Published CUSIP No.:
----------
===========================================================================
$500,000,000
REVOLVING CREDIT FACILITY
Dated as of November 4, 2005
among
NORDSTROM, INC.,
as Borrower,
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
as Lenders,
BANK OF AMERICA, N.A.,
as Administrative Agent,
JPMORGAN CHASE BANK, N.A.
and
XXXXX FARGO BANK, N.A.,
as Syndication Agents
and
U.S. BANK, NATIONAL ASSOCIATION
as Documentation Agent
===========================================================================
BANC OF AMERICA SECURITIES LLC,
as Sole Lead Arranger and Sole Book Manager
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS AND RELATED MATTERS 1
Section 1.1. Definitions 1
Section 1.2. Related Matters. 14
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. 22
Section 2.7. Termination and Reduction of Revolving Commitments. 23
Section 2.8. Repayments and Prepayments. 23
Section 2.9. Manner of Payment. 24
Section 2.10. Pro Rata Treatment. 25
Section 2.11. Sharing of Payments. 25
Section 2.12. Mandatory Suspension and Conversion of Euro-Dollar
Rate Loans. 26
Section 2.13. Regulatory Changes. 27
Section 2.14. Compensation for Funding Losses. 27
Section 2.15. Certificates Regarding Yield Protection, Etc. 28
Section 2.16. Taxes. 28
Section 2.17. Applicable Lending Office; Discretion of Lenders as
to Manner of Funding. 29
Section 2.18. Increases in Revolving Commitment. 29
ARTICLE 3 CONDITIONS TO LOANS 30
Section 3.1. Closing Conditions. 30
Section 3.2. Conditions Precedent to Loans. 31
ARTICLE 4 REPRESENTATIONS AND WARRANTIES 32
Section 4.1. Organization, Powers and Good Standing. 32
Section 4.2. Authorization, Binding Effect, No Conflict, Etc. 32
Section 4.3. Financial Information. 33
Section 4.4. No Material Adverse Changes. 33
Section 4.5. Litigation. 33
Section 4.6. Agreements: Applicable Law. 33
Section 4.7. Taxes. 33
Section 4.8. Governmental Regulation. 33
Section 4.9. Margin Regulations/Proceeds of Loans. 34
Section 4.10. Employee Benefit Plans. 34
Section 4.11. Disclosure. 34
Section 4.12. Solvency. 34
Section 4.13. Title to Properties. 34
Page i
ARTICLE 5 AFFIRMATIVE COVENANTS OF THE BORROWER 35
Section 5.1. Financial Statements and Other Reports. 35
Section 5.2. Records and Inspection. 37
Section 5.3. Corporate Existence, Etc. 37
Section 5.4. Payment of Taxes and Claims. 37
Section 5.5. Maintenance of Properties. 37
Section 5.6. Maintenance of Insurance. 38
Section 5.7. Conduct of Business; Compliance with Law. 38
Section 5.8. Further Assurances. 38
Section 5.9. Future Information. 38
ARTICLE 6 NEGATIVE COVENANTS OF THE BORROWER 39
Section 6.1. Liens. 39
Section 6.2. Restricted Payments. 41
Section 6.3. Leverage Ratio. 41
Section 6.4. Restriction on Fundamental Changes. 41
Section 6.5. Asset Dispositions. 42
Section 6.6. Transactions with Affiliates. 42
ARTICLE 7 EVENTS OF DEFAULT, ETC. 42
Section 7.1. Events of Default. 42
Section 7.2. Remedies. 44
Section 7.3. Allocation of Payments After Event of Default. 45
ARTICLE 8 THE AGENT 46
Section 8.1. Appointment and Authority. 46
Section 8.2. Rights as a Lender. 46
Section 8.3. Exculpatory Provisions. 46
Section 8.4. Reliance by Agent. 47
Section 8.5. Delegation of Duties. 47
Section 8.6. Resignation of Agent. 47
Section 8.7. Non-Reliance on Agent and Other Lenders. 48
Section 8.8. No Other Duties, Etc. 48
Section 8.9. Agent May File Proofs of Claim. 48
ARTICLE 9 MISCELLANEOUS 49
Section 9.1. Expenses. 49
Section 9.2. Indemnity; Damages. 49
Section 9.3. Amendments; Waivers; Modifications in Writing. 50
Section 9.4. Cumulative Remedies: Failure or Delays. 51
Section 9.5. Notices; Effectiveness; Electronic Communication. 51
Section 9.6. Successors and Assigns; Designations. 53
Section 9.7. Set Off. 56
Section 9.8. Survival of Agreements, Representations and
Warranties. 56
Section 9.9. Execution in Counterparts. 57
Section 9.10. Complete Agreement. 57
Section 9.11. Limitation of Liability. 57
Page ii
Section 9.12. WAIVER OF TRIAL BY JURY. 57
Section 9.13. Confidentiality. 57
Section 9.14. Binding Effect; Continuing Agreement. 58
Section 9.15. NO ORAL AGREEMENTS. 59
Section 9.16. USA Patriot Act Notice. 59
Page iii
EXHIBITS
Exhibit 2.1(c) Form of Notice of Borrowing
Exhibit 2.1(c)(iii) Form of Notice of Responsible Officers
Exhibit 2.2(b)(i) Form of Bid Loan Quote Request
Exhibit 2.2(b)(ii) Form of Bid Loan Quote
Exhibit 2.4(b)(ii) Form of Notice of Conversion/Continuation
Exhibit 2.5(a)(i) Form of Revolving Loan Note
Exhibit 2.5(a)(ii) Form of Bid Loan Note
Exhibit 3.1(d) Form of Closing Officer's Certificate
Exhibit 5.1(c) Form of Compliance Certificate
Exhibit 9.6(b) Form of Assignment and Assumption
SCHEDULES
Schedule 1.1(a) Controlling Stockholders
Schedule 1.1(b) Existing Liens
Schedule 1.1(c) Revolving Commitments
Schedule 4.1 Organization of Borrower and Subsidiaries
Schedule 4.5 Material Litigation
Schedule 9.5 Certain Addresses for Notices
Schedule 9.6 Processing and Recordation Fees
Page iv
REVOLVING CREDIT AGREEMENT
REVOLVING CREDIT AGREEMENT, dated as of November 4, 2005 (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"),
JPMORGAN CHASE BANK, N.A. and XXXXX FARGO BANK, N.A., as Syndication Agents
(in such capacities, the "Syndication Agents"), U.S. BANK, NATIONAL
ASSOCIATION, as Documentation Agent (in such capacity, the "Documentation
Agent"), and BANK OF AMERICA, N.A., as administrative agent for the Lenders
(in such capacity, and any successor in such capacity, the "Agent"). The
Lenders, the Syndication Agents, the Documentation Agent and the Agent are
collectively referred to herein as the "Lender Parties" and each individually
as a "Lender Party."
RECITALS
WHEREAS, the Borrower has requested that the Lenders provide a new revolving
credit facility in an aggregate amount of $500,000,000 (the "Credit
Facility") for the purposes hereinafter set forth;
WHEREAS, the Lenders have agreed to make the requested Credit Facility
available to the Borrower on the terms and conditions hereinafter set forth;
and
WHEREAS, this Agreement replaces in its entirety the Existing Credit
Agreement.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS AND RELATED MATTERS
Section 1.1 Definitions.
The following terms with initial capital letters have the following meanings:
"Absolute Rate" is defined in Section 2.2(b)(iii).
"Administrative Questionnaire" means an Administrative Questionnaire in a
form supplied by the Agent.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, such first Person. The term
"control" means the possession, directly or indirectly, of the power, whether
or not exercised, to direct or cause the direction of the management or
policies of a Person, whether through the ownership of Capital Stock, by
contract or otherwise, and the terms "controlled" and "common control" have
correlative meanings. Unless otherwise indicated, "Affiliate" refers to an
Affiliate of the Borrower. Notwithstanding the foregoing, in no event shall
any Lender Party or any Affiliate of any Lender Partly be deemed to be an
Affiliate of the Borrower. For the avoidance of doubt, the parties agree
that, as of the date hereof, 1700 Seventh L.P., a
Washington limited
partnership, is not an Affiliate of the Borrower.
Page 1
"Agent" means Bank of America or any successor agent appointed in accordance
with Section 8.6.
"Agent's Account" means the account of the Agent identified as such on
Schedule 9.5, 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 9.5, or such other office as the Agent may hereafter designate by
notice to the Borrower and each Lender Party.
"Agreement" means this Credit Agreement, as it may be amended or modified
from time to time, including all Schedules and Exhibits.
"Applicable Law" means all applicable provisions of all (i) constitutions,
treaties, statutes, laws, rules, regulations and ordinances of any
Governmental Authority, (ii) Governmental Approvals and (iii) orders,
decisions, judgments, awards and decrees of any Governmental Authority.
"Applicable Lending Office" means, with respect to any Lender, (i) in the
case of any payment with respect to Euro-Dollar Rate Loans, such Lender's
Euro-Dollar Lending Office and (ii) in the case of any payment with respect
to Base Rate Loans or Bid Loans or any other payment under the Loan
Documents, such Lender's Domestic Lending Office.
"Applicable Margin" means, at any time, with respect to Facility Fees,
Utilization Fees, or Euro-Dollar Rate Loans, as applicable, the appropriate
applicable percentage corresponding to the long term, senior, unsecured,
non-credit enhanced debt rating of the Borrower in effect from time to time
as shown below:
Page 2
Level Long Term, Senior, Unsecured, Applicable Applicable Applicable
Non-Credit Margin for Margin for Margin for
Enhanced Debt Rating of Euro-Dollar Rate Facility Fees Utilization
Borrower Loans Fees
================================================================================================
I. ? A+ from S&P .175% 0.050% .050%
or
? A1 from Xxxxx'x
------------------------------------------------------------------------------------------------
II. ? A but < A+ from S&P .190% 0.060% .050
or
? A2 but < A1 from Xxxxx'x
------------------------------------------------------------------------------------------------
III. ? A- but < A from S&P .225% 0.075% .100%
or
? A3 but < A2 from Xxxxx'x
------------------------------------------------------------------------------------------------
IV. ? BBB+ but < A- from S&P .350% .100% .100%
or
? Baa1 but < A3 from Xxxxx'x
------------------------------------------------------------------------------------------------
V. ? BBB from S&P .500% .125% .125%
and
? Baa2 from Xxxxx'x
or
unrated by S&P and Xxxxx'x
------------------------------------------------------------------------------------------------
Notwithstanding the above, (i) if at any time there is a split in ratings
between S&P and Xxxxx'x of one level, the applicable percentage shall be
determined by the higher of the two ratings (e.g. A-/Baa1 results in
Level III pricing) and (ii) if at any time there is a split between S&P and
Xxxxx'x of two or more levels, the applicable level shall be one level below
the higher of the S&P or Xxxxx'x rating (e.g. A-/Baa2 results in Level IV
pricing, as does A-/Baa3).
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 debt rating in
effect at any date is the debt rating that is in effect at the close of
business on such date. The Applicable Margin shall be determined and, if
necessary, adjusted on the date (each, a "Determination Date") on which there
is any change in the Borrower's debt ratings. Each Applicable Margin shall
be effective from one Determination Date until the next Determination Date.
Any adjustment in the Applicable Margin shall be applicable to all existing
Euro-Dollar Rate Loans as well as any new Euro-Dollar Rate Loans made. The
Borrower shall notify the Agent in writing immediately upon any change in its
debt ratings.
"Approved Fund" means any Fund that is administered or managed by (i) a
Lender, (ii) an Affiliate of a Lender or (iii) an entity or an Affiliate of
an entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its capacity as sole lead
arranger and sole book manager.
"Assignee Group" means two or more Eligible Assignees that are Affiliates of
Page 3
one another or two or more Approved Funds managed by the same investment
advisor.
"Assignment and Assumption" means an Assignment and Assumption in the form of
Exhibit 9.6(b).
"Bank of America" means Bank of America, N.A. or any successor thereto.
"Bankruptcy Code" means Title 11 of the United States Code (11 U.S.C.
Section 101 et seq.), as amended, modified, succeeded or replaced from time
to time.
"BAS" means Banc of America Securities LLC or any successor thereto.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (i) the Federal Funds Rate plus 1/2 of 1% and (ii) the rate of
interest in effect for such day as publicly announced from time to time by
Bank of America as its "prime rate." The "prime rate" is a rate set by Bank
of America based upon various factors including Bank of America's costs and
desired return, general economic conditions and other factors, and is used as
a reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in such rate announced by Bank of
America shall take effect at the opening of business on the day specified in
the public announcement of such change.
"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(a).
"Bid Loan Borrowing" is defined in Section 2.2(a).
"Bid Loan Note" means a Bid Loan Note made by the Borrower, in substantially
the form of Exhibit 2.5(a)(ii), payable to the order of a Lender, evidencing
the obligation of the Borrower to repay the Bid Loans made by such Lender,
and includes any Bid Loan Note issued in exchange or substitution therefor.
"Bid Loan Quote" is defined in Section 2.2(b)(ii).
"Bid Loan Quote Request" is defined in Section 2.2(b)(i).
"Borrower" means Nordstrom, Inc., a
Washington corporation, and its
successors and permitted assigns.
"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, conditioned or delayed so long as the designation of such
account would not prevent the Agent from satisfying its obligations hereunder
in a timely manner).
"Borrower Materials" is defined in Section 5.1.
"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, San Francisco, California or
Page 4
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 or ownership 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 in accordance with GAAP are or should be
capitalized on the balance sheet of such Persons. The amount of any
Capitalized Lease shall be the capitalized amount thereof as determined in
accordance with GAAP.
"Change of Control" means that (a) a majority of the directors of the
Borrower shall be Persons other than Persons (x) for whose election proxies
shall have been solicited by the board of directors of the Borrower or (y)
who are then serving as directors appointed by the board of directors to fill
vacancies on the board of directors caused by death or resignation (but not
by removal) or to fill newly-created directorships or (b) any "person" or
"group" (as such terms are used in Sections 13(d) of the Securities Exchange
Act of 1934), other than the Controlling Stockholders, becomes the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, except that a person or group shall be deemed to have
"beneficial ownership" of all securities that such person or group has the
right to acquire whether such right is immediately exercisable or only after
the passage of time), directly or indirectly, of Voting Stock of the Borrower
(or other securities convertible into such Voting Stock) representing 50% or
more of the combined voting power of all Voting Stock of the Borrower.
"Closing Date" means the date of this Agreement.
"Code" means the Internal Revenue Code of 1986 and the rules and regulations
promulgated thereunder, as amended, modified, succeeded or replaced from time
to time.
"Compliance Certificate" is defined in Section 5.1(c).
"Contingent Obligation" means, as to any Person, any obligation, direct or
indirect, contingent or otherwise, of such Person which does or would
reasonably be expected to result in the direct payment of money (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,
(iii) to lease or purchase property, securities or services primarily for the
purpose of assuring the holders of Debt or other obligations of another Person
or (iv) 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 shall be the greater of (a) the amount of the Debt
or obligation guaranteed or otherwise supported thereby or (b) the maximum
amount guaranteed or supported by the Contingent Obligation. The term
"Contingent Obligation", as used with respect to the Borrower or any
Subsidiary, shall not include (1) the obligations of the Borrower under any
obligation which the Borrower does or may have to sell to, repurchase from or
indemnify the purchaser or other transferee with respect to accounts
discounted, sold or in which an interest is otherwise transferred by the
Borrower or any Subsidiary in the ordinary course of its business (but any
such other obligation shall be excluded only to the extent that such other
obligation is for the benefit, directly or indirectly, of any Person that is
Page 5
a Wholly-Owned Subsidiary (direct or indirect) of the Borrower); or (2) any
obligation which a Subsidiary does or may have to sell to, repurchase from or
indemnify the purchaser or other transferee with respect to accounts
discounted, sold or in which an interest is otherwise transferred by the
Borrower or such Subsidiary in the ordinary course of its business (but any
such other obligation shall be excluded only to the extent that such
obligation is for the benefit, directly or indirectly, of any Person that is
a Wholly-Owned Subsidiary (direct or indirect) of the Borrower); (3) supply,
service or licensing agreements between or among the Borrower or its
Subsidiaries and any Affiliate(s), in each case, so long as such agreements
comply with Section 6.6; (4) environmental indemnities routinely given as
part of sale, lease or other disposition or acquisition of real estate, or
(5) "indemnities" for attorneys' fees and costs which are incidental to
another transaction and/or damages arising from breach of the terms of such
transaction.
"Contractual Obligation" means, as applied to any Person, any provision of
any security issued by that Person or of any indenture, agreement or other
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 Schedule 1.1(a)
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 (including, except as
otherwise provided in subpart (iii) below, purchase money indebtedness) other
than, with respect to Debt of the Borrower or any of its Subsidiaries, funds
borrowed by the Borrower or any such Subsidiary from the Borrower or another
such Subsidiary; (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 (which
trade payables are deemed to include any consignment purchases) arising in
the ordinary course of business that are not overdue; (iv) the principal
portion of all obligations under (a) Capitalized Leases and (b) any synthetic
lease, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product of such Person where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an
operating lease in accordance with GAAP; (v) all obligations of third parties
secured by a Lien on any asset owned by such Person whether or not such
obligation or liability is assumed; (vi) all obligations of such Person,
contingent or otherwise, in respect of any letters of credit or bankers'
acceptances; (vii) all Contingent Obligations; (viii) the aggregate amount
paid to, or borrowed by, such Person as of such date under a sale of
receivables or similar transaction (regardless of whether such transaction is
effected without recourse to such Person or in a manner that would not be
reflected on the balance sheet of such Person in accordance with GAAP); (ix)
all Debt of any partnership or unincorporated joint venture to the extent such
Person is legally obligated with respect thereto; and (x) all net obligations
with respect to interest rate protection agreements, foreign currency exchange
agreements, commodity purchase or option agreements or other interest or
exchange rate or commodity price hedging agreements.
"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.
"Documentation Agent" means U.S. Bank, National Association or any successor
thereto.
"Dollars" and "$" mean lawful money of the United States of America.
"Domestic Lending Office" means the office, branch or Affiliate of any Lender
described in such Lender's Administrative Questionnaire as its Domestic
Lending Office or such other office, branch or Affiliate as the Lender may
Page 6
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, with respect to the Borrower and its
consolidated Subsidiaries, Net Income plus, to the extent deducted in
determining such Net Income, the sum of (a) Interest Expense, (b) income tax
expense, (c) depreciation expense, (d) amortization expense and (e) Rent
Expense, in each case as determined in accordance with GAAP.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender; (c) an
Approved Fund; and (d) any other Person (other than a natural person)
approved by (i) the Agent, and (ii) unless an Event of Default has occurred
and is continuing, the Borrower (each such approval not to be unreasonably
withheld or delayed; it being understood that it shall be reasonable for the
Borrower to withhold consent to a new assignee Lender if as a result of such
assignment the Borrower would incur additional costs, including without
limitation, under Sections 2.13 and 2.16, and the assignee Lender shall
provide such information, if requested by the Borrower, in connection with
any proposed assignment); provided that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrower or any of the Borrower's
Affiliates or Subsidiaries or any competitor of the Borrower or any affiliate
of a competitor of the Borrower or the Borrower's Affiliates.
"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(c) 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 any waiver of notice 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 Code with respect to a Plan;
(iii) the provision by the administrator of a 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 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 described in such Lender's Administrative Questionnaire as its Euro-
Dollar Lending Office or, subject to the terms hereof, such other office,
branch or Affiliate as such Lender may hereafter designate as its Euro-Dollar
Page 7
Lending Office by notice to the Borrower and the Agent.
"Euro-Dollar Rate" means, for any Interest Period with respect to any Euro-
Dollar Rate Loan, a rate per annum determined by the Agent to be equal to the
quotient obtained by dividing (a) the Interbank Offered Rate for such Euro-
Dollar Rate Loan for such Interest Period by (b) one minus the Euro-Dollar
Reserve Requirement for such Euro-Dollar Rate Loan for such Interest Period.
"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, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any
Lender, under regulations issued from time to time by the Federal Reserve
Board for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect
to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Euro-Dollar Rate for each outstanding Euro-Dollar Rate
Loan shall be adjusted automatically as of the effective date of any change
in the Euro-Dollar Reserve Requirement.
"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 any Governmental
Authority 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 any Governmental Authority
in 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 Credit Agreement" means that certain
Revolving Credit Agreement,
dated as of May 14, 2004, by and among the Borrower, the financial
institutions party thereto as lenders thereunder, Bank One, NA, as
syndication agent, U.S. Bank National Association, as documentation agent,
and Bank of America, N.A., as administrative agent for such lenders, as it
has been amended, supplemented or otherwise modified from time to time.
"Existing Liens" means the Liens described on Schedule 1.1(b).
"Facility Fee" is defined in Section 2.6(a).
"Federal Funds Rate" means, for any day, the rate per annum 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 by the Federal Reserve Bank of New York on the
Business Day next succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next
succeeding Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate (rounded upward, if necessary, to a whole multiple of 1/100 of
1%) charged to Bank of America on such day on such transactions as determined
by the Agent.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
System, or any successor thereto.
Page 8
"Fee Letter" means that certain letter agreement, dated as of September 16,
2005, among the Borrower, the Agent and BAS regarding certain fees relating
to this Agreement, as the same may be amended, supplemented or otherwise
modified in writing from time to time by the Borrower, the Agent and BAS.
"Fees" means, collectively, the fees defined in or referenced in Section 2.6.
"Fiscal Year" means the fiscal year of the Borrower, which shall be the
twelve 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.
"Fund" means any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its
business.
"Funded Debt" means, with respect to the Borrower and its Subsidiaries, on a
consolidated basis, the aggregate amount of, without duplication: (i) all
obligations for borrowed money (including, except as otherwise provided in
subpart (iii) below, purchase money indebtedness) other than funds borrowed
by the Borrower or any Subsidiary from the Borrower or another Subsidiary;
(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 (which trade payables are
deemed to include any consignment purchases) arising in the ordinary course
of business that are not overdue; (iv) the principal portion of all
obligations under (a) Capitalized Leases and (b) any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance sheet
financing product of the Borrower or any of its Subsidiaries where such
transaction is considered borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP; (v) all obligations
of others secured by a Lien on any asset owned by the Borrower or any of its
Subsidiaries whether or not such obligation or liability is assumed; and (vi)
the aggregate amount paid to, or borrowed by, the Borrower or any of its
Subsidiaries as of such date under a sale of receivables or similar transaction
(regardless of whether such transaction is effected without recourse to the
Borrower or any of its Subsidiaries or in a manner that would not be reflected
on the balance sheet of the Borrower or any of its Subsidiaries in accordance
with GAAP).
"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 from time to time and applied on a consistent basis.
"Governmental Approval" means an authorization, consent, approval, permit or
license issued by, or a registration, qualification 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.
"Indemnitees" is defined in Section 9.2.
"Information" is defined in Section 9.13.
"Interbank Offered Rate" means, for any Interest Period with respect to a
Euro-Dollar Rate Loan, the rate per annum equal to the British Bankers
Association LIBOR Rate ("BBA LIBOR"), as published by Reuters (or other
commercially available source providing quotations of BBA LIBOR as designated
Page 9
by the Agent from time to time) at approximately 11:00 a.m., London time, two
Business Days prior to the commencement of such Interest Period, for Dollar
deposits (for delivery on the first day of such Interest Period) with a term
equivalent to such Interest Period. If such rate is not available at such
time for any reason, then the "Interbank Offered Rate" for such Interest
Period shall be the rate per annum determined by the Agent to be the rate at
which deposits in Dollars for delivery on the first day of such Interest
Period in same day funds in the approximate amount of the Euro-Dollar Rate
Loan being made, continued or converted by Bank of America and with a term
equivalent to such Interest Period would be offered by Bank of America's
London Branch to major banks in the London interbank eurodollar market at
their request at approximately 11:00 a.m. (London time) two Business Days
prior to the commencement of such Interest Period.
"Interest Expense" means the consolidated interest expense (including the
amortization of debt discount and premium, the interest component under
Capitalized Leases and the implied interest component under synthetic leases,
tax retention operating leases, off-balance sheet loans or similar
off-balance sheet financing products) of the Borrower and its Subsidiaries,
as determined in accordance with GAAP.
"Interest Period" means, subject to the conditions set forth below:
(i) with respect to each Euro-Dollar Rate Loan, the period commencing on the
Funding Date specified in the related Notice of Borrowing or Notice of
Conversion/Continuation 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
Day not less than seven and not more than 30 days thereafter, as the Borrower
may request as provided in Section 2.2(b)(i).
Notwithstanding the foregoing: (a) if a Euro-Dollar Rate Loan is continued,
the Interest Period applicable to the continued Euro-Dollar Rate 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 (1) 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 (2) 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, Inc., a Colorado
corporation, as amended from time to time.
"Lender" means each of those banks and other financial institutions
identified as such on the signature pages hereto and such other institutions
that may become Lenders pursuant to Section 9.6(b) or Section 2.18.
"Lender Party" means each of the Lenders, the Agent, the Syndication Agents
and the Documentation Agent.
"Leverage Ratio" is defined in Section 6.3.
Page 10
"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 T, U and X of the Federal Reserve
Board, as amended from time to time, or any successor regulations.
"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, liabilities,
results of operations or condition (financial or otherwise) 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.
"Material Contractual Obligation" means a Contractual Obligation, the
violation of which could reasonably be expected to have a Material Adverse
Effect.
"Maturity Date" means November 4, 2010.
"Moody's" means Xxxxx'x Investors Service, Inc. and any successor or assignee
of the business of such company in the business of rating debt.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA.
"Net Income" means, for any period with respect to the Borrower and its
consolidated Subsidiaries, net income (or net loss), excluding the effect of
extraordinary or other non-recurring gains and losses, as determined in
accordance with GAAP.
"Note" means a Revolving Loan Note or Bid Loan Note.
"Notice of Borrowing" is defined in Section 2.1(c)(i).
"Notice of Conversion/Continuation" is defined in Section 2.4(b)(ii).
"Notice of Responsible Officers" is defined in Section 2.1(c)(iii).
"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 under the Loan Documents, 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
Page 11
and/or several, absolute or contingent, voluntary, or involuntary, liquidated
or unliquidated, determined or undetermined, and whether now or hereafter
existing, renewed or restructured.
"Participant" is defined in Section 9.6(d).
"PBGC" means the Pension Benefit Guaranty Corporation, as defined in Title IV
of ERISA, or any successor.
"Permitted Liens" means, with respect to any asset, the Liens (if any)
permitted to exist on such asset in accordance with 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.
"Platform" is defined in Section 5.1.
"Post-Default Rate" means (i) with respect to all Base Rate Loans and any
other amounts (other than then outstanding Euro-Dollar Rate Loans) owing
hereunder not paid when due, 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 to 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.
"Recourse Agreement" means the Recourse Agreement, dated as of March 1, 2001,
between the Borrower and Nordstrom Credit, Inc., a Colorado corporation, for
the benefit of Nordstrom fsb, a federal savings bank, as amended from time to
time.
"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
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.
"Related Parties" means, with respect to any Person, such Person's Affiliates
Page 12
and the partners, directors, officers, employees, agents and advisors of such
Person and of such Person's Affiliates.
"Rent Expense" means the consolidated rent expense of the Borrower and its
Subsidiaries, as determined in accordance with GAAP.
"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(c)(iii).
"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(c) or as set forth in the Assignment
and Assumption or in any other documentation described in Section 2.18
pursuant to which such Lender becomes a party hereto, in each case, as
modified or terminated from time to time pursuant to the terms hereof.
"Revolving Commitment Percentage" means, for each Lender, the percentage
identified on Schedule 1.1(c) opposite such Lender's name or as set forth in
the Assignment and Assumption or in any other documentation described in
Section 2.18 pursuant to which such Lender becomes a party hereto, in each
case, as such percentage may be modified in accordance with the terms hereof.
"Revolving Commitment Termination Date" is defined in Section 2.7(a).
"Revolving Committed Amount" means FIVE HUNDRED MILLION DOLLARS
($500,000,000), as such amount may be reduced in accordance with Section 2.7
or increased in accordance with Section 2.18.
"Revolving Loan Note" means a Revolving Loan Note made by the Borrower, in
substantially in the form of Exhibit 2.5(a)(i), payable to the order of a
Lender, evidencing the obligation of the Borrower to repay the Revolving
Loans made by such Lender and includes any Revolving Loan Note issued in
exchange or substitution therefor.
"Revolving Loans" is defined in Section 2.1(a)(i).
"S&P" means Standard & Poor's Ratings Services, a division of The XxXxxx-Xxxx
Companies, Inc., or any successor or assignee of the business of such
division in the business of rating debt.
"SEC" means the United States Securities and Exchange Commission, and any
successor thereto.
"Senior Officer" means, with respect to the Borrower, the chairman of the
board of directors, the president, the chief executive officer, the chief
operating officer, the chief financial officer, or the vice president and
treasurer of the Borrower.
Page 13
"Solvent" and "Solvency" mean, with respect to any Person as of a particular
date, that on such date (i) such Person is able to pay its debts and other
liabilities, contingent obligations and other commitments as they mature in the
normal course of business, (ii) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's ability
to pay as such debts and liabilities mature in their ordinary course,
(iii) such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person's assets
would constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged or is
about to engage, (iv) the fair value of the assets of such Person is greater
than the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (v) the present fair saleable value of the
assets of such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become absolute and
matured. In computing the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the amount which, in light
of all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured liability.
"Subsidiary" means, with respect to any Person, any other Person of which
more than 50% of the Voting Stock is at the time directly or indirectly owned
by such first Person. Unless otherwise indicated, "Subsidiary" refers to a
Subsidiary of the Borrower.
"Support Letter" means that certain letter from the Borrower to Nordstrom
fsb, a federal savings bank, dated as of June 17, 2004 affirming the
Borrower's commitment to provide adequate funding to allow Nordstrom fsb to
meet its obligations, as amended by a letter dated June 2005, and as further
amended from time to time.
"Syndication Agents" means JPMorgan Chase Bank, N.A. and Xxxxx Fargo Bank,
N.A., or any successors thereto.
"Taxes" means any income, stamp, excise, property 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.
"Type" is defined in the definition of "Loan."
"Utilization Fee" is defined in Section 2.6(b).
"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.
(a) 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," "hereto," "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. References in this Agreement to
"Articles," "Sections," "Subsections," "Exhibits," "Schedules," "Recitals"
and "Preambles" 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)
Page 14
include any rules and regulations promulgated thereunder (or with respect to
such part) by the relevant Governmental Authority, as amended from time to
time.
(b) 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.
(c) 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. In the event that any "Accounting Change" (as defined
below) shall occur and such change results in a material change in the
resulting financial covenants, standards or terms in this Agreement, then the
Borrower and the Lender Parties agree to enter into negotiations in order to
amend such provisions of this Agreement so as to equitably reflect such
Accounting Changes with the desired result that the criteria for evaluating
the Borrower's financial condition shall be the same after such Accounting
Changes as they would be if such Accounting Changes had not been made. Until
such time as such an amendment shall have been executed and delivered by the
Borrower, the Agent and the Required Lenders, all financial covenants,
standards and terms in this Agreement shall continue to be calculated or
construed as if such Accounting Changes had not occurred. "Accounting
Changes" refers to changes in accounting principles required by the
promulgation of any rule, regulation, pronouncement or opinion by the
Financial Accounting Standards Board of the American Institute of Certified
Public Accountants or, if applicable, the SEC or any regulator of financial
institutions or financial institution holding companies.
(d) 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.
(e) Headings. The Article and Section headings used in this Agreement are
for convenience of reference only and shall not affect the construction
hereof.
(f) 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.
(g) Time. All references to time herein shall be references to Pacific
Standard Time or Pacific Daylight Time, as the case may be, unless specified
otherwise.
Page 15
ARTICLE 2
AMOUNTS AND TERMS OF THE CREDIT FACILITIES
Section 2.1. Revolving Loans.
(a) General Terms.
(i) 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 revolving loans (each a "Revolving Loan") to the
Borrower; provided that (A) the sum of all Revolving Loans outstanding plus
all Bid Loans outstanding shall not exceed the Revolving Committed Amount and
(B) with respect to each individual Lender, such Lender's pro rata share of
outstanding Revolving Loans shall not exceed such Lender's Revolving
Commitment Percentage of the Revolving Committed Amount.
(ii) Revolving Loans may be voluntarily prepaid pursuant to Section 2.8(c)
and, subject to the provisions of this Agreement, any amounts so prepaid or
otherwise repaid in accordance with their terms may be re-borrowed, up to the
amount available under this Section 2.1 at the time of such reborrowing.
(b) Type of Loans and Amounts.
(i) Loans made under this Section 2.1 may be Base Rate Loans or Euro-Dollar
Rate Loans, subject, however, to Sections 2.4(c) and 2.12.
(ii) Each Borrowing of Revolving Loans shall be in a minimum aggregate amount
of $1,000,000 and integral multiples of $100,000 in excess thereof, 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 excess thereof, in the
case of a Borrowing of Euro-Dollar Rate Loans.
(c) Notice of Borrowing.
(i) When the Borrower desires to borrow Revolving Loans pursuant to this
Section 2.1, it shall provide telephonic notice to the Agent followed
promptly by a written Notice of Borrowing substantially in the form of
Exhibit 2.1(c), duly completed and executed by a Responsible Officer (a
"Notice of Borrowing"), (A) no later than 10:00 a.m. on the proposed Funding
Date, in the case of a Borrowing of Base Rate Loans, or (B) no later than
10:00 a.m. at least three Euro-Dollar Business Days before the proposed
Funding Date, in the case of a Borrowing of Euro-Dollar Rate Loans.
(ii) 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.
(iii) 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
Page 16
Agent with a Notice of Responsible Officers substantially in the form of
Exhibit 2.1(c)(iii), duly completed and executed by a Senior Officer (a
"Notice of Responsible Officers"). 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 Officers that no longer designates such
Person as a Responsible Officer.
(iv) Any Notice of Borrowing (or telephonic notice) delivered pursuant to
this Section 2.1 shall be irrevocable and, subject to Section 2.12(a), the
Borrower shall be bound to make a Borrowing in accordance therewith.
(v) The Agent shall promptly notify each Lender of the contents of any Notice
of Borrowing (or telephonic notice) received by it, and such Lender's pro
rata portion of the Borrowing requested. Prior to 11:00 a.m. on the date
specified in such notice as the Funding Date, each Lender, subject to the
terms and conditions hereof, shall make its pro rata portion of the Borrowing
available, in Dollars and in immediately available funds, to the Agent at the
Agent's Account.
(d) Funding. Not later than 1:00 p.m. on the applicable 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.
(e) Several Obligations; Funding by Lenders; Presumption by Agent. The
obligations of the Lenders hereunder to make Revolving Loans and to make
payments pursuant to Section 9.2(b) are several and not joint. The failure
of any Lender to make any Revolving Loan, to fund any such participation or
to make any payment under Section 9.2(b) on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender
to so make its Revolving Loan, to purchase its participation or to make its
payment under Section 9.2(b). Unless the Agent shall have received notice
from a Lender prior to the proposed date of any borrowing of Euro-Dollar Rate
Loans (or, in the case of any borrowing of Base Rate Loans, prior to 11:00
a.m. on the date of such borrowing) that such Lender will not make available
to the Agent such Lender's share of such Revolving Loan, the Agent may assume
that such Lender has made such share available on such date in accordance
with Section 2.1(c) (or, in the case of a borrowing of Base Rate Loans, that
such Lender has made such share available in accordance with and at the time
required by Section 2.1(c)) and may, in reliance upon such assumption, make
available to the Borrower a corresponding amount. In such event, if a Lender
has not in fact made its share of the applicable borrowing available to the
Agent, then the applicable Lender agrees to pay to the Agent forthwith on
demand such corresponding amount in immediately available funds with interest
thereon, for each day from and including the date such amount it made
available to the Borrower to but excluding the date of payment to the Agent
at the greater of the Federal Funds Rate and a rate determined by the Agent
in accordance with banking industry rules on interbank compensation. If such
Lender has not paid such amount to the Agent within two Business Days
following the Agent's demand therefore, then the Borrower agrees to pay to
the Agent forthwith on demand such corresponding amount in immediately
available funds with interest thereon, for each day from and including the
date such amount is made available to the Borrower to but excluding the date
of payment to the Agent at the interest rate applicable to the Base Rate
Loans. If the Borrower and such Lender shall pay interest to the Agent for
the same or an overlapping period, the Administrative Agent shall promptly
remit to the Borrower the amount of such interest paid by the Borrower for
Page 17
such period. If such Lender pays its share of the applicable Revolving Loan
to the Agent, then the amount so paid shall constitute such Lender's
Revolving Loan included in such borrowing. Any payment by the Borrower shall
be without prejudice to any claim the Borrower may have against a Lender that
shall have failed to make such payment to the Agent. A notice of the
Administrative Agent to any Lender or the Borrower with respect to any amount
owing under this subsection (e) shall be conclusive, absent manifest error.
Section 2.2. Bid Loans.
(a) 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 (i) the sum of all Bid Loans outstanding plus all
Revolving Loans outstanding shall not exceed the Revolving Committed Amount;
(ii) 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
$2,000,000 and in integral multiples of $1,000,000 in excess thereof; and
(iii) all Interest Periods applicable to Bid Loans shall be subject to
Section 2.4(c). 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.
(b) Bid Loan Procedures.
(i) When the Borrower wishes to request offers to make Bid Loans, it shall
provide telephonic notice to the Agent (which shall promptly notify the
Lenders) followed promptly by written notice substantially in the form of
Exhibit 2.2(b)(i), duly completed and executed by a Responsible Officer (a
"Bid Loan Quote Request"), so as to be received no later than 10:00 a.m. 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(c), 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 be deemed 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.
(ii) Each Lender may, but shall not be obligated to, in response to any Bid
Loan Quote Request submit one or more written quotes substantially in the
form of Exhibit 2.2(b)(ii), 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; and (B) the principal amount of the Bid Loan for which each such offer
is being made shall be at least $2,000,000 and multiples of $l,000,000 in
excess thereof; provided that the aggregate principal amount of all Bid Loans
for which a Lender submits Bid Loan Quotes (1) may be greater or less than
the Revolving Commitment of such Lender but (2) may not exceed the principal
amount of the Bid Loan Borrowing for which offers were requested. Each Bid
Loan Quote by a Lender other than the Agent must be submitted to the Agent by
fax not later than 8:00 a.m. 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, in
Page 18
its capacity as a Lender, (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 7:45 a.m. 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.
(iii) The Agent shall, as promptly as practicable after any Bid Loan Quote is
submitted (but in any event not later than 8:30 a.m. on the Funding Date, or
7:45 a.m. on the Funding Date with respect to any Bid Loan Quote submitted by
the Agent, in its capacity as a Lender, (or its Applicable Lending Office)),
notify the Borrower of the terms (A) of any Bid Loan Quote submitted by a
Lender that is in accordance with Section 2.2(b)(ii) 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 (1) the aggregate principal amount of the Bid Loan
Borrowing for which offers have been received and (2) (A) the respective
principal amounts and (B) 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).
(iv) Not later than 9:00 a.m. 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(b)(iii) (and the failure of the Borrower to give such notice by
such time shall constitute nonacceptance), and the Agent shall promptly
notify each affected Lender. 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
$1,000,000 and multiples of $1,000,000 in excess thereof; (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 $2,000,000 and
multiples of $1,000,000 and shall not cause the limits specified in
Section 2.2(a) to be violated; (D) acceptance of offers may be made only in
ascending order of Absolute Rates, beginning with the lowest 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(b)(ii) or otherwise
fails to comply with the requirements of this Agreement (including
Section 2.2(a)). 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 excess
thereof) in proportion to the aggregate principal amount of such offers.
Determinations by the Borrower of the amounts of Bid Loans shall be
Page 20
conclusive in the absence of manifest error.
(v) Subject to the terms set forth in this Agreement, any Lender whose offer
to make any Bid Loan has been accepted shall, prior to 10:00 a.m. 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 amount so received by the Agent shall, subject
to the terms and conditions of this Agreement, be made available to the
Borrower on or before 11:00 a.m. 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 working
capital, capital expenditures and other lawful general corporate purposes of
the Borrower and its Subsidiaries, including (a) loans made by the Borrower
to its Subsidiaries and (b) 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.
Notwithstanding the foregoing, the proceeds of the Loans shall not be used to
finance any acquisition of all or substantially all of the Capital Stock of
another Person unless the board of directors (or other comparable governing
body) of such Person has duly approved such acquisition.
Section 2.4. Interest; Interest Periods; Conversion/Continuation.
(a) Interest Rate and Payment.
(i) 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; (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 Bid Loan pursuant
to Section 2.2(b)(ii).
(ii) Notwithstanding the foregoing provisions of this Section 2.4(a),
(A) during the existence of an Event of Default pursuant to
Section 7.1(a)(i), such overdue principal shall bear interest at a rate per
annum equal to the Post-Default Rate, without notice or demand of any kind
and (B) during the existence of any Event of Default (other than pursuant to
Section 7.1(a)(i)), any principal, overdue interest or other amount payable
under this Agreement and the other Loan Documents shall, at the request of
the Required Lenders, bear interest at a rate per annum equal to the Post-
Default Rate.
(iii) Accrued interest shall be payable in arrears (A) in the case of a Base
Rate Loan, on the last Business Day of each month; (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 by reason of maturity,
mandatory prepayment, acceleration or otherwise. The Agent shall provide a
Page 20
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 interest at the Post-Default Rate.
(b) Conversion or Continuation of Revolving Loans.
(i) Subject to this Section 2.4(b) and Sections 2.4(c) and 2.14, 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, and (B) on the last
day of the Interest Period applicable thereto, to (1) convert all or any part
of its outstanding Euro-Dollar Rate Loans to Base Rate Loans, or (2) 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) (2), 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 Euro-Dollar Rate Loan
automatically shall be converted into a Base Rate Loan.
(ii) If the Borrower elects to convert or continue a Revolving Loan under
this Section 2.4(b), it shall provide telephonic notice to the Agent (which
shall promptly notify, the Lenders) followed promptly by a written Notice of
Conversion/Continuation substantially in the form of Exhibit 2.4(b)(ii), duly
completed and executed by a Responsible Officer (a "Notice of
Continuation/Conversion") (A) not later than 10:00 a.m. at least three
Euro-Dollar 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 10:00 a.m. on the Business Day
next preceding the proposed conversion or continuation date.
(iii) 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 faith under this Section 2.4(b) in converting or continuing any Loan
(or a part thereof) pursuant to any telephonic notice.
(iv) Any Notice of Conversion/Continuation (or telephonic notice) 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(b), or if no notice is
so given with respect to a Euro-Dollar Rate Loan as to which the Interest
Period expires, then such Euro-Dollar Rate Loan automatically shall be
converted into a Base Rate Loan.
(v) Bid Loans may not be continued or converted but instead must be repaid in
full at the end of the applicable Interest Period.
(c) Interest Periods and Minimum Amounts. Notwithstanding anything herein to
the contrary, (i) all Interest Periods applicable to Euro-Dollar Rate Loans
and Bid Loans shall comply with the definition of "Interest Period," and (ii)
there may be no more than ten different Interest Periods for all Euro-Dollar
Rate Loans and Bid Loans outstanding at any one time. For purposes of the
foregoing clause (ii), Interest Periods applicable to Loans of different
Types shall constitute different Interest Periods even if they are
coterminous.
Page 21
(d) Computations. Interest on each Loan and all Fees and other amounts
payable hereunder or under 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 that
are based upon the "prime rate" (as defined in the definition of Base Rate),
a 365 or 366-day year, as the case may be, for 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.
(e) Maximum Lawful Rate of Interest. The rate of interest payable on any
Loan or other amount shall in no event exceed the maximum rate of non-
usurious interest 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 2.4(e) 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(e).
Section 2.5. Notes, Etc.
(a) Loans Evidenced by Notes. The Revolving Loans made by each Lender shall
be evidenced by a single Revolving Loan Note payable to such Lender. The Bid
Loans made by each Lender shall be evidenced by a single Bid Loan Note
payable to such Lender. Each Note shall, by its terms, mature in accordance
with the provisions of this Agreement applicable to the relevant Loans.
(b) 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.
(a) Facility Fee. The Borrower shall pay to the Agent, for the pro rata
benefit of the Lenders, a per annum facility fee (the "Facility Fee") equal
to the Applicable Margin for the Facility Fee, in effect from time to time,
based upon the then Revolving Committed Amount, whether or not used, for each
day from and after the Closing Date until the Revolving Commitment
Termination Date. The Facility 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 Facility Fee payable in sufficient time for the
Borrower to make timely payments of the correct amount without incurring any
penalty or interest at the Post-Default Rate.
Page 22
(b) Utilization Fee. If, on any day, the aggregate principal amount of all
Loans outstanding exceeds 50% of the then Revolving Committed Amount, the
Borrower shall pay to the Agent, for the pro rata benefit of the Lenders, a
per annum utilization fee (the "Utilization Fee") equal to (a) the Applicable
Margin for the Utilization Fee, in effect from time to time, multiplied by
(b) the aggregate principal amount of all Loans outstanding on such day. The
Utilization 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 each
Utilization Fee payable in sufficient time for the Borrower to make timely
payments of the correct amount without incurring any penalty or interest at
the Post-Default Rate.
(c) 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.
(d) 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 and Reduction of Revolving Commitments.
(a) Automatic Termination. Each Lender's Revolving Commitment shall
terminate without further action on the part of such Lender on the earlier to
occur of (i) the Maturity Date, and (ii) the date of complete (but not
partial) termination of the Revolving Commitments pursuant to Section 2.7(b)
or Section 7.2 (such earlier date being referred to herein as the "Revolving
Commitment Termination Date").
(b) Voluntary Reductions. Upon not less than five Business Days' prior
written notice to the Agent, 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
Committed Amount to an amount not less than the then aggregate principal
amount of all outstanding Loans. 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 in
integral multiples of $1,000,000 in excess thereof.
(c) Change of Control. If a Change of Control shall occur (a) the Borrower
will, within ten days after the occurrence thereof, give the Agent notice
thereof and shall describe in reasonable detail the facts and circumstances
giving rise thereto and (b) each Lender may, by three Business Days' notice
to the Borrower and the Agent given not later than 60 days after receipt of
such notice of Change of Control, terminate its Revolving Commitment, which
shall thereupon be terminated, and declare the Notes held by it (together
with accrued interest thereon) and any other amounts payable hereunder for
its account to be, and such Notes and such other amounts shall thereupon
become, immediately due and payable without presentment, demand, protest or
other notice of any kind, all of which are hereby waived by the Borrower.
Section 2.8. Repayments and Prepayments.
(a) Repayment. The unpaid principal amount of all Loans, together with
accrued but unpaid interest and all other sums owing thereunder shall be due
and payable in full on the Revolving Commitment Termination Date.
(b) Excess Revolving Loans. If at any time the aggregate principal amount
Page 23
of all outstanding Loans exceeds the Revolving Committed Amount, the Borrower
shall, not later than the Business Day after 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.
(c) Optional Prepayments.
(i) Subject to this Section 2.8(c), 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 in excess thereof (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 2.14. Bid Loans may not be voluntarily prepaid at any time.
(ii) If the Borrower elects to prepay a Revolving Loan under this
Section 2.8(c), it shall deliver to the Agent a notice of optional prepayment
(A) with respect to a Base Rate Loan, not later than 10:00 a.m. on the
proposed repayment date or (B) with respect to a Euro-Dollar Rate Loan, not
later than 10:00 a.m. at least three Business Days before 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.
(d) 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
of such payment received, the Obligations or part thereof intended to be
satisfied thereby shall be revived and continue in full force and effect.
Section 2.9. Manner of Payment.
(a) All payments to be made by the Borrower shall be made without condition
or deduction for any counterclaim, defense, recoupment or setoff. 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 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 11:00 a.m. on the due date thereof. Any payments
received after 11:00 a.m. on any Business Day shall be deemed received on the
next succeeding Business Day. Not later than 12:00 Noon 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. 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.
(b) Unless the Agent shall have received notice from the Borrower prior to
the date on which any payment is due to the Agent for the account of the
Lenders hereunder that the Borrower will not make such payment, the Agent may
Page 24
assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the
Lenders, the amount due. In such event, if the Borrower has not in fact made
such payment, then each of the Lenders severally agrees to repay to the Agent
forthwith on demand the amount so distributed to such Lender, in immediately
available funds with interest thereon, for each day from and including the
date such amount is distributed to it to but excluding the date of payment to
the Agent, at the greater of the Federal Funds Rate and a rate determined by
the Agent in accordance with banking industry rules on interbank
compensation.
(c) 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(a), 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.
(d) Subject to Sections 2.10 and 7.3, all payments made by the Borrower under
the Loan Documents shall be applied to the Obligations as the Borrower may
direct; provided that if the Borrower does not provide any such direction to
the Agent, all amounts paid or received shall be applied, subject to
Section 2.10, as the Agent may reasonably deem appropriate.
(e) 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 (subject to accrual of interest and fees for the
period of extension), except that, in the case of Euro-Dollar Rate Loans, if
the extension would cause the payment to be made in the next following
calendar month, then such payment shall instead be made on the preceding
Business Day.
Section 2.10. Pro Rata Treatment.
Except to the extent otherwise expressly provided herein,
(a) Revolving Loans shall be made by the Lenders pro rata according to their
respective Revolving Commitment Percentages.
(b) Each reduction of the Revolving Committed Amount and each payment of
Revolving Loans, interest on Revolving Loans, Facility Fees and Utilization
Fees shall be applied pro rata among the Lenders according to their
respective Revolving Commitment Percentages.
(c) Each payment 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.
Section 2.11 Sharing of Payments.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect
of any Loan, or any other obligation owing to such Lender under this Agreement
through the exercise of a right of setoff, banker's lien or counterclaim, or
pursuant to a secured claim under Section 506 of the Bankruptcy Code or other
security or interest arising from, or in lieu of, such secured claim, received
by such Lender under any applicable bankruptcy, insolvency or other similar law
Page 25
or otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Agreement, such Lender shall promptly pay in
cash or purchase from the other Lenders a participation in such Loans and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
such payment shall, by payment in cash or a repurchase of a participation
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. Except as otherwise expressly
provided in this Agreement, if any Lender or the Agent shall fail to remit to
any other Lender an amount payable by such Lender or the Agent to such other
Lender pursuant to this Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or
such other Lender at a rate per annum equal to the Federal Funds Rate. If
under any applicable bankruptcy, insolvency or other similar law, any Lender
receives a secured claim in lieu of a setoff to which this Section 2.11
applies, such Lender shall, to the extent practicable, exercise its rights in
respect of such secured claim in a manner consistent with the rights of the
Lenders under this Section 2.11 to share in the benefits of any recovery on
such secured claim.
Section 2.12. 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 2.12(b),
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:
(a) 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 (as referenced in the definition of "Interbank Offered
Rate" appearing in Section 1.1) 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
(b) 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; 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 Office if such designation will avoid the need
for giving such notice and will not be otherwise materially disadvantageous
to such Lender.
Page 26
Section 2.13. Regulatory Changes.
(a) Increased Costs. If, on or after the date hereof, any Regulatory Change
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
(i) 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 (ii) 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 Office if such designation will avoid the need for giving such notice
and will not be otherwise materially disadvantageous to such Lender.
(b) 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 or any
company controlling such Lender as a consequence of such Lender's Loans or
obligations hereunder and other commitments of this type to a level below
that which such Lender or company could have achieved but for such Regulatory
Change (taking into account such Lender's or company's policies with respect
to capital adequacy), then the Borrower shall from time to time pay to such
Lender, within 15 days after request by such Lender, such additional amounts
as are necessary in such Lender's reasonable determination to compensate such
Lender or company for such reduction in return, to the extent such Lender or
company determines such reduction to be attributable to the existence of
obligations for the account of the Borrower.
Section 2.14. 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) 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(b) or an acceleration pursuant to
Section 7.2, but excluding any prepayment pursuant to Section 2.1(e)) 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 or failure to make
such a Loan due to circumstances described in Section 2.12), converted or
continued, or any payment of principal of or interest thereon not being made,
on the date therefore determined in accordance with the applicable provisions
Page 27
of this Agreement or (c) for any prepayment of a Bid Loan due to acceleration
pursuant to Section 7.2 or otherwise. Notwithstanding the foregoing, the
Borrower shall not be responsible to any Lender for any costs hereunder that
result from the application of Section 2.12 or from any wrongful actions or
omissions or default (including under Section 2.1(e)) of such Lender.
Section 2.15. Certificates Regarding Yield Protection, Etc.
Any request by any Lender Party for payment of additional amounts pursuant to
Sections 2.13, 2.14 and 2.16 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 2.16 Taxes.
(a) Tax Liabilities Imposed on a Lender. Any and all payments by the
Borrower hereunder or under any of the Loan Documents shall be made, in
accordance with the terms hereof and thereof, subject to the provisions of
this Section 2.16 and Section 2.17, free and clear of and without deduction
for any and all Taxes other than Excluded Taxes. If the Borrower shall be
required by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.16) such Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions, (iii) the
Borrower shall pay the full amount deducted to the relevant Governmental
Authority in accordance with Applicable Law, and (iv) the Borrower shall
deliver to such Lender evidence of such payment to the relevant Governmental
Authority. Notwithstanding any other provision of this Section 2.16, the
Borrower shall not be required to pay any additional amounts pursuant to this
Section 2.16(a) with respect to Taxes that are attributable to such Lender's
failure to fully comply with Section 2.16(c) and/or the certifications
provided by such Lender being inaccurate.
(b) Other Taxes. In addition, the Borrower agrees to pay, upon written
notice from a Lender and prior to the date when penalties attach thereto, all
other Taxes (other than Excluded Taxes) that arise from any payment made
hereunder or from the execution, delivery or registration of, or otherwise
with respect to, this Agreement.
(c) Foreign Lender. Each Lender (which, for purposes of this Section 2.16,
shall include any Affiliate of a Lender that makes any Euro-Dollar Rate Loan
pursuant to the terms of this Agreement) that is not a "United States person"
(as such term is defined in Section 7701(a)(30) of the Code) shall submit to
the Borrower and the Agent on or before the Closing Date (or, in the case of
a Person that becomes a Lender after the Closing Date by assignment, promptly
upon such assignment), two duly completed and signed copies of (A) either
(1) Form W-8BEN or Form W-8ECI of the United States Internal Revenue Service,
or a successor applicable form, certifying that such Lender is entitled to
benefits under an income tax treaty to which the United States is a party
which reduces to zero the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Agreement is
effectively connected with the conduct of a trade or business in the United
States, or (B) an Internal Revenue Service Form W-8 or W-9, or a successor
applicable form, entitling such Lender to receive a complete exemption from
United States backup withholding tax. Each such Lender shall, from time to
time after submitting either such form, submit to the Borrower and the Agent
such additional duly completed and signed copies of such forms (or such
successor forms or other documents as shall be adopted from time to time by
the relevant United States taxing authorities) as may be (1) reasonably
Page 28
requested in writing by the Borrower or the Agent and (2) appropriate under
then current United States laws or regulations. Upon the reasonable request
of the Borrower or the Agent, each Lender that has not provided the forms or
other documents, as provided above, on the basis of being a United States
person shall submit to the Borrower and the Agent a certificate to the effect
that it is such a "United States person."
Section 2.17. 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, nor shall the Borrower be required to pay, any
greater amount under Sections 2.13 or 2.16 as a result of the transfer of any
such Loan than such Lender would be entitled to receive, or the Borrower
obligated to pay, 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.
Section 2.18. Increases in Revolving Commitment.
Prior to the Maturity Date and upon at least 15 days' prior written notice to
the Agent (which notice shall be promptly transmitted by the Agent to each
Lender), the Borrower shall have the right, subject to the terms and
conditions set forth below, to increase the aggregate amount of the Revolving
Committed Amount; provided that (a) no Default or Event of Default shall
exist at the time of the request or the proposed increase in the Revolving
Committed Amount, (b) such increase must be in a minimum amount of
$10,000,000 and in integral multiples of $1,000,000 above such amount, (c)
the Revolving Committed Amount shall not be increased to an amount greater
than SIX HUNDRED FIFTY MILLION DOLLARS ($650,000,000) without the prior
written consent of the Required Lenders, (d) the aggregate amount of all
increases to the Revolving Committed Amount pursuant to this Section 2.18
shall not exceed $150,000,000, (e) no individual Lender's Revolving
Commitment may be increased without such Lender's written consent, (f) the
Borrower shall execute and deliver such Revolving Loan Note(s) as are
necessary to reflect the increase in the Revolving Committed Amount, (g)
Schedule 1.1(c) shall be amended to reflect the revised Revolving Committed
Amount and revised Revolving Commitment Percentages of the Lenders and (h) if
any Revolving Loans are outstanding at the time of an increase in the
Revolving Committed Amount, the Borrower will prepay (provided that any such
prepayment shall be subject to Section 2.14) one or more existing Revolving
Loans in an amount necessary such that after giving effect to the increase in
the Revolving Committed Amount each Lender will hold its pro rata share
(based on its share of the revised Revolving Committed Amount) of outstanding
Revolving Loans.
Any such increase in the Revolving Committed Amount shall apply, at the
option of the Borrower, to (x) the Revolving Commitment of one or more
existing Lenders; provided that any Lender whose Revolving Commitment is
being increased must consent in writing thereto and/or (y) the creation of a
new Revolving Commitment to one or more institutions that is not an existing
Lender; provided that any such institution (A) must conform to the definition
of Eligible Assignee, (B) must have a Revolving Commitment of at least
$10,000,000 and (C) must become a Lender under this Credit Agreement by
execution and delivery of an appropriate joinder agreement or of counterparts
to this Credit Agreement in a manner acceptable to the Borrower and the
Agent.
Page 29
ARTICLE 3
CONDITIONS TO LOANS
Section 3.1. Closing Conditions.
The obligation of the Lenders to enter into this Credit Agreement shall be
subject to satisfaction (or waiver) of the following conditions:
(a) Loan Documents. The Agent shall have received duly executed copies of
(i) this Agreement and (ii) the Notes, all of which shall be in form and
substance satisfactory to the Agent and each of the Lenders.
(b) Corporate Documents. The Agent shall have received the following:
(i) Charter Documents. Copies of the articles or certificate of incorporation
of the Borrower certified to be true and complete as of a recent date by the
appropriate Governmental Authority of the state of its incorporation and
certified by a secretary or assistant secretary of the Borrower to be true and
correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of the Borrower certified by a secretary or
assistant secretary of the Borrower to be true and correct as of the Closing
Date.
(iii) Resolutions. Copies of resolutions of the board of directors of the
Borrower or an authorized committee thereof, approving and adopting the
transactions contemplated herein and authorizing execution and delivery of the
Loan Documents, certified by a secretary or assistant secretary of the Borrower
to be true and correct and in full force and effect as of the Closing Date.
(iv) Good Standing. Copies of a certificate of good standing, existence or its
equivalent with respect to the Borrower certified as of a recent date by the
appropriate Governmental Authority of the state of its incorporation.
(v) Incumbency. An incumbency certificate of the Borrower certified by a
secretary or assistant secretary of the Borrower to be true and correct as of
the Closing Date.
(c) Opinion of Counsel. The Agent shall have received an opinion or opinions
(which shall cover, among other things, authority, legality, validity,
binding effect and enforceability), satisfactory to the Agent, addressed to
the Lender Parties and dated as of the Closing Date, from legal counsel to
the Borrower.
(d) Closing Officer's Certificate. The Agent shall have received a
certificate executed by the chief financial officer of the Borrower in the
form of Exhibit 3.1(d).
(e) Annual Financial Statements. The Agent shall have received the annual
audited financial statements of the Borrower and its Subsidiaries for the
fiscal year ending January 31, 2005.
(f) Material Adverse Change. As of the Closing Date, there shall not have
occurred a Material Adverse Change since January 31, 2005.
Page 30
(g) 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 (i) 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 (ii) that in any
manner draws into question the validity, legality or enforceability of any
Loan Document or any transaction contemplated thereby.
(h) Fees, Expenses and Interest Paid. The Borrower shall have paid all Fees
and expenses due and owing pursuant to the terms of this Agreement for which
the Borrower shall have been billed on or before the Closing Date.
(i) Existing Credit Agreement. The Existing Credit Agreement shall be
terminated and all amounts owing there under, if any, shall have been paid in
full.
(i) 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.
Without limiting the generality of the provisions of Section 8.4, for
purposes of determining compliance with the conditions specified in this
Section 3.1, each Lender that has signed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved
by or acceptable or satisfactory to a Lender unless the Agent shall have
received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
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:
(a) Closing Date. The conditions precedent set forth in Section 3.1 shall
have been satisfied or waived in writing by the Lenders as of the Closing
Date.
(b) Notice of Borrowing. The Borrower shall have delivered to the Agent,
(i) in the case of a Revolving Loan, a Notice of Borrowing, duly executed and
completed in accordance with Section 2.1, and the Borrower shall have
otherwise complied with all of the terms of Section 2.1 or (ii) in the case
of a Bid Loan, a Bid Loan Quote Request, duly executed and completed, in
accordance with Section 2.2, and the Borrower shall have otherwise complied
with all of the terms of Section 2.2.
(c) Representations and Warranties. All of the representations and
warranties of the Borrower contained in the Loan Documents (other than the
representation set forth in Section 4.4 of the Credit Agreement) 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.
(d) No Default. No Default or Event of Default shall exist or result from
the making of the Loan.
Page 31
(e) 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(c) and 3.2(d) have been satisfied.
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, 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 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 hereby and
thereby. Except as would not reasonably be expected to have a Material
Adverse Effect, each of the Borrower and its 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 its Subsidiaries is duly
qualified, in good standing and 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. All Subsidiaries of the Borrower are listed on
Schedule 4.1, which may be updated by the Borrower from time to time.
Section 4.2. Authorization, Binding Effect, No Conflict, Etc.
(a) 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.
(b) 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 (i) violate any provision of the charter or
other organizational documents of the Borrower, (ii) 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 Material Contractual Obligation of the
Borrower (including the Investment Agreement), (iii) violate any Applicable
Law binding on the Borrower, or (iv) result in or require the creation or
imposition of any Lien on any assets or properties of the Borrower or any of
its Subsidiaries.
Page 32
(c) 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.
Section 4.3. Financial Information.
The balance sheets of the Borrower and its consolidated Subsidiaries as of
January 31, 2004 and January 31, 2005 and the related statements of earnings,
stockholder's equity and cash flow 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, 2005, were prepared in accordance with GAAP consistently
applied and fairly present the financial position of the Borrower and its
consolidated Subsidiaries as of the respective dates thereof and the results
of operations and cash flow for the periods then ended. Neither the Borrower
nor any of its consolidated Subsidiaries on such dates had any 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, 2005, 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 material violation of any
Applicable Law, or in default under its charter documents, bylaws or other
organizational or governing documents or any of its Material Contractual
Obligations.
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 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 is the Borrower subject to any federal or
state, statute or regulation limiting its ability to incur Debt for money
Page 33
borrowed (other than the Margin Regulations).
Section 4.9. Margin Regulations/Proceeds of Loans.
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 its Subsidiaries constitutes less than 25% of
the value, as determined in accordance with the Margin Regulations, of all
assets of the Borrower. The proceeds of the Loans have been used solely in
accordance with Section 2.3.
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 and have not incurred any liability to the PBGC in connection with any
Plan.
During the five-year period prior to the date this representation is made or
deemed made, no ERISA Event has occurred and is continuing with respect to
any Plan (whether or not terminated). Neither the 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), whether or
not vested, under such Plan determined in accordance with Financial
Accounting Standards Board Statement 87 using the actuarial assumptions and
methods 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 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 on and as of the date made or given and has not omitted a material
fact necessary in order to make such information not misleading in light of
the circumstances under which such information was furnished. 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 on a consolidated basis with its
Subsidiaries, Solvent.
Section 4.13. Title to Properties.
The Borrower and each of its Subsidiaries is the owner of, and has good and
marketable title to, or has a valid license or lease to use, all of its
material properties and assets, and none of such properties or assets is
subject to any Liens other than Permitted Liens.
Page 34
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:
(a) as soon as practicable and in any event within the earlier of (i) 90 days
after the end of each Fiscal Year or (ii) two Business Days after the date
the Borrower files its Form 10-K with the SEC, 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
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 and its consolidated
Subsidiaries 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.
(b) 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 or controller as fairly presenting the financial condition
of the Borrower and its consolidated Subsidiaries as of the dates indicated
and its results of operations and cash flows for the periods indicated,
subject to normal year-end adjustments.
(c) together with each delivery of financial statements pursuant to
Sections 5.1(a) and 5.1(b), a certificate of the chief financial officer or
the president of the Borrower, substantially in the form of Exhibit 5.1(c) (a
"Compliance Certificate"), duly executed and completed, setting forth the
calculations required to establish compliance with Section 6.3, as of the
date of such financial statements. The financial statements required by
Sections 5.1(a) and 5.1(b) and the Compliance Certificate required by this
Section 5.1(c) shall be delivered in printed form.
(d) 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.
(e) 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
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exhibits thereto) and annual, quarterly or monthly reports, if any, filed by
the Borrower with the SEC.
(f) within five Business Days after the 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.
(g) 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 (i) that could reasonably be expected to have a
Material Adverse Effect or (ii) that questions the validity or enforceability
of any Loan Document.
(h) promptly notify the Agent of any move of its principal executive office
from the State of
Washington.
(i) 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.
Documents required to be delivered pursuant to Section 5.1(a) or (b) or (e)
(to the extent any such documents are included in materials otherwise filed
with the SEC) may be delivered electronically and if so delivered, shall be
deemed to have been delivered on the date (i) on which the Borrower posts
such documents, or provides a link thereto on the Borrower's website on the
Internet at the website address listed on Schedule 9.5; or (ii) on which such
documents are posted on the Borrower's behalf on an Internet or intranet
website, if any, to which each Lender and the Agent have access (whether a
commercial, third-party website or whether sponsored by the Agent); provided
that: (i) the Borrower shall deliver paper copies of such documents to the
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Agent or such Lender and (ii) the Borrower shall notify the Agent and each
Lender (by telecopier or electronic mail) of the posting of any such
documents and provide to the Agent by electronic mail electronic versions
(i.e., soft copies) of such documents. Notwithstanding anything contained
herein, in every instance the Borrower shall be required to provide paper
copies of the Compliance Certificates required by Section 5.1(c) to the
Agent. Except for such Compliance Certificates, the Agent shall have no
obligation to request the delivery or to maintain copies of the documents
referred to above, and in any event shall have no responsibility to monitor
compliance by the Borrower with any such request for delivery, and each
Lender shall be solely responsible for requesting delivery to it or
maintaining its copies of such documents.
The Borrower hereby acknowledges that (a) the Agent and/or the Arranger will
make available to the Lenders materials and/or information provided by or on
behalf of the Borrower hereunder (collectively, "Borrower Materials") by
posting the Borrower Materials on IntraLinks or another similar electronic
system (the "Platform") and (b) certain of the Lenders may be "public-side"
Lenders (i.e., Lenders that do not wish to receive material non-public
information with respect to the Borrower or its securities) (each, a "Public
Lender"). The Borrower hereby agrees that so long as the Borrower is the
issuer of any outstanding debt or equity securities that are registered or
issued pursuant to a private offering or is actively contemplating issuing
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any such securities (w) all Borrower Materials that are to be made available
to Public Lenders shall be clearly and conspicuously marked "PUBLIC" which,
at a minimum, shall mean that the word "PUBLIC" shall appear prominently on
the first page thereof; (x) by marking Borrower Materials "PUBLIC," the
Borrower shall be deemed to have authorized the Agent, the Arranger and the
Lenders to treat such Borrower Materials as not containing any material
non-public information with respect to the Borrower or its securities for
purposes of United States Federal and state securities laws (provided,
however, that to the extent such Borrower Materials constitute Information,
they shall be treated as set forth in Section 9.13); (y) all Borrower
Materials marked "PUBLIC" are permitted to be made available through a
portion of the Platform designated "Public Investor;" and (z) the Agent and
the Arranger shall be entitled to treat any Borrower Materials that are not
marked "PUBLIC" as being suitable only for posting on a portion of the
Platform not designated "Public Investor." Notwithstanding the foregoing,
the Borrower shall be under no obligation to xxxx any Borrower Materials
"PUBLIC."
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; provided that the Agent shall not have access to
consumer information or any other similar restricted information if such
access is prohibited by Applicable Law.
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 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; 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
Page 37
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 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 (i) periodic shutdown in the ordinary course of business,
(ii) interruptions caused by strike, labor dispute, catastrophe, acts of war
or terrorism or any other events over which it has no control, and (iii)
discontinuance of operations when reasonably determined by the Borrower to be
in the best interest of the Borrower, provided that such discontinuance will
not have a Materially Adverse Effect. 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 Material Contractual
Obligations.
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.
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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:
(a) Liens securing the Obligations and Existing Liens;
(b) (i) 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 (and as to which foreclosure, distraint, levy, sale or
similar proceedings have not yet commenced with respect to the property subject
to any such Lien on account thereof); (ii) 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 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 (and as to which foreclosure, distraint, levy, sale or similar
proceedings have not yet commenced with respect to the property subject to any
such Lien on account thereof); (iii) 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; (iv) easements, rights-of-way, covenants, consents,
reservations, encroachments, variations and other restrictions, conditions
(including those conditions commonly referred to as "CC&Rs"), charges or
encumbrances (whether or not recorded) that do not materially interfere with
the ordinary conduct of the Borrower's business; (v) building restrictions,
zoning laws and other statutes, laws, rules, regulations, ordinances and
restrictions; (vi) leases, subleases, easements or similar use rights granted
in the ordinary course of business to others not materially interfering with
the business of, and consistent with past practices of, the Borrower and
(vii) construction, operation and reciprocal easement agreements entered into
in the ordinary course of business that do not materially interfere with the
ordinary conduct of the Borrower's business and not relating to the repayment
of Debt; (viii) customary rights of set off, revocation, refund or charge-
back under deposit agreements or under the Uniform Commercial Code in favor
of banks or other financial institutions where the Borrower or any Subsidiary
maintains deposits in the ordinary course of business; (ix) Liens on accounts
receivable of the Borrower for which collection attempts are being undertaken
by a third party at the request of the Borrower; (x) Liens arising from
precautionary Uniform Commercial Code financing statements regarding
operating leases and (xi) Liens arising by operation of law on insurance
polices and proceeds thereof to secure premiums thereunder;
(c) any attachment or judgment Lien, not otherwise constituting an Event of
Page 39
Default, in existence less than 30 days after the entry thereof or with
respect to which (i) execution has been stayed, (ii) payment is covered in
full by insurance and the insurer has not denied coverage, or (iii) 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;
(d) precautionary Uniform Commercial Code financing statements regarding
consignments, provided that any such financing statements do not describe any
property other than the assets acquired through the consignment and proceeds
thereof;
(e) Liens securing Debt of the Borrower or any Subsidiary used to finance the
acquisition of fixed assets (including, without limitation, equipment and
vehicles) of the Borrower or such Subsidiary, the construction of additional
buildings or the expansion otherwise of their respective facilities and Debt
consisting of Capitalized Leases; provided that such Debt (i) does not exceed
the cost to the Borrower or such Subsidiary of the assets acquired with the
proceeds of such Debt or the value of the assets subject to such Capital
Leases, (ii) in the case of new construction or expansion of existing
facilities, is either a construction or permanent loan secured by the
facilities constructed and/or the real property on which such facilities are
located and related equipment and fixtures, leases, rents, reserves and other
personal property (which for this purpose shall not include inventory and
intellectual property) to the extent located on or commonly considered to be
part of the real property as applicable, and (iii) in the case of other asset
financing, is incurred within twelve months following the date of the
acquisition (which for this purpose shall, in the case of a construction
project, be the date that construction is completed and the asset constructed
is placed into service or in the case of a sale/leaseback transaction the
date of disposition); provided that any such Lien does not encumber any
property other than the assets acquired with the proceeds of such Debt or the
assets subject to such Capital Lease, related reserve funds, related personal
property (which for this purpose shall not include inventory and intellectual
property) and proceeds of any of the foregoing;
(f) 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 and proceeds
thereof and such Lien was not created in contemplation of such acquisition;
(g) Liens arising from the sale or securitization of receivables, to the
extent the Debt arising from such securitization is not otherwise prohibited
hereunder at the time such Debt was incurred;
(h) any Lien constituting a renewal, extension or replacement of any Existing
Lien or any Lien permitted by clauses (e) or (f) of this Section 6.1,
provided such Lien is limited to all or a part of the property subject to the
Lien extended, renewed or replaced;
(i) Liens granted by a Subsidiary of the Borrower in favor of the Borrower or
another Subsidiary of the Borrower;
(j) covenants contained in the following agreements which require the grant of
security for the obligations evidenced thereby if security is given for some
other obligation: (i) that certain Indenture dated as of March 11, 1998
between the Borrower and Xxxxx Fargo Bank West, National Association (formerly
known as Norwest Bank Colorado, National Association), as Trustee, as in effect
on the Closing Date, (ii) that certain senior Indenture dated as of January 13,
1999 between the Borrower and Xxxxx Fargo Bank West, National Association, as
Trustee, as in effect on the Closing Date; and (iii) that certain subordinated
Page 40
Indenture dated as of January 13, 1999 between the Borrower and Xxxxx Fargo
Bank West, National Association, as Trustee, as in effect on the Closing Date;
provided, however, that this clause (j) shall not be deemed to restrict
additional Debt from being issued under any of the foregoing agreements or any
supplement thereto so long as the covenants contained therein relating to the
grant of security therefore are not modified in a manner adverse to the
Lenders;
(k) leases, licenses, subleases or sublicenses granted to others (including,
without limitation, licenses of intellectual property) not interfering in any
material respect with the business of the Borrower and its Subsidiaries;
(l) other Liens incidental to the conduct of the business or the ownership of
the assets of the Borrower or any Subsidiary that (i) were not incurred in
connection with borrowed money, (ii) 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, (iii) do not encumber
intellectual property and (iv) do not secure obligations aggregating in
excess of $200,000,000; and
(m) other Liens securing obligations not exceeding $35,000,000 in the
aggregate.
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) Restricted Payments by any Subsidiary to the Borrower and any other
Person that owns capital stock or other equity interests in such Subsidiary,
ratably according to their respective holdings of the type of capital stock
or other equity interests in respect of which such Restricted Payment is
being made, (b) Restricted Payments (other than purchases or other
acquisition for value of any Capital Stock of the Borrower or any Subsidiary)
so long as 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) and/or (c) purchases or
other acquisitions for value of any Capital Stock of the Borrower or any
Subsidiary.
Section 6.3. Leverage Ratio.
As of the last day of each Fiscal Quarter, for the twelve month period ending
on such date, the Borrower shall not permit the ratio of (i) the sum of (A)
Funded Debt as of the last day of such period and (B) the product of (1) Rent
Expense for such period times (2) six to (ii) EBITDAR for such period (the
"Leverage Ratio") to be greater than 4.0 to 1.0.
Section 6.4. Restriction on Fundamental Changes.
The Borrower shall not, and shall not permit any Subsidiary to enter into any
merger, consolidation, reorganization or recapitalization, liquidate, wind up
or dissolve or sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, all or substantially all of its or
their business or assets, whether now owned or hereafter acquired; provided
that as long as no Default or Event of Default shall exist either before or
after giving effect thereto (a) any Solvent Subsidiary or other Solvent
Person (other than the Borrower) may be merged or consolidated with or into
the Borrower (so long as the Borrower is the surviving entity) or any
Subsidiary, (b) any Subsidiary may be liquidated, wound up or dissolved so
long as it does not cause or could not be reasonably expected to cause a
Material Adverse Effect and (c) in addition to transactions permitted under
Page 41
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, transfer or otherwise dispose of
during any Fiscal Year property or other assets (other than (a) sales of
inventory in the ordinary course of business and (b) the sale or disposition
of the Borrower's interest in 1700 Seventh LP) constituting, in the
aggregate, 25% or more of the consolidated assets of the Borrower and its
Subsidiaries, as calculated on a book value basis. Notwithstanding the
foregoing limitation, the Borrower and its Subsidiaries shall be permitted to
sell or transfer their receivables in a transaction to securitize such
receivables, and such sales or transfers of receivables shall not be included
in the computation above.
Section 6.6. Transactions with Affiliates.
The Borrower shall not, and shall not permit any Subsidiary to, directly or
indirectly, enter into any transaction (including the purchase, sale, lease,
or exchange of any property or the rendering of any service) with any
Affiliate of the Borrower, unless (a) such transaction is not otherwise
prohibited by this Agreement, (b) such transaction is in the ordinary course
of business and (c) if such transaction is other than with a Wholly-Owned
Subsidiary, such transaction is on fair and reasonable terms no less
favorable to the Borrower or its Subsidiary, as the case may be, than those
terms which might be obtained at the time in a comparable arm's length
transaction with a Person who is not an Affiliate or, if such transaction is
not one which by its nature could be obtained from such other Person, is on
fair and reasonable terms and was negotiated in good faith; provided that
this Section 6.6 shall not restrict (i) dividends, distributions and other
payments and transfers on account of any shares of Capital Stock of the
Borrower or any Subsidiary otherwise permissible hereunder and
(ii) transactions pursuant to (A) the Investment Agreement, (B) the Recourse
Agreement, (C) the Support Letter and (D) any agreement between the Borrower
and any Affiliate of the Borrower pursuant to which the Borrower sells,
discounts or otherwise transfers an interest in 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, sold or otherwise transferred by the
Borrower).
ARTICLE 7
EVENTS OF DEFAULT, ETC.
Section 7.1. Events of Default.
