EXECUTION COPY
AMENDMENT NO. 1 TO THE
FIVE YEAR CREDIT AGREEMENT
Dated as of August 4, 2003
AMENDMENT NO. 1 TO THE FIVE YEAR 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 banks, financial
institutions and other institutional lenders parties to the
Credit Agreement referred to below (collectively, the
"Lenders") and Citibank, N.A., as agent (the "Agent") for the
Lenders.
PRELIMINARY STATEMENTS:
(1) The Borrower, the Lenders and the Agent have
entered into a Five Year Credit Agreement dated as of July 31,
2001 (the "Credit Agreement"). Capitalized terms not otherwise
defined in this Amendment have the same meanings as specified
in the Credit Agreement.
(2) The Borrower and the Required Lenders have agreed
to amend the Credit Agreement as hereinafter set forth.
SECTION 1. Amendments to Credit Agreement. The
Credit Agreement is, effective as of the date hereof and
subject to the satisfaction of the conditions precedent set
forth in Section 4, hereby amended as follows:
(a) The definition of "Defined Debt" in Section 1.01
is amended in full to read as follows:
"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.
(b) Section 5.02(a) is amended by renumbering clauses
(iv) and (v) as clauses (v) and (vi), respectively, and
adding a new clause (iv) to read as follows:
(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 $700,000,000
at any time outstanding,
(c) Section 5.02(a) is further amended by adding
after clause (vi) a new sentence to read as follows:
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 Amount" 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.
(d) Section 9.02 is amended in full to read as
follows:
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 such materials (the "Communications")
available to the Lenders by posting such notices on
Intralinks, "e-Disclosure", the Agent's internet delivery
system that is part of Fixed Income Direct, Global Fixed
Income's primary web portal, 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.
(e) Section 9.08 is amended by adding to the end
thereof a new sentence to read as follows:
Notwithstanding anything herein to the contrary, the
Borrower, the Guarantor, the Agent, each Lender, Citigroup
Global Markets Inc. (formerly known as Xxxxxxx Xxxxx Xxxxxx
Inc.) and X.X. Xxxxxx Securities Inc. (and each employee,
representative or other agent of each of the foregoing
parties) may disclose to any and all Persons, without
limitation of any kind, the U.S. tax treatment and tax
structure of the transactions contemplated hereby and all
materials of any kind (including opinions or other tax
analyses) that are provided to any of the foregoing parties
relating to such U.S. tax treatment and tax structure.
SECTION 2. Conditions of Effectiveness. This
Amendment shall become effective as of the date first above
written when, and only when, the Agent shall have received
counterparts of this Amendment executed by the Borrower, the
Guarantor and the Required Lenders or, as to any of the
Lenders, advice satisfactory to the Agent that such Lender has
executed this Amendment. This Amendment is subject to the
provisions of Section 9.01 of the Credit Agreement.
SECTION 3. Representations and Warranties of
the Borrower. 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 in
the recital of parties to this Amendment.
(b) The execution, delivery and performance
by each of the Guarantor and the Borrower of this Amendment
and the Credit Agreement, as amended hereby, 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 of this Amendment 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 Amendment.
(d) 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.
(e) This Amendment has been duly executed
and delivered by the Guarantor and the Borrower. This
Amendment is the legal, valid and binding obligation of the
Guarantor and the Borrower.
(f) No Default has occurred and is continuing.
SECTION 4. Reference to and Effect on the Credit
Agreement and the Notes. (a) On and after the effectiveness
of this Amendment, each reference in the Credit Agreement to
"this Agreement", "hereunder", "hereof" or words of like import
referring to the Credit Agreement, and each reference in the
Notes to "the Credit Agreement", "thereunder", "thereof" or
words of like import referring to the Credit Agreement, shall
mean and be a reference to the Credit Agreement, as amended by
this Amendment.
(b) The Credit Agreement and the Notes, as
specifically amended by this Amendment, are and shall continue
to be in full force and effect and are hereby in all respects
ratified and confirmed.
(c) The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein,
operate as a waiver of any right, power or remedy of any Lender
or the Agent under the Credit Agreement, nor constitute a
waiver of any provision of the Credit Agreement.
SECTION 5. Costs and Expenses. The Borrower
agrees to pay on demand all costs and expenses of the Agent in
connection with the preparation, execution, delivery and
administration, modification and amendment of this Amendment
and the other instruments and documents to be delivered
hereunder (including, without limitation, the reasonable fees
and expenses of counsel for the Agent) in accordance with the
terms of Section 8.04 of the Credit Agreement.
SECTION 6. Execution in Counterparts. This
Amendment 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 but one and the
same agreement. Delivery of an executed counterpart of a
signature page to this Amendment by telecopier shall be
effective as delivery of a manually executed counterpart of
this Amendment.
SECTION 7. Governing Law. This Amendment shall
be governed by, and construed in accordance with, the laws of the
State of New York.
IN WITNESS WHEREOF, the parties hereto have caused
this Amendment 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:
CITIBANK, N.A.,
as Agent and as a Lender
By __________________________
Title:
THE BANK OF NEW YORK
By __________________________
Title:
BANK ONE, NA
By __________________________
Title:
WACHOVIA BANK, NATIONAL
ASSOCIATION
By __________________________
Title:
JPMORGAN CHASE BANK
By __________________________
Title:
FLEET NATIONAL BANK
By __________________________
Title:
BNP PARIBAS
By __________________________
Title:
By __________________________
Title:
THE NORTHERN TRUST COMPANY
By __________________________
Title:
FIRSTAR BANK, N.A.
By __________________________
Title:
MIZUHO CORPORATE BANK, LTD.
By __________________________
Title:
MANUFACTURERS AND TRADERS
COMPANY
By __________________________
Title:
XXXXX FARGO BANK
By __________________________
Title:
STANDARD CHARTERED BANK
By __________________________
Title:
FIFTH THIRD BANK
By __________________________
Title:
COMMERCE BANK N.A.
By __________________________
Title:
FIRST BANK
By __________________________
Title:
