
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) The Borrower shall fail to pay any principal of any Advance
when the same becomes due and payable; or the Borrower shall fail to
pay any interest on any Advance or make any other payment of fees or
other amounts payable under this Agreement or any Note within five days
after the same becomes due and payable; or
(b) Any representation or warranty made by the Guarantor or the
Borrower herein or by the Guarantor or the Borrower (or any of their
respective officers) in connection with this Agreement shall prove to
have been incorrect in any material respect when made; or
(c) The Borrower or the Guarantor shall fail to perform or
observe any term, covenant, or agreement to be performed or observed by
it contained in this Agreement (other than as described in subsection
(a) or (b) above), which failure shall remain unremedied for (i) 30
days after written notice thereof shall have been given to the Borrower
or the Guarantor by the Agent or any Lender or (ii) such longer period
as shall have been established with the consent of the Required Lenders
(provided that any covenant in Section 5.01(h) for which the time
period allowed therein for reporting has passed may be cured in the
applicable period under clause (i) or (ii) of this Section 6.01(c)); or
(d) Either (i) any default under any agreement or instrument
relating to any Debt of the Guarantor or any Subsidiary of the
Guarantor aggregating in excess of $150,000,000, or any other event,
shall occur and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
default or event is to permit the acceleration of the maturity of such
Debt, or to permit the demand that cash collateral therefor be
provided, or (ii) (A) the Guarantor or any Subsidiary of the Guarantor
shall fail to pay any Debt (but excluding Debt evidenced by the Notes)
of the Guarantor or such Subsidiary (as the case may be) aggregating in
excess of $25,000,000 in principal amount, or any interest or premium
thereon, when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) and such failure shall continue
after the applicable grace period, if any, specified in the agreement
or instrument relating to such Debt, or (B) any other default under any
agreement or instrument relating to any such Debt aggregating in excess
of $25,000,000, or any other event, shall occur and shall continue
after the applicable grace period, if any, specified in such agreement
or instrument, and in either such event (C) such Debt aggregating in
excess of $25,000,000 shall be, or be declared to be, due and payable,
or required to be prepaid (other than by a regularly scheduled required
prepayment), prior to the stated maturity thereof or cash collateral
therefor required to be provided; or
(e) The Guarantor or any of its Subsidiaries shall generally
not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general
28
assignment for the benefit of creditors; or any proceeding shall be
instituted by or against the Guarantor or any of its Subsidiaries
seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment
of a receiver, trustee, custodian or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it), either
such proceeding shall remain undismissed or unstayed for a period of 45
days, or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or for any substantial part of its property) shall occur; or
the Guarantor or any of its Subsidiaries shall take any corporate
action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any final judgment or final order for the payment of money
shall be rendered against the Guarantor or any of its Subsidiaries and
such judgment or order is, together with any other such judgments or
orders then outstanding, in an amount (determined after an allowance
for the application of any insurance proceeds to such judgment or
order) that would, if paid by the Guarantor or any Subsidiary of the
Guarantor, cause the Guarantor or the Borrower to fail to observe or
perform, or materially impair the prospects for the observance or
performance by the Borrower or the Guarantor of any term, covenant, or
agreement contained in this Agreement, and either (i) enforcement
proceedings have been commenced by any creditor upon such judgment or
order, or (ii) there shall be any period of 10 consecutive days during
which a stay of such enforcement proceedings, for any reason,
including, but not by way of limitation, by reason of a pending appeal
or otherwise, shall not be in effect; or
(g) (i) Any Person or two or more Persons acting in concert
shall have acquired beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934), directly or indirectly, of Voting
Stock of the Guarantor (or other securities convertible into such
Voting Stock) representing 20% or more of the combined voting power of
all Voting Stock of the Guarantor; or (ii) the Guarantor shall at any
time cease to own, directly or indirectly, all of the issued and
outstanding Capital Stock of the Borrower; or
(h) Any Termination Event with respect to a Plan shall have
occurred, and (i) such Termination Event is not correctable or if
correctable shall not have been corrected and (ii) the then present
value of such Plan's benefit liabilities exceeds the then current value
of assets accumulated in such Plan by an amount that is more than 2% of
the Guarantor's Consolidated Capitalization at the end of the most
recent fiscal quarter (or in the case of a Termination Event involving
the withdrawal of a "substantial employer" (as defined in Section
4001(a)(2) of ERISA), the withdrawing employer's proportionate share of
such excess shall exceed such amount); or
(i) (i) The Guarantor or any of its Subsidiaries shall attempt
to terminate or assert the invalidity or unenforceability of the
Guarantor's guaranty set forth in Article VII of this Agreement or any
provision thereof or (ii) such guaranty or any provision thereof shall
be determined to be invalid or unenforceable in the course of any legal
proceeding;
then, and in any such event, the Agent (i) shall at the
request, or may with the consent, of the Required Lenders, by notice to the
Borrower, declare the obligation of each Lender to make Advances to be
terminated, whereupon the same shall forthwith terminate, and (ii) shall at
the request, or may with the consent, of the Required Lenders, by notice to
the Borrower, declare the Advances, all interest thereon and all other
amounts payable under this Agreement to be forthwith due and payable,
whereupon the Advances, all such interest and all such amounts shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry
of an order for relief with respect to the Borrower or the Guarantor under
the Federal Bankruptcy Code, (A) the obligation of each Lender to make
Advances shall automatically be terminated and (B) the Advances, all such
interest and all such amounts shall automatically become and be due and
payable, without presentment, demand, protest or any notice of any kind,
all of which are hereby expressly waived by the Borrower.
29
ARTICLE VII
GUARANTY
SECTION 7.01. Guaranty. The Guarantor hereby unconditionally
and irrevocably guarantees the due and punctual payment (whether at stated
maturity, upon acceleration or otherwise) of the principal of and interest on
each Advance and the due and punctual payment and performance of all other
obligations of the Borrower under or in connection with this Agreement,
whether for principal, interest, fees, indemnities, reimbursement claims or
otherwise. Upon failure by the Borrower to pay punctually any such amount,
the Guarantor shall forthwith on demand pay the amount not so paid at the
place, in the manner and with the effect otherwise specified in this
Agreement or any Note. Without limiting the generality of the foregoing, the
Guarantor's liability shall extend to all amounts which would be owed by the
Borrower to the Agent or any of the Lenders under this Agreement or the Notes
but for the fact that they are unenforceable or not allowable due to the
existence of a bankruptcy, reorganization or similar proceeding involving the
Borrower.
SECTION 7.02. Guaranty Unconditional. The Guarantor guarantees
that the obligations of the Borrower under this Agreement will be paid and
performed strictly in accordance with the terms of this Agreement and the
Notes, regardless of any law, regulation or order now or hereafter in effect
in any jurisdiction affecting any of such terms or the rights of the Agent or
any Lender with respect thereto. The obligations of the Guarantor under or
in respect of this Guaranty are independent of the obligations of the
Borrower, and a separate action or actions may be brought and prosecuted
against the Guarantor to enforce its obligations under this Article VII,
irrespective of whether any action or actions may be brought and prosecuted
against the Borrower. The obligations of the Guarantor under this Article
VII shall be unconditional and absolute and without limiting the generality
of the foregoing, shall not be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower under this
Agreement, the Notes or any other agreement or instrument relating
thereto;
(b) any modification or amendment of or supplement to this
Agreement or any Note;
(c) any change in the corporate existence, structure or
ownership of the Borrower or its Subsidiaries, or any insolvency,
bankruptcy, reorganization or other similar proceeding affecting the
Borrower or any assets of the Borrower and its Subsidiaries;
(d) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the obligations
of the Borrower hereunder or under the Notes;
(e) any manner of application of collateral, or proceeds
thereof, to all or any of the obligations of the Borrower hereunder or
under the Notes, or any manner of sale or other disposition of any
collateral for all or any of the obligations of the Borrower hereunder
or under the Notes or any other assets of the Borrower or any of its
Subsidiaries;
(f) the existence of any claim, set-off or other rights which
the Guarantor may have at any time against the Borrower, the Agent, any
Lender or any other Person, whether in connection herewith or any
unrelated transactions, provided that nothing herein shall prevent the
assertion of any such claim by separate suit or compulsory
counterclaim;
(g) any invalidity or unenforceability relating to or against
the Borrower for any reason of any provision or all of this Agreement
or any Note, or any provision of applicable law or regulation
purporting to prohibit the payment by the Borrower of the principal of
or interest on any Note or any other amount payable by it under this
Agreement; or
30
(h) any other act or omission to act or delay of any kind by
the Borrower, any of the Agent or the Lenders or any other Person, or
any other circumstance whatsoever which might, but for the provisions
of this paragraph, constitute a legal or equitable discharge of the
Guarantor's obligations hereunder.
SECTION 7.03. Discharge Only Upon Payment in Full; Reinstatement
in Certain Circumstances . The Guarantor's obligations hereunder shall
remain in full force and effect until the principal of and interest on the
Notes and all other amounts payable by the Borrower under this Agreement
shall have been paid in full and shall survive the Termination Date. If at
any time any payment of the principal of or interest on any Note or any other
amount payable by the Borrower under this Agreement is rescinded or must be
otherwise restored or returned upon the insolvency, bankruptcy or
reorganization of the Borrower or otherwise, the Guarantor's obligations
hereunder with respect to such payment shall be reinstated at such time as
though such payment had been due but not made at such time.
SECTION 7.04. Waiver by the Guarantor. The Guarantor
irrevocably waives acceptance hereof, presentment, demand, protest and any
notice not provided for herein, as well as any requirement that at any time
any right be exhausted or any action be taken by the Agent, any Lender or any
other Person against the Borrower or any other Person or any collateral
security.
SECTION 7.05. Subrogation. Upon making any payment hereunder,
the Guarantor shall be subrogated to the rights of the Lenders and the Agent
against the Borrower with respect to such payment; provided that the
Guarantor shall not enforce any right or demand or receive any payment by way
of subrogation until all amounts of principal of and interest on the Notes
and all other amounts payable by the Borrower under this Agreement have been
paid in full.
SECTION 7.06. Stay of Acceleration. In the event that
acceleration of the time for payment of any amount payable by the Borrower
under this Agreement or any of its Notes is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower, all such amounts otherwise
subject to acceleration under the terms of this Agreement shall nonetheless
be payable by the Guarantor hereunder forthwith on demand by the Agent for
the account of the Lenders.
SECTION 7.07. Amendments, Etc. in Respect of Article VII. No
amendment or waiver of any provision of this Article VII, nor consent to any
departure by the Guarantor therefrom, shall in any event be effective unless
the same shall be in writing and signed by all of the Lenders, and then in
the case of any waiver or consent the same shall be effective only in the
specific instance and for the specific purpose for which given.
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action. Each Lender hereby
appoints and authorizes the Agent to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement as are
delegated to the Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement (including, without limitation,
enforcement or collection of the Notes), the Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Required Lenders or all
of the Lenders, as applicable, and such instructions shall be binding upon
all Lenders and all holders of Notes; provided, however, that the Agent shall
not be required to take any action that exposes the Agent to personal
liability or that is contrary to this Agreement or applicable law. The Agent
agrees to give to each Lender prompt notice of each notice given to it by the
Borrower or the Guarantor pursuant to the terms of this Agreement.
SECTION 8.02. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them under or in connection with
this Agreement, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Agent: (i) may treat the Lender that made any Advance as the holder of the
Debt resulting therefrom until the Agent receives and accepts an Assumption
31
Agreement entered into by an Assuming Lender as provided in Section 2.19 or
an Assignment and Acceptance entered into by such Lender, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 9.07; (ii) may consult
with legal counsel (including counsel for the Borrower or the Guarantor),
independent public accountants and other experts selected by it and shall not
be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts;
(iii) makes no warranty or representation to any Lender and shall not be
responsible to any Lender for any statements, warranties or representations
(whether written or oral) made in or in connection with this Agreement;
(iv) shall not have any duty to ascertain or to inquire as to the
performance, observance or satisfaction of any of the terms, covenants or
conditions of this Agreement on the part of the Borrower or the Guarantor or
the existence at any time of any Default or to inspect the property
(including the books and records) of the Borrower or the Guarantor; (v) shall
not be responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; and (vi) shall incur
no liability under or in respect of this Agreement by acting upon any notice,
consent, certificate or other instrument or writing (which may be by
telecopier, telegram or telex) believed by it to be genuine and signed or
sent by the proper party or parties.
SECTION 8.03. Citibank and Affiliates. With respect to its
Commitment, the Advances made by it and the Note issued to it, Citibank shall
have the same rights and powers under this Agreement as any other Lender and
may exercise the same as though it were not the Agent; and the term "Lender"
or "Lenders" shall, unless otherwise expressly indicated, include Citibank in
its individual capacity. Citibank and its Affiliates may accept deposits
from, lend money to, act as trustee under indentures of, accept investment
banking engagements from and generally engage in any kind of business with,
the Guarantor, any of its Subsidiaries and any Person who may do business
with or own securities of the Guarantor or any such Subsidiary, all as if
Citibank were not the Agent and without any duty to account therefor to the
Lenders. The Agent shall have no duty to disclose information obtained or
received by it or any of its Affiliates relating to the Guarantor or its
Subsidiaries to the extent such information was obtained or received in any
capacity other than as Agent.
SECTION 8.04. Lender Credit Decision. Each Lender acknowledges
that it has, independently and without reliance upon the Agent or any other
Lender and based on the financial statements referred to in Section 4.01 and
such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender
also acknowledges that it will, independently and without reliance upon the
Agent or any other Lender and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions
in taking or not taking action under this Agreement.
SECTION 8.05. Indemnification. The Lenders agree to indemnify
the Agent (to the extent not reimbursed by the Borrower), ratably according
to the respective principal amounts of the Revolving Credit Advances then
owed to each of them (or if no Revolving Credit Advances are at the time
outstanding, ratably according to the respective amounts of their
Commitments), from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind or nature whatsoever that may be imposed on,
incurred by, or asserted against the Agent in any way relating to or arising
out of this Agreement or any action taken or omitted by the Agent under this
Agreement (collectively, the "Indemnified Costs"), provided that no Lender
shall be liable for any portion of the Indemnified Costs resulting from the
Agent's gross negligence or willful misconduct. Without limitation of the
foregoing, each Lender agrees to reimburse the Agent promptly upon demand for
its ratable share of any out-of-pocket expenses (including reasonable counsel
fees) 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, to the extent
that the Agent is not reimbursed for such expenses by the Borrower. In the
case of any investigation, litigation or proceeding giving rise to any
Indemnified Costs, this Section 8.05 applies whether any such investigation,
litigation or proceeding is brought by the Agent, any Lender or a third
party.
SECTION 8.06. Successor Agent. The Agent may resign at any time
by giving written notice thereof to the Lenders and the Borrower and may be
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removed at any time with or without cause by the Required Lenders. Upon any
such resignation or removal, the Required Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so
appointed by the Required Lenders, and shall have accepted such appointment,
within 30 days after the retiring Agent's giving of notice of resignation or
the Required Lenders' removal of the retiring Agent, then the retiring Agent
may, on behalf of the Lenders, appoint a successor Agent, which shall be a
commercial bank organized under the laws of the United States of America or
of any State thereof and having a combined capital and surplus of at least
$500,000,000. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, discretion, privileges and duties of the
retiring Agent, and the retiring Agent shall be discharged from its duties
and obligations under this Agreement. After any retiring Agent's resignation
or removal hereunder as Agent, the provisions of this Article VIII shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Agent under this Agreement.
SECTION 8.07. Other Agents. Each Lender hereby acknowledges
that neither the syndication agent, the documentation agents nor any other
Lender designated as any "Agent" (other than the Agent) on the signature
pages hereof has any liability hereunder other than in its capacity as a
Lender.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Revolving Credit Notes, nor consent to any
departure by the Borrower or the Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Required
Lenders, and then such waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given; provided,
however, that no amendment, waiver or consent shall, unless in writing and
signed by all the Lenders, do any of the following: (a) waive any of the
conditions specified in Section 3.01, (b) increase the Commitments of the
Lenders, (c) reduce the principal of, or interest on, the Revolving Credit
Advances or any fees or other amounts payable hereunder, (d) postpone any
date fixed for any payment of principal of, or interest on, the Revolving
Credit Advances or any fees or other amounts payable hereunder, (e) change
the percentage of the Commitments or of the aggregate unpaid principal amount
of the Revolving Credit Advances, or the number of Lenders, that shall be
required for the Lenders or any of them to take any action hereunder,
(f) reduce or limit the obligations of the Guarantor under Section 8.01 or
release or otherwise limit the Guarantor's liability with respect to the
obligations owing to the Agent and the Lenders under Article VIII or (g)
amend this Section 9.01; and provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Agent in addition to the
Lenders required above to take such action, affect the rights or duties of
the Agent under this Agreement or any Note.
SECTION 9.02. Notices, Etc. (a) All notices and other
communications provided for hereunder shall be either (x) in writing
(including telecopier communication) and mailed, telecopied or delivered or
(y) electronically, to the extent set forth in Section 9.02(b) and in the
proviso to this Section 9.02(a), if to the Borrower or the Guarantor, at
their address at 000 Xxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Chief
Financial Officer, with copies to the Treasurer and Secretary at the same
address; if to any Initial Lender, at its Domestic Lending Office specified
opposite its name on Schedule I hereto; if to any other Lender, at its
Domestic Lending Office specified in the Assumption Agreement or the
Assignment and Acceptance pursuant to which it became a Lender; and if to the
Agent, at its address at Xxx Xxxxx Xxx, Xxx Xxxxxx, Xxxxxxxx 00000,
Attention: Bank Loan Syndications Department; or, as to the Borrower or the
Agent, at such other address as shall be designated by such party in a
written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
Borrower and the Agent, provided that materials required to be delivered
pursuant to Section 5.01(h)(i), (ii) or (iv) shall be delivered to the Agent
as specified in Section 9.02(b) or as otherwise specified to the Borrower by
the Agent. All such notices and communications shall, when mailed,
telecopied, or e-mailed, be effective when deposited in the mails,
telecopied, or confirmed by e-mail, respectively, except that notices and
communications to the Agent pursuant to Article II, III or VIII shall not be
effective until received by the Agent. Delivery by telecopier of an executed
counterpart of any amendment or waiver of any provision of this Agreement or
the Notes or of any Exhibit hereto to be executed and delivered hereunder
shall be effective as delivery of a manually executed counterpart thereof.
(b) So long as Citibank or any of its Affiliates is the Agent,
materials required to be delivered pursuant to Section 5.01(h)(i), (ii) and
(iv) shall be delivered to the Agent in an electronic medium in a format
acceptable to the Agent and the Lenders by e-mail at
xxxxxxxxxxxxxxx@xxxxxxxxx.xxx. The Borrower agrees that the Agent may make
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such materials (the "Communications") available to the Lenders by posting
such notices on Intralinks or a substantially similar electronic system (the
"Platform"). The Borrower acknowledges that (i) the distribution of material
through an electronic medium is not necessarily secure and that there are
confidentiality and other risks associated with such distribution, (ii) the
Platform is provided "as is" and "as available" and (iii) neither the Agent
nor any of its Affiliates warrants the accuracy, adequacy or completeness of
the Communications or the Platform and each expressly disclaims liability for
errors or omissions in the Communications or the Platform. No warranty of
any kind, express, implied or statutory, including, without limitation, any
warranty of merchantability, fitness for a particular purpose, non-
infringement of third party rights or freedom from viruses or other code
defects, is made by the Agent or any of its Affiliates in connection with the
Platform.
(c) Each Lender agrees that notice to it (as provided in the
next sentence) (a "Notice") specifying that any Communications have been
posted to the Platform shall constitute effective delivery of such
information, documents or other materials to such Lender for purposes of this
Agreement; provided that if requested by any Lender the Agent shall deliver a
copy of the Communications to such Lender by email or telecopier. Each
Lender agrees (i) to notify the Agent in writing of such Lender's e-mail
address to which a Notice may be sent by electronic transmission (including
by electronic communication) on or before the date such Lender becomes a
party to this Agreement (and from time to time thereafter to ensure that the
Agent has on record an effective e-mail address for such Lender) and (ii)
that any Notice may be sent to such e-mail address.
SECTION 9.03. No Waiver; Remedies. No failure on the part of
any Lender or the Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to
pay on demand all reasonable costs and expenses of the Agent in connection
with the preparation, execution, delivery, administration, modification and
amendment of this Agreement, the Notes and the other documents to be
delivered hereunder, including, without limitation, the reasonable fees and
expenses of counsel for the Agent with respect thereto and with respect to
advising the Agent as to its rights and responsibilities under this
Agreement. The Borrower further agrees to pay on demand all costs and
expenses of the Agent and the Lenders, if any (including, without limitation,
reasonable counsel fees and expenses), in connection with the enforcement
(whether through negotiations, legal proceedings or otherwise) of this
Agreement, the Notes and the other documents to be delivered hereunder,
including, without limitation, reasonable fees and expenses of counsel for
the Agent and each Lender in connection with the enforcement of rights under
this Section 9.04(a).
(b) Each of the Guarantor and the Borrower agrees to indemnify
and hold harmless the Agent, each Lender, Citigroup Global Markets Inc., X.X.
Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx Bank and the officers, directors,
employees, and agents of the Agent, each Lender, Citigroup Global Markets
Inc., X.X. Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx Bank (any one of the
foregoing being an "Indemnified Party" and any two or more of the foregoing
being "Indemnified Parties") from and against, and pay the Indemnified
Parties the amount of, any and all claims, damages, liabilities, costs, and
expenses (including, without limitation, reasonable fees and out-of-pocket
expenses of counsel or the reasonable and verifiable allocated cost of
in-house counsel and staff, including counsel for each Indemnified Party)
that may be incurred by or asserted against an Indemnified Party relating in
whole or in part to this Agreement and in connection with or arising out of
or by reason of any investigation, litigation, or proceeding related to (i)
the use or proposed use of the proceeds of any or all Advances made
hereunder, or (ii) any acquisition or proposed acquisition by the Guarantor
or by any Subsidiary of the Guarantor, of all or any portion of the stock or
all or substantially all the assets of any Person or any operating unit or
division of any Person, whether or not an Indemnified Party is a party
thereto, provided, however, that this indemnification shall not apply to any
claim, damage, liability, cost, and expense arising as a direct result of an
Indemnified Party's gross negligence or intentional misconduct. The
covenants of the Guarantor and the Borrower contained in this Section 9.04(b)
shall survive the payment in full of the Advances and any other amounts
payable hereunder and shall survive the Termination Date. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 9.04(b) applies, such indemnity shall be effective whether or not
such investigation, litigation or proceeding is brought by the Borrower, its
directors, equityholders or creditors or an Indemnified Party or any other
Person, whether or not any Indemnified Party is otherwise a party thereto and
whether or not the transactions contemplated hereby are consummated. The
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Borrower also agrees not to assert any claim for special, indirect,
consequential or punitive damages against the Agent, any Lender, any of their
Affiliates, or any of their respective directors, officers, employees,
attorneys and agents, on any theory of liability, arising out of or otherwise
relating to the Notes, this Agreement, any of the transactions contemplated
herein or the actual or proposed use of the proceeds of the Advances.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance or LIBO Rate Advance is made by the Borrower to or
for the account of a Lender other than on the last day of the Interest Period
for such Advance, as a result of a payment or Conversion pursuant to
Section 2.09(d) or (e), 2.11 or 2.13, acceleration of the maturity of the
Notes pursuant to Section 6.01 or for any other reason, or by an Eligible
Assignee to a Lender other than on the last day of the Interest Period for
such Advance upon an assignment of rights and obligations under this
Agreement pursuant to Section 9.07 as a result of a demand by the Borrower
pursuant to Section 9.07(a), the Borrower shall, upon demand by such Lender
(with a copy of such demand to the Agent), pay to the Agent for the account
of such Lender any amounts required to compensate such Lender for any
additional losses, costs or expenses that it may reasonably incur as a result
of such payment or Conversion, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender to fund or maintain such Advance.
(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower
contained in Sections 2.12, 2.15 and 9.04 shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under the
Notes.
SECTION 9.05. Right of Set-off. Upon (i) the occurrence and
during the continuance of any Event of Default and (ii) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Agent to declare the Advances due and payable pursuant to the provisions
of Section 6.01, each Lender is hereby authorized at any time and from time
to time, to the fullest extent permitted by law, to set off and apply any and
all deposits (general or special, time or demand, provisional or final) at
any time held and other indebtedness at any time owing by such Lender to or
for the credit or the account of the Borrower or the Guarantor against any
and all of the obligations of the Borrower or the Guarantor now or hereafter
existing under this Agreement and the Note held by such Lender, whether or
not such Lender shall have made any demand under this Agreement or such Note
and although such obligations may be unmatured. Each Lender agrees promptly
to notify the Borrower or the Guarantor, as the case may be, after any such
set-off and application, provided that the failure to give such notice shall
not affect the validity of such set-off and application. The rights of each
Lender under this Section are in addition to other rights and remedies
(including, without limitation, other rights of set-off) that such Lender may
have.
SECTION 9.06. Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the Borrower, the Guarantor, the Agent and
each Lender and their respective successors and assigns, except that neither
the Borrower nor the Guarantor shall have the right to assign its rights
hereunder or any interest herein without the prior written consent of the
Lenders.
SECTION 9.07. Assignments and Participations. (a) Each Lender
may and, if demanded by the Borrower (following a demand by such Lender
pursuant to Section 2.12 or 2.15 or an assertion of illegality by such Lender
under Section 2.13) upon at least five Business Days' notice to such Lender
and the Agent, will assign to one or more Persons all or a portion of its
rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment, the Revolving Credit Advances owing to it
and the Revolving Credit Note or Notes held by it); provided, however, that
(i) each such assignment shall be of a constant, and not a varying,
percentage of all rights and obligations under this Agreement (other than any
right to make Competitive Bid Advances, Competitive Bid Advances owing to it
and Competitive Bid Notes), (ii) except in the case of an assignment to a
Person that, immediately prior to such assignment, was a Lender or an
assignment of all of a Lender's rights and obligations under this Agreement,
the amount of the Commitment of the assigning Lender being assigned pursuant
to each such assignment (determined as of the date of the Assignment and
Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 or an integral multiple of $1,000,000 in excess thereof,
(iii) each such assignment shall be to an Eligible Assignee, (iv) each such
assignment made as a result of a demand by the Borrower pursuant to this
Section 9.07(a) shall be arranged by the Borrower after consultation with the
Agent and shall be either an assignment of all of the rights and obligations
of the assigning Lender under this Agreement or an assignment of a portion of
such rights and obligations made concurrently with another such assignment or
35
other such assignments that together cover all of the rights and obligations
of the assigning Lender under this Agreement, (v) no Lender shall be
obligated to make any such assignment as a result of a demand by the Borrower
pursuant to this Section 9.07(a) unless and until such Lender shall have
received one or more payments from either the Borrower or one or more
Eligible Assignees in an aggregate amount at least equal to the aggregate
outstanding principal amount of the Advances owing to such Lender, together
with accrued interest thereon to the date of payment of such principal amount
and all other amounts payable to such Lender under this Agreement, and
(vi) the parties to each such assignment shall execute and deliver to the
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Revolving Credit Note subject to such
assignment and a processing and recordation fee of $3,500 payable by the
parties to each such assignment, provided, however, that in the case of each
assignment made as a result of a demand by the Borrower, such recordation fee
shall be payable by the Borrower except that no such recordation fee shall be
payable in the case of an assignment made at the request of the Borrower to
an Eligible Assignee that is an existing Lender. Upon such execution,
delivery, acceptance and recording, from and after the effective date
specified in each Assignment and Acceptance, (x) the assignee thereunder
shall be a party hereto and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and
Acceptance, have the rights and obligations of a Lender hereunder and (y) the
Lender assignor thereunder shall, to the extent that rights and obligations
hereunder have been assigned by it pursuant to such Assignment and
Acceptance, relinquish its rights (other than its rights under Section 2.12,
2.15 and 9.04 to the extent any claim thereunder relates to an event arising
prior such assignment) and be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all or
the remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Lender
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
other instrument or document furnished pursuant hereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the Borrower or the Guarantor or the
performance or observance by the Borrower or the Guarantor of any of its
obligations under this Agreement or any other instrument or document
furnished pursuant hereto; (iii) such assignee confirms that it has received
a copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will, independently
and without reliance upon the Agent, such assigning Lender or any other
Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under this Agreement; (v) such assignee confirms that it
is an Eligible Assignee; (vi) such assignee appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under this Agreement as are delegated to the Agent by the terms
hereof, together with such powers and discretion as are reasonably incidental
thereto; and (vii) such assignee agrees that it will perform in accordance
with their terms all of the obligations that by the terms of this Agreement
are required to be performed by it as a Lender.
(c) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender and an assignee representing that it is an Eligible
Assignee, together with any Revolving Credit Note or Notes subject to such
assignment, the Agent shall, if such Assignment and Acceptance has been
completed and is in substantially the form of Exhibit C hereto, (i) accept
such Assignment and Acceptance, (ii) record the information contained therein
in the Register and (iii) give prompt notice thereof to the Borrower.
(d) The Agent shall maintain at its address referred to in
Section 9.02 a copy of each Assumption Agreement and each Assignment and
Acceptance delivered to and accepted by it and a register for the recordation
of the names and addresses of the Lenders and the Commitment of, and
principal amount of the Advances owing to, each Lender from time to time (the
"Register"). The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower, the Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement. The Register shall be
available for inspection by the Borrower or any Lender at any reasonable time
and from time to time upon reasonable prior notice.
36
(e) Each Lender may sell participations to one or more banks or
other entities (other than the Guarantor or any of its Affiliates) in or to
all or a portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the
Advances owing to it and any Note or Notes held by it); provided, however,
that (i) such Lender's obligations under this Agreement (including, without
limitation, its Commitment to the Borrower hereunder) shall remain unchanged,
(ii) such Lender shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agent and the other Lenders shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under this Agreement and (v) no participant under any such
participation shall have any right to approve any amendment or waiver of any
provision of this Agreement or any Note, or any consent to any departure by
the Borrower or the Guarantor therefrom, except to the extent that such
amendment, waiver or consent would reduce the principal of, or interest on,
the Notes or any fees or other amounts payable hereunder, in each case to the
extent subject to such participation, or postpone any date fixed for any
payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation.
(f) Any Lender may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this
Section 9.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower or the Guarantor
furnished to such Lender by or on behalf of the Borrower or the Guarantor;
provided that, prior to any such disclosure, the assignee or participant or
proposed assignee or participant shall agree to preserve the confidentiality
of any Confidential Information relating to the Borrower or the Guarantor
received by it from such Lender.
(g) Notwithstanding any other provision set forth in this
Agreement, any Lender may at any time create a security interest in all or
any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and any Note or Notes held by it) in
favor of any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System.
(h) In the case of any sale of a participating interest of any
of the rights or obligations of any Lender hereunder, such participant shall
not be entitled to receive any greater payment under Section 2.12 than such
selling Lender would have been entitled to receive with respect to the rights
and obligations transferred.
(i) Notwithstanding anything to the contrary contained in this
Agreement, any Lender (a "Granting Lender") may grant to a special purpose
funding vehicle (an "SPC") affiliated with such Granting Lender, identified
as such in writing from time to time by the Granting Lender to the Agent and
the Borrower, the option to provide to the Borrower all or any part of any
Advance that such Granting Lender would otherwise be obligated to make to the
Borrower pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment to make any Advance by any SPC, (ii) if an SPC elects
not to exercise such option or otherwise fails to provide all or any part of
such Advance, the Granting Lender shall be obligated to make such Advance
pursuant to the terms hereof, and (iii) if an SPC provides all or any part of
an Advance it will not result in costs, expenses or fees for the Borrower
greater than if the Advance had been made by the Granting Lender. The making
of an Advance by an SPC hereunder shall utilize the Commitment of the
Granting Lender to the same extent, and as if, such Advance were made by the
Granting Lender. Each party hereto hereby agrees that no SPC shall be liable
for any payment under this Agreement for which a Lender would otherwise be
liable, for so long as, and to the extent, the related Granting Lender makes
such payment. In furtherance of the foregoing, each party hereto hereby
agrees that, prior to the date that is one year and one day after the payment
in full of all outstanding senior indebtedness of any SPC, it will not
institute against, or join any other person in instituting against, such SPC
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or similar proceedings under the laws of the United States or any
State thereof for any action or inaction by the SPC under this Agreement. In
addition, notwithstanding anything to the contrary contained in this Section
9.07 any SPC may (x) with notice to, but without the prior written consent
of, the Borrower or the Agent and without paying any processing fee therefor,
assign all or a portion of its interest in any Advances to its Granting
Lender or to any financial institutions (if consented to by the Borrower and
the Agent) providing liquidity and/or credit facilities to or for the account
of such SPC to fund the Advances made by such SPC or to support the
securities (if any) issued by such SPC to fund such Advances and (y) disclose
on a confidential basis any non-public information relating to its Advances
to any rating agency, commercial paper dealer or provider of a surety,
guarantee or credit or liquidity enhancement to such SPC.
37
SECTION 9.08. Confidentiality. Neither the Agent nor any Lender
shall disclose any Confidential Information to any other Person without
the consent of the Borrower, other than (a) to the Agent's or such
Lender's Affiliates and their officers, directors, employees, agents
and advisors and, as contemplated by Section 9.07(f), to actual or
prospective assignees and participants, and then only on a confidential
basis, (b) as required by any law, rule or regulation or judicial
process and (c) as requested or required by any state, federal or
foreign authority or examiner regulating banks or banking.
SECTION 9.09. Governing Law. This Agreement and the Notes shall
be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 9.10. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 9.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and
any appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or the Notes, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such
action or proceeding may be heard and determined in any such New York State
court or, to the extent permitted by law, in such federal court. Each of the
parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement
shall affect any right that any party may otherwise have to bring any action
or proceeding relating to this Agreement or the Notes in the courts of any
jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any
suit, action or proceeding arising out of or relating to this Agreement or
the Notes in any New York State or federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
SECTION 9.12. USA PATRIOT Act Notice. Each Lender and the Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other
information that will allow such Lender or the Agent, as applicable, to
identify the Borrower in accordance with the Act.
38
SECTION 9.13. Waiver of Jury Trial. Each of the Borrower, the
Guarantor, the Agent and the Lenders hereby irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to this Agreement or
the Notes or the actions of the Agent or any Lender in the negotiation,
administration, performance or enforcement thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.
THE MAY DEPARTMENT STORES COMPANY,
a New York corporation, as Borrower
By __________________________
Title:
THE MAY DEPARTMENT STORES COMPANY,
a Delaware corporation, as Guarantor
By __________________________
Title:
Commitment
Administrative Agent
$153,000,000.00 CITIBANK, N.A.
By __________________________
Title:
Syndication Agent
$153,000,000.00 JPMORGAN CHASE BANK
By __________________________
Title:
Documentation Agents
$153,000,000.00 XXXXXX XXXXXXX BANK
By __________________________
Title:
$113,000,000.00 BANK OF AMERICA, N.A.
By __________________________
Title:
$113,000,000.00 BNP PARIBAS
By __________________________
Title:
$113,000,000.00 WACHOVIA BANK NATIONAL ASSOCIATION
By __________________________
Title:
Managing Agents
$100,000,000.00 THE BANK OF NEW YORK
By __________________________
Title:
$90,000,000.00 XXXXX FARGO BANK NATIONAL ASSOCIATION
By __________________________
Title:
Co-Agents
$65,000,000.00 BARCLAYS BANK PLC
By __________________________
Title:
2
$65,000,000.00 SUMITOMO MITSUI BANKING CORPORATION
By __________________________
Title:
$65,000,000.00 U.S. BANK NATIONAL ASSOCIATION
By __________________________
Title:
$50,000,000.00 STANDARD CHARTERED BANK
By __________________________
Title:
$50,000,000.00 THE NORTHERN TRUST COMPANY
By __________________________
Title:
Lenders
$30,000,000.00 MELLON BANK, N.A.
By __________________________
Title:
$25,000,000.00 FIFTH THIRD BANK
By __________________________
Title:
$25,000,000.00 SOVEREIGN BANK
By __________________________
Title:
3
$15,000,000.00 FIRST BANK
By __________________________
Title:
$15,000,000.00 NATIONAL CITY BANK
By __________________________
Title:
$7,000,000.00 COMMERCE BANK NATIONAL ASSOCIATION
By __________________________
Title:
$1,400,000,000 Total of the Commitments
4
SCHEDULE I
THE MAY DEPARTMENT STORES COMPANY
AMENDED AND RESTATED FIVE YEAR CREDIT AGREEMENT
APPLICABLE LENDING OFFICES
Name of Initial Lender Domestic Lending Office Eurodollar Lending Office
CITIBANK, N.A. Two Penns Way Xxx Xxxxx Xxx
Xxx Xxxxxx, XX 00000 Xxx Xxxxxx, XX 00000
Attn: Bank Loan Attn: Bank Loan
Syndications Department Syndications Department
JPMORGAN CHASE BANK 0000 Xxxxxx, 00xx Xxxxx 0000 Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxx 00000 Xxxxxxx, Xxxxx 00000
XXXXXX XXXXXXX BANK 0000 Xxxxxx of the Americas 1221 Avenue of the Americas
00xx Xxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
BANK OF AMERICA, N.A. 0000 Xxxxxxx Xxxxxxxxx 0000 Xxxxxxx Xxxxxxxxx
0xx Xxxxx 0xx Xxxxx
Mail Code: CA4-706-05-09 Mail Code: CA4-706-05-09
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx Attn: Xxxxxx Xxxxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
BNP PARIBAS 000 Xxxxx Xxxxxx, 0xx Xxxxx 000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx Attn: Xxxxx Xxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
WACHOVIA BANK NATIONAL
ASSOCIATION 000 Xxxxx Xxxxxxx Xxxxxx 000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx Attn: Xxxx Xxxxxx
T: 000-000-0000 T: 000-000-0000
F: 704-383-7999 F: 704-383-7999
XXX XXXX XX XXX XXXX Xxx Xxxx Xxxxxx One Wall Street
0xx xxxxx 0xx xxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxx Attn: Xxxxx Xxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
XXXXX FARGO BANK NATIONAL
ASSOCIATION 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000 Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx Attn: Xxxxxx Xxxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
BARCLAYS BANK PLC 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx xx Xxxxxxx Attn: Xxxxxx xx Xxxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
SUMITOMO MITSUI BANKING
CORPORATION 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
U.S. BANK NATIONAL
ASSOCIATION 400 City Center 000 Xxxx Xxxxxx
XX-XX-XXX0 XX-XX-XXX0
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx Attn: Xxxxxx Xxxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
STANDARD CHARTERED
BANK 7 World Trade Center 0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000 Xxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
T: 212-667-0336 T: 212-667-0336
F: 000-000-0000 F: 000-000-0000
THE NORTHERN TRUST
COMPANY 50 X. XxXxxxx 50 X. XxXxxxx
00xx Xxxxx 00xx Xxxxx
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx Attn: Xxxxxx Xxxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
MELLON BANK, N.A. 000 Xxxxxxx Xxxx Xxxxx 000 Xxxxxxx Xxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000 Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxx Xxxxxxx Attn: Xxxxxx Xxxxxxx
T: 000-000-0000 T: 412-234-4744
F: 000-000-0000 F: 000-000-0000
FIFTH THIRD BANK 00 XX Xxxxx Xxxxxx 00 XX Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxxxxxx, XX 00000
Attn: Xxx Xxxx Attn: Xxx Xxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
SOVEREIGN BANK 000 Xxxx Xxxxxx 000 Xxxx Xxxxxx
XX Xxx 00000 XX Xxx 00000
Xxxxxxx, XX 00000 Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxx Attn: Xxxxxx Xxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
FIRST BANK 000 Xxxxxx Xxxx 000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxxxxx Attn: Xxxxxxx Xxxxxxxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
NATIONAL CITY BANK 000 Xxxx Xxxxx Xxxxxx 000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000-0000 Xxxxxxxx, XX 00000-0000
Attn: Xxxxx Xxxxxxx Attn: Xxxxx Xxxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
COMMERCE BANK NATIONAL
ASSOCIATION 1000 Walnut, BB 17-5 0000 Xxxxxx, XX 00-0
Xxxxxx Xxxx, XX 00000 Xxxxxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxx Attn: Xxxxxxxxx Xxxxxx
T: 000-000-0000 T: 000-000-0000
F: 000-000-0000 F: 000-000-0000
2
EXHIBIT A-1 - FORM OF
REVOLVING CREDIT
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, THE MAY DEPARTMENT STORES
COMPANY, a New York corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office on the Termination Date (each as defined in the
Credit Agreement referred to below) the unpaid principal amount of each
Revolving Credit Advance made by the Lender to the Borrower pursuant to the
Credit Agreement outstanding on such date.
The Borrower promises to pay interest on the unpaid principal
amount of each Revolving Credit Advance from the date of such Revolving
Credit Advance until such principal amount is paid in full, at such interest
rates, and payable at such times, as are specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, as Agent, at 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, in same day funds. Each Revolving Credit Advance owing
to the Lender by the Borrower pursuant to the Credit Agreement, and all
payments made on account of principal thereof, shall be recorded by the
Lender and, prior to any transfer hereof, endorsed on the grid attached
hereto which is part of this Promissory Note.
This Promissory Note is one of the Revolving Credit Notes
referred to in, and is entitled to the benefits of, the Amended and Restated
Five Year Credit Agreement dated as of August 24, 2004 among the Borrower,
The May Department Stores Company, a Delaware corporation, as Guarantor, the
Lender and certain other lenders, Citibank, N.A., as Agent for the Lender and
such other lenders, JPMorgan Chase Bank, as syndication agent, Xxxxxx Xxxxxxx
Bank, Bank of America, N.A., BNP Paribas and Wachovia Bank National
Association, as documentation agents, and Citigroup Global Markets Inc., X.X.
Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx Bank, as joint lead arrangers and
bookrunners (as amended or modified from time to time, the "Credit
Agreement"). The terms used herein that are defined in the Credit Agreement
have the same definitions as in the Credit Agreement. The Credit Agreement,
among other things, (i) provides for the making of Revolving Credit Advances
by the Lender to the Borrower from time to time in an aggregate amount not to
exceed at any time outstanding the U.S. dollar amount first above mentioned,
the indebtedness of the Borrower resulting from each such Revolving Credit
Advance being evidenced by this Promissory Note and (ii) contains provisions
for acceleration of the maturity hereof upon the happening of certain stated
events and also for prepayments on account of principal hereof prior to the
maturity hereof upon the terms and conditions therein specified.
THE MAY DEPARTMENT STORES COMPANY,
a New York corporation
By __________________________
Title:
ADVANCES AND PAYMENTS OF PRINCIPAL
Amount of
Date Amount of Principal Paid Unpaid Principal Notation
Advance or Prepaid Balance Made By
2
EXHIBIT A-2 - FORM OF
COMPETITIVE BID
PROMISSORY NOTE
U.S.$_______________ Dated: _______________, 200_
FOR VALUE RECEIVED, the undersigned, THE MAY DEPARTMENT STORES
COMPANY, a New York corporation (the "Borrower"), HEREBY PROMISES TO PAY to
the order of _________________________ (the "Lender") for the account of its
Applicable Lending Office (as defined in the Amended and Restated Five Year
Credit Agreement dated as of August 24, 2004 among the Borrower, The May
Department Stores Company, a Delaware corporation, as Guarantor, the Lender
and certain other lenders, Citibank, N.A., as Agent for the Lender and such
other lenders, JPMorgan Chase Bank, as syndication agent, Xxxxxx Xxxxxxx
Bank, Bank of America, N.A., BNP Paribas and Wachovia Bank National
Association, as documentation agents, and Citigroup Global Markets Inc., X.X.
Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx Bank, as joint lead arrangers and
bookrunners(as amended or modified from time to time, the "Credit Agreement";
the terms defined therein being used herein as therein defined)), on
_______________, 200_, the principal amount of U.S.$_______________].
The Borrower promises to pay interest on the unpaid principal
amount hereof from the date hereof until such principal amount is paid in
full, at the interest rate and payable on the interest payment date or dates
provided below:
Interest Rate: _____% per annum (calculated on the basis of a year of
_____ days for the actual number of days elapsed).
Interest Payment Date or Dates: _________________.
Both principal and interest are payable in lawful money of the
United States of America to Citibank, as agent, for the account of the Lender
at the office of Citibank, at _________________________ in same day funds.
This Promissory Note is one of the Competitive Bid Notes referred
to in, and is entitled to the benefits of, the Credit Agreement. The Credit
Agreement, among other things, contains provisions for acceleration of the
maturity hereof upon the happening of certain stated events.
The Borrower hereby waives presentment, demand, protest and
notice of any kind. No failure to exercise, and no delay in exercising, any
rights hereunder on the part of the holder hereof shall operate as a waiver
of such rights.
This Promissory Note shall be governed by, and construed in
accordance with, the laws of the State of New York.
THE DEPARTMENT STORES COMPANY, a
New York corporation
By __________________________
Title:
EXHIBIT B-1 - FORM OF NOTICE OF
REVOLVING CREDIT BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, The May Department Stores Company, a New York
corporation, refers to the Amended and Restated Five Year Credit Agreement,
dated as of August 24, 2004 (as amended or modified from time to time, the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, The May Department Stores Company, a
Delaware corporation, as Guarantor, certain Lenders, Citibank, N.A., as Agent
for said Lenders, JPMorgan Chase Bank, as syndication agent, Xxxxxx Xxxxxxx
Bank, Bank of America, N.A., BNP Paribas and Wachovia Bank National
Association, as documentation agents, and Citigroup Global Markets Inc., X.X.
Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx Bank, as joint lead arrangers and
bookrunners, and hereby gives you notice, irrevocably, pursuant to
Section 2.02 of the Credit Agreement that the undersigned hereby requests a
Revolving Credit Borrowing under the Credit Agreement, and in that connection
sets forth below the information relating to such Revolving Credit Borrowing
(the "Proposed Revolving Credit Borrowing") as required by Section 2.02(a) of
the Credit Agreement:
(i) The Business Day of the Proposed Revolving Credit Borrowing
is _______________, 200_.
(ii) The Type of Advances comprising the Proposed Revolving
Credit Borrowing is [Base Rate Advances] [Eurodollar Rate Advances].
(iii) The aggregate amount of the Proposed Revolving Credit
Borrowing is $_______________.
[(iv) The initial Interest Period for each Eurodollar Rate
Advance made as part of the Proposed Revolving Credit Borrowing is
_____ month[s].]
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Revolving Credit Borrowing:
(A) the representations and warranties contained in
Section 4.01 of the Credit Agreement (except the representations set
forth in subsections (e) and (f) thereof) are true and correct in all
material respects on and as of the date hereof as though made on and as
of such date; and
(B) no event has occurred and is continuing, or would result
from such Proposed Revolving Credit Borrowing or from the application
of the proceeds therefrom, that constitutes a Default.
Very truly yours,
THE MAY DEPARTMENT STORES COMPANY,
a New York corporation
By __________________________
Title:.
2
EXHIBIT B-2 - FORM OF NOTICE OF
COMPETITIVE BID BORROWING
Citibank, N.A., as Agent
for the Lenders parties
to the Credit Agreement
referred to below
Xxx Xxxxx Xxx
Xxx Xxxxxx, Xxxxxxxx 00000
[Date]
Attention: Bank Loan Syndications Department
Ladies and Gentlemen:
The undersigned, The May Department Stores Company, a New York
corporation, refers to the Amended and Restated Five Year Credit Agreement,
dated as of August 24, 2004 (as amended or modified from time to time, the
"Credit Agreement", the terms defined therein being used herein as therein
defined), among the undersigned, The May Department Stores Company, a
Delaware corporation, as Guarantor, certain Lenders parties thereto,
Citibank, N.A., as Agent for said Lenders, JPMorgan Chase Bank, as
syndication agent, Xxxxxx Xxxxxxx Bank, Bank of America, N.A., BNP Paribas
and Wachovia Bank National Association, as documentation agents, and
Citigroup Global Markets Inc., X.X. Xxxxxx Securities Inc. and Xxxxxx Xxxxxxx
Bank, as joint lead arrangers and bookrunners, and hereby gives you notice,
irrevocably, pursuant to Section 2.03 of the Credit Agreement that the
undersigned hereby requests a Competitive Bid Borrowing under the Credit
Agreement, and in that connection sets forth the terms on which such
Competitive Bid Borrowing (the "Proposed Competitive Bid Borrowing") is
requested to be made:
(A) Date of Competitive Bid Borrowing ________________________
(B) Amount of Competitive Bid Borrowing ________________________
(C) [Maturity Date] [Interest Period] ________________________
(D) Interest Rate Basis ________________________
(E) Interest Payment Date(s) ________________________
(F) ___________________ ________________________
The undersigned hereby certifies that the following statements
are true on the date hereof, and will be true on the date of the Proposed
Competitive Bid Borrowing:
(a) the representations and warranties contained in
Section 4.01 of the Credit Agreement (except the representations set
forth in subsections (e) and (f) thereof) are true and correct in all
material respects on and as of the date hereof as though made on and as
of such date;
(b) no event has occurred and is continuing, or would result
from the Proposed Competitive Bid Borrowing or from the application of
the proceeds therefrom, that constitutes a Default;
The undersigned hereby confirms that the Proposed Competitive Bid
Borrowing is to be made available to it in accordance with Section 2.03(a)(v)
of the Credit Agreement.
Very truly yours,
THE MAY DEPARTMENT STORES COMPANY,
a New York corporation
By __________________________
Title:
2
EXHIBIT C - FORM OF
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Five Year Credit
Agreement dated as of August 24, 2004 (as amended or modified from time to
time, the "Credit Agreement") among The May Department Stores Company, a New
York corporation (the "Borrower"), The May Department Stores Company, a
Delaware corporation (the "Guarantor"), the Lenders (as defined in the Credit
Agreement), Citibank, N.A., as agent for the Lenders (the "Agent"), JPMorgan
Chase Bank, as syndication agent, Xxxxxx Xxxxxxx Bank, Bank of America, N.A.,
BNP Paribas and Wachovia Bank National Association, as documentation agents,
and Citigroup Global Markets Inc., X.X. Xxxxxx Securities Inc. and Xxxxxx
Xxxxxxx Bank, as joint lead arrangers and bookrunners. Terms defined in the
Credit Agreement are used herein with the same meaning.
The "Assignor" and the "Assignee" referred to on Schedule I
hereto agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and
the Assignee hereby purchases and assumes from the Assignor, that interest in
and to all of the Assignor's rights and obligations under the Credit
Agreement as of the date hereof (other than in respect of Competitive Bid
Advances and Competitive Bid Notes) which represents the percentage interest
specified on Schedule 1 hereto of all outstanding rights and obligations
under the Credit Agreement (other than in respect of Competitive Bid Advances
and Competitive Bid Notes). After giving effect to such sale and assignment,
the Assignee's Commitment and the amount of the Revolving Credit Advances
owing to the Assignee will be as set forth on Schedule 1 hereto and the
Assignor's Commitment and the amount of the Revolving Credit Advances owing
to the Assignor will be as set forth on Schedule I hereto.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it hereunder and
that such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement or any other
instrument or document furnished pursuant thereto; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the Guarantor or the performance or
observance by the Borrower or the Guarantor of any of its obligations under
the Credit Agreement or any other instrument or document furnished pursuant
thereto; and (iv) attaches the Revolving Credit Note held by the Assignor
[and requests that the Agent exchange such Revolving Credit Note for a new
Revolving Credit Note payable to the order of [the Assignee in an amount
equal to the Commitment assumed by the Assignee pursuant hereto or new
Revolving Credit Notes payable to the order of the Assignee in an amount
equal to the Commitment assumed by the Assignee pursuant hereto and] the
Assignor in an amount equal to the Commitment retained by the Assignor under
the Credit Agreement, [respectively,] as specified on Schedule 1 hereto.
3. The Assignee (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements
referred to in Section 4.01(e) thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it
will, independently and without reliance upon the Agent, the Assignor or any
other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking
or not taking action under the Credit Agreement; (iii) confirms that it is an
Eligible Assignee; (iv) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers and discretion under the
Credit Agreement as are delegated to the Agent by the terms thereof, together
with such powers and discretion as are reasonably incidental thereto;
(v) agrees that it will perform in accordance with their terms all of the
obligations that by the terms of the Credit Agreement are required to be
performed by it as a Lender; (vi) specifies as its Domestic Lending Office
(and address for notices) and Eurodollar Lending Office the offices set forth
beneath its name on the signature pages hereof; and (vii) attaches any U.S.
Internal Revenue Service forms required under Section 2.15 of the Credit
Agreement.
4. Following the execution of this Assignment and Acceptance
(and to the extent required under Section 9.07 of the Credit Agreement, the
Borrower's consent hereto), it will be delivered to the Agent for acceptance
and recording by the Agent. The effective date for this Assignment and
Acceptance (the "Effective Date") shall be the date of acceptance hereof by
the Agent, unless otherwise specified on Schedule 1 hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee, in addition to any rights and obligations
under the Credit Agreement held by it immediately prior to the Effective
Date, shall be a party to the Credit Agreement and, to the extent provided in
this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Credit Agreement.
6. Upon such acceptance and recording by the Agent, from and
after the Effective Date, the Agent shall make all payments under the Credit
Agreement and the Revolving Credit Notes in respect of the interest assigned
hereby (including, without limitation, all payments of principal, interest
and facility fees with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the Credit
Agreement and the Revolving Credit Notes for periods prior to the Effective
Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Acceptance may be executed in any
number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of Schedule 1 to this
Assignment and Acceptance by telecopier shall be effective as delivery of a
manually executed counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused
Schedule 1 to this Assignment and Acceptance to be executed by their officers
thereunto duly authorized as of the date specified thereon.
2
>PAGE>
Schedule 1
to
Assignment and Acceptance
Percentage interest assigned: _____%
Assignee's Commitment: $______
Aggregate outstanding principal amount of Revolving Credit
Advances assigned: $______
Principal amount of Revolving Credit Note payable to Assignee: $______
Principal amount of Revolving Credit Note payable to Assignor: $______
Effective Date*: _______________, 200_
[NAME OF ASSIGNOR], as Assignor
By __________________________
Title:
Dated: _______________, 200_
[NAME OF ASSIGNEE], as Assignee
By __________________________
Title:
Dated: _______________, 200_
Domestic Lending Office:
[Address]
Eurodollar Lending Office:
[Address]
_____________________________
* This date should be no earlier than five Business Days after the delivery
of this Assignment and Acceptance to the Agent.
3
Accepted [and Approved]** this
__________ day of _______________, 200_
CITIBANK, N.A., as Agent
By______________________________
Title:
[Approved this __________ day
of _______________, 200_
THE MAY DEPARTMENT STORES COMPANY, a New York corporation
By____________________________]*
Title:
_____________________________
** Required if the Assignee is an Eligible Assignee solely by reason of
clause (ii) of the definition of "Eligible Assignee".
* Required if the Assignee is an Eligible Assignee solely by reason of
clause (ii) of the definition of "Eligible Assignee".
4
EXHIBIT D-1- FORM OF
OPINION OF COUNSEL
XXXXXX & XXXXXXX LLP
August 24, 2004
Citibank, N.A., as Administrative agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The Banks party to the Credit
Agreement referred to below listed
on Schedule I hereto
Re: Amended and Restated Five Year Credit Agreement dated as of
August 24, 2004, among the Borrower, the Guarantor, the Lender
and certain other lenders who are parties to the Credit
Agreement, Citibank, N.A., as Agent for the Lender and such other
lenders, JPMorgan Chase Bank, as syndication agent, Xxxxxx
Xxxxxxx Bank, Bank of America, N.A., BNP Paribas and Wachovia
Bank National Association as documentation agents, and Citigroup
Global Markets Inc., X.X. Xxxxxx Securities Inc. and Xxxxxx
Xxxxxxx Bank, as joint lead arrangers and bookrunners (the
"Credit Agreement")
Ladies and Gentlemen:
We have acted as special counsel to The May Department Stores Company,
a New York corporation (the "Borrower"), and The May Department Stores
Company, a Delaware corporation (the "Guarantor") in connection with the
preparation, execution and delivery of the Credit Agreement. This opinion is
furnished pursuant to Section 3.01(c) of the Credit Agreement. Capitalized
terms used herein but not otherwise defined herein shall have the meanings
assigned to them in the Credit Agreement. The Borrower and the Guarantor are
sometimes hereinafter referred to individually as a "Loan Party" and
collectively as the "Loan Parties".
In rendering the opinions set forth herein, we have examined originals
or copies of the following:
(a) the Credit Agreement; and
(b) such other documents as we have deemed necessary or appropriate
as a basis for the opinions expressed below.
As used in this opinion "Applicable Laws" shall mean those laws, rules
and regulations of the State of New York and of the United States of America,
which in our experience, are normally applicable to transactions of the type
contemplated by the Credit Agreement.
In our examination, we have assumed the genuineness of all signatures,
the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as facsimile, certified or photostatic copies, and
the authenticity of the originals of such copies. As to any facts material
to this opinion which we did not independently establish or verify, we have
relied upon representations of the Loan Parties. We also have assumed that
the Credit Agreement is the valid and binding obligation of each party there
to other than the Loan Parties, enforceable against each such party in
accordance with its terms. We express no opinion as to the effect on the
opinions herein stated of (i) the compliance or noncompliance by the Agent,
the syndication agent, the documentation agents, the joint lead arrangers and
bookrunners or any Lender with any state, federal or other laws or
regulations applicable to it or (ii) the legal or regulatory status or the
nature of the business of the Agent, the syndication agent, the documentation
agents, the joint lead arrangers and bookrunners or any Lender.
Members of this firm are admitted to the practice of law in the State
of New York and, in rendering the opinions expressed herein, we express no
opinion as to the laws of any jurisdiction other than: (i) the laws of the
State of New York and (ii) the federal laws of the United States of America.
In addition, in rendering the opinions expressed herein we have
assumed, with your permission, that:
A. Each of the Loan Parties is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of its
respective incorporation.
B. Each of the Loan Parties has all requisite corporation power
And corporate authority to execute, deliver and perform all of its obligations
under the Credit Agreement.
C. The execution, delivery and performance by each of the Loan
Parties of the Credit Agreement and the consummation by the Loan Parties of
the transactions contemplated thereby have been duly authorized by all
requisite corporate action on the part of each of the Loan Parties.
D. The Credit Agreement has been duly executed and delivered by
each of the Loan Parties.
E. The execution, delivery and performance of any of the
Borrower's obligations under the Credit Agreement will not conflict with,
contravene, violate or constitute a default under: (i) its Certificate of
Incorporation or by-laws, (ii) any lease, indenture, instrument or other
agreement to which the Borrower or any of its properties is subject, (iii) any
rule, law or regulation to which the Borrower is subject (other than Applicable
Laws as to which we express our opinion in paragraph 2 hereof) or (iv) any
judicial or administrative order or decree of any governmental authority.
F. The execution, delivery and performance of any of the
Guarantor's obligations under the Credit Agreement will not conflict with,
contravene, violate or constitute a default under: (i) its Certificate of
Incorporation or by-laws, (ii) any lease, indenture, instrument or other
agreement to which the Guarantor or any of its properties is subject, (iii) any
rule, law or regulation to which the Guarantor is subject (other than
Applicable Laws as to which we express our opinion in paragraph 2 hereof) or
(iv) any judicial or administrative order or decree of any governmental
authority.
G. No authorization, consent or other approval of, or notice to or
filing with, any court, governmental authority or regulatory body is required
to authorize or is required in connection with the execution, delivery or
performance by either Loan Parties of the Credit Agreement or the
transactions contemplated thereby.
We understand that Xxxx X. Xxxxxxxx, Senior Vice President and General
Counsel of the Borrower, is rendering an opinion, subject to certain
qualifications, assumptions and exceptions, with respect to the matters set
forth in the foregoing paragraphs A through G, and we express no opinion with
respect to the matters covered thereby.
Based upon the foregoing and subject to the qualifications and
exceptions set forth herein, we are of the opinion that:
1. The Credit Agreement constitutes the legal, valid and binding
obligation of each Loan Party, enforceable against each Loan Party in
accordance with its terms.
2. Neither the execution, delivery or performance by either Loan
Party of the Credit Agreement nor the compliance by either Loan Party with
the terms and provisions thereof will contravene any provision of any
Applicable Law.
The opinions expressed herein are subject to the following
limitations, qualifications and exceptions:
2
(i) Such opinions are subject to the effect of bankruptcy,
fraudulent conveyance, fraudulent transfer, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights or
remedies of creditors generally;
(ii) the enforcement of the Credit Agreement may be limited by (A)
certain equitable, legal or statutory principles or provisions affecting the
enforcement of contractual rights of the type contained in the Credit
Agreement generally, regardless of whether such enforcement is considered in
a proceeding in equity or at law, including without limitation, concepts of
notice, materiality, reasonableness, good faith and fair dealing,
requirements that waivers or amendments be in writing, severability of
contractual obligations, jurisdiction, service or process, venue, and
applicable statutes of limitation and doctrines of estoppel, and (B) judicial
discretion or statutory limitations with respect to the availability of
equitable remedies or defenses, the calculation of damages and the
entitlement to attorneys' fees and other costs;
(iii) the enforceability of indemnification or contribution
provisions contained in the Credit Agreement under certain circumstances may
be limited under statutory law or court decisions with respect to a liability
where such indemnification or contribution is contrary to public policy or
prohibited by law;
(iv) we express no opinion with respect to the enforceability of
any provision of the Credit Agreement to the extent it authorizes or permits
any party to the Credit Agreement or any purchaser of a participation interest
from any such party to set-off or apply any deposit, property or indebtedness
with respect to any participation interest; and
(v) we express no opinion with respect to the application of
Section 548 of the federal Bankruptcy Code and comparable provisions of state
law.
This opinion is rendered only to the Agent, the syndication agent, the
documentation agents, the joint lead arrangers and bookrunners and the
Lenders in connection with the above transactions and is solely for the
Agent's, the syndication agent's, the documentation agents', the joint lead
arrangers and bookrunners' and the Lenders' benefit. This opinion may not be
relied upon by any other person, firm or corporation for any purpose without
our prior written consent; provided, however, that assignees who become
parties to the Credit Agreement (in accordance with the terms and conditions
thereof) are entitled to rely on this opinion, subject to the qualifications
set forth herein, as though it had been addressed to them and delivered on
the date hereof.
Very truly yours,
3
EXHIBIT D-2 - FORM OF
OPINION OF COUNSEL
FOR THE BORROWER AND THE GUARANTOR
[Effective Date]
Citibank, N.A., as Administrative Agent
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
The Lenders party to the Credit Agreement
referred to below listed on Schedule 1
hereto (hereinafter, the "Lenders")
Re: Amended and Restated Five Year Credit Agreement dated as of
August 24, 2004, among the Borrower, the Guarantor, the Lender
and certain other lenders who are parties to the Credit
Agreement, Citibank, N.A., as Agent for the Lender and such other
lenders, JPMorgan Chase Bank, as syndication agent, Xxxxxx
Xxxxxxx Bank, Bank of America, N.A., BNP Paribas and Wachovia
Bank National Association, as documentation agents, and Citigroup
Global Markets Inc., X.X. Xxxxxx Securities Inc. and Xxxxxx
Xxxxxxx Bank, as joint lead arrangers and bookrunners (the
"Credit Agreement")
Ladies and Gentlemen:
I am Senior Vice President and General Counsel of The May
Department Stores Company, a New York corporation ("Borrower") and Senior
Vice President and General Counsel of The May Department Stores Company, a
Delaware corporation ("Guarantor"). This opinion is being rendered pursuant
to Section 3.01(c) of the Credit Agreement. Capitalized terms used herein
but not otherwise defined herein shall have the meanings assigned to them in
the Credit Agreement. Borrower and Guarantor are sometimes hereinafter
referred to individually as a "Loan Party" and collectively as the "Loan
Parties".
In that connection, I have examined or caused to be examined such
documents as I have deemed appropriate for the purpose of this opinion. I
advise you as follows as of the date hereof:
1. Borrower is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of New York.
Guarantor is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware. Each Loan Party has all
requisite corporate power and corporate authority to enter into the Credit
Agreement and to consummate the transactions contemplated thereby.
2. The Credit Agreement has been duly authorized by all
requisite corporate action on the part of each Loan Party and has been duly
executed and delivered by each Loan Party.
3. To the best of my knowledge after diligent inquiry with
respect thereto, there is no pending or threatened action or proceeding
against Guarantor or any of its Subsidiaries before any court, governmental
agency or arbitrator that would have a materially adverse effect on the
financial condition or operations of Guarantor and its Subsidiaries, taken as
a whole, or which purports to affect the legality, validity or enforceability
of the Credit Agreement or any of the Notes.
4. The execution, delivery and performance by each Loan Party
of the Credit Agreement (a) will not contravene, or result in a breach of the
terms, conditions or provisions of, or result in the violation of the
Certificate of Incorporation or By-laws of such Loan Party or, to my
knowledge, contravene, or result in a breach of the terms, conditions or
provisions of, or constitute a default under any material agreement or
instrument affecting such Loan Party or to which such Loan Party is a party
or by which such Loan Party or any of its properties is bound, or result in
the creation of any lien, security interest or other charge or encumbrance on
any of its properties and (b) will not violate any material order, judgment
or decree or any Missouri statute, law, rule or regulation to which such Loan
Party is subject.
5. No authorization, consent or other approval of, or notice
to, or filing with any regulatory body, federal, state or local, which has
not been obtained is required in connection with the execution, delivery or
performance by either Loan Party of the Credit Agreement.
6. Neither Guarantor nor any of its Subsidiaries is engaged in
the business of extending credit for the purpose of "purchasing" or
"carrying" any "margin stock" (as each of the quoted terms is defined or used
in Regulation U of the Board of Governors of the Federal Reserve System).
7. Guarantor owns directly all of the issued and outstanding
common stock of Borrower and all other issued and outstanding Capital Stock
of Borrower that constitutes voting stock.
This opinion is rendered only to the Agent, the syndication agent,
the documentation agents, the joint lead arrangers and bookrunners and the
Lenders in connection with the above transactions and is solely for the
Agent's, the syndication agent's, the documentation agents', the joint lead
arrangers and bookrunners' and the Lenders' benefit. This opinion may not be
relied upon by any other person, firm or corporation for any purpose without
our prior written consent; provided, however, that assignees who become
parties to the Credit Agreement (in accordance with the terms and conditions
thereof) are entitled to rely on this opinion, subject to the qualifications
set forth herein, as though it had been addressed to them and delivered on
the date hereof.
Very truly yours,
Xxxx X. Xxxxxxxx
Senior Vice President
and General Counsel
2
EXHIBIT E
Subordination Provisions
The payment of principal of, premium, if any, and interest on
this promissory note is hereby subordinated in right of payment, to the prior
payment in full of all Senior Debt, whether outstanding on the date of this
promissory note or hereafter incurred.
Except for Permitted Payments (as hereinafter defined), the
Holder will not (i) accelerate, take or receive from Maker by setoff or in
any other manner, the whole or any part of the indebtedness evidenced by this
promissory note, including, without limitation, the taking of any negotiable
instruments evidencing such amounts, nor any security for any of the
indebtedness evidenced by this promissory note, or (ii) ask, demand, xxx or
otherwise take any action to enforce any claim with respect to this
promissory note without the prior written consent of the agent for the
holders of the Senior Bank Debt and the holders of the Designated Senior Debt
(or their Representative), in each case unless and until all Senior Debt
shall have been fully and indefeasibly paid and satisfied in cash and all
financing arrangements contemplated by the Bank Credit Agreement shall have
been terminated; provided, however, that so long as no event of default shall
have occurred and be continuing under the Bank Credit Agreement, the Holder
may receive securities that are subordinated to at least the same extent as
this promissory note to the Senior Debt.
Notwithstanding the provisions of the immediately preceding
paragraph, until the occurrence and during the continuance of an event of
default under any Designated Senior Debt (including, without limitation, an
"Event of Default" as defined in the Bank Credit Agreement), and provided
that (i) there shall not then exist any breach of any provision of this
promissory note that is for the benefit of the holders of the Designated
Senior Debt that has not been waived, in writing, by the holders thereof (or
their Representative), and (ii) the payment described below, if made, would
not give rise to the occurrence of an event of default under any Designated
Senior Debt, Maker may pay to Holder, and Holder may accept from Maker, when
due, on an unaccelerated basis, pursuant to the terms of this promissory
note, (A) regularly scheduled payments of interest, (B) payments of principal
upon the stated maturity of this promissory note, and (C) in the event the
Holder is an insurance company which has provided insurance coverage to the
Maker, payments in the form of setoffs or reductions in the principal amount
of this promissory note against any insurance benefits owing from the Holder
to Maker with respect to such coverage (collectively, "Permitted Payments").
It is expressly understood and agreed by Holder that, except as otherwise
provided in clause (C) above, any prepayment (whether optional or mandatory)
of any of the indebtedness evidenced by this promissory note shall not be a
Permitted Payment.
In the event of any distribution, division, or application,
partial or complete, voluntary or involuntary, by operation of law or
otherwise, of all or any part of the assets of the Maker or the proceeds
thereof to the creditors of the Maker or readjustment of the obligations
evidenced by this promissory note, whether by reason of liquidation,
bankruptcy, arrangement, receivership, assignment for the benefit of
creditors or any other action or proceeding involving the readjustment of all
or any part of the Senior Debt or this promissory note, or the application of
the assets of the Maker to the payment or liquidation thereof, or upon the
dissolution or other winding up of the Maker's business, or upon the sale of
all or substantially all of the Maker's assets (except to the extent
permitted in the instruments or agreements governing the Senior Debt), then
in any such event, (i) the Senior Debt shall be fully and indefeasibly paid
and satisfied in cash prior to the payment of all or any part of the
indebtedness evidenced by this promissory note, and (ii) any payment or
distribution of any kind or character, whether in cash, securities or other
property, which shall be payable or deliverable upon or with respect to any
or all of the indebtedness evidenced by this promissory note shall be paid or
delivered to the holders of the Senior Debt (or their Representatives), pro
rata, for application on any of the Senior Debt, due or not due, until all
Senior Debt shall have been fully and indefeasibly paid and satisfied in
cash; provided, however, that, so long as no event of default shall have
occurred and be continuing under the Bank Credit Agreement, the Holder may
receive securities that are subordinated to at least the same extent as this
promissory note to the Senior Debt.
After all Senior Debt has been indefeasibly paid in full and
until this promissory note is paid in full, the Holder shall be subrogated
(equally and ratably with all other Indebtedness pari passu with this
promissory note) to the rights of holders of Senior Debt to receive
distributions applicable to Senior Debt to the extent that distributions
otherwise payable to the Holder have been applied to the payment of Senior
Debt. A distribution made under these subordination provisions to holders of
Senior Debt that otherwise would have been made to the Holder is not, as
between the Maker and the Holder, a payment by the Maker on the Senior Debt.
The subordination provisions set forth herein shall not be
amended or modified without the written consent of the holders of all
Designated Senior Debt (or their Representative).
"Bank Credit Agreement" means that certain Amended and Restated
Five Year Credit Agreement dated as of August 24, 2004, among the Borrower,
the Guarantor, the Lender and certain other lenders who are parties to the
Credit Agreement, Citibank, N.A., as Agent for the Lender and such other
lenders, JPMorgan Chase Bank, as syndication agent, Xxxxxx Xxxxxxx Bank, Bank
of America, N.A., BNP Paribas and Wachovia Bank National Association, as
documentation agents, and Citigroup Global Markets Inc., X.X. Xxxxxx
Securities Inc. and Xxxxxx Xxxxxxx Bank, as joint lead arrangers and
bookrunners, as such agreement may be restated, further amended, supplemented
or otherwise modified or replaced from time to time hereafter, and any notes
issued pursuant thereto, together with any refunding or replacement thereof.
"Designated Senior Debt" means, at any time, (i) so long as the
Bank Credit Agreement is in effect or any Senior Bank Debt is outstanding at
such time, the Senior Bank Debt and (ii) any other Senior Debt the principal
amount of which at such time is $100 million or more.
"Hedging Obligations" means the obligations of the Maker under
(i) interest rate swap agreements, interest rate cap agreements, interest
rate collar agreements currency swap agreements and (ii) other agreements or
arrangements designed to protect such Person against fluctuations in interest
rates or fluctuations in currency values.
"Indebtedness" means any indebtedness of the Maker, whether or
not contingent, in respect of borrowed money or evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or reimbursement
agreements in respect thereof) or banker's acceptances or representing
obligations under capital leases or the balance deferred and unpaid of the
purchase price of any property or representing any Hedging Obligations,
except any such balance that constitutes an accrued expense or trade payable,
if and to the extent any of the foregoing indebtedness (other than Hedging
Obligations) would appear as a liability upon a balance sheet of the Maker
prepared in accordance with generally accepted accounting principles at the
time of its incurrence, as well as all indebtedness of others secured by a
lien on any asset of the Maker (whether or not such indebtedness is assumed
by the Maker) and, to the extent not otherwise included, the guaranty by the
Maker of any indebtedness of any other person or entity.
"Representative" means the indenture trustee or other trustee,
agent or representative for any Senior Debt, including, without limitation,
the Administrative Agent.
"Senior Bank Debt" means the Indebtedness and obligations
outstanding under the Bank Credit Agreement, including, without limitation,
all principal, interest, fees, indemnities, reimbursement claims or otherwise
and whether or not such obligations accrue before or after the commencement
of any bankruptcy, insolvency or similar proceeding or constitute an allowed
claim in any such proceeding.
"Senior Debt" means (i) the Senior Bank Debt and (ii) all other
Indebtedness of the Maker, unless the instrument under which such
Indebtedness is incurred expressly provides that it is on a parity with or
subordinated in right of payment to the Indebtedness evidenced by this
promissory note. Notwithstanding anything to the contrary in the foregoing,
Senior Debt will not include (x) any liability for federal, state, local or
other taxes owed or owing by the Maker, (y) any Indebtedness of the Maker to
any of its subsidiaries or other affiliates or (z) any trade payables or
accrued expenses.
2
DRAFT 8/18/04
U.S. $1,400,000,000
AMENDED AND RESTATED
FIVE YEAR CREDIT AGREEMENT
Dated as of August 24, 2004
Among
THE MAY DEPARTMENT STORES COMPANY
a New York corporation
as Borrower
THE MAY DEPARTMENT STORES COMPANY
a Delaware corporation
as Guarantor
and
THE INITIAL LENDERS NAMED HEREIN
as Initial Lenders
and
CITIBANK, N.A.
as Administrative Agent
and
JPMORGAN CHASE BANK
as Syndication Agent
and
XXXXXX XXXXXXX BANK
BANK OF AMERICA, N.A.
BNP PARIBAS
WACHOVIA BANK NATIONAL ASSOCIATION
as Documentation Agents
and
CITIGROUP GLOBAL MARKETS INC.
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXXXXX BANK
as Joint Lead Arrangers and Bookrunners
TABLE OF CONTENTS
ARTICLE I 1
SECTION 1.01. Certain Defined Terms 1
SECTION 1.02. Computation of Time Periods 10
SECTION 1.03. Accounting Terms 10
ARTICLE II
SECTION 2.01. The Revolving Credit Advances 10
SECTION 2.02. Making the Revolving Credit Advances 10
SECTION 2.03. The Competitive Bid Advances 11
SECTION 2.04. Fees 14
SECTION 2.05. Termination or Reduction of the Commitments 14
SECTION 2.06. Repayment of Revolving Credit Advances 14
SECTION 2.07. Interest on Revolving Credit Advances 14
SECTION 2.08. Additional Interest on Eurodollar Rate Advances and
LIBO Rate Advances 15
SECTION 2.09. Interest Rate Determination 15
SECTION 2.10. Optional Conversion of Revolving Credit Advances 16
SECTION 2.11. Prepayments of Revolving Credit Advances 16
SECTION 2.12. Increased Costs 16
SECTION 2.13. Illegality 17
SECTION 2.14. Payments and Computations 17
SECTION 2.15. Taxes 18
SECTION 2.16. Sharing of Payments, Etc. 19
SECTION 2.17. Evidence of Debt 19
SECTION 2.18. Use of Proceeds 20
SECTION 2.19. Increase in the Aggregate Commitments 20
i
ARTICLE III
SECTION 3.01. Conditions Precedent to Effectiveness of this
Agreement 21
SECTION 3.02. Conditions Precedent to Each Revolving Credit
Borrowing. 22
SECTION 3.03. Conditions Precedent to Each Competitive Bid
Borrowing 22
SECTION 3.04. Determinations Under Section 3.01 23
ARTICLE IV
SECTION 4.01. Representations and Warranties of the Guarantor and
the Borrower 23
ARTICLE V
SECTION 5.01. Affirmative Covenants 24
SECTION 5.02. Negative Covenants 26
SECTION 5.03. Financial Covenants 28
ARTICLE VI
SECTION 6.01. Events of Default 28
ARTICLE VII
SECTION 7.01. Guaranty 30
SECTION 7.02. Guaranty Unconditional 30
SECTION 7.03. Discharge Only Upon Payment in Full; Reinstatement in
Certain Circumstances 31
SECTION 7.04. Waiver by the Guarantor 31
SECTION 7.05. Subrogation 31
SECTION 7.06. Stay of Acceleration 31
SECTION 7.07. Amendments, Etc. in Respect of Article VII 31
ARTICLE VIII
SECTION 8.01. Authorization and Action 31
SECTION 8.02. Agent's Reliance, Etc. 31
SECTION 8.03. Citibank and Affiliates 32
Ii
SECTION 8.04. Lender Credit Decision 32
SECTION 8.05. Indemnification 32
SECTION 8.06. Successor Agent 32
SECTION 8.07. Other Agents. 33
ARTICLE IX
SECTION 9.01. Amendments, Etc. 33
SECTION 9.02. Notices, Etc. 33
SECTION 9.03. No Waiver; Remedies 34
SECTION 9.04. Costs and Expenses 34
SECTION 9.05. Right of Set-off 35
SECTION 9.06. Binding Effect 35
SECTION 9.07. Assignments and Participations 35
SECTION 9.08. Confidentiality 38
SECTION 9.09. Governing Law 38
SECTION 9.10. Execution in Counterparts 38
SECTION 9.11. Jurisdiction, Etc. 38
SECTION 9.12. USA PATRIOT Act Notice 38
SECTION 9.13. Waiver of Jury Trial
iii
Schedules
Schedule I - List of Applicable Lending Offices
Exhibits
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 - Form of Competitive Bid Note
Exhibit B-1 - Form of Notice of Revolving Credit Borrowing
Exhibit B-2 - Form of Notice of Competitive Bid Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Opinion of Counsel of Xxxxxx & Xxxxxxx LLP
Exhibit D-2 - Form of Opinion of General Counsel for the Borrower and the
Guarantor
Exhibit E - Subordination Provisions
iv
