$500,000,000
AMENDED AND RESTATED
REVOLVING CREDIT FACILITY
Dated as of October 15, 1999
Among
NORDSTROM, INC.,
as Borrower,
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
as Lenders,
BANK OF AMERICA, N.A.,
as Administrative Agent,
BANK ONE, NA,
as Syndication Agent
and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
as Documentation Agent
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
ARTICLE 1. DEFINITIONS AND RELATED MATTERS 2
Section 1.1. Definitions 2
Section 1.2. Related Matters. 15
ARTICLE 2. AMOUNTS AND TERMS OF THE CREDIT FACILITIES 16
Section 2.1. Revolving Loans. 16
Section 2.2. Bid Loans. 18
Section 2.3. Use of Proceeds 20
Section 2.4. Interest; Interest Periods; Conversion/Continuation. 20
Section 2.5. Notes, Etc. 22
Section 2.6. Fees. 23
Section 2.7. Termination, Reduction and Extension of Revolving
Commitments. 23
Section 2.8. Repayments and Prepayments. 24
Section 2.9. Manner of Payment. 25
Section 2.10. Pro Rata Treatment; Application of Payments 25
Section 2.11. Mandatory Suspension and Conversion of Euro-Dollar
Rate Loans 26
Section 2.12. Regulatory Changes. 27
Section 2.13. Compensation for Funding Losses 28
Section 2.14. Certificates Regarding Yield Protection, Etc 28
Section 2.15. Applicable Lending Office; Discretion of Lenders as to
Manner of Funding 28
ARTICLE 3. CONDITIONS TO LOANS 28
Section 3.1. Closing Conditions 28
Section 3.2. Conditions Precedent to Loans 29
ARTICLE 4. REPRESENTATIONS AND WARRANTIES 30
Section 4.1. Organization, Powers and Good Standing 30
Section 4.2. Authorization, Binding Effect, No Conflict, Etc. 30
Section 4.3. Financial Information. 31
Section 4.4. No Material Adverse Changes 31
Section 4.5. Litigation 31
Section 4.6. Agreements; Applicable Law 31
Section 4.7. Taxes 31
Section 4.8. Governmental Regulation 32
Section 4.9. Margin Regulations 32
Section 4.10. Employee Benefit Plans 32
Section 4.11. Disclosure 32
i
Section 4.12. Solvency 32
ARTICLE 5. AFFIRMATIVE COVENANTS OF THE BORROWER 33
Section 5.1. Financial Statements and Other Reports 33
Section 5.2. Records and Inspection 34
Section 5.3. Corporate Existence, Etc. 34
Section 5.4. Payment of Taxes and Claims 34
Section 5.5. Maintenance of Properties 35
Section 5.6. Maintenance of Insurance 35
Section 5.7. Conduct of Business; Compliance with Law 35
Section 5.8. Further Assurances 35
Section 5.9. Future Information 35
Section 5.10. Subordination of Intercompany Debt 36
ARTICLE 6. NEGATIVE COVENANTS OF THE BORROWER 36
Section 6.1. Liens 36
Section 6.2. Restricted Payments 37
Section 6.3. Financial Covenants. 37
Section 6.4. Restriction on Fundamental Changes 38
Section 6.5. Asset Dispositions 38
Section 6.6. Transactions with Affiliates 38
ARTICLE 7. EVENTS OF DEFAULT, ETC. 39
Section 7.1. Events of Default 39
Section 7.2. Remedies 41
ARTICLE 8. THE AGENT AND THE LENDERS 41
Section 8.1. Authorization and Action. 41
Section 8.2. Exculpation; Agent's Reliance, Etc. 42
Section 8.3. Agent and Affiliates 43
Section 8.4. Lender Credit Decision 43
Section 8.5. Indemnification 43
Section 8.6. Successor Agent 43
Section 8.7. Excess Payments 44
Section 8.8. Lender Parties 44
Section 8.9. Payments; Availability of Funds; Certain Notices. 44
Section 8.10. Obligations of Lender Parties Several; Enforcement
by the Agent. 45
Section 8.11. Syndication Agent and Documentation Agent 45
ARTICLE 9. MISCELLANEOUS 46
Section 9.1. Expenses 46
Section 9.2. Indemnity. 46
ii
Section 9.3. Waivers; Modifications in Writing. 47
Section 9.4. Cumulative Remedies; Failure or Delay 47
Section 9.5. Notices, Etc 48
Section 9.6. Successors and Assigns; Designations. 48
Section 9.7. Choice of Forum. 50
Section 9.8. Set Off 50
Section 9.9. Changes in Accounting Principles 50
Section 9.10. Survival of Agreements, Representations and Warranties 51
Section 9.11. Execution in Counterparts 51
Section 9.12. Complete Agreement 51
Section 9.13. Limitation of Liability 51
Section 9.14. WAIVER OF TRIAL BY JURY 51
Section 9.15. NO ORAL AGREEMENTS 51
iii
EXHIBITS
Exhibit A-1 Form of Revolving Loan Note
Exhibit A-3 Form of Bid Loan Note
Exhibit B Form of Designation Agreement
Exhibit E-1 Form of Notice of Borrowing
Exhibit E-3 Form of Notice of Conversion/Continuation
Exhibit E-4 Form of Bid Loan Quote Request
Exhibit E-5 Form of Bid Loan Quote
Exhibit E-7 Form of Notice of Responsible Officers
Exhibit F-1 Form of Secretary's Certificate
Exhibit F-3 Form of Closing Officer's Certificate
Exhibit F-6 Form of Compliance Certificate
Exhibit G Form of Opinion of Borrower's Counsel
Exhibit H Form of Assignment and Acceptance
Exhibit I Controlling Stockholders
SCHEDULES
Schedule 1.1A Revolving Commitments
Schedule 1.1B Lender Information
Schedule 1.1D Existing Liens
Schedule 3.1.2. Closing Documents
Schedule 4.1. Organization of Borrower and Subsidiaries
Schedule 4.5. Material Litigation
Schedule 9.5. Borrower Information
iv
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of October 15, 1999 (as
amended, supplemented or otherwise modified from time to time, the
"Agreement"), by and among NORDSTROM, INC., a Washington corporation (the
"Borrower"), the banks and other financial institutions that either now or in
the future are parties hereto (collectively the "Lenders" and each
individually a "Lender"), BANK ONE, NA, as Syndication Agent (in such
capacity, the "Syndication Agent"), XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent (in such capacity, the "Documentation Agent"),
and BANK OF AMERICA, N.A. (the "Agent Bank"), as administrative agent for the
Lenders (in such capacity, the Agent Bank and any successor in such capacity
is referred to herein as the "Agent"). The Lenders, the Syndication Agent,
the Documentation Agent and the Agent are collectively referred to herein as
the "Lender Parties" and each individually as a "Lender Party."
PRELIMINARY STATEMENTS:
(1) The Borrower has entered into that certain Credit Agreement, dated as
of July 24, 1997, as amended or otherwise modified to date (such Credit
Agreement as so amended or otherwise modified being the "Original Credit
Agreement"), with the Lenders party thereto (the "Original Lenders"), the
Agent and Bank of America, N.A. (formerly known as Bank of America National
Trust and Savings Association) and Xxxxxx Guaranty Trust Company of New York,
as Managing Agents, under which the Original Lenders have made Revolving
Loans (as defined in the Original Credit Agreement, hereinafter the "Original
Revolving Loans") evidenced by the Revolving Notes (as defined in the
Original Credit Agreement, hereinafter the "Original Revolving Notes").
(2) The parties hereto wish to amend and restate the Original Credit
Agreement to provide for the Lenders to agree, on and subject to the terms
and conditions hereinafter set forth, to make Revolving Loans (as hereinafter
defined) to the Borrower from time to time in an aggregate principal amount
not to exceed at any time outstanding $500,000,000, for the purpose of
providing financing for general corporate purposes (including commercial
paper back stop) of the Borrower and its Subsidiaries (as hereinafter
defined) including working capital for the Borrower and its Subsidiaries.
(3) The parties hereto intend that (a) the Obligations (as defined in the
Original Credit Agreement, hereinafter the "Original Obligations") shall
continue to exist under, and to be evidenced by, this Agreement and the
Revolving Loan Notes (as hereinafter defined) issued hereunder, and (b) the
Original Revolving Loans shall be Revolving Loans under and as defined in
this Agreement and the Revolving Loan Notes.
NOW, THEREFORE, the parties hereto agree that the Original Credit Agreement
is hereby amended and restated to read in its entirety as follows:
ARTICLE 1
DEFINITIONS AND RELATED MATTERS
Section 1.1 Definitions. The following terms with initial capital letters
have the following meanings:
"Absolute Rate" is defined in Section 2.2.2.3.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person. The term
"control" means the possession, directly or indirectly, of the power, whether
or not exercised, to direct or cause the direction of the management or
policies of a Person, whether through the ownership of Capital Stock by
contract or otherwise, and the terms "controlled" and "common control" have
correlative meanings. Unless otherwise indicated, "Affiliate" refers to an
Affiliate of the Borrower. Notwithstanding the foregoing, in no event shall
any Lender Party or any Affiliate of any Lender Party be deemed to be an
Affiliate of the Borrower. For the avoidance of doubt, the parties agree
that, as of the date hereof, 700 Olive, LP, a Washington limited partnership,
is not an Affiliate of the Borrower.
"Agent" is defined in the Preamble.
"Agent Bank" is defined in the Preamble.
"Agent's Account" means the account of the Agent identified as such on
Schedule 1.1.B, or such other account as the Agent may hereafter designate by
notice to the Borrower and each Lender Party.
"Agent's Office" means the office of the Agent identified as such on Schedule
1.1.B, or such other office as the Agent may hereafter designate by notice to
the Borrower and each Lender Party.
"Agreement" is defined in the Preamble and includes all Schedules and
Exhibits.
"Applicable Law" means all applicable provisions of all (i) constitutions,
treaties, statutes, laws, rules, regulations and ordinances of any
Governmental Authority, (ii) Governmental Approvals and (iii) orders,
decisions, judgments, awards and decrees of any Governmental Authority.
"Applicable Lending Office" means, with respect to any Lender, (i) in the
case of any payment with respect to Euro-Dollar Rate Loans, the Lender's
Euro-Dollar Lending Office, and (ii) in the case of any payment with respect
to Base Rate Loans or Bid Loans or any other payment under the Loan
Documents, the Lender's Domestic Lending Office.
"Applicable Margin" means, at any time, with respect to the Facility Fee,
Euro-Dollar Rate Loans and Base Rate Loans, as applicable, the basis points
2
(1/100%) per annum in respect of the Facility Fee, Euro-Dollar Rate Loans or
Base Rate Loans, as applicable, set forth in the table below for the Level
then in effect (as described below):
Level I Level II Level III Level IV Level V Level VI
----------------------------------------------------------
Facility Fee 5.50 6.25 6.50 7.50 8.50 12.50
Euro-Dollar
Rate Loans 12.00 12.75 13.50 15.00 16.50 17.50
Base Rate
Loans 0 0 0 0 0 0
For purposes of the foregoing table, except as provided below:
"Level I" exists at any date if, on such date, the Borrower's long-term debt
is rated AA- or higher by S&P or Aa3 or higher by Xxxxx'x.
"Level II" exists at any date if, on such date, (i) the Borrower's long-term
debt is rated A+ by S&P or A1 by Xxxxx'x and (ii) Level I does not exist at
such date.
"Level III" exists at any date if, on such date, (i) the Borrower's long-term
debt is rated A by S&P or A2 by Xxxxx'x and (ii) neither Level I nor Level II
exists at such date.
"Level IV" exists at any date if, on such date, (i) the Borrower's long-term
debt is rated A- by S&P or A3 by Xxxxx'x and (ii) none of Level I, Level II
and Level III exists at such date.
"Level V" exists at any date if, on such date, (i) the Borrower's long-term
debt is rated BBB+ by S&P or Baa1 by Xxxxx'x and (ii) none of Level I, Level
II, Level III and Level IV exists at such date.
"Level VI" exists at any date if, on such date, (i) the Borrower's long-term
debt is rated BBB or lower by S&P or Baa2 or lower by Xxxxx'x or is rated by
neither S&P nor Xxxxx'x and (ii) none of Xxxxx X, Xxxxx XX, Xxxxx XXX, Xxxxx
XX and Level V exists at such date.
The credit ratings to be utilized for purposes of determining a Level
hereunder are those assigned to the senior unsecured long-term debt of the
Borrower without third-party credit enhancement, and any rating assigned to
any other Debt of the Borrower shall be disregarded. The rating in effect at
any date is that in effect at the close of business on such date.
"Assignment and Assumption" is defined in Section 9.6.2.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C. Section
101 et seq.), as amended from time to time.
3
"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 higher of:
(a) the rate of interest announced publicly by the Agent Bank from time to
time as the Agent Bank's prime rate; and (b) 1/2 of one percent per annum
above the Federal Funds Rate.
"Base Rate Loan" means a Revolving Loan, or portion thereof, that bears
interest by reference to the Base Rate.
"Bid Loan" is defined in Section 2.2.1.
"Bid Loan Borrowing" is defined in Section 2.2.1.
"Bid Loan Note" means a Bid Loan Note of the Borrower, in substantially the
form of Exhibit A-3, payable to a Lender, evidencing the obligation of the
Borrower to repay the Bid Loans made by the Lender, and includes any Note
issued in exchange or substitution therefor.
"Bid Loan Quote" is defined in Section 2.2.2.2.
"Bid Loan Quote Request" is defined in Section 2.2.2.1.
"Borrower" is defined in the Preamble.
"Borrower Account" means the account of the Borrower identified as such on
Schedule 9.5., or such other account as the Borrower may hereafter designate
by notice to the Agent, with the prior consent of the Agent (such consent not
to be withheld or delayed so long as the designation of such account would
not prevent the Agent from satisfying its obligations hereunder in a timely
manner).
"Borrowing" means a contemporaneous borrowing of Loans of the same Type.
"Business Day" means any day that (i) is not a Saturday, Sunday or other day
on which banks in Seattle, Washington, Los Angeles, California or Charlotte,
North Carolina are authorized or obligated to close and (ii) if the
applicable Business Day relates to any Euro-Dollar Rate Loans, is a Euro-
Dollar Business Day.
"Capital Stock" means, with respect to any Person, all (i) shares, interests,
participations or other equivalents (howsoever designated) of capital stock
and other equity interests of such Person and (ii) rights (other than debt
securities convertible into capital stock or other equity interests),
warrants or options to acquire any such capital stock or other equity
interests.
"Capitalized Leases" means, as to any Person, all leases of such Person of
real or personal property that are required to be capitalized on the balance
sheet of such Persons. The amount of any Capitalized Lease shall be the
capitalized amount thereof.
4
"Change of Control" means any Person or two or more Persons acting in concert
(other than the Controlling Stockholders) 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 Borrower (or other securities convertible
into such Voting Stock) representing 40% or more of the combined voting power
of all Voting Stock of the Borrower.
"Closing Date" means October 15, 1999 or such earlier date on which all
conditions set forth in Section 3.1. have been satisfied.
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
"Compliance Certificate" is defined in Section 5.1.3.
"Contingent Obligation" means, as to any Person, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) with respect to any
Debt or other obligation of another Person, including any direct or indirect
guarantee of such Debt (other than any endorsement for collection in the
ordinary course of business) or any other direct or indirect obligation, by
agreement or otherwise, to purchase or repurchase any such Debt or obligation
or any security therefor, or to provide funds for the payment or discharge of
any such Debt or obligation (whether in the form of loans, advances, stock
purchases, capital contributions or otherwise), (ii) to provide funds to
maintain the financial condition of any other Person, or (iii) otherwise to
assure or hold harmless the holders of Debt or other obligations of another
Person against loss in respect thereof. The amount of any Contingent
Obligation under clause (i) or (ii) shall be the greater of (a) the amount of
the Debt or obligation guaranteed or otherwise supported thereby, or (b) the
maximum amount guarantied or supported by the Contingent Obligation. The
term "Contingent Obligation," as used with respect to the Borrower, shall not
include (i) the obligations of the Borrower under (x) the Investment
Agreement or (y) any obligation which the Borrower does or may have to sell
to, repurchase from or indemnify the purchaser with respect to accounts
discounted or sold by the Borrower in the ordinary course of its business
(but any such other obligation shall be excluded only to the extent that such
other obligation is not for the benefit, directly or indirectly, of any
Person that is not a wholly owned Subsidiary (direct or indirect) of the
Borrower); or (ii) any obligation which a Subsidiary does or may have to sell
to, repurchase from or indemnify the purchaser with respect to accounts
discounted or sold by the Subsidiary in the ordinary course of its business
(but any such other obligation shall be excluded only to the extent that such
obligation is not for the benefit, directly or indirectly, of any Person that
is not a wholly owned Subsidiary (direct or indirect) of the Borrower); or
(iii) supply, service or licensing agreements between or among Xxxxxxxxx.xxx
LLC, a Delaware limited liability company, and its successors on the one
hand, and the Borrower and its other Subsidiaries, on the other hand, so long
as such agreements are fair and reasonable to the Borrower and such other
Subsidiaries under the circumstances.
"Contractual Obligation" means, as applied to any Person, any provision of
any security issued by that Person or of any indenture, agreement or other
5
instrument to which that Person is a party or by which it or any of the
properties owned or leased by it is bound or otherwise subject.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (irrespective of whether incorporated) that,
together with the Borrower or any Subsidiary, are or were treated as a single
employer under Section 414 of the Code.
"Controlling Stockholders" means the individuals listed on Exhibit I hereto
and the spouse and lineal descendants of any such individual.
"Debt" means, with respect to any Person, the aggregate amount of, without
duplication: (i) all obligations for borrowed money; (ii) all obligations
evidenced by bonds, debentures, notes or other similar instruments; (iii) all
obligations to pay the deferred purchase price of property or services,
except trade accounts payable not overdue arising in the ordinary course of
business; (iv) all Capitalized Leases; (v) all obligations of others secured
by a Lien on any asset owned by such Person or Persons whether or not such
obligation or liability is assumed; (vi) all obligations of such Person or
Persons, contingent or otherwise, in respect of any letters of credit or
bankers' acceptances; and (vii) all Contingent Obligations.
"Default" means any condition or event that, with the giving of notice or
lapse of time or both, would, unless cured or waived, become an Event of
Default.
"Designated Bidder" means (a) a bank or other financial institution or (b) a
special purpose corporation that is engaged in making, purchasing or
otherwise investing in commercial loans in the ordinary course of its
business and that issues (or the parent of which issues) commercial paper
rated at least "Prime-1" (or the then equivalent grade) by Xxxxx'x or "A-1"
(or the then equivalent grade) by S&P that, in the case of either clause (a)
or (b), (i) is organized under the laws of the United States or any State
thereof, (ii) shall have become a party hereto pursuant to Section 9.6 and
(iii) is not otherwise a Lender.
"Designation Agreement" means a designation agreement entered into by a
Lender (other than a Designated Bidder) and a Designated Bidder, and accepted
by the Agent, in substantially the form of Exhibit B hereto.
"Documentation Agent" is defined in the Preamble.
"Dollars" and "$" mean lawful money of the United States of America.
"Domestic Lending Office" means the office, branch or Affiliate of any Lender
identified on Schedule 1.1.B as its Domestic Lending Office or such other
office, branch or Affiliate as the Lender may hereafter designate as its
Domestic Lending Office for one or more Types of Loans by notice to the
Borrower and the Agent.
"EBITDAR" means, for any period, net income (or net loss) plus, to the extent
deducted in determining such net income (or net loss), the sum of (a)
6
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.
"ERISA" means the Employee Retirement Income Security Act of 1974, as amended
from time to time.
"ERISA Event" means (i) (a) the occurrence of a reportable event, within the
meaning of Section 4043 of ERISA with respect to any Plan unless the 30-day
notice requirement with respect to such event has been waived by the PBGC
(provided that a reportable event arising from the disqualification of a Plan
or the distress termination of a Plan under ERISA Section 4041(c) shall be
deemed to be an ERISA Event without regard to the waiver of notice provided
by the PBGC by regulation or otherwise), or (b) the requirements of
subsection (1) of Section 4043(b) of ERISA (without regard to subsection (2)
of such Section) are met with respect to a contributing sponsor, as defined
in Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the following
30 days; (ii) an application is filed with the Internal Revenue Service for a
minimum funding waiver under Section 412 of the Internal Revenue Code with
respect to a Plan; (iii) the provision by the administrator of any Plan of a
notice of intent to terminate such Plan pursuant to Section 4041(a)(2) of
ERISA (including any such notice with respect to a plan amendment referred to
in Section 4041(e) of ERISA); (iv) the cessation of operations at a facility
of the Borrower or any member of the Controlled Group in the circumstances
described in Section 4062(e) of ERISA; (v) the withdrawal by the Borrower or
any member of the Controlled Group from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in Section
4001(a)(2) of ERISA; (vi) the conditions for the imposition of a lien under
Section 302(f) of ERISA shall have been met with respect to any Plan; (vii)
the adoption of an amendment to a Plan requiring the provision of security to
such Plan pursuant to Section 307 of ERISA; or (viii) the institution by the
PBGC of proceedings to terminate a Plan pursuant to Section 4042 of ERISA, or
the occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of a
trustee to administer, a Plan.
"Euro-Dollar Business Day" means any Business Day on which commercial banks
are open for international business (including dealings in interbank Dollar
deposits) in London, England.
"Euro-Dollar Lending Office" means the office, branch or Affiliate of any
Lender identified on Schedule 1.1.B as its Euro-Dollar Lending Office or such
other office, branch or Affiliate as the Lender may hereafter designate as
its Euro-Dollar Lending Office by notice to the Borrower and the Agent.
"Euro-Dollar Rate" means, for any Euro-Dollar Rate Loan for any Interest
Period therefor, an interest rate per annum (rounded upwards, if necessary,
to the nearest 1/100 of 1%) at all times equal to the rate per annum obtained
by dividing (a) the rate per annum appearing on Telerate Page 3750 (or any
successor page) as the London interbank offered rate for deposits in Dollars
at approximately 11:00 a.m. (London time) two Business Days prior to the
7
first day of such Interest Period for a term comparable to such Interest
Period by (b) a percentage equal to 100% minus the Euro-Dollar Rate Reserve
Requirement in effect from time to time. If for any reason the rate
described in the foregoing clause (a) is not available at the time of
determination of the Euro-Dollar Rate for any Euro-Dollar Rate Loans for any
Interest Period, the term "Euro-Dollar Rate" shall mean, for any such Euro-
Dollar Rate Loans for any such Interest Period therefor, an interest rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) at all
times equal to the rate per annum obtained by dividing (i) the rate per annum
appearing on Reuters Screen LIBO 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 (provided, however, if more than one rate
is specified on Reuters Screen LIBO Page, the applicable rate shall be the
arithmetic mean of all such rates) by (ii) a percentage equal to 100% minus
the Euro-Dollar Rate Reserve Requirement in effect from time to time. The
Euro-Dollar Rate shall be adjusted automatically on and as of the effective
date of any change in the Euro-Dollar Reserve Requirement.
"Euro-Dollar Rate Loan" means a Revolving Loan, or portion thereof, that
bears interest at a rate determined by reference to a Euro-Dollar Rate (and
as to which a single Interest Period is applicable).
"Euro-Dollar Reserve Requirement" means, with respect to any Euro-Dollar Rate
Loan and at any time of determination, the maximum rate at which reserves
(including any marginal, supplemental, special or emergency reserve) are
required to be maintained at such time under Regulation D (or any successor
statute) by member banks of the Federal Reserve System in New York City with
deposits exceeding $5 billion against "Euro-Currency Liabilities," as that
term is used in Regulation D (or any successor statute) (or in respect of any
other category of liabilities that includes deposits by reference to which
the interest rate on Euro-Dollar Rate Loans is determined or any category of
extensions of credit or other assets that includes loans by a non-United
States office of any bank to United States residents).
"Event of Default" means any of the events specified in Section 7.1.
"Excluded Tax" means, with respect to any payment to any Lender Party, (i)
any taxes imposed on or measured by the overall net income (including a
franchise tax based on net income) of such Lender Party by the United States
of America or any political subdivision or taxing authority thereof or
therein, and (ii) any taxes imposed on or measured by the overall net income
(including a franchise tax based on net income) of such Lender Party or its
Agent's Office or Applicable Lending Office in respect of which the payment
is made, by the jurisdiction in which it is incorporated, maintains its
principal executive office or in which such Agent's Office or Applicable
Lending Office is located.
"Existing Liens" means the Liens described on Schedule 1.1.D.
"Facility Fee" means the facility fee referred to in Section 2.6.1.
"FDIC" means the Federal Deposit Insurance Corporation or any successor.
8
"Federal Funds Rate" means, for any day, the rate per annum (rounded upwards,
if necessary, to the nearest 1/100th of 1%) equal to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, 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 on the Business Day
next succeeding such day, provided that if such rate is not so published for
any day that is a Business Day, the Federal Funds Rate for such day shall be
the average rate charged to the Agent Bank on such day on such transactions
as determined by the Agent Bank.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System, or any successor thereto.
"Fee Letter" means that certain letter dated August 23, 1999 between the
Borrower and the Agent regarding certain fees relating to this Agreement as
the same may be amended, supplemented or otherwise modified from time to time
by the Borrower and the Agent.
"Fees" means, collectively, the fees described or referenced in Section 2.6.
"Fiscal Year" means the fiscal year of the Borrower, which shall be the 12
month-period ending on January 31 in each year or such other period as the
Borrower may designate and the Agent may approve in writing. "Fiscal
Quarter" or "fiscal quarter" means any quarter of a Fiscal Year.
"Funding Date" means any date on which a Loan is (or is requested to be)
made.
"GAAP" means generally accepted accounting principles as in effect in the
United States of America (as such principles are in effect on the date
hereof).
"Governmental Approval" means an authorization, consent, approval, permit or
license issued by, or a registration or filing with, any Governmental
Authority.
"Governmental Authority" means any nation and any state or political
subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to
government and any tribunal or arbitrator of competent jurisdiction.
"Indemnified Liabilities" is defined in Section 9.2.1.
"Interest Period" means, subject to the next sentence:
(i) with respect to each Euro-Dollar Rate Loan, the period commencing on
the date specified in the related Notice of Borrowing or Notice of
Conversion/Continuation (or telephonic notice in lieu thereof) and ending
(subject to availability to all Lenders) one, two, three or six months
thereafter, as the Borrower may elect, as applicable; and
(ii) with respect to any Bid Loan, the period commencing on the Funding Date
specified in the related Bid Loan Quote Request and ending on any Business
9
Day not less than seven and not more than 30 days thereafter, as the Borrower
may request as provided in Section 2.2.2.1.
Notwithstanding the foregoing: (a) if a Euro-Dollar Rate Loan is continued,
the Interest Period applicable to the continued Loan shall commence on the
day on which the Interest Period applicable to such Euro-Dollar Rate Loan
ends; (b) any Interest Period applicable to a Euro-Dollar Rate Loan (i) that
would otherwise end on a day that is not a Business Day shall be extended to
the next succeeding Business Day, unless such succeeding Business Day falls
in another calendar month, in which case such Interest Period shall end on
the next preceding Business Day or (ii) that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest Period)
shall end on the last Business Day of the calendar month; and (c) no Interest
Period shall end after the Maturity Date.
"Investment Agreement" means the Investment Agreement, dated as of October 8,
1984, between the Borrower and Nordstrom Credit, as amended from time to
time.
"Lender" is defined in the Preamble and, except when used in reference to a
Revolving Loan, a Revolving Borrowing, a Revolving Loan Note, a Revolving
Commitment or a related term, shall include each Designated Bidder. For
purposes of the Sections referred to in (and subject to) the last sentence of
Section 9.6.3., "Lender" includes a holder of a Participation.
"Lender Party" is defined in the Preamble. For purposes of the Sections
referred to in (and subject to) the last sentence of Section 9.6.3., "Lender
Party" includes a holder of a Participation.
"Lien" means any lien, mortgage, pledge, security interest, charge, or
encumbrance of any kind (including any conditional sale or other title
retention agreement or any lease in the nature thereof) and any agreement to
give any lien, mortgage, pledge, security interest, charge, or other
encumbrance of any kind.
"Loan" means a Base Rate Loan, Euro-Dollar Rate Loan or Bid Loan, each of
which constitutes a "Type" of Loan.
"Loan Documents" means, collectively, this Agreement, the Notes, and any
other agreement, instrument or other writing executed or delivered by the
Borrower in connection herewith, and all amendments, exhibits and schedules
to any of the foregoing.
"Margin Regulations" means Regulations G, T, U and X of the Federal Reserve
Board, as amended from time to time.
"Margin Stock" means "margin stock" as defined in the Margin Regulations.
"Material Adverse Effect" or "Material Adverse Change" means (i) a material
adverse effect on or (ii) a material adverse change in, as the case may be,
any one or more of the following: (A) the business, assets, results of
10
operations or financial condition of the Borrower and its Subsidiaries taken
as a whole or (B) the ability of the Borrower to perform its obligations
under any Loan Document to which it is a party or (C) the actual material
rights and remedies of any Lender Party under any Loan Document.
"Maturity Date" means July 23, 2002.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor.
"Multiemployer Plan" means a multiemployer plan, as defined in Section
4001(a)(3) of ERISA.
"NCI Credit Agreement" means that certain Revolving Credit Agreement dated
July 24, 1997 by and among Nordstrom Credit, the financial institutions party
thereto as Lenders thereunder and Bank of America, N.A., as Agent for such
Lenders, as the same may be amended, supplemented or otherwise modified from
time to time.
"Net Worth" of any Person means, as of any date of determination, the excess
of Total Assets over Total Liabilities of such Person.
"Nordstrom Credit" means Nordstrom Credit, Inc., a Colorado corporation, and
any successor.
"Note" means a Revolving Loan Note or Bid Loan Note.
"Notice of Borrowing" is defined in Section 2.1.3.
"Notice of Conversion/Continuation" is defined in Section 2.4.2.2.
"Notice of Responsible Officer" is defined in Section 2.1.3.3.
"Obligations" means all present and future obligations and liabilities of the
Borrower of every type and description arising under or in connection with
the Loan Documents due or to become due to the Lender Parties or any Person
entitled to indemnification, or any of their respective successors,
transferees or assigns, whether for principal, interest, Fees, expenses,
indemnities or other amounts (including attorneys' fees and expenses) and
whether due or not due, direct or indirect, joint and/or several, absolute or
contingent, voluntary or involuntary, liquidated or unliquidated, determined
or undetermined, and whether now or hereafter existing, renewed or
restructured.
"Original Closing Date" means July 24, 1997.
"Original Credit Agreement" has the meaning set forth in the Preliminary
Statements.
"Original Lenders" has the meaning set forth in the Preliminary Statements.
"Original Obligations" has the meaning set forth in the Preliminary
Statements.
11
"Original Revolving Loans" has the meaning set forth in the Preliminary
Statements.
"Original Revolving Notes" has the meaning set forth in the Preliminary
Statements.
"Participation" is defined in Section 9.6.3.
"PBGC" means the Pension Benefit Guaranty Corporation, as defined in Title IV
of ERISA, or any successor.
"Periodic Payment Date" means the last Business Day of each month commencing
July 31, 1997.
"Permitted Liens" means, with respect to any asset, the Liens (if any)
permitted to exist on such asset under Section 6.1.
"Person" means an individual, a corporation, a partnership, a limited
liability company, a trust, an unincorporated organization or any other
entity or organization, including a government or any agency or political
subdivision thereof.
"Plan" means, at any time, any employee pension benefit plan that is covered
by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code and that is either (i) maintained by the Borrower or
any member of a Controlled Group for employees of the Borrower or such
Controlled Group or was formerly so maintained and in respect of which the
Borrower or any member of the Controlled Group could have liability under
Section 4069 of ERISA in the event such plan has been or were to be
terminated or (ii) maintained for employees of the Borrower or any member of
the Controlled Group and at least one Person other than the Borrower and the
members of the Controlled Group or was formerly so maintained and in respect
of which the Borrower or any member of the Controlled Group could have
liability under Section 4064 or 4069 of ERISA in the event such plan has been
or were to be terminated.
"Post-Default Rate" means (i) with respect to all Base Rate Loans and any
other amounts owing hereunder not paid when due (other than then outstanding
Euro-Dollar Rate Loans), a rate per annum equal at all times to the rate
otherwise applicable to Base Rate Loans plus 2.00% per annum, and (ii) with
respect each then outstanding Euro-Dollar Rate Loan, a rate per annum equal
at all times to the rate otherwise applicable to such Euro-Dollar Rate Loan
plus 2.00% per annum.
"Regulation D" means Regulation D of the Federal Reserve Board, as amended
from time to time.
"Regulatory Change" means (i) the adoption or becoming effective after the
date hereof of any treaty, law, rule or regulation, (ii) any change in any
such treaty, law, rule or regulation (including Regulation D), or any change
12
in the administration or enforcement thereof, by any Governmental Authority,
central bank or other monetary authority charged with the interpretation or
administration thereof, in each case after the date hereof, or (iii)
compliance after the date hereof by any Lender Party (or its Applicable
Lending Office or, in the case of capital adequacy requirements, any holding
company of any Lender Party) with, any interpretation, directive, request,
order or decree (whether or not having the force of law) of any such
Governmental Authority, central bank or other monetary authority.
"Required Lenders" means Lenders having more than 50% of the Revolving
Commitments or, if the Revolving Commitments have terminated, Lenders holding
more than 50% of the aggregate unpaid principal amount of the Loans.
"Responsible Officer" is defined in Section 2.1.3.3.
"Restricted Payment" means (i) any dividend or other distribution, direct or
indirect, on account of any Capital Stock of the Borrower or any Subsidiary
now or hereafter outstanding, except (a) a dividend or other distribution
payable solely in shares or equivalents of Capital Stock of the same class as
the Capital Stock on account of which the dividend or distribution is being
paid or made, and (b) the issuance of equity interests upon the exercise of
outstanding warrants, options or other rights, or (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition
for value, direct or indirect, of any Capital Stock of the Borrower or any
Subsidiary now or hereafter outstanding.
"Revolving Commitment" means, with respect to each Lender, the amount set
forth for such Lender on Schedule 1.1.A, as reduced or terminated from time
to time pursuant to the terms hereof. "Revolving Commitments" means the
aggregate amount of the Revolving Commitments of all Lenders.
"Revolving Commitment Termination Date" is defined in Section 2.7.1.
"Revolving Commitment Usage" means, at any time, (i) with respect to any
Lender, the sum of (a) the aggregate unpaid principal amount of all Revolving
Loans made by such Lender plus (b) such Lender's pro rata share (in
accordance with the respective Revolving Commitments of the Lenders) of the
aggregate unpaid principal amount of all Bid Loans, and (ii) with respect to
all Lenders, the aggregate unpaid principal amount of all Revolving Loans and
Bid Loans, in each case at such time and giving effect to Borrowings then
requested.
"Revolving Loan Note" means a Revolving Loan Note made by the Borrower
payable to the order of any Lender, in the amount of the lesser of (i) such
Lender's Revolving Commitment and (ii) the aggregate principal amount of
Revolving Loans made by such Lender, which note is substantially in the form
of Exhibit A-1, as amended from time to time.
"Revolving Loans" is defined in Section 2.1.1.1.
"S&P" means Standard & Poor's Ratings Group and any successor.
13
"SEC" means the United States Securities and Exchange Commission, and any
successor.
"Securities Act" means the Securities Act of 1933, as amended from time to
time.
"Senior Officer" means the Chairman of the Board of Directors, any Co-
President, the Chief Executive Officer, the Chief Operating Officer, the
Chief Financial Officer, the Treasurer or any Vice President in charge of a
principal business unit or division of the Borrower.
"Solvent" and "Solvency" mean, with respect to any Person on a particular
date, that on such date (a) the property of such Person, at a fair valuation,
is greater than the total amount of such Person's absolute and matured debts,
and (b) such Person is generally paying his, her or its debts as they become
due.
"Subsidiary" means, with respect to any Person, any other Person of which
more than 50% of the total voting power of the Capital Stock entitled to vote
in the election of the board of directors (or other Persons performing
similar functions) are at the time directly or indirectly owned by such first
Person. Unless otherwise indicated, "Subsidiary" refers to a Subsidiary of
the Borrower.
"Syndication Agent" is defined in the Preamble.
"Taxes" means any present or future income, stamp and other taxes, charges,
fees, levies, duties, imposts, withholdings or other assessments, together
with any interest and penalties, additions to tax and additional amounts
imposed by any federal, state, local or foreign taxing authority upon any
Person.
"Total Assets" of any Person means all property, whether real, personal,
tangible, intangible or otherwise, which in accordance with GAAP would be
included in determining total assets as shown on the assets portion of a
balance sheet of such Person.
"Total Liabilities" of any Person means all obligations which in accordance
with GAAP would be included in determining total liabilities as shown on the
liabilities portion of a balance sheet of such Person.
"Type" is defined in the definition of "Loan."
"Unfunded Vested Liabilities" means, with respect to any Plan at any time,
the amount (if any) by which (i) the present value of all vested
nonforfeitable benefits under such Plan exceeds (ii) the fair market value of
all Plan assets allocable to such benefits, all determined as of the then
most recent valuation date for such Plan, but only to the extent that such
excess represents a potential liability of the Borrower or any member of the
Controlled Group to the PBGC or the Plan under Title IV of ERISA.
14
"Voting Stock" means capital stock issued by a corporation, or equivalent
interests in any other Person, the holders of which are ordinarily, in the
absence of contingencies, entitled to vote for the election of directors (or
persons performing similar functions) of such Person, even though the right
to so vote has been suspended by the happening of such a contingency.
"Wholly-Owned" means, with respect to any Subsidiary, that all the Capital
Stock (except for directors' qualifying shares) of such Subsidiary are
directly or indirectly owned by the Borrower.
Section 1.2 Related Matters.
1.2.1 Construction. Unless the context of this Agreement clearly requires
otherwise, references to the plural include the singular, the singular
includes the plural, the part includes the whole, "including" is not
limiting, and "or" has the inclusive meaning represented by the phrase
"and/or." The words "hereof," "herein," "hereby," "hereunder" and similar
terms in this Agreement refer to this Agreement as a whole (including the
Preamble, the Recitals, the Schedules and the Exhibits) and not to any
particular provision of this Agreement. Article, section, subsection,
exhibit, schedule, recital and preamble references in this Agreement are to
this Agreement unless otherwise specified. References in this Agreement to
any agreement, other document or law "as amended" or "as amended from time to
time," or to amendments of any document or law, shall include any amendments,
supplements, replacements, renewals, waivers or other modifications.
References in this Agreement to any law (or any part thereof) include any
rules and regulations promulgated thereunder (or with respect to such part)
by the relevant Governmental Authority, as amended from time to time.
1.2.2 Determinations. Any determination or calculation contemplated by this
Agreement that is made by any Lender Party in good faith and reasonably shall
be final and conclusive and binding upon the Borrower and, in the case of
determinations by the Agent, also the other Lender Parties, in the absence of
manifest error. All consents and other actions of any Lender Party
contemplated by this Agreement may be given, taken, withheld or not taken in
such Lender Party's discretion (whether or not so expressed), except as
otherwise expressly provided herein.
1.2.3 Accounting Terms and Determinations. Unless otherwise specified
herein, all accounting terms used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial statements required
to be delivered hereunder shall be prepared on a consolidated basis in
accordance with GAAP applied on a basis consistent (except for changes
concurred in by the relevant independent public accountants) with the audited
financial statements of the Borrower referred to in Section 4.3.
1.2.4 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS (OTHER THAN THE RULES REGARDING CONFLICTS OF LAWS)
OF THE STATE OF WASHINGTON.
15
1.2.5 Headings. The Article and Section headings used in this Agreement are
for convenience of reference only and shall not affect the construction
hereof.
1.2.6 Severability. If any provision of this Agreement shall be held to be
invalid, illegal or unenforceable under Applicable Law in any jurisdiction,
such provision shall be ineffective only to the extent of such invalidity,
illegality or unenforceability, which shall not affect any other provisions
hereof or the validity, legality or enforceability of such provision in any
other jurisdiction.
1.2.7 Independence of Covenants. All covenants under this Agreement shall
each be given independent effect so that if a particular action or condition
is not permitted by any such covenant, the fact that it would be permitted by
another covenant, by an exception thereto, or be otherwise within the
limitations thereof, shall not avoid the occurrence of a Default or an Event
of Default if such action is taken or condition exists.
ARTICLE 2
AMOUNTS AND TERMS OF THE CREDIT FACILITIES
Section 2.1 Revolving Loans.
2.1.1 General Terms.
2.1.1.1 Each Lender severally agrees, upon the terms and subject to the
conditions set forth in this Agreement, at any time from and after the
Closing Date until the Business Day next preceding the Revolving Commitment
Termination Date, to make loans (each a "Revolving Loan") to the Borrower in
an aggregate principal amount not to exceed at any time outstanding, when
added to other Revolving Commitment Usage of such Lender at such time, the
Revolving Commitment of such Lender, provided that the Revolving Commitment
Usage of all Lenders at any time, in the aggregate, shall not exceed the
aggregate Revolving Commitments of all Lenders.
2.1.1.2 Revolving Loans may be voluntarily prepaid pursuant to Section
2.8.3. and, subject to the provisions of this Agreement, any amounts so
prepaid may be re-borrowed, up to the amount available under this Section at
the time of such reborrowing.
2.1.2 Type of Loans and Amounts.
2.1.2.1 Loans made under this Section 2.1. may be Base Rate Loans or Euro-
Dollar Rate Loans (each a "Type" of Loan), subject, however, to Sections
2.4.3. and 2.11.
2.1.22 Each Borrowing of Revolving Loans shall be in a minimum aggregate
amount of $1,000,000 and integral multiples of $100,000, in the case of a
Borrowing of Base Rate Loans, or a minimum aggregate amount of $5,000,000 and
integral multiples of $1,000,000, in the case of a Borrowing of Euro-Dollar
Rate Loans.
16
2.1.3 Notice of Borrowing.
2.1.3.1 When the Borrower desires to borrow Revolving Loans pursuant to
Section 2.1., it shall deliver to the Agent a Notice of Borrowing
substantially in the form of Exhibit E-1, duly completed and executed by a
Responsible Officer (a "Notice of Borrowing"), (a) no later than 1:00 p.m.
(Charlotte, North Carolina time) on the proposed Funding Date, in the case of
a Borrowing of Base Rate Loans, or (b) no later than 1:00 p.m. (Charlotte,
North Carolina time) at least three Euro-Dollar Business Days before the
proposed Funding Date, in the case of a Borrowing of Euro-Dollar Rate Loans.
2.1.3.2 In lieu of delivering a Notice of Borrowing, the Borrower, through
a Responsible Officer, may give the Agent telephonic notice of any proposed
Borrowing of Revolving Loans by the time a Notice of Borrowing would be
required to be delivered and containing all information required for a Notice
of Borrowing; provided, however, that such notice shall be confirmed in
writing by delivery of a Notice of Borrowing to the Agent on or before the
proposed Funding Date (or, in the case of a Base Rate Borrowing, no later
than one Business Day after the Funding Date). No Lender Party shall incur
any liability to the Borrower or the other Lender Parties in acting upon any
telephonic notice that such Lender Party believes to have been given by a
Responsible Officer or for otherwise acting in good faith under this Section
2.1. and in making any Loan in accordance with this Agreement pursuant to any
telephonic notice and, upon funding of Revolving Loans by any Lender in
accordance with this Agreement pursuant to any such telephonic notice, the
Borrower shall have effected Revolving Loans hereunder.
2.1.3.3 The Borrower shall notify the Agent of the names of its officers
and employees authorized to request and take other actions with respect to
Loans on behalf of the Borrower (each a "Responsible Officer") by providing
the Agent with a Notice of Responsible Officers substantially in the form of
Exhibit E-7, duly completed and executed by a Senior Officer (a "Notice of
Responsible Officer"). The Agent shall be entitled to rely conclusively on a
Responsible Officer's authority to request and take other actions with
respect to Loans on behalf of the Borrower until the Agent receives a new
Notice of Responsible Officer that no longer designates such Person as a
Responsible Officer. The Agent shall have no duty to verify the authenticity
of the signature appearing on any Notice of Borrowing, Notice of Responsible
Officer or any other notice given under the Loan Documents to the extent the
Agent believes in good faith that such signature is of an authorized officer
of the Borrower.
2.1.3.4 Any Notice of Borrowing (or telephone notice in lieu thereof)
delivered pursuant to this Section shall be irrevocable and the Borrower
shall be bound to make a Borrowing in accordance therewith.
2.1.3.5 The Agent shall promptly notify each Lender of the contents of any
Notice of Borrowing (or telephonic notice in lieu thereof) received by it,
and such Lender's pro rata portion of the Borrowing requested. Prior to 2:00
p.m. (Charlotte, North Carolina time) on the date specified in such notice as
the Funding Date, each Lender, subject to the terms and conditions hereof,
17
shall make its pro rata portion of the Borrowing available, in immediately
available funds, to the Agent at the Agent's Account.
2.1.4 Funding. Not later than 4:00 p.m. (Charlotte, North Carolina time) on
such Funding Date or such later time as may be agreed to by the Borrower and
the Agent, and subject to and upon satisfaction of the applicable conditions
set forth in Article 3 as determined by the Agent, the Agent shall, upon
receipt of the proceeds of the requested Loans, make such proceeds available
to the Borrower in Dollars in immediately available funds in the Borrower
Account.
Section 2.2. Bid Loans.
2.2.1 General Terms. At any time prior to the Business Day immediately
preceding the Revolving Commitment Termination Date, the Borrower may request
the Lenders to make offers to make bid loans to the Borrower (each a "Bid
Loan"), provided that (a) the aggregate unpaid principal amount of all Bid
Loans, together with all other Revolving Commitment Usage of all Lenders at
any time, shall not exceed the aggregate Revolving Commitments of all
Lenders; (b) the aggregate amount of Bid Loans requested for any Funding Date
and with the same Interest Period (each a "Bid Loan Borrowing") shall be at
least $10,000,000 and a multiple of $1,000,000; and (c) all Interest Periods
applicable to Bid Loans shall be subject to Section 2.4.3. The Lenders may,
but shall have no obligation to, make such offers, and the Borrower may, but
shall have no obligation to, accept any such offers in the manner set forth
in this Section 2.2.
2.2.2 Bid Loan Procedures.
2.2.2.1 When the Borrower wishes to request offers to make Bid Loans, it
shall give the Agent (which shall promptly notify the Lenders) notice
substantially in the form of Exhibit E-4, duly completed and executed by a
Responsible Officer (a "Bid Loan Quote Request"), so as to be received no
later than 1:00 p.m. (Charlotte, North Carolina time) on the second Business
Day before the proposed Funding Date (or such other time and date as the
Borrower and the Agent, with the consent of the Required Lenders, may agree).
Subject to Section 2.4.3., the Borrower may request offers for up to three
different Bid Loan Borrowings in a single Bid Loan Quote Request, in which
case such Bid Loan Quote Request shall constitute a separate Bid Loan Quote
Request for each such Borrowing. Except as otherwise provided in this
Section 2.2., no Bid Loan Quote Request shall be given within five Business
Days (or such other number of days as the Borrower and the Agent, with the
consent of the Required Lenders, may agree) of any other Bid Loan Quote
Request.
2.2.2.2 Each Lender may, but shall not be obligated to, in response to any
Bid Quote Request submit one or more written quotes substantially in the form
of Exhibit E-5, duly completed (each a "Bid Loan Quote"), each containing an
offer to make a Bid Loan for the Interest Period requested and setting forth
the Absolute Rate to be applicable to the Bid Loan; provided that (a) a
Lender may make a single submission containing one or more Bid Loan Quotes in
response to several Bid Loan Quote Requests given at the same time; (b) the
principal amount of the Bid Loan for which each such offer is being made
shall be at least $2,000,000 and a multiple of $1,000,000; provided that the
18
aggregate principal amount of all Bid Loans for which a Lender submits Bid
Loan Quotes (i) may be greater or less than the Revolving Commitment of such
Lender but (ii) may not exceed the principal amount of the Bid Loan Borrowing
for which offers were requested. Each Bid Loan Quote must be submitted to
the Agent by fax not later than 1:00 p.m. (Charlotte, North Carolina time) on
the Funding Date (or such other time and date as the Borrower and the Agent,
with the consent of the Required Lenders, may agree); provided that any Bid
Loan Quote may be submitted by the Agent (or its Applicable Lending Office)
only if the Agent (or such Applicable Lending Office) notifies the Borrower
of the terms of the offer contained therein not later than 12:45 p.m.
(Charlotte, North Carolina time) on the Funding Date. Subject to Sections 3.
and 7.2., any Bid Loan Quote so made shall be irrevocable except with the
consent of the Agent given on the instructions of the Borrower. Unless
otherwise agreed by the Agent and the Borrower, no Bid Loan Quote shall
contain qualifying, conditional or similar language or propose terms other
than or in addition to those set forth in the applicable Bid Loan Quote
Request and, in particular, no Bid Loan Quote may be conditioned upon
acceptance by the Borrower of all (or some specified minimum) of the
principal amount of the Bid Loan for which such Bid Loan Quote is being made.
2.2.2.3. The Agent shall, as promptly as practicable after any Bid Loan
Quote is submitted (but in any event not later than 1:30 p.m. (Charlotte,
North Carolina time) on the Funding Date), notify the Borrower of the terms
(a) of any Bid Loan Quote submitted by a Lender that is in accordance with
Section 2.2.2.2. and (b) of any Bid Loan Quote that amends, modifies or is
otherwise inconsistent with a previous Bid Loan Quote submitted by such
Lender with respect to the same Bid Loan Quote Request. Any subsequent Bid
Loan Quote shall be disregarded by the Agent unless the subsequent Bid Loan
Quote is submitted solely to correct a manifest error in a former Bid Loan
Quote. The Agent's notice to the Borrower shall specify (i) the aggregate
principal amount of the Bid Loan Borrowing for which offers have been
received, (ii) the respective principal amounts and (iii) the rates of
interest (which shall be expressed as an absolute number and not in terms of
a specified margin over the quoting Lender's cost of funds) (the "Absolute
Rate") so offered by each Lender (identifying the Lender that made each such
Bid Loan Quote).
2.2.2.4. Not later than 2:00 p.m. (Charlotte, North Carolina time) on the
Funding Date (or such other time and date as the Borrower and the Agent, with
the consent of each Lender that has submitted a Bid Loan Quote may agree),
the Borrower shall notify the Agent of its acceptance or nonacceptance of the
offers so notified to it pursuant to Section 2.2.2.3. (and the failure of the
Borrower to give such notice by such time shall constitute nonacceptance),
and the Agent shall promptly notify each affected Bank. In the case of
acceptance, such notice shall specify the aggregate principal amount of
offers for each Interest Period that are accepted. The Borrower may accept
any Bid Loan Quote in whole or in part; provided that (a) any Bid Loan Quote
accepted in part shall be at least $2,000,000 and a multiple of $1,000,000;
(b) the aggregate principal amount of each Bid Loan Borrowing may not exceed
the applicable amount set forth in the related Bid Loan Quote Request; (c)
the aggregate principal amount of each Bid Loan Borrowing shall be at least
$10,000,000 and a multiple of $1,000,000 and shall not cause the limits
specified in Section 2.2.1. to be violated; (d) acceptance of offers may be
made only in ascending order of Absolute Rates, beginning with the lowest
19
rate so offered; and (e) the Borrower may not accept any offer where the
Agent has advised the Borrower that such offer fails to comply with Section
2.2.2.2. or otherwise fails to comply with the requirements of this Agreement
(including Section 2.2.1.). If offers are made by two or more Lenders with
the same Absolute Rates for a greater aggregate principal amount than the
amount in respect of which offers are accepted for the related Interest
Period, the principal amount of Bid Loans in respect of which such offers are
accepted shall be allocated by the Borrower among such Lenders as nearly as
possible (in amounts of at least $1,000,000 and multiples of $500,000) in
proportion to the aggregate principal amount of such offers. Determinations
by the Borrower of the amounts of Bid Loans shall be conclusive in the
absence of manifest error.
2.2.2.5 Subject to the terms set forth in this Agreement, any Lender whose
offer to make any Bid Loan has been accepted shall, prior to 4:00 p.m.
(Charlotte, North Carolina time) on the date specified for the making of such
Loan, make the amount of such Loan available to the Agent at the Agent's
Account in immediately available funds, for the account of the Borrower. The
foregoing notwithstanding, any such Bid Loan may be funded by such Lender's
Designated Bidder as provided in Section 9.6.6. No Lender shall be required
to specify in its Bid Loan Quote whether such Bid Loan will be funded by such
Designated Bidder. No Lender shall be relieved of its obligation to fund a
Bid Loan and no Designated Bidder shall assume such obligation prior to the
time such Bid Loan is funded (and upon any such funding by a Designated
Bidder, prompt written notice of such funding shall be given by such
Designated Bidder to the Borrower and the Agent but failure to give such
notice shall not affect the Borrower's obligations in respect of such Loan).
The amount so received by the Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrower on such date
by depositing the same, in immediately available funds, in the Borrower
Account.
Section 2.3 Use of Proceeds The proceeds of the Loans shall be used by the
Borrower only for general corporate purposes of the Borrower and its
Subsidiaries, including the payment of commercial paper. No part of the
proceeds of the Loans shall be used directly or indirectly for the purpose,
whether immediate, incidental or ultimate, of purchasing or carrying any
Margin Stock or maintaining or extending credit to others for such purpose or
for any other purpose that otherwise violates the Margin Regulations.
Section 2.4 Interest; Interest Periods; Conversion/Continuation.
2.4.1 Interest Rate and Payment.
2.4.1.1 Each Loan shall bear interest on the unpaid principal amount
thereof, from and including the date of the making of such Loan to and
excluding the due date or the date of any repayment thereof, at the following
rates per annum: (a) for so long as and to the extent that such Loan is a
Base Rate Loan, at the Base Rate (as in effect from time to time) plus the
Applicable Margin; (b) for so long as and to the extent that such Loan is a
Euro-Dollar Rate Loan, at the Euro-Dollar Rate for each Interest Period
applicable thereto plus the Applicable Margin; and (c) if such Loan is a Bid
Loan, at the Absolute Rate quoted by the Lender making such Loan pursuant to
Section 2.2.2.2.
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2.4.1.2 Notwithstanding the foregoing provisions of this Section 2.4.1.,
while an Event of Default exists, any principal, overdue interest or other
amount payable under this Agreement and the other Loan Documents shall bear
interest at a rate per annum equal to the Post-Default Rate, without notice or
demand of any kind.
2.4.1.3 Accrued interest shall be payable in arrears (a) in the case of a
Base Rate Loan, on each Periodic Payment Date; (b) in the case of a Euro-
Dollar Rate Loan, on the last day of each Interest Period applicable thereto;
provided that if the Interest Period applicable to a Euro-Dollar Rate Loan is
longer than three months, interest also shall be payable on the last day of
the third month of such Interest Period; (c) in the case of a Bid Loan, on
the last day of the Interest Period applicable thereto; and (d) in the case
of any Loan, when the Loan shall become due (whether at maturity, by reason
of prepayment, acceleration or otherwise). The Agent shall provide a billing
to the Borrower setting forth the amount of interest payable in sufficient
time for the Borrower to make timely payments of the correct amount without
incurring any penalty or Post-Default Interest.
2.4.2 Conversion or Continuation of Revolving Loans.
2.4.2.1 Subject to this Section 2.4.2. and Sections 2.4.3. and 2.11., the
Borrower shall have the option (a) at any time, to convert all or any part of
its outstanding Base Rate Loans to Euro-Dollar Rate Loans, (b) on the last
day of the Interest Period applicable thereto, to (i) convert all or any part
of its outstanding Euro-Dollar Rate Loans to a Base Rate Loan, or (ii) to
continue all or any part of its Euro-Dollar Rate Loans as Loans of the same
Type; provided that, in the case of clause (a) or (b) (ii), there does not
exist a Default or an Event of Default at such time. If a Default or an
Event of Default shall exist upon the expiration of the Interest Period
applicable to any Euro-Dollar Rate Loan, such Loan automatically shall be
converted into a Base Rate Loan.
2.4.2.2 If the Borrower elects to convert or continue a Revolving Loan under
this Section 2.4.2., it shall deliver to the Agent (which shall promptly
notify the Lenders) a Notice of Conversion/Continuation substantially in the
form of Exhibit E-3, duly completed and executed by a Responsible Officer (a
"Notice of Continuation/Conversion") (a) not later than 1:00 p.m. (Charlotte,
North Carolina time) at least three Business Days before the proposed
conversion or continuation date, if the Borrower proposes to convert into, or
to continue, a Euro-Dollar Rate Loan, and (b) otherwise not later than 1:00
p.m. (Charlotte, North Carolina time) on the Business Day next preceding the
proposed conversion or continuation date.
2.4.2.3 In lieu of delivering a Notice of Continuation/Conversion, the
Borrower, through a Responsible Officer, may give the Agent telephonic notice
of any proposed continuation or conversion by the time a Notice of
Continuation/Conversion would be required to be delivered and containing all
information required therefor; provided, however, that such notice shall be
confirmed in writing by delivery of a Notice of Continuation/Conversion to
the Agent on or before the proposed continuation or conversion date. No
Lender Party shall incur any liability to the Borrower or any other Lender
Party in acting upon any telephonic notice that such Lender Party believes to
have been given by a Responsible Officer or for otherwise acting in good
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faith under this Section 2.4.2. and in converting or continuing any Loan (or
a part thereof) pursuant to any telephonic notice.
2.4.2.4 Any Notice of Conversion/Continuation (or telephonic notice in lieu
thereof) shall be irrevocable and the Borrower shall be bound to convert or
continue in accordance therewith. If any request for the conversion or
continuation of a Loan is not made in accordance with this Section 2.4.2., or
if no notice is so given with respect to a Euro-Dollar Rate Loan as to which
the Interest Period expires, then such Loan automatically shall be converted
into a Base Rate Loan.
2.4.3 Interest Periods and Minimum Amounts. Notwithstanding anything herein
to the contrary, (a) all Interest Periods applicable to Euro-Dollar Rate
Loans and Bid Loans shall comply with the definition of "Interest Period,"
(b) there may be no more than five different Interest Periods for all Euro-
Dollar Rate Loans and Bid Loans outstanding at the same time, and (c) Euro-
Dollar Rate Loans with the same Interest Period outstanding at any time shall
be in an aggregate amount at least equal to $5,000,000 and in an integral
multiple of $1,000,000. For purposes of the foregoing clause (a), Interest
Periods applicable to Loans of different Types shall constitute different
Interest Periods even if they are coterminous.
2.4.4 Computations. Interest on each Loan and all Fees and other amounts
payable hereunder or the other Loan Documents shall be computed on the basis
of a 360-day year or, in the case of interest on Base Rate Loans, a 365 or
366-day year and the actual number of days elapsed including the first day
but excluding the last day on which such Loan is outstanding (it being
understood and agreed that if a Loan is borrowed and repaid on the same day,
one day's interest shall be payable with respect to such Loan). Any change
in the interest rate on any Loan or other amount resulting from a change in
the rate applicable thereto (or any component thereof, including the
Applicable Margin) pursuant to the terms hereof shall become effective as of
the opening of business on the day on which such change in the applicable
rate (or component) shall become effective. Each determination of an
interest rate by the Agent pursuant to any provision of this Agreement shall
be conclusive and binding on all parties for all purposes, in the absence of
manifest error.
2.4.5 Maximum Lawful Rate of Interest. The rate of interest payable on any
Loan or other amount shall in no event exceed the maximum rate permissible
under Applicable Law. If the rate of interest payable on any Loan or other
amount is ever reduced as a result of this Section and at any time thereafter
the maximum rate permitted by Applicable Law shall exceed the rate of
interest provided for in this Agreement, then the rate provided for in this
Agreement shall be increased to the maximum rate provided by Applicable Law
for such period as is required so that the total amount of interest received
by the Lenders is that which would have been received by the Lenders but for
the operation of the first sentence of this Section 2.4.5.
Section 2.5 Notes, Etc.
2.5.1 Loans Evidenced by Notes. The Revolving Loans made by each Lender
shall be evidenced by a single Revolving Loan Note. The Bid Loans made by
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each Lender shall be evidenced by a single Bid Loan Note. Each Note shall be
dated the Closing Date and stated to mature in accordance with the provisions
of this Agreement applicable to the relevant Loans.
2.5.2 Notation of Amounts and Maturities. Etc. Each Lender is hereby
irrevocably authorized to record on the schedule attached to its Notes (or a
continuation thereof) the information contemplated by such schedule. The
failure to record, or any error in recording, any such information shall not,
however, affect the obligations of the Borrower hereunder or under any Note
to repay the principal amount of the Loans evidenced thereby, together with
all interest accrued thereon. All such notations shall constitute conclusive
evidence of the accuracy of the information so recorded, in the absence of
manifest error.
Section 2.6 Fees.
2.6.1 Facility Fee. The Borrower shall pay to the Agent, for the pro rata
benefit of the Lenders, a facility fee accruing at the rate per annum equal
to the Applicable Margin in effect from time to time upon the Revolving
Commitments of the Lenders, whether or not used, for each day from and after
the Closing Date until the Revolving Commitment Termination Date. Such Fee
shall be payable quarterly in arrears on the last day of each calendar
quarter and on the Revolving Commitment Termination Date. The Agent shall
provide a billing to the Borrower setting forth the amount of the Fee payable
in sufficient time for the Borrower to make timely payments of the correct
amount without incurring any penalty or Post-Default Interest.
2.6.2 Utilization Fee. The Borrower shall pay to the Agent, for the pro rata
benefit of the Lenders, a utilization fee accruing at the rate per annum
equal to 0.10% upon the outstanding Revolving Loans for each day from and
after the Closing Date until the Revolving Commitment Termination Date on
which the aggregate principal amount outstanding of all such Revolving Loans
exceeds 50% of the Revolving Commitments then in effect. Such Fee shall be
payable quarterly in arrears on the last day of each calendar quarter and on
the Revolving Commitment Termination Date. The Agent shall provide a billing
to the Borrower setting forth the amount of the Fee payable in sufficient
time for the Borrower to make timely payments of the correct amount without
incurring any penalty or Post-Default Interest.
2.6.3 Other Fees. On the Closing Date and from time to time thereafter as
specified in the Fee Letter, the Borrower shall pay to the Agent the fees
specified in the Fee Letter.
2.6.4 Fees Non-Refundable. All Fees shall be fully earned when payable
hereunder or under the Fee Letter and shall be non-refundable.
Section 2.7 Termination, Reduction and Extension of Revolving Commitments.
2.7.1 Each Lender's Revolving Commitment shall terminate without further
action on the part of such Lender on the earlier to occur of (a) the Maturity
Date, and (b) the date of termination of the Revolving Commitment pursuant to
Section 2.7.2. or 7.2. (such earlier date being referred to herein as the
"Revolving Commitment Termination Date").
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2.7.2 The Borrower shall have the right, at any time or from time to time
after the Closing Date, to terminate in whole or permanently reduce in part,
without premium or penalty, the Revolving Commitments of the Lenders on a pro
rata basis to an amount not less than the Revolving Commitment Usage of all
Lenders at such time by giving the Agent not less than five Business Days'
prior written notice of such termination or reduction and the amount of any
partial reduction. Any such termination or partial reduction shall be
effective on the date specified in the Borrower's notice and any such partial
reduction shall be in a minimum amount of $10,000,000 and an integral
multiple thereof.
Section 2.8 Repayments and Prepayments.
2.8.1 Repayment. The unpaid principal amount of all Revolving Loans shall be
paid in full on the Revolving Commitment Termination Date. The unpaid
principal amount of each Bid Loan shall be paid in full on the last day of
the Interest Period applicable thereto.
2.8.2 Excess Revolving Loans. If at any time the aggregate Revolving
Commitment Usage of all Lenders exceeds the aggregate amount of the Revolving
Commitments, the Borrower shall, on the Business Day on which the Borrower
learns or is notified of the excess, make mandatory prepayments of the
Revolving Loans as may be necessary so that, after such prepayment, such
excess is eliminated.
2.8.3 Optional Prepayments.
2.8.3.1 Subject to this Section 2.8.3., the Borrower may, at its option, at
any time or from time to time, prepay Revolving Loans in whole or in part,
without premium or penalty, provided that (a) any prepayment shall be in an
aggregate principal amount of at least $5,000,000 and in integral multiples
of $1,000,000 (or, alternatively, the whole amount of Revolving Loans then
outstanding) and (b) any prepayment of a Euro-Dollar Rate Loan on a day other
than the last day of the Interest Period applicable thereto shall be made
together with the amounts payable pursuant to Section 2.13. Bid Loans may
not be voluntarily prepaid at any time.
2.8.3.2 If the Borrower elects to prepay a Revolving Loan under this Section
2.8.3., it shall deliver to the Agent a notice of optional prepayment (a) not
later than 1:00 p.m. (Charlotte, North Carolina time) at least three Euro-
Dollar Business Days before the proposed prepayment, if the Borrower proposes
to prepay a Euro-Dollar Rate Loan, and (b) otherwise not later than 1:00 p.m.
(Charlotte, North Carolina time) on the proposed prepayment date. Any notice
of optional prepayment shall be irrevocable, and the payment amount specified
in such notice shall be due and payable on the date specified in such notice,
together with interest accrued thereon to such date.
2.8.4 Payments Set Aside. To the extent the Agent or any Lender receives
payment of any amount under the Loan Documents, whether by way of payment by
the Borrower, set-off or otherwise, which payment is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
to be repaid to a trustee, receiver or any other party under any bankruptcy
law, other law or equitable cause, in whole or in part, then, to the extent
24
of such payment received, the Obligations or part thereof intended to be
satisfied thereby shall be revived and continue in full force and effect,
together with all collateral security therefor.
Section 2.9 Manner of Payment.
2.9.1 Except as otherwise expressly provided, the Borrower shall make each
payment under the Loan Documents to the Agent in Dollars and in immediately
available funds, without any deduction whatsoever, including any deduction
for any setoff, recoupment, counterclaim or Taxes (other than Excluded
Taxes), at the Agent's Office, for the account of the Applicable Lending
Offices of the Lenders entitled to such payment, by depositing such payment
in the Agent's Account not later than 2:00 p.m. (Charlotte, North Carolina
time) on the due date thereof. Any payments received after 2:00 p.m.
(Charlotte, North Carolina time) on any Business Day shall be deemed received
on the next succeeding Business Day. Not later than 3:00 p.m. (Charlotte,
North Carolina time) on the day such payment is made, the Agent shall deliver
to each Lender, for the account of the Lender's Applicable Lending Office, in
Dollars and in immediately available funds, such Lender's share of the
payment so made, determined pursuant to Section 2.10. Delivery shall be made
in accordance with the written instructions satisfactory to the Agent from
time to time given to the Agent by each Lender. With respect to Borrower's
payment of fees only, Borrower may make payment therefor by check delivered
to Agent by the time set forth above.
2.9.2 Whenever any payment to be made hereunder shall be stated to be due on
a day that is not a Business Day, such payment shall instead by made on the
next succeeding Business Day.
Section 2.10 Pro Rata Treatment; Application of Payments. Except to the
extent otherwise expressly provided herein,
2.10.1 Revolving Loans shall be requested from the Lenders pro rata according
to their respective Revolving Commitments.
2.10.2 Each reduction of the Revolving Commitments of the Lenders shall be
applied to the respective Revolving Commitments of the Lenders pro rata
according to their respective Revolving Commitments before such reduction.
2.10.3 Each payment or prepayment by the Borrower of principal of the
Revolving Loans shall be made and applied for the account of the Lenders pro
rata according to the respective unpaid principal amount of the Revolving
Loans owed to the Lenders, and each payment by the Borrower of interest on
the Revolving Loans shall be made and applied for the account of the Lenders
pro rata according to the respective accrued but unpaid interest on the
Revolving Loans owed to such Lenders. Each payment by the Borrower of Fees
payable to the Lenders pursuant to Section 2.6.1. or 2.6.2. shall be made and
applied for the account of the Lenders pro rata according to the respective
amounts of their Revolving Commitments (with respect to fees payable pursuant
to Section 2.6.1.) or outstanding Revolving Loans (with respect to Section
2.6.2.).
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2.10.4 Each payment or prepayment by the Borrower of principal of Bid Loans
made as part of the same Borrowing shall be made and applied for the account
of the Lenders holding such Bid Loans pro rata according to the respective
unpaid principal amount of such Bid Loans owed to such Lenders and each
payment by the Borrower of interest on Bid Loans shall be made and applied
for the account of the Lenders holding such Bid Loans pro rata according to
the respective accrued but unpaid interest on the Bid Loans owed to such
Lenders.
2.10.5 While no Event of Default exists, all payments made by the Borrower
under the Loan Documents shall be applied to the Obligations as the Borrower
may direct. While an Event of Default exists, or if the Borrower does not
provide any such direction to the Agent, all amounts paid or received with
respect to the Obligations shall be applied in the following order: (a)
First, to costs, expenses and other amounts then otherwise due for the
account of the Agent pursuant to Section 9.1., (b) second, to costs, expenses
and other amounts then otherwise due for the account of the Lenders pursuant
to Section 9.1. and Indemnified Liabilities, pro rata according the
respective amounts payable, (c) third, to accrued interest on the Loans, pro
rata according to the respective accrued but unpaid interest on the Loans
then due to the Lenders, (d) fourth, to principal of the Loans, pro rata
according to the respective principal amounts then due to the Lenders, and
(e) to the other Obligations, if any, in the order directed by the Required
Lenders.
Section 2.11 Mandatory Suspension and Conversion of Euro-Dollar Rate Loans.
Each Lender's obligation to make, continue or convert Loans into Euro-
Dollar Rate Loans shall be suspended, all outstanding Euro-Dollar Rate Loans
shall be converted into Base Rate Loans on the last day of the respective
Interest Periods applicable thereto (or, if earlier, in the case of Section
2.11.2. below, on the last day that such Lender can lawfully continue to
maintain Euro-Dollar Rate Loans) and all pending requests for the making or
continuation of, or conversion into, Euro-Dollar Rate Loans shall be
considered requests for the making or conversion into Base Rate Loans (or, in
the case of requests for conversion, disregarded) on the same Funding Date or
the end of the currently applicable Interest Period, as applicable, if:
2.11.1 on or prior to the determination of the interest rate for a Euro-Dollar
Rate Loan for any Interest Period, the Agent determines that for any reason
appropriate quotations are not available to the Agent in the relevant
interbank market for purposes of determining the Euro-Dollar Rate or a Lender
advises the Agent (which shall thereupon notify the Borrower and the other
Lenders) that such rate would not accurately reflect the cost to such Lender
of making, continuing, or converting a Loan into, a Euro-Dollar Rate Loan for
such Interest Period; or
2.11.2 after the date hereof a Lender notifies the Agent (which shall
thereupon notify the Borrower and the other Lenders) of its determination
that any Regulatory Change makes it unlawful or impossible for such Lender or
its Euro-Dollar Lending Office to make or maintain any Euro-Dollar Rate Loan,
or to comply with its obligations hereunder in respect thereof.
Section 2.12 Regulatory Changes.
2.12.1 Increased Costs. If, on or after the date hereof, any Regulatory
Change
2.12.1.1 shall subject any Lender Party (or its Applicable Lending Office)
to any Taxes with respect to its Euro-Dollar Rate Loans or any Loan Document,
or its obligations under or with respect to any of the foregoing, or changes
the basis of taxation of payments to any Lender Party of principal, interest,
Fees or any other amount payable under the Loan Documents (except for any
Excluded Tax or any changes in the rate of any Excluded Tax); or
2.12.1.2 shall impose, modify or deem applicable any reserve, special
deposit, compulsory loan, insurance or similar requirement (other than any
such requirement with respect to any Euro-Dollar Rate Loan to the extent
included in the Euro-Dollar Reserve Requirement), against, or any fees or
charges in respect of, assets held by, deposits with or other liabilities for
the account of, commitments of, advances or Loans by or other credit extended
by, any Lender Party (or its Applicable Lending Office) or shall impose on any
Lender Party (or its Applicable Lending Office) or on the relevant interbank
market any other condition affecting any Euro-Dollar Rate Loan, or any
obligation to make Euro-Dollar Rate Loans,
and the effect of the foregoing is (a) to increase the cost to such Lender
Party (or its Applicable Lending Office) of making, issuing, renewing or
maintaining any Euro-Dollar Rate Loan or its Revolving Commitment in respect
thereof or (b) to reduce the amount of any sum received or receivable by such
Lender Party (or its Applicable Lending Office) hereunder or under any other
Loan Document with respect thereto, then, the Borrower shall from time to
time pay to such Lender Party, within 15 days after request by such Lender
Party, such additional amounts as are necessary in such Lender Party's
reasonable determination to compensate such Lender Party for such increased
cost or reduction; provided, however, that if the Euro-Dollar Lending Office
of any affected Lender is other than the affected Lender's main office,
before giving such notice, such affected Lender agrees to use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Euro-Dollar Lending Dollar Office if
such designation will avoid the need for giving such notice and will not be
otherwise disadvantageous to such Lender.
2.12.2 Capital Costs. If a Regulatory Change after the date hereof regarding
capital adequacy (including the adoption or becoming effective of any treaty,
law, rule, regulation or guideline adopted pursuant to or arising out of the
July 1988 report of the Basle Committee on Banking Regulations and
Supervisory Practices entitled "International Convergence of Capital
Measurement and Capital Standards") has or would have the effect of reducing
the rate of return on the capital of or maintained by any Lender Party or any
company controlling such Lender Party as a consequence of such Lender Party's
Loans or obligations hereunder and other commitments of this type to a level
below that which such Lender Party or company could have achieved but for
such Regulatory Change (taking into account such Lender Party's or company's
policies with respect to capital adequacy), then, the Borrower shall from
time to time pay to such Lender Party, within 15 days after request by such
27
Lender Party, such additional amounts as are necessary in such Lender Party's
reasonable determination to compensate such Lender Party or company for such
reduction in return, to the extent such Lender Party or company determines
such reduction to be attributable to the existence of obligations for the
account of the Borrower.
Section 2.13 Compensation for Funding Losses. The Borrower shall pay to any
Lender, upon demand by such Lender, such amount or amounts as such Lender
reasonably determines is or are necessary to compensate it for any loss, cost,
expense or liabilities incurred (including any loss, cost, expense or
liability incurred by reason of the liquidation or redeployment of deposits
but excluding loss of future margin) by it as a result of (a) any payment,
prepayment or conversion of any Euro-Dollar Rate Loan for any reason
(including by reason of a prepayment pursuant to Section 2.8.2. or an
acceleration pursuant to Section 7.2.) on a date other than the
last day of an Interest Period applicable to such Euro-Dollar Rate Loan, or
(b) any Euro-Dollar Rate Loan for any reason not being made (other than a
wrongful failure to fund by such Lender), converted or continued, or any
payment of principal of or interest thereon not being made, on the date
therefor determined in accordance with the applicable provisions of this
Agreement. Notwithstanding the foregoing, the Borrower shall not be
responsible to any Lender for any costs hereunder that result from the
application of Section 2.11. or from any wrongful actions or omissions or
default (including under Section 8.9.2) of such Lender.
Section 2.14 Certificates Regarding Yield Protection, Etc. Any request by any
Lender Party for payment of additional amounts pursuant to Sections 2.12. and
2.13. shall be accompanied by a certificate of such Lender Party setting forth
the basis and amount of such request. In determining the amount of such
payment, such Lender Party may use such reasonable attribution or averaging
methods as it deems appropriate and practical.
Section 2.15 Applicable Lending Office; Discretion of Lenders as to Manner of
Funding. Each Lender may make, carry or transfer Euro-Dollar Rate Loans at,
to, or for the account of an Affiliate of the Lender, provided that such
Lender shall not be entitled to receive any greater amount under Section 2.12.
as a result of the transfer of any such Loan than such Lender would be
entitled to immediately prior thereto unless (a) such transfer occurred at a
time when circumstances giving rise to the claim for such greater amount did
not exist or (b) such claim would have arisen even if such transfer had not
occurred. Notwithstanding any other provision of this Agreement, each Lender
shall be entitled to fund and maintain its funding of all or any part of its
Euro-Dollar Rate Loans in any manner it sees fit, it being understood,
however, that for purposes of this Agreement all determinations hereunder
shall be made as if each Lender had actually funded and maintained each Euro-
Dollar Rate Loan through the purchase of deposits in the relevant interbank
market having a maturity corresponding to such Loan's Interest Period and
bearing interest at the applicable rate.
ARTICLE 3
CONDITIONS TO LOANS
Section 3.1 Closing Conditions. The occurrence of the Closing Date shall be
subject to satisfaction of the following conditions:
28
3.1.1 Closing Date. The Closing Date shall occur on or before October 15,
1999.
3.1.2 Certain Documents. The Agent shall have received the documents listed
on Schedule 3.1.2., all of which shall be in form and substance satisfactory
to the Agent.
3.1.3 Fees, Expenses and Interest Paid. The Borrower shall have paid all
Fees and expenses relating to this Agreement for which the Borrower shall
have been billed on or before the Closing Date, including without limitation
all accrued and unpaid interest, fees and expenses under the Original Credit
Agreement through the Closing Date.
3.1.4. Termination of NCI Credit Agreement. The Agent shall have
received evidence satisfactory to it that all commitments under the NCI
Credit Agreement have been irrevocably terminated and that all amounts
outstanding thereunder and all accrued and unpaid interest, fees and expenses
shall have been paid in full and that all other Obligations (as defined in
the NCI Credit Agreement) have been satisfied.
3.1.5. General. All other documents and legal matters in connection
with the transactions contemplated by this Agreement shall have been
delivered or executed or recorded in form and substance satisfactory to the
Agent and the Agent shall have received all such counterpart originals or
certified copies thereof as the Agent may reasonably request.
Section 3.2 Conditions Precedent to Loans. The obligation of the Lenders to
make any Loan on any Funding Date shall be subject to the following conditions
precedent:
3.2.1 Closing Date. The conditions precedent set forth in Section 3.1. shall
have been satisfied or waived in writing by the Agent.
3.2.2 Notice of Borrowing. The Borrower shall have delivered to the Agent,
after the time the conditions set forth in Section 3.1. shall have been
satisfied or waived and otherwise in accordance with the applicable
provisions of this Agreement, a Notice of Borrowing (or telephonic notice in
lieu thereof), in the case of a Revolving Loan, or notification of acceptance
of a related Bid Loan Quote (in the case of a Bid Loan).
3.2.3 Representations and Warranties. All of the representations and
warranties of the Borrower contained in the Loan Documents shall be true and
correct in all material respects on and as of the Funding Date as though made
on and as of that date.
3.2.4 No Default. No Default or Event of Default shall exist or result from
the making of the Loan.
3.2.5 Satisfaction of Conditions. Each borrowing of a Loan shall constitute
a representation and warranty by the Borrower as of the Funding Date that the
conditions contained in Sections 3.2.3. and 3.2.4. have been satisfied.
29
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Lender Parties as follows:
Section 4.1 Organization, Powers and Good Standing. Each of the Borrower and,
except as would not reasonably be expected to have a Material Adverse Effect,
its Subsidiaries (a) is duly organized as a corporation, and validly existing
and in good standing under the laws of its jurisdiction of organization, as
shown on Schedule 4.1., and (b) has all requisite corporate power and
authority and the legal right to own and operate its properties, to carry on
its business as heretofore conducted, to enter into the Loan Documents to
which it is a party and to carry out the transactions contemplated thereby.
Except as would not reasonably be expected to have a Material Adverse Effect,
each of the Borrower and the Subsidiaries possesses all Governmental
Approvals, in full force and effect, free from burdensome restrictions, that
are necessary for the ownership, maintenance and operation of its properties
and conduct of its business as now conducted, and is not in violation thereof.
Each of the Borrower and the Subsidiaries is duly qualified and in good
standing authorized to do business in each state or other jurisdiction where
the nature of its business activities conducted or properties owned or leased
requires it to be so qualified and where any failure to be so qualified,
individually or in the aggregate, could have a Material Adverse Effect.
Section 4.2 Authorization, Binding Effect, No Conflict, Etc.
4.2.1 Authorization, Binding Effect, Etc. The execution, delivery and
performance by the Borrower of each Loan Document have been duly authorized
by all necessary corporate action on the part of the Borrower; and each such
Loan Document has been duly executed and delivered by the Borrower and is the
legal, valid and binding obligation of the Borrower, enforceable against it
in accordance with its terms, except as enforcement may be limited by
equitable principles and by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to creditors' rights generally.
4.2.2 No Conflict. The execution, delivery and performance by the Borrower
of each Loan Document, and the consummation of the transactions contemplated
thereby, do not and will not (a) violate any provision of the charter or
other organizational documents of the Borrower, (b) except for consents that
have been obtained and are in full force and effect, conflict with, result in
a breach of, or constitute (or, with the giving of notice or lapse of time or
both, would constitute) a default under, or require the approval or consent
of any Person pursuant to, any Contractual Obligation of the Borrower
(including the Investment Agreement), (c) violate any Applicable Law binding
on the Borrower, or (d) result in or require the creation or imposition of
any Lien on any assets or properties of the Borrower or any of its
Subsidiaries.
4.2.3 Governmental Approvals. No Governmental Approval is or will be
required in connection with the execution, delivery and performance by the
Borrower of any Loan Document or the transactions contemplated thereby.
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Section 4.3 Financial Information.
4.3.1 The balance sheets of the Borrower as of January 31, 1997 and January
31, 1996 and the statements of earnings, stockholder's equity and cash flow
of the Borrower for the Fiscal Years then ended, certified by the Borrower's
independent certified public accountants, which are included in the
Borrower's Annual Report on Form 10-K for the Fiscal Year ended January 31,
1997, were prepared in accordance with GAAP consistently applied and fairly
present the financial position of the Borrower, as of the respective dates
thereof and the results of operations and cash flow of the Borrower for the
periods then ended. The Borrower on such dates had no Contingent
Obligations, liabilities for Taxes or long-term leases, forward or long-term
commitments or unrealized losses from any unfavorable commitments that are
not reflected in the foregoing statements or in the notes thereto and that,
individually or in the aggregate, are material.
4.3.2 The unaudited balance sheet of the Borrower as of April 30, 1997 and
the related statements of earnings, stockholder's equity and cash flow for
the periods then ended, certified by the Chief Financial Officer of the
Borrower, which are included in the Borrower's Quarterly Report on Form 10-Q
for the Fiscal Quarter ended April 30, 1997, were prepared in accordance with
GAAP consistently applied (except to the extent noted therein) and fairly
present the financial position of the Borrower as of such date and the
results of operations and cash flow for the periods covered thereby, subject
to normal year-end audit adjustments. The Borrower on such date had no
Contingent Obligations, liabilities for Taxes or long-term leases, forward or
long-term commitments or unrealized losses from any unfavorable commitments
that are not reflected in the foregoing statements or in the notes thereto
and that, individually or in the aggregate, are material.
Section 4.4 No Material Adverse Changes. Since January 31, 1997, there has
been no Material Adverse Change.
Section 4.5 Litigation. Except as disclosed in Schedule 4.5., there are no
actions, suits or proceedings pending or, to the best knowledge of the
Borrower, threatened against or affecting the Borrower, any Subsidiary or any
of its properties before any Governmental Authority (a) in which there is a
reasonable possibility of an adverse determination that could result in a
material liability or have a Material Adverse Effect or (b) that in any manner
draws into question the validity, legality or enforceability of any Loan
Document or any transaction contemplated thereby.
Section 4.6 Agreements; Applicable Law. Neither the Borrower nor any
Subsidiary is in violation of any Applicable Law, or in default under its
charter documents, bylaws or any of its Contractual Obligations except for
such violations or defaults as do not result in a Material Adverse Effect.
Section 4.7 Taxes. All United States Federal income tax returns and all other
material tax returns required to be filed by the Borrower or any Subsidiary
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have been filed and all Taxes due pursuant to such returns have been paid,
except such Taxes, if any, as are being contested in good faith and as to
which adequate reserves have been established in accordance with GAAP. To the
best knowledge of the Borrower, there has not been asserted or proposed to be
asserted any Tax deficiency against the Borrower or any Subsidiary that would
be material to the Borrower and its Subsidiaries taken as a whole and that is
not reserved against on the financial books of the Borrower.
Section 4.8 Governmental Regulation. The Borrower is neither an "investment
company" registered or required to be registered under the Investment Company
Act of 1940, as amended, or a company controlled by such a company, nor
subject to any Federal or state, statute or regulation limiting its ability to
incur Debt for money borrowed (other than the Margin Regulations).
Section 4.9 Margin Regulations. Neither the Borrower nor any Subsidiary is
engaged principally, or as one of its important activities, in the business of
extending credit for the purposes of purchasing or carrying Margin Stock. The
value of all Margin Stock held by the Borrower and the Subsidiaries
constitutes less than 25% of the value, as determined in accordance with the
Margin Regulations, of all assets of the Borrower.
Section 4.10 Employee Benefit Plans. The Borrower and all members of the
Controlled Group have fulfilled their obligations under the minimum funding
standards of ERISA with respect to each Plan to which they are party and have
not incurred any liability to the PBGC in connection with any Plan established
or maintained by Borrower or any member of the Controlled Group.
No ERISA Event has occurred and is continuing with respect to any Plan
(whether or not terminated). Neither Borrower nor any member of the
Controlled Group is required to make or accrue a contribution or has within
any of the preceding five plan years made or accrued an obligation to make
contributions to any Multiemployer Plan. The fair market value of the assets
of each Plan is at least equal to the present value of the "benefit
liabilities" (within the meaning of Section 4001(a)(16) of ERISA) under such
Plan determined using the actuarial assumptions and method used by the
actuary to such Plan in its valuation of such Plan.
Section 4.11 Disclosure. All information in any document, certificate or
written statement (other than information referred to in Section 4.3.)
furnished to the Lender Parties by or on behalf of the Borrower with respect
to the business, assets, prospects, results of operation or financial
condition of the Borrower or any Subsidiary for use in connection with the
transactions contemplated by this Agreement has been true and correct in all
material respects. There is no fact known to the Borrower (other than matters
of a general economic nature) that has had or could reasonably be expected to
have a Material Adverse Effect and that has not been disclosed herein or in
such other documents, certificates or statements.
Section 4.12 Solvency
. The Borrower is, individually and together with its Subsidiaries, Solvent.
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ARTICLE 5
AFFIRMATIVE COVENANTS OF THE BORROWER
So long as any portion of the Revolving Commitments shall be in effect and
until all Obligations are paid and performed in full:
Section 5.1 Financial Statements and Other Reports. The Borrower shall
deliver to the Agent (which shall promptly provide copies to each Lender), for
the benefit of the Lenders:
5.1.1 as soon as practicable and in any event within 120 days after the end
of each Fiscal Year, the consolidated balance sheet of the Borrower and its
consolidated Subsidiaries as of the end of such year and the related
statements of earnings, stockholder's equity and cash flow of the Borrower
for such Fiscal Year, setting forth in each case in comparative form the
figures for the previous Fiscal Year, all in reasonable detail and,
accompanied by an unqualified report thereon of Deloitte & Touche LLP or
other independent certified public accountants of recognized national
standing selected by the Borrower and reasonably satisfactory to the Required
Lenders, which report shall state that such financial statements fairly
present the financial position of the Borrower as of the date indicated and
its results of operations and cash flows for the periods indicated in
conformity with GAAP (except as otherwise stated therein) and that the
examination by such accountants in connection with such financial statements
has been made in accordance with generally accepted auditing standards;
5.1.2 as soon as practicable and in any event within 60 days after the end of
each Fiscal Quarter (other than the last Fiscal Quarter of any Fiscal Year) a
consolidated balance sheet of the Borrower and its consolidated Subsidiaries
as of the end of such quarter and the related statements of earnings,
stockholder's equity and cash flow for such quarter and the portion of the
Fiscal Year ended at the end of such quarter, setting forth in each case in
comparative form the figures for the corresponding periods of the prior
Fiscal Year, all in reasonable detail and certified by the Borrower's Chief
Financial Officer as fairly presenting the financial condition of the
Borrower as of the dates indicated and its results of operations and cash
flows for the periods indicated, subject to normal year-end adjustments;
5.1.3 together with each delivery of financial statements pursuant to
Sections 5.1.1. and 5.1.2., a certificate of the Chief Financial Officer or a
President of the Borrower substantially in the form of Exhibit F-6 (a
"Compliance Certificate"), duly completed, setting forth the calculations
required to establish compliance with Section 6.3., on the date of such
financial statements;
5.1.4 within five Business Days after the Borrower becomes aware of the
occurrence of any Default or Event of Default, a certificate of a Senior
Officer of the Borrower setting forth the details thereof and the action that
the Borrower is taking or proposes to take with respect thereto;
5.1.5 promptly upon their becoming available, copies of all material reports,
notices and proxy statements sent or made available by the Borrower to its
security holders, and all material registration statements (other than the
33
exhibits thereto) and annual, quarterly or monthly reports, if any, filed by
the Borrower with the SEC;
5.1.6 within five Business Days after Borrower becomes aware of the
occurrence of an ERISA Event, a statement of a Senior Officer of the Borrower
setting forth the details thereof and the action that the Borrower is taking
or proposes to take with respect thereto, together with a copy of the notice,
if any, of such event given or required to be given to the PBGC; within five
days of the date the Borrower or any member of the Controlled Group becomes
obliged to make or accrue a contribution to a Multiemployer Plan, a statement
of a Senior Officer of the Borrower setting forth the details thereof and the
action that the Borrower is taking or proposes to take with respect thereto;
5.1.7 within five Business Days after the Borrower obtains knowledge thereof,
notice of all litigation or proceedings commenced or threatened affecting the
Borrower or any Subsidiary (a) that would reasonably be expected to have a
Material Adverse Effect or (b) that questions the validity or enforceability
of any Loan Document;
5.1.8 promptly notify the Agent of any move of its principal executive office
from the State of Washington; and
5.1.9 from time to time such additional information regarding the Borrower
and its Subsidiaries or the business, assets, liabilities, prospects, results
of operation or financial condition of any such Person as the Agent, on
behalf of any Lender Party, may reasonably request.
Section 5.2 Records and Inspection. The Borrower shall, and shall cause each
Subsidiary to, maintain adequate books, records and accounts as may be
required or necessary to permit the preparation of financial statements
required to be delivered hereunder in accordance with sound business practices
and GAAP. The Borrower shall, and shall cause each Subsidiary to, permit such
Persons as the Agent may designate, at reasonable times during the Borrower's
regular office hours as often as may reasonably be requested and under
reasonable circumstances, to (a) visit and inspect any of its properties, (b)
inspect and copy its books and records, and (c) discuss with its officers and
its independent accountants, its business, assets, liabilities, results of
operation or financial condition.
Section 5.3 Corporate Existence, Etc. The Borrower shall, and shall (except
as otherwise permitted under Section 6.4) cause each Subsidiary to, at all
times preserve and keep in full force and effect its corporate existence and
all rights and franchises material to the Borrower and its Subsidiaries taken
as a whole.
Section 5.4 Payment of Taxes and Claims. The Borrower shall, and shall cause
each Subsidiary to, pay and discharge (a) all Taxes imposed upon it or any of
its properties or in respect of any of its franchises, business, income or
property before any material penalty shall be incurred with respect to such
Taxes, and (b) all claims of any kind (including claims for labor, material
and supplies) that, if unpaid, might by Applicable Law become a Lien upon any
material portion of the property of the Borrower and its Subsidiaries;
34
provided, however, that, unless and until foreclosure, distraint, levy, sale
or similar proceedings shall have commenced, the Borrower need not pay or
discharge any such Tax or claim so long as the validity or amount thereof is
being contested in good faith and by appropriate proceedings and so long as
any reserves or other appropriate provisions as may be required by GAAP shall
have been made therefor.
Section 5.5 Maintenance of Properties. The Borrower shall, and shall cause
each Subsidiary to, maintain or cause to be maintained in good repair, working
order and condition (ordinary wear and tear excepted), all properties and
other assets useful or necessary to its business, and from time to time the
Borrower shall make or cause to be made all appropriate repairs, renewals and
replacements thereto except, in each case, to the extent the failure to do so
could not reasonably be expected to have a Material Adverse Effect. The
Borrower shall, and shall cause each of its Subsidiaries to, use reasonable
efforts to prevent offsets of and defenses to its receivables and other rights
to payment.
Section 5.6 Maintenance of Insurance. The Borrower shall, and shall cause
each Subsidiary to, maintain with financially sound and reputable insurance
companies insurance (or adequate self insurance) in at least such amounts, of
such character and against at least such risks as is usually maintained by
companies of established repute engaged in the same or a similar business in
the same general area.
Section 5.7 Conduct of Business; Compliance with Law. The Borrower shall not
change the general character of its business as conducted at the Original
Closing Date or engage, directly or through a Subsidiary, in any type of
business not reasonably related to its business as normally conducted. The
Borrower shall maintain its right to carry on business in any jurisdiction
where it is doing business at such time and remain in and continuously operate
the same lines of business presently engaged in except for periodic shutdown
in the ordinary course of business and interruptions caused by strike, labor
dispute, catastrophe or any other events over which it has no control. The
Borrower shall, and shall cause each of its Subsidiaries to, conduct its
business in compliance in all material respects with all Applicable Law and
all its Contractual Obligations except where failure to do so does not result
in a Material Adverse Effect.
Section 5.8 Further Assurances. At any time and from time to time, upon the
request of the Agent, the Borrower shall execute and deliver such further
documents and do such other acts and things as the Agent may reasonably
request in order to effect fully the purposes of the Loan Documents and any
other agreement contemplated thereby and to provide for payment and
performance of the Obligations in accordance with the terms of the Loan
Documents.
Section 5.9 Future Information. All data, certificates, reports, statements,
documents and other information the Borrower shall furnish to the Lender
Parties in connection with the Loan Documents shall, at the time the
information is furnished, not contain any untrue statement of a material fact,
shall be complete and correct in all material respects to the extent necessary
to give the Lender Parties sufficient and accurate knowledge of the subject
matter thereof, and shall not omit to state a material fact necessary in order
to make the statements contained therein not misleading in light of the
circumstances under which such information is furnished.
35
Section 5.10 Subordination of Intercompany Debt. The Borrower shall cause all
Debt of the Borrower to any of its Affiliates to be subordinated to the prior
payment in full in cash of the Obligations on terms of subordination no less
favorable to the Lender Parties than the terms of subordination set forth in
the Investment Agreement as in effect on the Original Closing Date.
ARTICLE 6
NEGATIVE COVENANTS OF THE BORROWER
So long as any portion of the Revolving Commitments shall be in effect and
until all Obligations are paid and performed in full:
Section 6.1 Liens. The Borrower shall not, and shall not permit any
Subsidiary to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any asset of the Borrower or any
Subsidiary, whether now owned or hereafter acquired, except:
6.1.1 Liens securing the Obligations and Existing Liens;
6.1.2 (a) Liens for Taxes, assessments or charges of any Governmental
Authority for claims that are not material and are not yet due or are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance with GAAP; (b) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmen, bankers and other Liens imposed by law
and created in the ordinary course of business for amounts that are not
material and are not yet due or being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP; (c) Liens incurred
and deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security benefits or to secure the performance (including by way of surety
bonds or appeal bonds) of tenders, bids, leases, contracts, statutory
obligations or similar obligations or arising as a result of progress
payments under contracts, in each case in the ordinary course of business and
not relating to the repayment of Debt; (d) easements, rights-of-way,
covenants, consents, reservations, encroachments, variations and other
restrictions, charges or encumbrances (whether or not recorded) that do not
materially interfere with the ordinary conduct of the Borrower's business;
(e) building restrictions, zoning laws and other statutes, laws, rules,
regulations, ordinances and restrictions; and (f) leases, subleases or
easements granted in the ordinary course of business to others not materially
interfering with the business of, and consistent with past practices of, the
Borrower;
6.1.3 any attachment or judgment Lien, not otherwise constituting an Event of
Default, in existence less than 30 days after the entry thereof or with
respect to which (a) execution has been stayed, (b) payment is covered in
full by insurance, or (c) the Borrower is in good faith prosecuting an appeal
or other appropriate proceedings for review and has set aside on its books
such reserves as may be required by GAAP with respect to such judgment or
award;
36
6.1.4 Liens securing Debt of the Borrower or any Subsidiary, including
Capitalized Leases, used to finance the acquisition of fixed assets of the
Borrower or such Subsidiary, the construction of additional buildings or the
expansion otherwise of their respective facilities, provided that such Debt
(a) does not exceed the cost to the Borrower or such Subsidiary of the assets
acquired with the proceeds of such Debt, (b) in the case of new construction
or expansion of existing facilities, is either a construction or permanent
loan secured by the facilities constructed and the real property on which
such facilities are located, and (c) in the case of other asset financing, is
incurred within twelve months following the date of the acquisition, provided
that any such Lien does not encumber any property other than the assets
acquired with the proceeds of such Debt;
6.1.5 Liens existing on assets of any Person at the time such assets are
acquired, provided such Lien does not encumber any assets other than the
assets subject to such Lien at the time such assets are acquired;
6.1.6 Liens arising from the securitization of receivables, to the extent the
Debt arising from such securitization is permitted hereunder;
6.1.7 any Lien constituting a renewal, extension or replacement of any
Existing Lien or any Lien permitted by Section 6.1.4 or 6.1.5., provided such
Lien is limited to all or a part of the property subject to the Lien
extended, renewed or replaced; and
6.1.8 other Liens incidental to the conduct of the business or the ownership
of the assets of the Borrower or any Subsidiary that (a) were not incurred in
connection with borrowed money, (b) do not in the aggregate materially
detract from the value of the assets subject thereto or materially impair the
use thereof in the operation of such business and (c) do not secure
obligations aggregating in excess of $10,000,000.
Section 6.2 Restricted Payments. The Borrower shall not, and shall not permit
any Subsidiary to, declare, pay or make, or agree to declare, pay or make, any
Restricted Payment, except (a) dividends, distributions or payments by any
Subsidiary to the Borrower, or (b) if no Default or Event of Default then
exists or would result therefrom (assuming for this purpose that compliance
with Section 6.3. is being measured as of the end of the immediately preceding
Fiscal Quarter giving pro forma effect to the Restricted Payment).
Section 6.3 Financial Covenants.
6.3.1 Coverage Ratio. The Borrower shall not permit the ratio as of the last
day of any period of four consecutive Fiscal Quarters of EBITDAR for such
period to the sum of interest expense (including capitalized interest) and
rent expense for such period to be less than 2.00 to 1.00.
6.3.2 Minimum Net Worth. Not permit the consolidated Net Worth of the
Borrower and its Subsidiaries as of the last day of any Fiscal Quarter, to be
less than $750,000,000.
37
Section 6.4 Restriction on Fundamental Changes. The Borrower shall not, and
shall not permit any Subsidiary to, enter into any merger, consolidation,
reorganization or recapitalization, liquidate, wind up or dissolve or sell,
lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, all or substantially all of its or their business or assets,
whether now owned or hereafter acquired, provided that as long as no Default
or Event of Default shall exist after giving effect thereto (a) any Solvent
Subsidiary or other Solvent Person (other than the Borrower) may be merged or
consolidated with or into the Borrower (so long as the Borrower is the
surviving entity) or any Subsidiary, (b) any Subsidiary may be liquidated,
wound up or dissolved, and (c) in addition to transactions permitted under
Section 6.5 (which permitted transactions shall not be restricted by this
Section 6.4), all or substantially all of any Subsidiary's business or assets
may be sold, leased, transferred or otherwise disposed of, in one transaction
or a series of transactions, to the Borrower or another Subsidiary.
Section 6.5 Asset Dispositions. The Borrower shall not, and shall not (except
as permitted by Section 6.4(c)) permit any Subsidiary to, sell, lease or
otherwise dispose of during any Fiscal Year property or other assets (other
than sales of inventory in the ordinary course of business) constituting, in
the aggregate, 10% or more of the Borrower's and its Subsidiaries' assets,
taken as a whole, in terms of book value. Notwithstanding the foregoing
limitation, the Borrower and its Subsidiaries shall be permitted to sell their
receivables in a transaction to securitize such receivables.
Section 6.6 Transactions with Affiliates. The Borrower shall not, and shall
not permit any Subsidiary to, directly or indirectly, enter into any
transaction (including the purchase, sale, lease, or exchange of any property
or the rendering of any service) with any Affiliate of the Borrower, unless
(a) such transaction is not otherwise prohibited by this Agreement, (b) such
transaction is in the ordinary course of business and (c) if such transaction
is other than with a Wholly-Owned Subsidiary, such transaction is on fair and
reasonable terms no less favorable to the Borrower or its Subsidiary, as the
case may be, than those terms which might be obtained at the time in a
comparable arm's length transaction with a Person who is not an Affiliate or,
if such transaction is not one which by its nature could be obtained from such
other Person, is on fair and reasonable terms and was negotiated in good
faith, provided that this Section shall not restrict (i) dividends,
distributions and other payments and transfers on account of any shares of
capital stock of the Borrower or any Subsidiary otherwise permissible
hereunder, and (ii) transactions pursuant to (x) the Investment Agreement and
(y) any agreement between the Borrower and any Affiliate of the Borrower
pursuant to which the Borrower sells or discounts accounts receivable in the
ordinary course of its business (including agreements under which the Borrower
has an obligation to repurchase from or indemnify the purchaser with respect
to accounts discounted or sold by the Borrower) and (iii) supply, service or
licensing agreements between or among Xxxxxxxxx.xxx LLC, a Delaware limited
liability company, and its successors on the one hand, and the Borrower and
its other Subsidiaries, on the other hand, so long as such agreements are fair
and reasonable to the Borrower and such other Subsidiaries under the
circumstances.
38
ARTICLE 7
EVENTS OF DEFAULT, ETC.
Section 7.1 Events of Default. The occurrence of any one or more of the
following events, acts or occurrences shall constitute an event of default
(each an "Event of Default"):
7.1.1 Failure to Make Payments. The Borrower (a) shall fail to pay as and
when due (whether at stated maturity, upon acceleration, upon required
prepayment or otherwise) any principal of any Loan, or (b) shall fail to pay
any interest, Fees or other amounts (other than principal) payable under the
Loan Documents within five days of the date when due under the Loan
Documents; or
7.1.2 Default in Other Debt. (a) The Borrower or any Subsidiary shall
default in the payment (whether at stated maturity, upon acceleration, upon
required prepayment or otherwise), beyond any period of grace provided
therefor, of any principal of or interest on any other Debt with a principal
amount (individually or in the aggregate) in excess of $10,000,000, or (b)
any other breach or default (or other event or condition), beyond any period
of grace provided therefor, shall occur under any agreement, indenture or
instrument relating to any such other Debt with a principal amount
(individually or in the aggregate) in excess of $10,000,000, if the effect of
such breach or default (or such other event or condition) is to cause, or to
permit the holder or holders of the other Debt (or a Person on behalf of such
holder or holders) to cause (upon the giving of notice or otherwise), such
other Debt to become or be declared due and payable, or required to be
prepaid, redeemed, purchased or defeased (or an offer of prepayment,
redemption, purchase or defeasance be made), prior to its stated maturity
(other than by a scheduled mandatory prepayment); provided, however, that if
any such breach or default described in this Section 7.1.2. is cured or
waived prior to any action being taken pursuant to Section 7.2.1 or 7.2.2.,
the Event of Default under this Agreement in respect of such breach or
default shall be deemed cured to the extent of such cure or waiver; or
7.1.3 Breach of Certain Covenants. The Borrower shall fail to perform,
comply with or observe any agreement, covenant or obligation under Article 6
or under Section 5.1.4. or 5.3. (insofar as it requires the preservation of
the corporate existence of the Borrower); or
7.1.4 Other Defaults Under Loan Documents. The Borrower shall fail to
perform, comply with or observe any agreement, covenant or obligation under
any provision of any Loan Document (other than those provisions referred to
in Sections 7.1.1., 7.1.2. and 7.1.3.) and such failure shall not have been
remedied within 30 days after written notice thereof by the Agent, at the
request of the Required Lenders, to the Borrower; or
7.1.5 Breach of Warranty. Any representation or warranty or certification
made or furnished by the Borrower under any Loan Document shall prove to have
been false or incorrect in any material respect when made (or deemed made);
or
7.1.6 Involuntary Bankruptcy; Appointment of Receiver, Etc. There shall be
commenced against the Borrower or any of its Subsidiaries, an involuntary
case seeking the liquidation or reorganization of the Borrower or any of its
39
Subsidiaries under Chapter 7 or Chapter 11, respectively, of the Bankruptcy
Code or any similar proceeding under any other Applicable Law or an
involuntary case or proceeding seeking the appointment of a receiver,
liquidator, sequestrator, custodian, trustee or other officer having similar
powers of the Borrower or any of its Subsidiaries or to take possession of
all or a substantial portion of its property or to operate all or a
substantial portion of its business, and any of the following events occur:
(a) the Borrower or any of its Subsidiaries consents to the institution of
the involuntary case or proceeding; (b) the petition commencing the
involuntary case or proceeding is not timely controverted; (c) the petition
commencing the involuntary case or proceeding remains undismissed and
unstayed for a period of 60 days; or (d) an order for relief shall have been
issued or entered therein; or
7.1.7 Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower or
any of its Subsidiaries shall institute a voluntary case seeking liquidation
or reorganization under Chapter 7 or Chapter 11, respectively, of the
Bankruptcy Code or any similar proceeding under any other Applicable Law, or
shall consent thereto; or shall consent to the conversion of an involuntary
case to a voluntary case; or shall file a petition, answer a complaint or
otherwise institute any proceeding seeking, or shall consent to or acquiesce
in the appointment of, a receiver, liquidator, sequestrator, custodian,
trustee or other officer with similar powers of it or to take possession of
all or a substantial portion of its property or to operate all or a
substantial portion of its business; or shall make a general assignment for
the benefit of creditors; or shall generally not pay its debts as they become
due; or the Board of Directors of the Borrower or any of its Subsidiaries (or
any committee thereof) adopts any resolution or otherwise authorizes action
to approve any of the foregoing; or
7.1.8 Judgments and Attachments. The Borrower or any Subsidiary shall suffer
any money judgments, writs or warrants of attachment or similar processes
that, individually or in the aggregate, involve an amount or value in excess
of $10,000,000 and such judgments, writs, warrants or other orders shall
continue unsatisfied and unstayed for a period of 60 days; or
7.1.9 ERISA. The Borrower or any member of the Controlled Group shall fail
to pay when due any material amount or amounts that it shall have become
liable to pay to the PBGC or to a Plan under Title IV of ERISA; or a
proceeding shall be instituted by a fiduciary of any such Plan or Plans
against the Borrower or any member of the Controlled Group to enforce Section
515 of ERISA; or any ERISA Event shall occur which could reasonably be
expected to have a Material Adverse Effect; or the Borrower or any member of
the Controlled Group shall partially or completely withdraw from any
Multiemployer Plan; or any Multiemployer Plan to which Borrower or any member
of its Controlled Group becomes obliged to make or accrue a contribution is
placed in reorganization or terminates; or
7.1.10 Change of Control. A Change of Control shall occur; or
7.1.11 Termination of Loan Documents, Etc. Any Loan Document, or any material
provision thereof, shall cease to be in full force and effect for any reason;
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or the Borrower shall contest or purport to repudiate or disavow any of its
obligations under or the validity of enforceability of any Loan Document or
any material provision thereof.
Section 7.2 Remedies. Upon the occurrence of an Event of Default:
7.2.1 If an Event of Default occurs under Section 7.1.6. or 7.1.7., then the
Revolving Commitments shall automatically and immediately terminate, and the
obligation of the Lenders to make any Loan hereunder shall cease, and the
unpaid principal amount of the Loans and all other Obligations shall
automatically become immediately due and payable, without presentment,
demand, protest, notice or other requirements of any kind, all of which are
hereby expressly waived by the Borrower.
7.2.5 If an Event of Default occurs, other than under Section 7.1.6. or
7.1.7., the Agent shall (a) upon written request of the Required Lenders, by
written notice to the Borrower, declare that the Revolving Commitments and
all pending Bid Loan Quotes (whether or not accepted) are terminated,
whereupon the obligation of the Lender Parties to make any Loan hereunder
shall cease, and/or (b) upon written request of the Required Lenders, declare
the unpaid principal amount of the Loans and all other Obligations to be, and
the same shall thereupon become, due and payable, without presentment,
demand, protest, any additional notice or other requirements of any kind, all
of which are hereby expressly waived by the Borrower.
ARTICLE 8
THE AGENT AND THE LENDERS
Section 8.1.1 Authorization and Action.
8.1.1 Each Lender hereby irrevocably appoints and authorizes the Agent Bank
to act as its agent hereunder and under the other Loan Documents, to execute
and deliver or accept, on its behalf, the other Loan Documents and any other
documents, instruments and agreements related thereto or hereto to take such
action on its behalf under the provisions hereof and thereof and to exercise
such rights, remedies, powers and privileges hereunder and thereunder as are
delegated to the Agent by the terms hereof and thereof, together with such
rights, remedies, powers and privileges as are reasonably incidental thereto.
8.1.2 Except for any matters expressly subject to the consent or approval of
the Agent under the Loan Documents, the Agent shall not, without the prior
approval of the Required Lenders (or, as provided in Section 9.3., all of the
Lenders), consent to any departure by the Borrower from the terms of, waive
any default under or otherwise amend this Agreement or any other Loan
Documents. The Agent will, to the extent practicable under the
circumstances, consult with the other Lender Parties prior to taking action
on their behalf under the Loan Documents and in acting as their Agent
thereunder. The Agent will not take any action contrary to the written
direction of Required Lenders, will take any lawful action not contrary to
the provisions of the Loan Documents prescribed in written instructions of
the Required Lenders (or, as provided in Section 9.3., all the Lenders) and,
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as to any matters not expressly provided for by the Loan Documents (including
enforcement or collection), may decline to take any action, except upon the
written instructions of the Required Lenders (or, as provided in Section
9.3., all the Lenders). If such instructions are requested reasonably
promptly, the Agent shall be absolutely entitled to refrain from taking any
action and shall not have any liability to the Borrower or any Lender for
refraining from taking any action until it shall have received such
instructions. Any provision of this Agreement or any other Loan Document to
the contrary notwithstanding, the Agent shall in no event be required to take
or refrain from taking any action that would, in the Agent's opinion, expose
the Agent to any liability or be inconsistent with the Agent's practice in
similar situations when acting solely for its own account or be contrary to
the provisions of any Loan Document or Applicable Law.
8.1.3 The Agent shall not have any duties or responsibilities except those
expressly set forth in the Loan Documents. No duty to act, or refrain from
acting, and no other obligation whatsoever, shall be implied on the basis of
any right, power or authority granted to the Agent or shall become effective
in the event of any temporary or partial exercise of such rights, power or
authority. The Agent shall not be required to exercise any right, power,
remedy or privilege granted to it in any Loan Document, to ascertain or
inquire whether any Default or Event of Default has occurred and is
continuing, or to inspect the property (including the books and records) of
the Borrower or to take any other affirmative action, except as provided in
Section 7.2., or unless requested or directed to do so in accordance with the
provisions of Section 8.1.2.
8.1.4 The duties of the Agent shall be mechanical and administrative in
nature. The Agent shall not have by reason of this Agreement a fiduciary
relationship in respect of any other Lender Party. Except for notices,
reports and other documents and information expressly required to be
furnished to the Lender Parties by the Agent hereunder, the Agent shall not
have any duty or responsibility to provide any Lender Party with any credit
or other information concerning the affairs, financial condition or business
of the Borrower that may come into the possession of the Agent or any of its
Affiliates.
Section 8.2 Exculpation; Agent's Reliance, Etc. Neither the Agent nor any of
its directors, officers, agents, attorneys or employees shall be liable to the
Borrower or any other Lender Party for any action taken or omitted to be taken
by it or them under or in connection with any Loan Document (a) with the
consent or at the request of the Required Lenders (or, as provided in Section
9.3., all the Lenders), or (b) in any other circumstances, except for its or
their own gross negligence or willful misconduct as determined by a final
judgment of a court of competent jurisdiction. The Agent makes no warranty or
representation to any other Lender Party and shall not be responsible to any
other Lender Party for any recitals, statements, warranties or representations
made in, or in connection with, any Loan Document or for the execution,
effectiveness, genuineness, validity, enforceability, collectibility, or
sufficiency of any Loan Document or any financial information, opinions of
counsel or other documents executed and delivered pursuant thereto, or for the
financial condition of the Borrower. The Agent shall not be responsible to
any Lender for the satisfaction of any condition specified in Article 3.,
except receipt of items required to be delivered to the Agent. The Agent may
treat the payee of any Note as the holder thereof until the Agent receives the
related Assignment and Assumption signed by such holder and the assignee and
in form satisfactory to the Agent. The Agent shall be entitled to rely upon
any notice, certificate or other writing believed by the Agent to be genuine
42
and correct and to have been signed or sent by the proper Person or Persons.
The Agent shall be entitled to consult with legal counsel, independent public
accountants and other experts selected by the Agent and to act in reliance
upon the advice of such counsel and other experts concerning its actions and
duties hereunder.
Section 8.3 Agent and Affiliates. In its capacity as a Lender, the Agent
shall have the same rights, powers and obligations under this Agreement and
the other Loan Documents as any other Lender and may exercise or refrain from
exercising the same as though it were not the Agent, including the right to
give or deny consent to any action requiring consent or direction of the
Required Lenders or all the Lenders. The Agent and its Affiliates may accept
deposits from, lend money to, act as trustee under indentures of, enter into
and otherwise be a party to securitization transactions with and generally
engage in any kind of business with, the Borrower, any Subsidiary and any
Affiliate of the Borrower, all as if the Agent were not the Agent and without
any duty to account therefor to the Lenders. The Agent shall be entitled to
receive from the Borrower its fees or portions thereof in connection with this
transaction without any liability to account therefor to any other Lender,
except as the Agent may have expressly agreed.
Section 8.4 Lender Credit Decision. Each Lender Party acknowledges that it
has, independently and without reliance upon the Agent or any other Lender
Party and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently
and without reliance upon the Agent or any other Lender Party 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 Loan Documents.
Section 8.5 Indemnification. The Agent shall in no event be required to take
any action under the Loan Documents or in relation thereto unless it shall
first be indemnified to its satisfaction by the other Lender Parties against
any and all liability and expense that it may incur by reason of taking any
such action. Each Lender (other than the Designated Bidders) agrees to
indemnify and hold the Agent harmless (to the extent not promptly paid or
reimbursed by the Borrower), ratably according to their respective Revolving
Commitments, from and against any and all (a) costs, expenses and other
amounts otherwise payable by the Borrower for the account of the Agent
pursuant to Section 9.1. and (b) Indemnified Liabilities that may be imposed
on, incurred by, or asserted against the Agent, except to the extent they are
finally adjudged by a court of competent jurisdiction to have directly
resulted from the gross negligence or willful misconduct of the Agent.
Section 8.6 Successor Agent. The Agent may resign at any time as Agent under
the Loan Documents by giving written notice thereof to the Lenders and the
Borrower. The Agent may be removed at any time with or without cause by
written action of the Required Lenders (other than the Agent) delivered to the
Agent. Upon any such resignation or removal, the Required Lenders shall have
the right to appoint a successor Agent with the prior consent of the Borrower
(provided that such consent shall not be unreasonably withheld and no such
consent shall be required if an Event of Default shall have occurred and is
continuing). If no successor Agent shall have been so appointed by the
Required Lenders (and, if required, approved by the Borrower), and shall have
43
accepted such appointment, within 30 days after the retiring Agent's notice
of resignation or the removal of the Agent, then the retiring or removed
Agent may with the prior consent of the Borrower (provided that such consent
shall not be unreasonably withheld and no such consent shall be required if
an Event of Default shall have occurred and is continuing), on behalf of the
other Lender Parties, appoint a successor Agent, which shall be a financial
institution having a combined capital and surplus of at least $100,000,000,
or a branch or agency of such a financial institution, organized or licensed
to do business under the laws of the United States of America or any State
thereof. Upon the acceptance of any appointment as the Agent by a successor
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged of its duties and obligations under the
Loan Documents. Upon any retiring Agent's resignation or removal, the
provisions of this Article 8 (as well as other expense reimbursement,
indemnification and exculpatory provisions in the other Loan Documents) shall
continue in effect for its benefit as to any actions taken or omitted by it
while it was Agent.
Section 8.7 Excess Payments. If any Lender shall obtain any payment or other
recovery (whether voluntary, involuntary, by application of setoff or
otherwise) on account of any Obligations in excess of its pro rata share of
payments and other recoveries on account of such Obligations obtained by all
Lenders, such Lender shall purchase from the other Lenders such participations
in such Obligations held by them as shall be necessary to cause such
purchasing Lender to share the excess payment or other recovery ratably with
each of the other Lenders; provided, however, that if all or any portion of
the excess payment or other recovery is thereafter recovered from such
purchasing Lender, the purchase shall be rescinded and the purchase price
restored to such Lender to the extent of such recovery, but without interest.
The Borrower agrees that any Lender so purchasing a participation from-another
Lender pursuant to this Section 8.7. may, to the fullest extent permitted by
Applicable Law and by Section 9.8., exercise all of its rights of payment
(including setoff) 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 8.8 Lender Parties. The provisions of this Article 8 are solely for
the benefit of the Agent and the other Lender Parties and the Borrower shall
not have any rights to rely on or enforce any of the provisions hereof (except
that the provisions of Sections 8.6. are also for the benefit of the
Borrower). In performing its functions and duties under the Loan Documents,
the Agent shall act solely as agent of the Lenders and does not assume and
shall not be deemed to have assumed any obligation toward or relationship of
agency or trust with or for the Borrower.
Section 8.9 Payments; Availability of Funds; Certain Notices.
8.9.1 If the Agent shall fail to deliver to any other Lender Party its share
of any payment received from the Borrower as and when required by Section
2.9., the Agent shall pay to such Lender its share of such payment together
with interest on such amount at the Federal Funds Rate, for each day from the
date such amount was required to be paid to such Lender until the date the
Agent pays such amount to such Lender, calculated as set forth in Section
2.4.4.
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8.9.2 Unless (a) the Agent shall have been notified by a Lender prior to the
date upon which a Loan is to be made or (b) the Agent shall have been
notified by the Borrower prior to the date on which the Borrower is required
to make any payment hereunder that such Lender or the Borrower, as the case
may be (the "Obligated Party"), does not intend to make available to the
Agent the Obligated Party's portion of such Loan or such payment, the Agent
may assume that the Obligated Party will make such amount available to the
Agent on such date and the Agent may, in reliance upon such assumption (but
shall not be required to), make available to the Borrower (in the case of a
Loan) or the Lenders (in the case of a payment by the Borrower) a
corresponding amount. If such corresponding amount is not in fact made
available to the Agent by the Obligated Party, the Agent shall be entitled to
recover such amount on demand from the Obligated Party (or, in the case of a
Loan, if the Lender that is the Obligated Party fails to pay such amount
forthwith upon such demand, from the Borrower). Such amount shall be payable
together with interest thereon from the day on which such corresponding
amount was made available by the Agent to the Lender or the Borrower, as
applicable, to the date of payment by the Obligated Party (or the Borrower,
as applicable), at a rate of interest equal to (i) in the case of any payment
by any other Lender Party, the Federal Funds Rate, and (ii) in the case of
any payment by the Borrower, the interest rate applicable to the Loan.
8.9.3 The Agent shall promptly notify the Lenders by telex or telecopy of
each Interest Period chosen by the Borrower, the Euro-Dollar Rate for each
Interest Period (and the relevant interest rate), the date of any expected
payment and all other material notices transmitted by the Borrower.
Section 8.10 Obligations of Lender Parties Several; Enforcement by the Agent.
8.10.1 Each Lender Party's obligations hereunder are several, and not joint or
joint and several. The failure of any Lender Party to make any Loan or
otherwise to perform its obligations hereunder will not increase the
obligations of any other Lender Party. Notwithstanding the foregoing, any
Lender may assume, but shall have no obligation to any Person to assume, any
non-performing Lender's obligation to make a Loan. Nothing contained in this
Agreement and no action taken by the Agent or any other Lender Party pursuant
to this Agreement shall be deemed to constitute the Agent and any other
Lender Party to be a partnership, an association, a joint venture or any
other kind of entity.
8.10.2 Each Lender agrees that, except with the prior written consent of the
Agent or as provided in Section 9.8., no Lender Party shall have any right
individually to enforce any Loan Document or any provision thereof, or make
demand thereunder, it being agreed that such rights and remedies may only be
exercised by the Agent for the ratable benefit of the Lenders upon the terms
of this Agreement.
Section 8.11 Syndication Agent and Documentation Agent. Neither the
Syndication Agent nor the Documentation Agent, in such capacity, shall have
any right, power, obligation, liability, duty or responsibility whatsoever
under the Loan Documents, and neither the Syndication Agent nor the
Documentation Agent shall be deemed to have any fiduciary relationship with
any Lender. Each Lender acknowledges that it has not relied, and will not
45
rely, on either the Syndication Agent or the Documentation Agent in deciding
to enter into this Agreement or in taking or not taking any action hereunder.
ARTICLE 9
MISCELLANEOUS
Section 9.1 Expenses. The Borrower shall pay on demand:
9.1.1 any and all attorneys' fees and disbursements (including allocated
costs of in-house counsel) and out-of-pocket cost and expenses incurred by
the Agent in connection with the development, drafting and negotiation of the
Loan Documents, any amendments thereto and the syndication and closing of the
transactions contemplated thereby; and
9.1.2 all costs and expenses (including fees and disbursements of in-house
and other attorneys, appraisers and consultants) incurred by the Lender
Parties in any workout, restructuring or similar arrangements or, after an
Event of Default, in connection with the protection, preservation, exercise
or enforcement of any of the terms of the Loan Documents or in connection
with any foreclosure, collection or bankruptcy proceedings.
Section 9.2 Indemnity.
9.2.1 Borrower shall indemnify, defend and hold harmless each Lender Party
and its Affiliates and the officers, directors, employees, agents, attorneys,
affiliates, successors and assigns of each Lender Party and its Affiliates
(collectively, the "Indemnitees") from and against (a) any and all transfer
taxes, documentary taxes, assessments or charges made by any Governmental
Authority by reason of the execution and delivery of the Loan Documents or
the making of the Loans (provided that any Lender claiming any additional
amounts payable pursuant to this Section 9.2.1(a) shall use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions) to change the jurisdiction of its Applicable Lending Office if
the making of such a change would avoid the need for, or reduce the amount
of, any such additional amounts that may thereafter accrue and would not, in
the reasonable judgment of such Lender, be otherwise disadvantageous to such
Lender), and (b) any and all liabilities, losses, damages, penalties,
judgments, claims, costs and expenses of any kind or nature whatsoever
(including reasonable attorneys' fees, including allocated costs of in-house
counsel, and disbursements in connection with any actual or threatened
investigative, administrative or judicial proceeding, whether or not such
Indemnitee shall be designated a party thereto) that may be imposed on,
incurred by or asserted against such Indemnitee, in any manner relating to or
arising out of the Loan Documents, the Loans, or the use or intended use of
the proceeds of the Loans (the "Indemnified Liabilities"); provided that no
Indemnitee shall have the right to be indemnified or held harmless hereunder
for its own gross negligence, or willful misconduct, as determined by a final
judgment of a court of competent jurisdiction.
9.2.2 To the extent that the undertaking to indemnify and hold harmless set
forth in Section 9.2.1. may be unenforceable as violative of any Applicable
Law or public policy, the Borrower shall make the maximum contribution to the
46
payment and satisfaction of each of the Indemnified Liabilities that is
permissible under Applicable Law. All Indemnified Liabilities shall be
payable on demand.
Section 9.3 Waivers; Modifications in Writing.
9.3.1 No amendment of any provision of this Agreement or any other Loan
Document (including a waiver thereof or consent relating thereto) shall be
effective unless the same shall be in writing and signed by the Agent and the
Required Lenders and, except as to a waiver or consent requested by or to the
benefit of the Borrower, the Borrower. Notwithstanding the foregoing:
9.3.1.1 no amendment, waiver, consent, forbearance or other agreement that
has the effect of (a) reducing the rate or amount, or extending the stated
maturity or due date, of any amount payable by the Borrower to any Lender
Party under the Loan Documents, (b) increasing the amount, or extending the
stated termination or reduction date, of any Lender's Revolving Commitment
hereunder or subjecting any Lender Party to any additional obligation to
extend credit, (c) altering the rights and obligations of the Borrower to
prepay the Loans, or (d) changing this Section 9.3. or the definition of the
term "Required Lenders" or any other percentage of Lenders specified in this
Agreement to be the applicable percentage to act on specified matters shall
be effective unless the same shall be signed by or on behalf of all of the
Lenders (other than the Designated Bidders);
9.3.1.2 no amendment that has the effect of (a) increasing the duties or
obligations of the Agent, (b) increasing the standard of care or performance
required on the part of the Agent, or (c) reducing or eliminating the
indemnities or immunities to which the Agent is entitled (including any
amendment of this Section), shall be effective unless the same shall be
signed by or on behalf of the Agent;
9.3.1.3 no amendment that has the effect of (a) increasing the duties or
obligations of any Designated Bidder, (b) reducing the principal of, interest
on, or other amounts due with respect to the Bid Loan Note payable to any
Designated Bidder, or (c) amending the definition of Required Lenders in a
manner which adversely affects a Designated Bidder, shall be effective unless
the same shall be signed by or on behalf of such Designated Bidder; and
9.3.1.4 any waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.
Except as required herein, no notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances. Any amendment effected in accordance with
this Section 9.3. shall be binding upon each present and future Lender Party
and the Borrower.
Section 9.4 Cumulative Remedies; Failure or Delay. The rights and remedies
provided for under this Agreement are cumulative and are not exclusive of any
rights and remedies that may be available to the Lender Parties under
Applicable Law or otherwise. No failure or delay on the part of any Lender
Party in the exercise of any power, right or remedy under the Loan Documents
47
shall impair such power, right or remedy or operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or remedy
preclude other or further exercise thereof or of any other power, right or
remedy.
Section 9.5 Notices, Etc. All notices and other communications under this
Agreement shall be in writing and (except for financial statements, other
related informational documents and routine communications, which may be sent
by first-class mail, postage prepaid) shall be personally delivered or sent by
prepaid courier, by overnight, registered or certified mail (postage prepaid),
or by telex or telecopy, and shall be deemed given when received by the
intended recipient thereof. Unless otherwise specified in a notice sent or
delivered in accordance with this Section 9.5., all notices and other
communications shall be given to the parties hereto at their respective
addresses (or to their respective telex or telecopier numbers) indicated on
Schedule 1.1.B (in the case of the Lender Parties) or Schedule 9.5. (in the
case of the Borrower).
Section 9.6 Successors and Assigns; Designations.
9.6.1 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. The
Borrower may not assign or transfer any interest hereunder without the prior
written consent of each Lender Party.
9.6.2 Subject to the terms of this Section 9.6.2, each Lender (other than the
Designated Bidders) shall have the right at any time to assign (an
"Assignment") all or any portion of such Lender's Revolving Commitment and
Loans to one or more banks or other institutions; provided, however, that (a)
each Assignment to any Person that is not then a Lender with a Revolving
Commitment shall be of a portion of the Loans and Revolving Commitments at
least equal to $10,000,000 (or, if less, all of the assigning Lender's Loans
and Revolving Commitment) and, unless otherwise agreed by the Agent, shall be
of a constant, and not a varying, percentage of all of the assigning Lender's
rights and obligations under this Agreement and the other Loan Documents; (b)
no Assignment (other than an Assignment to a Person that is then a Lender
with a Revolving Commitment or an Affiliate of such a Lender) shall be
effective without the consent of the Borrower (unless a Default or Event of
Default then exists) and the Agent, which consents shall not be unreasonably
withheld or delayed; (c) the parties to the Assignment shall execute and
deliver to the Agent an Assignment and Assumption substantially in the form
of Exhibit H (an "Assignment and Assumption"); and (d) the assignee shall pay
to the Agent a processing and recordation fee of $3,500. From and after the
date on which the conditions in the foregoing clauses and the Assignment and
Assumption have been satisfied, the assignee shall be a "Lender" hereunder
and, to the extent that rights and obligations hereunder have been assigned
to it, shall have the rights and obligations of the assigning Lender
hereunder, and the assigning Lender shall, to the extent that rights and
obligations hereunder have been assigned by it, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
assignment covering all or the remaining portion of the assigning Lender's
rights and obligations under this Agreement, shall cease to be a party
hereto). The foregoing notwithstanding, each Designated Bidder may assign to
its Designating Lender (as defined in Section 9.6.6 below) any Bid Loan owing
to it.
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9.6.3 Each Lender (other than the Designated Bidders) shall have the right at
any time to grant or sell participations (each a "Participation") in all or
any portion of such Lender's Revolving Commitment and Loans to one or more
banks or other institutions without the consent of the Borrower or any other
Lender Party, subject to the terms and conditions set forth in this Section
9.6.3. If any Lender sells or grants a Participation, (a) such Lender shall
make and receive all payments for the account of its participant, (b) such
Lender's obligations under this Agreement shall remain unchanged, (c) such
Lender shall continue to be the sole holder of its Notes and other Loan
Documents subject to the Participation and shall have the sole right to
enforce its rights and remedies under the Loan Documents, (d) the Borrower
and the other Lender Parties shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations under the
Loan Documents, and (e) the Participation agreement shall not restrict such
Lender's ability to agree to any amendment of the terms of the Loan
Documents, or to exercise or refrain from exercising any powers or rights
that such Lender may have under or in respect of the Loan Documents, except
that the participant may be granted the right to consent to (i) any reduction
of the rate or amount, or any extension of the stated maturity or due date,
of any principal, interest or Fees payable by the Borrower and subject to the
Participation, or (ii) any increase in the amount or extension of the stated
termination or reduction date of the affected Revolving Commitment. A
participant shall have the rights of the Lenders under Sections 2.11., 2.12.,
9.2. and 9.8., subject to the obligations imposed by such Sections; provided
that amounts payable to any participant shall not exceed the amounts that
would have been payable under such Sections to the Lender granting the
Participation, had such Participation not been granted.
9.6.4 Each Lender may at any time assign or pledge any portion of its rights
under the Loan Documents to a Federal Reserve Bank. No such assignment or
pledge shall be subject to the provisions of Sections 9.6.2. or 9.6.3.
9.6.5 Each Lender shall have the right at any time to furnish one or more
potential assignees or participants with any information concerning the
Borrower and its Subsidiaries that has been supplied by the Borrower or any
such Subsidiary to any Lender Party. The Borrower shall supply all
reasonably requested information and execute and deliver all such instruments
and take all such further action (including, in the case of an Assignment,
the execution and delivery of replacement Notes) as the Agent may reasonably
request in connection with any Assignment or Participation arrangement.
9.6.6 Each Lender (other than the Designated Bidders) may, with the written
consent of the Borrower and the Agent (such consent not to be unreasonably
withheld), designate one or more banks or other entities to have a right to
make Bid Loans as a Lender pursuant to Section 2.2; provided, however, that
(i) no such Lender shall be entitled to make more than three such
designations, (ii) each such Lender making one or more of such designations
shall retain the right to make Bid Loans as a Lender pursuant to Section 2.2,
(iii) each such designation shall be to a Designated Bidder and (iv) the
parties to each such designation shall execute and deliver to the Agent a
Designation Agreement. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Designation
Agreement, the designee thereunder shall be a party hereto with a right to
make Bid Loans as a Lender pursuant to Section 2.2 and the obligations
49
related thereto. The Lender designating any Designated Bidder (a
"Designating Lender") shall act as the agent for such Designated Bidder and
deliver and receive all communications and notices under the Credit Agreement
and the other Loan Documents to and on behalf of such Designated Bidder and
shall exercise on such Designated Bidder's behalf all rights, if any, to vote
and to grant and make approvals, waivers, consents or amendments to or under
the Credit Agreement and the other Loan Documents. Any document executed by
a Designating Lender on the Designated Bidder's behalf in connection with the
Credit Agreement or other Loan Documents shall be binding on the Designee.
Section Choice of Forum.
9.7.1 All actions or proceedings arising in connection with this Agreement
may be tried and litigated in state or Federal courts located in Seattle,
Washington, unless such actions or proceedings are required to be brought in
another court to obtain subject matter jurisdiction over the matter in
controversy. EACH OF THE BORROWER AND THE LENDER PARTIES WAIVES ANY RIGHT IT
MAY HAVE TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS, TO ASSERT THAT IT IS
NOT SUBJECT TO THE JURISDICTION OF SUCH COURTS OR TO OBJECT TO VENUE TO THE
EXTENT ANY PROCEEDING IS BROUGHT IN ACCORDANCE WITH THIS SECTION.
9.7.2 Nothing contained in this Section shall preclude the Lender Parties
from bringing any action or proceeding arising out of or relating to this
Agreement in the courts of any place where the Borrower or any of its assets
may be found or located.
Section 9.8 Set Off. In addition to any rights now or hereafter granted under
Applicable Law, during the existence of any Event of Default, each Lender
Party is hereby irrevocably authorized by the Borrower, at any time or from
time to time, without notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to
apply any and all deposits (general or special, including certificates of
deposit, whether matured or unmatured, but not including trust accounts) and
any other indebtedness, in each case whether direct or indirect or contingent
or matured or unmatured at any time held or owing by such Lender Party to or
for the credit or the account of the Borrower, against and on account of the
Obligations, irrespective of whether or not such Lender Party shall have made
any demand for payment, provided that such Lender Party shall, promptly
following such set off or application, give notice to the Borrower thereof,
which notice shall contain an explanation of the basis for the set off or
application.
Section 9.9 Changes in Accounting Principles. If any changes in generally
accepted accounting principles from those used in the preparation of the
financial statements referred to in this Agreement hereafter result from by
the promulgation of rules, regulations, pronouncements, or opinions of or
required by the Financial Accounting Standards Board or the American Institute
of Certified Public Accountants (or successors thereto or agencies with
similar functions), or there shall occur any change in the Borrower's fiscal
or tax years and, as a result of any such changes, there shall result a change
in the method of calculating any of the financial covenants, negative
covenants, standards or other terms or conditions found in this Agreement,
50
then the parties hereto agree to enter into negotiations in order to amend
such provisions so as to equitably reflect such changes with the desired
result that the criteria for evaluating the Borrower's financial condition
shall be the same after such changes as if such changes had not been made.
Section 9.10 Survival of Agreements, Representations and Warranties. All
agreements, representations and warranties made herein shall survive
the execution and delivery of this Agreement, the closing and the extensions
of credit hereunder and shall continue until payment and performance of any
and all Obligations. Any investigation at any time made by or on behalf of
the Lender Parties shall not diminish the right of the Lender Parties to rely
thereon. Without limitation, the agreements and obligations of the Borrower
contained in Sections 2.12., 9.1., and 9.2. and the obligations of the
Lenders under Section 8.5. shall survive the payment in full of all other
Obligations.
Section 9.11 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute but one and the same Agreement. Faxed
signatures to this Agreement shall be binding for all purposes.
Section 9.12 Complete Agreement. This Agreement, together with the other Loan
Documents, is intended by the parties as the final expression of their
agreement regarding the subject matter hereof and as a complete and exclusive
statement of the terms and conditions of such agreement.
Section 9.13 Limitation of Liability. No claim shall be made by the Borrower
or any Lender Party against any party hereto or the Affiliates, directors,
officers, employees or agents of any party hereto for any special, indirect,
consequential or punitive damages in respect of any claim for breach of
contract or under any other theory of liability arising out of or related to
the transactions contemplated by this Agreement, or any act, omission or event
occurring in connection therewith; and the Borrower and each Lender Party
waives, releases and agrees not to xxx upon any claim for any such damages,
whether or not accrued and whether or not known or suspected to exist in its
favor.
Section 9.14 WAIVER OF TRIAL BY JURY. THE BORROWER AND THE LENDER PARTIES
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS AGREEMENT OR ANY
ACTION ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF
WHICH PARTY INITIATES SUCH ACTION OR ACTIONS.
Section 9.15 NO ORAL AGREEMENTS. ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN
MONEY, EXTEND CREDIT, OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT
ENFORCEABLE UNDER WASHINGTON LAW.
51
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered as of the date first set forth above.
Borrower:
NORDSTROM, INC.
a Washington corporation
By:/s/ Xxxxxx X. Xxxxxxxx
Name:Xxxxxx X. Xxxxxxxx
Title:Vice President and Treasurer
Agent:
BANK OF AMERICA, N.A.,
as Agent
By:/s/ Xxxxx X. Xxxxxxx
Name:Xxxxx X. Xxxxxxx
Title:Managing Director
Lenders, Syndication Agent and Documentation Agent:
BANK OF AMERICA, N.A.,
as Lender
By:/s/Xxxxx X. Xxxxxxx
Name:Xxxxx X. Xxxxxxx
Title:Managing Director
S-1
BANK ONE, NA (Main Office -- Chicago)
as Lender and Syndication Agent
By:/s/Xxx Xxxxxx
Name:Xxx Xxxxxx
Title:Commercial Banking Officer
REVOLVING COMMITMENT VEHICLE CORPORATION
By: Xxxxxx Guaranty Trust Company of New York, as Attorney-in-fact for
Revolving Commitment Vehicle Corporation
By:/s/Xxxxx X. Xxxxxxxx
Name:Xxxxx X. Xxxxxxxx
Title:Vice President
KEYBANK NATIONAL ASSOCIATION,
as Lender
By:/s/Xxxxxxx X. Xxxxx, Xx.
Name:Xxxxxxx X. Xxxxx, Xx.
Title:Assistant Vice President
XXXXX FARGO BANK, N.A.
as Lender
By:/s/Xxx Xxxxxx
Name:Xxx Xxxxxx
Title:Vice President
U.S. BANK,
as Lender
By:/s/Xxxxxx X. Xxxxxx
Name:Xxxxxx X. Xxxxxx
S-2
Title:Vice President
S-3
SCHEDULE 1.1.A
REVOLVING COMMITMENTS
Lender Revolving Commitments
--------------------------------------------------------
Bank of America, N.A. $155,000,000
Bank One, NA $90,000,000
Xxxxxx Guaranty Trust
Company of New York $90,000,000
KeyBank National Association $70,000,000
U.S. Bank $70,000,000
Xxxxx Fargo Bank, N.A. $25,000,000
----------------------------------------------------
Total $500,000,000
SCHEDULE 1.1.B
LENDERS INFORMATION
Agent's Address for Notice:
BANK OF AMERICA, N.A., as Agent
000 X. Xxxxx Xxxxxx, 00xx Xxxxx XX0-000-00-00
Xxxxxxxxx, X.X. 28255
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxxxx Xxxxxx
with a copy to:
BANK OF AMERICA, N.A., as Agent
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
XX0-000-00-00
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Agent's Account: Bank of America, N.A.
Charlotte, N.C.
ABA # 000000000
Account Name: Credit Services
Account # 13662122506
Ref: Nordstrom, Inc.
Lenders:
Lender Domestic Lending Office Euro-Dollar Lending Office
-----------------------------------------------------------------------------
KeyBank National
Association 000 Xxxxx Xxxxxx 000 Xxxxx Xxxxxx
46th Floor 46th Floor
Seattle, WA 98104 Xxxxxxx, XX 00000
Fax: (000) 000-0000 Fax: (000) 000-0000
Phone: (000) 000-0000 Phone: (000) 000-0000
Attention: Xxxx Xxxxx Attention: Xxxx Xxxxx
Xxxxxx Guaranty
Trust Company of
New York
00 Xxxx Xxxxxx, 00xx Xxxxx Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000 c/o X.X. Xxxxxx Services Inc.
Fax: (000) 000-0000 Euro-Loan Servicing Unit
Telex: 177615 MGT UT or 620106 000 Xxxxxxx Xxxxxxxxxx Xxxx
Phone: (000) 000-0000 Xxxxxx, XX 00000
Attention: Xxxxx X. X'Xxxxx Fax: (000) 000-0000
copy to:
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 10260-0060
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxxxxx Xxxxxxxxx
U.S. Bank
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Telex:
Phone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Telex:
Phone: (000) 000-0000
Attention: Xxxxxx X. Xxxxxx
Bank of America, N.A.
000 X. Xxxxx Xxxxxx, 00xx Xxxxx XX0-000-00-00
Xxxxxxxxx, X.X. 28255
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxxxx Xxxxxx
000 X. Xxxxx Xxxxxx, 00xx Xxxxx XX0-000-00-00
Xxxxxxxxx, X.X. 28255
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxxxx Xxxxxx
BANK ONE, NA
0 XxxxXxx Xxxxx
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxxx X. Xxxx
0 XxxxXxx Xxxxx
Xxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxxx X. Xxxx
Xxxxx Fargo Bank, National Association
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxx Xxxxxx
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxx Xxxxxx
SCHEDULE 1.1.D
EXISTING LIENS
None
SCHEDULE 3.1.2
CLOSING DOCUMENTS
Primary Responsibility
Status
MAJOR LOAN DOCUMENTS. The following, in each case duly executed by all
parties, as appropriate
1. Credit Agreement L&W
Schedule 1.1A Revolving Commitments NB
Schedule 1.1B Lender Information NB/L&W
Schedule 1.1D Existing Liens Borrower
Schedule 3.1.2 Closing Documents L&W
Schedule 4.1 Organization of
Borrower and Subsidiaries Borrower
Schedule 4.5 Material Litigation Borrower
Schedule 9.5 Borrower Information Borrower
Exhibit A-1 Form of Revolving Loan Note L&W
Exhibit A-3 Form of Bid Loan Notes L&W
Exhibit B Form of Designation Agreement L&W
Exhibit E-1 Form of Notice of Borrowing L&W
Exhibit E-3 Form of Notice of
Conversion/Continuation L&W
Exhibit E-4 Form of Bid
Loan Quote Request L&W
Exhibit E-5 Form of Bid Loan Quote L&W
Exhibit E-7 Form of Notice of
Responsible Officer L&W
Exhibit F-1 Form of
Secretary's Certificate L&W
Exhibit F-3 Form of Closing
Officer's Certificate L&W
Exhibit F-6 Form of
Compliance Certificate L&W
Exhibit G Form of Opinion of
Borrower's Counsel L&W
Exhibit H Form of Assignment and
Assumption L&W
Exhibit I Controlling Stockholders Borrower
2. Notes for all Lenders L&W
CERTIFICATES. The following, in the
case of certificates and the
like duly executed by the parties [LPSL]/
specified herein or therein: Borrower
3. For the Borrower, a certificate
dated the Closing Date, substantially
in the form of Exhibit F-1, including [LPSL]
all exhibits Borrower
4. For the Borrower, an Officer's
Closing Certificate, substantially [LPSL]/
in the form of Exhibit F-3 Borrower
5. For the Borrower, a Notice of
Responsible Officers, substantially [LPSL]/
in the form of Exhibit E-7 Borrower
LEGAL OPINIONS. Favorable legal
opinions dated the Closing Date:
6. Of counsel to the Borrower,
addressed to the Agent and the
Lenders in substantially the form
of Exhibit G-1 [LPSL]
7. Of Xxxxxx & Xxxxxxx, counsel to
the Agent, addressed to the Agent and
the Lenders in form and substance
satisfactory to the Agent. L&W
SCHEDULE 4.1
ORGANIZATION OF BORROWER AND SUBSIDIARIES
Borrower/Subsidiary Form and State of Organization
---------------------------------------------------------------------
Nordstrom, Inc. a Washington corporation
Nordstrom Credit, Inc. a Colorado corporation
Nordstrom National Credit
Bank a national banking association
NLC, Inc. a Washington corporation
Nordstrom Distribution, Inc. a Washington corporation
Nordstrom Restaurant Kansas, Inc. a Kansas corporation
N2HC, Inc. a Colorado corporation
NIHC Inc. a Colorado corporation
NTN, Inc. a Colorado corporation
Xxxxxxxxx.xxx Holdings, Inc. a Washington corporation
Xxxxxxxxx.xxx, LLC
(in formation) a Delaware limited liability company
SCHEDULE 4.5
MATERIAL LITIGATION
Because the cosmetics and Nine West lawsuits described below are still in
their preliminary stages, the Borrower is not in a position at this time to
quantify the amount or range of any possible losses related to those claims.
The Borrower intends to vigorously defend itself in those cases, as well as
the vacation pay dispute described below. While no assurance can be given as
to the ultimate outcomes of these lawsuits, based on preliminary
investigations, management currently believes that resolving these matters
will not have a material adverse effect on the Borrower's financial position.
Nonetheless, they are disclosed here because of the potential size of the
demands.
Cosmetics
The Borrower is a defendant along with other department stores in nine
separate but virtually identical lawsuits filed in various Superior Courts of
the State of California in May, June and July 1998 that have now been
consolidated in Marin County state court. The plaintiffs seek to represent a
class of all California residents who purchased cosmetics and fragrances for
personal use from any of the defendants during the period May 1994 through
May 1998. Plaintiffs' consolidated complaint alleges that the Borrower and
other department stores agreed to charge identical prices for cosmetics and
fragrances, not to discount such prices, and to urge manufacturers to refuse
to sell to retailers who sell cosmetics and fragrances at discount prices,
resulting in artificially-inflated retail prices paid by the class in
violation of California state law. The plaintiffs seek treble damages in an
unspecified amount, attorneys' fees and prejudgment interest. Defendants,
including the Borrower, have answered the consolidated complaint denying the
allegations. Discovery has just commenced and defendants have begun the
process of producing documents and responding to plaintiffs' discovery
requests. Plaintiffs have not yet moved for class certification.
Nine West
The Borrower was named as a defendant in a number of substantially identical
lawsuits filed in federal district courts in New York and elsewhere beginning
in January and February 1999. In addition to Nine West, a leading
manufacturer and retailer of women's non-athletic footwear and accessories,
other defendants include various department store and specialty retailers.
The lawsuits have now been consolidated in federal district court in New York
and purport to be brought on behalf of a class of persons who purchased Nine
West footwear from the defendants during the period January 1988 to mid-
February 1999. Plaintiffs' consolidated complaint alleges that the retailer
defendants agreed with Nine West and with each other on the minimum prices to
be charged for Nine West shoes. The plaintiffs seek treble damages in an
unspecified amount, attorneys' fees and prejudgment interest. Defendants
have moved to dismiss the consolidated complaint, and briefing on the motion
is complete. The Court has stayed discovery pending its decision on the
motion to dismiss, and plaintiffs have not yet moved for class certification.
In addition, the Federal Trade Commission has opened investigations based on
the allegations in the pending Nine West lawsuit, as has the Attorney General
of the state of New York. The Borrower and the other defendants have begun
submitting documents and information to those agencies.
Vacation Policy
The Borrower has reached a settlement in a lawsuit filed in the Superior
Court of the State of California for the County of San Diego relating to
Borrower's vacation policy. The settlement agreement is currently being
drafted. The final agreement will be subject to court approval. No hearing
date has been set. The settlement, if approved by the court, will not have a
material impact on the Borrower's financial position or results of
operations.
Saipan
The Borrower has reached a settlement in its lawsuits relating to its
sourcing of clothing products from independent garment manufacturers in
Saipan (Commonwealth of Northern Mariana Islands). The settlement is subject
to court approval. No hearing has been set to date. The settlement, if
approved by the court, will not have a material impact on the Borrower's
financial position or results of operations.
Other
The Borrower is also subject to other ordinary routine litigation incidental
to its business and with respect to which no material liability is expected.
SCHEDULE 9.5
BORROWER INFORMATION
Address for Notices:
Nordstrom, Inc.
0000 0xx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Xxx Xxxxxxxx
Vice President, Strategy and Planning; Treasurer
Borrower Account (for the funding of Loans): Account # 1233225470
PROMISSORY NOTES AND MISCELLANEOUS EXHIBITS TO CREDIT
AGREEMENT
Exhibit A-1 Form of Revolving Loan Note
Exhibit A-3 Form of Bid Loan Note
Exhibit B Form of Designation Agreement
Exhibit E-1 Form of Notice of Borrowing
Exhibit E-3 Form of Notice of Conversion/Continuation
Exhibit E-4 Form of Bid Loan Quote Request
Exhibit E-5 Form of Bid Loan Quote
Exhibit E-7 Form of Notice of Responsible Officers
Exhibit F-1 Form of Secretary's Certificate
Exhibit F-3 Form of Closing Officer's Certificate
Exhibit F-6 Form of Compliance Certificate
Exhibit G Form of Opinion of Borrower's Counsel
Exhibit H Form of Assignment and Assumption
EXHIBIT A-1
FORM OF
REVOLVING LOAN NOTE
$[insert amount in figures]1 Seattle, Washington
October 15, 1999
FOR VALUE RECEIVED, the undersigned, NORDSTROM, INC., a Washington
corporation (the "Borrower"), hereby promises to pay to the order of [insert
name of Lender], a [insert organizational status] (the "Lender"), for the
account of its Applicable Lending Office, the lesser of (i) the principal sum
of [insert amount in all capitalized words] ($[insert amount in figures])2,
or (ii) the aggregate unpaid principal amount of the Revolving Loans (the
"Loans") made by the Lender to the Borrower under the Credit Agreement
referred to below, on the dates and in the amounts set forth in the Credit
Agreement. The Borrower further promises to pay interest on the unpaid
principal amount of each such Loan from time to time outstanding on the dates
and at the rates specified in the Credit Agreement.
This Revolving Loan Note (the "Note") is one of the Revolving Loan Notes
referred to in, and is entitled to the benefits of, the Amended and Restated
Credit Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among the Borrower, each of the banks and other
financial institutions that either now or in the future are parties thereto
as lenders (including the Lender, the "Lenders"), BANK ONE, NA, as
Syndication Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent and BANK OF AMERICA, N.A., in its capacity as
administrative agent on behalf of the Lenders (in such capacity, the
"Agent"), to which reference is hereby made for a more complete statement of
the terms and conditions on which the Loans evidenced hereby are made and are
to be repaid. The Credit Agreement provides for, among other things, the
acceleration of the maturity hereof upon the occurrence of certain events and
for voluntary and mandatory prepayments under certain circumstances and upon
certain terms and conditions.
Terms with initial capital letters used but not defined herein have the
meanings assigned to them in the Credit Agreement. All payments due
hereunder shall be made to the Agent at the time and place, in the type of
funds, and in the manner set forth in the Credit Agreement, without any
deduction whatsoever, including, without limitation, any deduction for any
set-off, recoupment, counterclaim or Taxes. The Borrower hereby waives
diligence, presentment, demand, protest, notice of dishonor and all other
A-1-1
demands and notices in connection with the execution, delivery, performance
or enforcement of this Note, except as otherwise set forth in the Credit
Agreement.
The Lender is authorized (but not obligated) to endorse on the Schedule
hereto, or on a continuation thereof, each Loan made by the Lender and each
payment or prepayment with respect thereto. The Borrower promises to pay all
costs and expenses, including attorneys' fees and disbursements, incurred in
the collection or enforcement hereof.
Except as permitted by Section 9.6 of the Credit Agreement, this Note may not
be assigned to any Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF WASHINGTON. THE BORROWER AND, BY ACCEPTANCE HEREOF, THE LENDER
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS NOTE OR ANY
ACTION ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF
WHICH PARTY INITIATES SUCH ACTION OR ACTIONS.
NORDSTROM, INC.,
a Washington corporation
By:
Name:
Title:
A-1-2
SCHEDULE
REVOLVING LOAN NOTE
Date
Type and
Amount of Loan
Interest
Period
Interest
Rate
Amount of
Principal Paid
or Prepaid
Unpaid Principal
Amount of Note
Notation
Made By
X-0-0
XXXXXXX X-0
FORM OF
BID LOAN NOTE
Seattle, Washington
October 15, 1999
FOR VALUE RECEIVED, the undersigned, NORDSTROM, INC., a Washington
corporation (the "Borrower"), hereby promises to pay to the order of [insert
name of Lender], a [insert organizational status] (the "Lender"), for the
account of its Domestic Lending Office, the aggregate unpaid principal amount
of all Bid Loans (the "Loans") made by the Lender to the Borrower under the
Credit Agreement referred to below, on the dates and in the amounts set forth
in the Credit Agreement. The Borrower further promises to pay interest on
the unpaid principal amount of each such Loan from time to time outstanding
on the dates and at the rates specified in the Credit Agreement.
This Bid Loan Note (the "Note") is one of the Bid Loan Notes referred to in,
and is entitled to the benefits of, the Amended and Restated Credit
Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among the Borrower, each of the banks and other
financial institutions that either now or in the future are parties thereto
as lenders (including the Lender, the "Lenders"), BANK ONE, NA, as
Syndication Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as
Documentation Agent and BANK OF AMERICA, N.A., in its capacity as
administrative agent on behalf of the Lenders (in such capacity, the
"Agent"), to which reference is hereby made for a more complete statement of
the terms and conditions on which the Loans evidenced hereby are made and are
to be repaid. The Credit Agreement provides for, among other things, the
acceleration of the maturity hereof upon the occurrence of certain events and
for voluntary and mandatory prepayments under certain circumstances and upon
certain terms and conditions.
Terms with initial capital letters used but not defined herein have the
meanings assigned to them in the Credit Agreement. All payments due
hereunder shall be made to the Agent at the time and place, in the type of
funds, and in the manner set forth in the Credit Agreement, without any
deduction whatsoever, including, without limitation, any deduction for any
set-off, recoupment, counterclaim or Taxes. The Borrower hereby waives
diligence, presentment, demand, protest, notice of dishonor and all other
demands and notices in connection with the execution, delivery, performance
or enforcement of this Note, except as otherwise set forth in the Credit
Agreement.
A-3-1
The Lender is authorized (but not obligated) to endorse on the Schedule
hereto, or on a continuation thereof, each Loan made by the Lender and each
payment or prepayment with respect thereto. The Borrower promises to pay all
costs and expenses, including attorneys' fees and disbursements, incurred in
the collection or enforcement hereof.
Except as permitted by Section 9.6 of the Credit Agreement, this Note may not
be assigned to any Person.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF WASHINGTON. THE BORROWER AND, BY ACCEPTANCE HEREOF, THE LENDER
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY ACTION UNDER THIS NOTE OR ANY
ACTION ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREBY, REGARDLESS OF
WHICH PARTY INITIATES SUCH ACTION OR ACTIONS.
NORDSTROM, INC.,
a Washington corporation
By:
Name:
Title:
A-3-2
SCHEDULE
BID LOAN NOTE
Date
Type and
Amount of Loan
Interest
Period
Interest
Rate
Amount of
Principal Paid
or Prepaid
Unpaid Principal
Amount of Note
Notation
Made By
EXHIBIT B
FORM OF DESIGNATION AGREEMENT
Dated __________, 19__
Reference is made to the Amended and Restated Credit Agreement dated as of
October 15, 1999 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among NORDSTROM, INC., a Washington corporation
(the "Borrower"), the Lenders parties thereto, BANK ONE, NA, as Syndication
Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Documentation Agent and
BANK OF AMERICA, N.A., as Administrative Agent (the "Agent") for the Lenders.
Terms defined in the Credit Agreement are used herein with the same meaning.
[NAME OF DESIGNOR] (the "Designor"), [NAME OF DESIGNEE]
(the "Designee"), the Agent and the Borrower agree as follows:
The Designor hereby designates the Designee, and the Designee hereby
accepts such designation, to have a right to make Bid Loans pursuant to
Section 2.2 of the Credit Agreement.
Except as set forth in Section 7 below, the Designor makes no
representation or warranty and assumes no responsibility pursuant to this
Designation Agreement with respect to (a) any statements, warranties or
representations made in or in connection with any Loan Document or the
execution, legality, validity, enforceability, genuineness, sufficiency or
value of any Loan Document or any other instrument and document furnished
pursuant thereto and (b) the financial condition of the Borrower or any Loan
Party or the performance or observance by the Borrower or any Loan Party or
any of their respective obligations under any Loan Document or any other
instrument or document furnished pursuant thereto. (It is acknowledged that
the Designor may make representations and warranties of the type described
above in other agreements to which the Designor is a party).
The Designee (a) confirms that it has received a copy of the Credit
Agreement and the other Loan Documents, together with copies of the financial
statements referred to in Section 4.3 of the Credit Agreement or delivered
pursuant to Section 5.1 thereof prior to the date hereof and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Designation Agreement; (b) agrees
that it will, independently and without reliance upon the Agent, the Designor
or any other Lender Party, 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 or the other Loan
Documents; (c) appoints and authorizes the Agent to take such actions on its
behalf and to exercise such powers under the Loan Documents as are delegated
to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (d) agrees that it will perform in accordance
with their terms all of the obligations which by the terms of the Credit
Agreement or the other Loan Documents are required to be performed by it as a
B-1
Lender; and (e) specifies as its address for notices the office set forth
beneath its name on the signature pages hereof.
The Designee hereby appoints Designor as Designee's agent and attorney
in fact, and grants to Designor an irrevocable power of attorney, to deliver
and receive all communications and notices under the Credit Agreement and the
other Loan Documents and to exercise on Designee's behalf all rights to vote
and to grant and make approvals, waivers, consents or amendments to or under
the Credit Agreement or the other Loan Documents. Any document executed by
the Designor on the Designee's behalf in connection with the Credit Agreement
or other Loan Documents shall be binding on the Designee. The Borrower, the
Agent and each of the Lenders may rely on and are beneficiaries of the
preceding provisions of this Section 5.
Following the execution of this Designation Agreement by the Designor
and its Designee, it will be delivered to the Agent for acceptance and
recording by the Agent. The effective date for this Designation Agreement
(the "Effective Date") shall be the date of acceptance hereby by the Agent,
unless otherwise specified on the signature page hereto.
Neither the Agent nor the Borrower shall institute or join any other
person in instituting against the Designee any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceeding, or other proceeding under
any federal or state bankruptcy or similar law, for one year and a day after
the Maturity Date of the Credit Agreement.
[ Optional Provision: __. The Designor unconditionally agrees to pay or
reimburse the Designee for, and save the Designee harmless against, all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
which may be imposed or asserted by any of the parties to the Loan Documents
against the Designee, in its capacity as such, in any way relating to or
arising out of this Designation Agreement or any other Loan Documents or any
action taken or omitted by the Designee hereunder or thereunder, provided
that the Designor shall not be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements if the same results from the Designee's gross
negligence or willful misconduct.]
Upon such acceptance and recording by the Agent, as of the Effective
Date, the Designee shall be a party to the Credit Agreement with a right to
make Bid Loans as a Lender pursuant to Section 2.2 of the Credit Agreement
and the rights and obligations of a Lender related thereto.
THIS DESIGNATION AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF WASHINGTON.
This Designation 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 Designation Agreement by
B-2
facsimile transmission shall be effective as delivery of a manually executed
counterpart of this Designation Agreement.
B-3
IN WITNESS WHEREOF, the Designor and the Designee, intending to be legally
bound, have caused this Designation Agreement to be executed by their
officers thereunto duly authorized as of the date first above written.
Effective Date: ________________, 19__
[NAME OF DESIGNOR], as Designor
By:
Name:
Title:
[NAME OF DESIGNEE], as Designee
By:
Name:
Title:
Applicable Lending Office (and address for notices):
[ADDRESS]
Accepted this ___ day of
_____________, 199_
[AGENT], as Agent
By:
Name:
Title:
[BORROWER]
By:
Name:
Title:
EXHIBIT E-1
FORM OF
NOTICE OF BORROWING
TO: BANK OF AMERICA, N.A., as Agent
000 X. Xxxxx Xxxxxx
15th Floor NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among NORDSTROM, INC., a Washington corporation
(the "Borrower"), each of the banks and other financial institutions that
either now or in the future are parties thereto as lenders (the "Lenders"),
BANK ONE, NA, as Syndication Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent and BANK OF AMERICA, N.A., a national banking
association, in its capacity as administrative agent on behalf of the Lenders
(in such capacity, the "Agent"). Terms with initial capital letters used but
not defined herein have the meanings assigned to them in the Credit
Agreement.
Pursuant to Article 2 of the Credit Agreement:
1. The Borrower hereby requests to borrow Revolving Loans in
the aggregate principal amounts and types as follows (the "Loans"): (a) Euro-
Dollar Rate Loans in the amount of $ on , 3
[with an Interest Period of ]4; and (b) Base Rate Loans in the
amount of $ on , 5; and
2. The Borrower hereby represents and warrants as follows:
(a) All of the representations and warranties contained
in Article 4 of the Credit Agreement and in the other Loan Documents are true
and correct in all material respects on and as of the date hereof and shall
be true and correct in all material respects on and as of each Funding Date
proposed herein as though made on and as of each such date (except, in each
case, to the extent that such representations and warranties expressly were
made only as of a specific date);
E-1-1
(b) No Default or Event of Default exists or would result
from the making of the Loans; and
(c) All other conditions to borrowing set forth in
Section 3.2 of the Credit Agreement are satisfied.
Date: ,
NORDSTROM, INC.,
a Washington corporation
By:6
Name:
Title:
E-1-2
EXHIBIT E-3
FORM OF
NOTICE OF CONVERSION/CONTINUATION
TO: BANK OF AMERICA, N.A., as Agent
000 X. Xxxxx Xxxxxx
15th Floor NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among NORDSTROM, INC., a Washington corporation
(the "Borrower"), each of the banks and other financial institutions that
either now or in the future are parties thereto as lenders (the "Lenders"),
BANK ONE, NA, as Syndication Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent and BANK OF AMERICA, N.A., a national banking
association, in its capacity as administrative agent on behalf of the Lenders
(in such capacity, the "Agent"). Terms with initial capital letters used but
not defined herein have the meanings assigned to them in the Credit
Agreement.
Pursuant to Article 2 of the Credit Agreement:
[FOR CONVERSION OF BASE RATE INTO EURO-DOLLAR RATE]
Effective as of , , the Borrower hereby requests
to convert $ of presently outstanding Base Rate Loans on
, into Euro-Dollar Rate Loans with an Interest Period
of [one/two/three/six] months[s].
[FOR CONVERSION OF EURO-DOLLAR RATE INTO BASE RATE]
Effective as of , , the Borrower hereby requests
to convert $ of presently outstanding Euro-Dollar Rate Loans with an
Interest Period of [one/two/three/six] months[s], expiring on ,
into Base Rate Loans.
[FOR CONTINUATION OF EURO-DOLLAR RATE]
E-3-1
Effective as of , , the Borrower hereby requests
to continue $ continue of presently outstanding Euro-Dollar
Rate Loans with an Interest Period of expiring on ,
as Euro-Dollar Rate Loans with an Interest Period of
[one/two/three/six] month[s].
Date: ,
NORDSTROM, INC.,
a Washington corporation
By: 7
Name:
Title:
E-3-2
EXHIBIT E-4
FORM OF
BID LOAN QUOTE REQUEST
TO: BANK OF AMERICA, N.A., as Agent
000 X. Xxxxx Xxxxxx
15th Floor NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among NORDSTROM, INC., a Washington corporation
(the "Borrower"), each of the banks and other financial institutions that
either now or in the future are parties thereto as lenders (the "Lenders"),
BANK ONE, NA, as Syndication Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent and BANK OF AMERICA, N.A., a national banking
association, in its capacity as administrative agent on behalf of the Lenders
(in such capacity, the "Agent"). Terms with initial capital letters used but
not defined herein have the meanings assigned to them in the Credit
Agreement.
Pursuant to Section 2.2 of the Credit Agreement:
1. The Borrower hereby gives notice that it requests Bid Loan
Quotes for the following proposed Bid Loan Borrowing(s)8:
Funding Date Amount Interest Period
E-4-1
2. The Borrower hereby represents and warrants as follows:
(a) All of the representations and warranties contained
in Article 4 of the Credit Agreement and in the other Loan Documents are true
and correct in all material respects on and as of the date hereof and shall
be true and correct in all material respects on and as of each Funding Date
proposed herein as though made on and as of each such date (except, in each
case, to the extent that such representations and warranties expressly were
made only as of a specific date);
(b) No Default or Event of Default exists or would result
from the Bid Loan Borrowing(s); and
(c) All other conditions to borrowing set forth in
Section 3.2 of the Credit Agreement are satisfied.
Date: ____________, _____
NORDSTROM, INC.,
a Washington corporation
By: 12
Name:
Title:
E-4-2
EXHIBIT E-5
FORM OF
BID LOAN QUOTE
TO: BANK OF AMERICA, N.A., as Agent
000 X. Xxxxx Xxxxxx
15th Floor NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among NORDSTROM, INC., a Washington corporation
(the "Borrower"), each of the banks and other financial institutions that
either now or in the future are parties thereto as lenders (the "Lenders"),
BANK ONE, NA, as Syndication Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent and BANK OF AMERICA, N.A., a national banking
association, in its capacity as administrative agent on behalf of the Lenders
(in such capacity, the "Agent"). Terms with initial capital letters used but
not defined herein have the meanings assigned to them in the Credit
Agreement.
In response to the Borrower's Bid Loan Quote Request dated ,
(the "Bid Loan Quote Request"), we hereby make the following Bid
Loan Quote(s) on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. We hereby offer to make Bid Loan(s) in the following
principal amount[s], for the following Interest Period(s) and at the
following rate(s):
Funding Date Amount Interest Period Quote
E-5-1
We understand and agree that the offer(s) set forth above,
subject to the satisfaction of the applicable conditions set forth in the
Credit Agreement, irrevocably obligate(s) us to make the Bid Loan(s) for
which any offer(s) are accepted, in whole or in part, subject to the third
sentence of Section 2.2.2.2 of the Credit Agreement.
Date: ,
By: 17
Name:
Title:
E-5-2
EXHIBIT E-7
FORM OF
NOTICE OF RESPONSIBLE OFFICERS
TO: BANK OF AMERICA, N.A., as Agent
000 X. Xxxxx Xxxxxx
15th Floor NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among NORDSTROM, INC., a Washington corporation
(the "Borrower"), each of the banks and other financial institutions that
either now or in the future are parties thereto as lenders (the "Lenders"),
BANK ONE, NA, as Syndication Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent and BANK OF AMERICA, N.A., a national banking
association, in its capacity as administrative agent on behalf of the Lenders
(in such capacity, the "Agent"). Terms with initial capital letters used but
not defined herein have the meanings assigned to them in the Credit
Agreement.
The Borrower hereby designates the following individuals as
Responsible Officers, authorized to request and take other actions with
respect to Loans on behalf of the Borrower and certifies that the signatures
and telephone numbers of those individuals are as follows:
Name Office Signature Phone No.
The Agent is hereby authorized to rely on this Notice of
Responsible Officers unless and until a new Notice of Responsible Officers is
received by it, irrespective of whether any of the information set forth
herein shall have become inaccurate or false. Additional persons may be
designated as Responsible Officers, or the designation of any person may be
revoked, at any time, by subsequent Notices of Responsible Officers signed by
any person who purports to be a Senior Officer of the Borrower.
E-7-1
The foregoing supersedes any Notice of Responsible Officers
presently in effect under the Credit Agreement.
Date: ,
NORDSTROM, INC.,
a Washington corporation
By: 18
Name:
Title:
E-7-2
EXHIBIT F-1
FORM OF
SECRETARY'S CERTIFICATE
TO: BANK OF AMERICA, N.A., as Agent
000 X. Xxxxx Xxxxxx
15th Floor NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among NORDSTROM, INC., a Washington corporation
(the "Borrower"), each of the banks and other financial institutions that
either now or in the future are parties thereto as lenders (the "Lenders"),
BANK ONE, NA, as Syndication Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent and BANK OF AMERICA, N.A., a national banking
association, in its capacity as administrative agent on behalf of the Lenders
(in such capacity, the "Agent"). Terms with initial capital letters used but
not defined herein have the meanings assigned to them in the Credit
Agreement.
Pursuant to Section 3.1 of the Credit Agreement, the undersigned
hereby certifies that he or she is the duly appointed, qualified and acting
Secretary of the Borrower and hereby further certifies as follows:
1. Attached as Exhibit A is a true, correct and complete copy
of the Bylaws of the Borrower, including all amendments, as in effect on the
date hereof.
2. Attached as Exhibit B is a true, correct and complete copy
of the resolutions duly and validly adopted by the Board of Directors of the
Borrower on , . Such resolutions have not been amended or
modified and are in full force and effect in the form adopted and are the
only resolutions adopted by the Board of Directors or by any committee of, or
designated by, the Board of Directors relating to the Credit Agreement.
F-1-1
3. There have been no changes in the articles of incorporation
of the Borrower since the date of the certification thereof by the Secretary
of State of its jurisdiction of incorporation, as it is being delivered to
the Agent on the date hereof.
Date: October __, 1999
Name: N. Xxxxxx Xxxxx
The undersigned certifies that he or she is the duly appointed,
qualified and acting Chief Financial Officer of the Borrower and further
certifies that N. Xxxxxx Xxxxx is the duly appointed, qualified and acting
Secretary of the Borrower and that the signature set forth above is his or
her genuine signature.
Date: October __, 1999
Name:
F-1-2
EXHIBIT F-3
FORM OF
OFFICER'S CLOSING CERTIFICATE
TO: BANK OF AMERICA, N.A., as Agent
000 X. Xxxxx Xxxxxx
15th Floor NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among NORDSTROM, INC., a Washington corporation
(the "Borrower"), each of the banks and other financial institutions that
either now or in the future are parties thereto as lenders (the "Lenders"),
BANK ONE, NA, as Syndication Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent and BANK OF AMERICA, N.A., a national banking
association, in its capacity as administrative agent on behalf of the Lenders
(in such capacity, the "Agent"). Terms with initial capital letters used but
not defined herein have the meanings assigned to them in the Credit
Agreement.
Pursuant to Section 3.1 of the Credit Agreement, the undersigned
hereby certifies that he is the Chief Financial Officer of the Borrower and
hereby further certifies as follows:
1. I have carefully reviewed the terms of the Loan Documents
to which the Borrower is a party and have made, or caused to be made, such
review of the Borrower and its business affairs as I have considered
necessary for the purposes of preparing this Certificate.
2. I have carefully prepared and reviewed the contents of this
Certificate and have conferred with counsel for the Borrower for the purpose
of discussing the meaning of any provisions hereof that I desired to have
clarified.
3. All representations and warranties of the Borrower
contained in the Loan Documents to which the Borrower is a party are true and
correct in all Material respects as of the date hereof as if made on such
date.
4. No Default or Event of Default exists on and as of the date
hereof or would result from the making of the Loans on the Closing Date.
F-3-1
5. All of the conditions precedent set forth in Section 3.1 of
the Credit Agreement have been satisfied (assuming for purposes of this
paragraph 5 that those matters required to be satisfactory to the Agent are
satisfactory to the Agent).
Date: October __, 1999
Name:
Title: Chief Financial Officer
F-3-2
EXHIBIT F-6
FORM OF
COMPLIANCE CERTIFICATE
TO: BANK OF AMERICA, N.A., as Agent
000 X. Xxxxx Xxxxxx
15th Floor NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among NORDSTROM, INC., a Washington corporation
(the "Borrower"), the banks and other financial institutions from time to
time parties thereto as lenders (the "Lenders"), BANK ONE, NA, as Syndication
Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Documentation Agent and
BANK OF AMERICA, N.A. (the "Agent Bank," as agent and representative for the
Lenders (in such capacity the Agent Bank or any successor in such capacity is
referred to herein as the "Agent")). Terms with initial capital letters used
but not defined herein have the meanings assigned to them in the Credit
Agreement.
This Compliance Certificate is being delivered pursuant to
Section 5.1.5 of the Credit Agreement and relates to certain financial
statements of the Borrower (the "Financial Statements") as of and for periods
ended (the "Financial Statement Date"). The undersigned is the
[Chief Financial Officer/President] of the Borrower, and hereby further
certifies as of the date hereof, in [his/her] capacity as an officer of the
Borrower, as follows:
1. I have reviewed the terms of the Loan Documents and have
made, or have caused to be made under my supervision, a review in reasonable
detail of the transactions and condition of the Borrower and its Subsidiaries
during the accounting period covered by the Financial Statements to make the
statements contained in this Compliance Certificate. I have also made such
inquiries as have been necessary of other officers of the Borrower in order
to complete this Compliance Certificate.
2. Such review has not disclosed the existence of any Default
or Event of Default during such accounting period or as of the Financial
Statement Date and I do not have knowledge of the existence, as at the date
F-6-1
of this certificate, of any Default or Event of Default[, except as
follows:19].
I hereby further certify as of the Financial Statement Date, in
my capacity as an officer of the Borrower, as follows20:
I. Section 6.3.1 Minimum Coverage Ratio for Fiscal Quarter
A. EBITDAR for Fiscal Quarter
B. Interest Expense for Fiscal Quarter
C. Rent Expense for Fiscal Quarter
D. Fixed Charge Coverage Ratio for Fiscal Quarter
E. Minimum Coverage Ratio 2.00
II. Section 6.3.2 Minimum Net Worth as of Financial Statement Date
A. Net Worth of the Borrower as of Financial Statement Date
B. Minimum Net Worth of the Borrower
as of Financial Statement Date $750,000,000
F-6-2
The undersigned has executed this Officers' Certificate as of the ______ day
of , .
Name:
Title: [Chief Financial Officer/President]
F-6-3
EXHIBIT G
G-1
FORM OF OPINION OF
BORROWER'S COUNSEL
[To Come]
EXHIBIT H
FORM OF ASSIGNMENT AND ASSUMPTION
TO: BANK OF AMERICA, N.A., as Agent
000 X. Xxxxx Xxxxxx
15th Floor NC1-001-15-04
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Dated ,
Reference is hereby made to the Amended and Restated Credit
Agreement, dated as of October 15, 1999 (as the same may be amended,
supplemented, replaced, renewed or otherwise modified from time to time, the
"Credit Agreement"), by and among NORDSTROM, INC., a Washington corporation
(the "Borrower"), each of the banks and other financial institutions that
either now or in the future are parties thereto as lenders (the "Lenders"),
BANK ONE, NA, as Syndication Agent, XXXXXX GUARANTY TRUST COMPANY OF NEW
YORK, as Documentation Agent and BANK OF AMERICA, N.A., a national banking
association, in its capacity as administrative agent on behalf of the Lenders
(in such capacity, the "Agent"). Terms with initial capital letters used but
not defined herein have the meanings assigned to them in the Credit
Agreement.
(the "Assignor") and
(the "Assignee) agree as follows:
1. Subject to Section 4 below, the Assignor hereby sells and
assigns to the Assignee, and the Assignee hereby purchases and assumes from
the Assignor, WITHOUT RECOURSE, a % interest in and to all of the
Assignor's rights and obligations under the Credit Agreement and the other
Loan Documents as of the Effective Date (as defined below), including,
without limitation, such percentage interest in the Assignor's Revolving
Commitment as is in effect on the Effective Date, the Revolving Loans owing
to the Assignor on the Effective Date, the Revolving Loan Note held by the
Assignor, the Bid Loans owing to the Assignor on the Effective Date and the
Bid Loan Note held by the Assignor.
2. The Assignor (a) represents and warrants that, as of the
date hereof, its Revolving Commitment (without giving effect to assignments
thereof which have not yet become effective) is $ ; (b)
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; (c) 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 any of
the other Loan Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit Agreement or
any of the other Loan Documents or any other instrument or document furnished
pursuant thereto; (d) makes no representation or warranty and assumes no
H-1
responsibility with respect to the financial condition of the Borrower or any
of the Borrower's obligations under the Loan Documents or any other
instrument or document furnished pursuant thereto; (e) attaches the Revolving
Loan Note referred to in paragraph 1 above and requests that the Agent
exchange such note for new Revolving Loan Notes as follows: a Revolving Loan
Note, dated , , in the principal amount of $
, payable to the Assignor or order, and a Revolving Loan Note, dated
, in the principal amount of $ payable to the Assignee
or order; and (f) attaches the Bid Loan Note referred to in paragraph 1 above
and requests that the Agent exchange such note for new Bid Loan Notes as
follows: a Bid Loan Note, dated , in the principal
amount of $ , payable to the Assignor or order, and a Bid Loan
Note, dated , 19 in the principal amount of $
payable to the Assignee or order.
3. The Assignee (a) confirms that it has received a copy of
the Credit Agreement and the other Loan Documents, together with copies of
the financial statements referred to in Section 4.3 of the Credit Agreement
or delivered pursuant to Section 5.1 thereof prior to the date hereof 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
Assumption; (b) agrees that it will, independently and without reliance upon
the Agent, the Assignor or any other Lender Party, 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 or the other Loan Documents; (c) appoints and authorizes the
Agent to take such actions on its behalf and to exercise such powers under
the Loan Documents as are delegated to the Agent by the terms thereof,
together with such powers as are reasonably incidental thereto; (d) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Credit Agreement or the other Loan Documents are
required to be performed by it as a Lender; and (e) specifies as its address
for notices the office set forth beneath its name on the signature pages
hereof.
4. The effective date of this Assignment and Assumption shall
be (a) or (b) the date on which all conditions set forth in
Section 9.6.2 of the Credit Agreement have been satisfied, whichever is later
(the "Effective Date").21 This Assignment and Assumption shall be delivered
to the Agent and the Borrower for acceptance and the fee required by Section
9.6.2 of the Credit Agreement shall be paid to the Agent.
5. From and after the Effective Date, (a) the Assignee shall
be a party to the Credit Agreement and, to the extent provided in this
Assignment and Assumption, have the rights and obligations of a Lender
thereunder and under the other Loan Documents and (b) the Assignor shall, to
the extent provided in this Assignment and Assumption, relinquish its rights
and be released from its obligations under the Credit Agreement and the other
Loan Documents.
H-2
6. From and after the Effective Date, the Agent shall make all
payments under the Credit Agreement and the other Loan Documents in respect
of the interest assigned hereby (including all payments of principal,
interest and Fees) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Credit Agreement and the other
Loan Documents for periods prior to the Effective Date directly between
themselves.
7. THIS ASSIGNMENT AND ASSUMPTION SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF WASHINGTON.
[NAME OF ASSIGNOR]
By:
Name:
Title:
Revolving Commitment after the Effective
Date: $
[NAME OF ASSIGNEE]
By:
Name:
Title:
Notice Address:
Revolving Commitment after the Effective
Date: $
Accepted this ____ day of
______________, ____
BANK OF AMERICA, N.A., as Agent
By:
Name:
Title:
H-3
NORDSTROM, INC.
By:
Name:
Title
H-4
Exhibit I
CONTROLLING STOCKHOLDERS(
Nordstrom, Inc.
All lineal descendants of Xxxx X. Xxxxxxxxx, including but not limited to:
Xxxxx XxXxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Xxxxx Xxxxxxxxx
Xxxx Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
and the lineal descendants and spouses of each of such persons and all
trusts, partnerships, estates or other entities through which the beneficial
ownership of Voting Stock (or other securities convertible into such Voting
Stock) of the Borrower is held by such persons (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934).
H-5