The occurrence of any one or more of the following events, acts or
occurrences shall constitute an event of default (each an "Event of
Default"):
(a) Failure to Make Payments. The Borrower (i) shall fail to pay as and when
due (whether at stated maturity, upon acceleration, upon required prepayment
or otherwise) any principal of any Loan, or (ii) shall fail to pay any
interest, Fees or other amounts (other than principal) payable under the Loan
Documents within five days of the date when due under the Loan Documents;
(b) Default in Other Debt. (i) The Borrower or any Subsidiary shall default
in the payment (whether at stated maturity, upon acceleration, upon
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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 $25,000,000, or
(ii) any other breach or default (or other event or condition), beyond any
period of grace provided therefor, shall occur under any agreement, indenture
or instrument relating to any such other Debt with a principal amount
(individually or in the aggregate) in excess of $25,000,000, if the effect of
such breach or default (or such other event or condition) is to cause, or to
permit, the holder or holders of such other Debt (or a Person on behalf of
such holder or holders) to cause (upon the giving of notice or otherwise),
such other Debt to become or be declared due and payable, or required to be
prepaid, redeemed, purchased or defeased (or an offer of prepayment,
redemption, purchase or defeasance be made), prior to its stated maturity
(other than by a scheduled mandatory prepayment); provided, however, that if
any such breach or default described in this Section 7.1(b) is cured or
waived prior to any action being taken pursuant to Section 7.2(a) or 7.2(b),
the Event of Default under this Agreement in respect of such breach or
default shall be deemed cured to the extent of such cure or waiver;
(c) Breach of Certain Covenants.
(i) The Borrower shall fail to perform, comply with or observe any agreement,
covenant or obligation under Section 2.3, under Sections 6.2 through 6.5
inclusive, or under Section 5.1(d) or 5.3 (insofar as it requires the
preservation of the corporate existence of the Borrower);
(ii) The Borrower shall fail to perform, comply with or observe any
agreement, covenant or obligation under Section 6.1 or under Section 6.6 and
such failure shall not have been remedied within ten days; or
(iii) The Borrower shall fail to perform, comply with or observe any
agreement, covenant or obligation under Sections 5.1(a), (b) or (c) and such
failure shall not have been remedied within five days;
(d) Other Defaults Under Loan Documents. The Borrower shall fail to perform,
comply with or observe any agreement, covenant or obligation under any
provision of any Loan Document (other than those provisions referred to in
Sections 7.l(a), 7.1(b) and 7.1(c)) and such failure shall not have been
remedied within 30 days after the earlier to occur of (i) the Borrower's
knowledge thereof or (ii) written notice thereof by the Agent to the
Borrower; or
(e) Breach of Representation or Warranty. Any representation or warranty or
certification made or furnished by the Borrower under any Loan Document shall
prove to have been false or incorrect in any material respect when made (or
deemed made);
(f) Involuntary Bankruptcy; Appointment of Receiver, Etc. There shall be
commenced against the Borrower or any of its Subsidiaries, an involuntary
case seeking the liquidation or reorganization of the Borrower or any of its
Subsidiaries under Chapter 7 or Chapter 11, respectively, of the Bankruptcy
Code or any similar proceeding under any other Applicable Law or an
involuntary case or proceeding seeking the appointment of a receiver,
liquidator, sequestrator, custodian, trustee or other officer having similar
powers over the Borrower or any of its Subsidiaries or to take possession of
all or a substantial portion of its property or to operate all or a
substantial portion of its business, and any of the following events occurs:
(i) the Borrower or any of its Subsidiaries consents to the institution of
the involuntary case or proceeding; (ii) the petition commencing the
involuntary case or proceeding is not timely controverted; (iii) the petition
commencing the involuntary case or proceeding remains undismissed and
Page 43
unstayed for a period of 60 days; or (iv) an order for relief is issued or
entered therein;
(g) Voluntary Bankruptcy; Appointment of Receiver, Etc. The Borrower or any
of its Subsidiaries shall institute a voluntary case seeking liquidation or
reorganization under Chapter 7 or Chapter 11, respectively, of the Bankruptcy
Code or any similar proceeding under any other Applicable Law, or shall
consent thereto; or shall consent to the conversion of an involuntary case to
a voluntary case; or shall file a petition, answer a complaint or otherwise
institute any proceeding seeking, or shall consent to or acquiesce in the
appointment of, a receiver, liquidator, sequestrator, custodian, trustee or
other officer with similar powers over the Borrower or any of its
Subsidiaries or to take possession of all or a substantial portion of its
property or to operate all or a substantial portion of its business; or shall
make a general assignment for the benefit of creditors; or shall generally
not pay, or shall admit in writing its inability to pay, its debts as they
become due; or the board of directors of the Borrower or any of its
Subsidiaries (or any committee thereof) shall adopt any resolution or
otherwise authorize action to approve any of the foregoing;
(h) Judgments and Attachments. The Borrower or any Subsidiary shall suffer
any money judgments, writs or warrants of attachment or similar processes
(collectively, "Judgments") that, individually or in the aggregate, involve
an amount or value in excess of $25,000,000 and such Judgments shall continue
unsatisfied or unstayed for a period of 60 days; provided that no Event of
Default shall exist if (i) payment of the Judgments are covered in full by
insurance and the insurer has affirmed such coverage or (ii) the Borrower is
in good faith prosecuting an appeal of such Judgments and has (A) deposited
funds as required for such appeal, if any and (B) reserved amounts on its
books for such Judgments as required in accordance with GAAP.
(i) ERISA. The Borrower or any member of the Controlled Group shall fail to
pay when due any material amount or amounts that it shall have become liable
to pay to the PBGC or to a Plan under Title IV of ERISA; or a proceeding
shall be instituted by a fiduciary of any such Plan or Plans against the
Borrower or any member of the Controlled Group to enforce Section 515 of
ERISA; or any ERISA Event shall occur which could reasonably be expected to
have a Material Adverse Effect; or the Borrower or any member of the
Controlled Group shall partially or completely withdraw from any
Multiemployer Plan; or any Multiemployer Plan to which Borrower or any member
of its Controlled Group becomes obligated to make or accrue a contribution is
placed in reorganization or terminates; or
(j) Termination of Loan Documents, Etc. Any Loan Document, or any material
provision thereof, shall cease to be in full force and effect for any reason,
or the Borrower shall contest or purport to repudiate or disavow any of its
obligations under, or the validity of enforceability of, any Loan Document or
any material provision thereof.
Section 7.2. Remedies.
Upon the occurrence of an Event of Default:
(a) If an Event of Default occurs under Section 7.1(f) or 7.1(g), then the
Revolving Commitments shall automatically and immediately terminate, and the
obligation of the Lenders to make any Loan hereunder shall cease, and the
unpaid 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
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hereby expressly waived by the Borrower.
(b) If an Event of Default occurs, other than under Section 7.1(f) or 7.1(g),
the Agent may (i) with the consent of the Required Lenders, by written notice
to the Borrower, declare that the Revolving Commitments and all pending Bid
Loan Quotes (whether or not accepted) are terminated, whereupon the
obligation of the Lender Parties to make any Loan hereunder shall cease,
and/or (ii) with the consent of the Required Lenders, declare the unpaid
principal amount of the Loans and all other Obligations to be, and the same
shall thereupon become, due and payable, without presentment, demand,
protest, any additional notice or other requirements of any kind, all of
which are hereby expressly waived by the Borrower.
(c) The Agent may, with the consent of the Required Lenders, enforce any and
all rights and interests created and existing under the Loan Documents,
including, without limitation, all rights of set-off.
Notwithstanding the fact that enforcement powers reside primarily with the
Agent, each Lender has, to the extent permitted by law, a separate right of
payment and shall be considered a separate "creditor" holding a separate
"claim" within the meaning, and for the purposes, of Section 101(5) of the
Bankruptcy Code or any other insolvency statute.
Section 7.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Agreement, after the occurrence
and during the continuance of an Event of Default, all amounts collected or
received by the Agent or any Lender on account of amounts outstanding under any
of the Loan Documents shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs and expenses
(including without limitation reasonable attorneys' fees) of the Agent or any
of the Lenders in connection with enforcing the rights of the Lenders under the
Loan Documents and any protective advances made by the Agent or any of the
Lenders, pro rata as set forth below;
SECOND, to the payment of any fees owed to the Agent or any Lender, pro rata as
set forth below;
THIRD, to the payment of all accrued interest payable to the Lenders hereunder,
pro rata as set forth below;
FOURTH, to the payment of the outstanding principal amount of the Loans and all
other obligations which shall have become due and payable under the Loan
Documents, pro rata as set forth below; and
FIFTH, the payment of the surplus, if any, to whoever may be lawfully entitled
to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category and (b) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding Loans
held by such Lender bears to the aggregate then outstanding Loans) of amounts
available to be applied.
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ARTICLE 8
THE AGENT
Section 8.1 Appointment and Authority.
Each Lender hereby irrevocably appoints Bank of America to act on its behalf
as the Agent hereunder and under the other Loan Documents and authorizes the
Agent to take such actions on its behalf and to exercise such powers as are
delegated to the Agent by the terms hereof or thereof, together with such
actions and powers as are reasonably incidental thereto. The provisions of
this Article are solely for the benefit of the Agent and the Lenders, and
(except as provided in Section 8.6) the Borrower shall not have rights as a
third party beneficiary of any of such provisions.
Section 8.2 Rights as a Lender.
The Person serving as the Agent hereunder shall have the same rights and
powers in its capacity as a Lender as any other Lender and may exercise the
same as though it were not the Agent and the term "Lender" or "Lenders"
shall, unless otherwise expressly indicated or unless the context otherwise
requires, include the Person serving as the Agent hereunder in its individual
capacity. Such Person and its Affiliates may accept deposits from, lend
money to, act as the financial advisor or in any other advisory capacity for
and generally engage in any kind of business with the Borrower or any
Subsidiary or other Affiliate thereof as if such Person were not the Agent
hereunder and without any duty to account therefor to the Lenders.
Section 8.3 Exculpatory Provisions.
The Agent shall not have any duties or obligations except those expressly set
forth herein and in the other Loan Documents. Without limiting the
generality of the foregoing, the Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless
of whether a Default or an Event of Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any
discretionary powers, except discretionary rights and powers expressly
contemplated hereby or by the other Loan Documents that the Agent is required
to exercise as directed in writing by the Required Lenders (or such other
number or percentage of the Lenders as shall be expressly provided for herein
or in the other Loan Documents), provided that the Agent shall not be
required to take any action that, in its opinion or the opinion of its
counsel, may expose the Agent to liability or that is contrary to any Loan
Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the other Loan
Documents, have any duty to disclose, and shall not be liable for the failure
to disclose, any information relating to the Borrower or any of its
Affiliates that is communicated to or obtained by the Person serving as the
Agent or any of its Affiliates in any capacity.
The Agent shall not be liable for any action taken or not taken by it (i)
with the consent or at the request of the Required Lenders (or such other
number or percentage of the Lenders as shall be necessary, or as the Agent
shall believe in good faith shall be necessary, under the circumstances as
provided in Sections 9.3 and 7.2) or (ii) in the absence of its own gross
negligence or willful misconduct. The Agent shall be deemed not to have
knowledge of any Default or Event of Default unless and until notice
describing such Default or Event of Default is given to the Agent by the
Borrower or a Lender.
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The Agent shall not be responsible for or have any duty to ascertain or
inquire into (i) any statement, warranty or representation made in or in
connection with this Agreement or any other Loan Document, (ii) the contents
of any certificate, report or other document delivered hereunder or
thereunder or in connection herewith or therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions
set forth herein or therein or the occurrence of any Default or Event of
Default, (iv) the validity, enforceability, effectiveness or genuineness of
this Agreement, any other Loan Document or any other agreement, instrument or
document or (v) the satisfaction of any condition set forth in Article III or
elsewhere herein, other than to confirm receipt of items expressly required
to be delivered to the Agent.
Section 8.4 Reliance by Agent.
The Agent shall be entitled to rely upon, and shall not incur any liability
for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message,
Internet or intranet website posting or other distribution) believed by it to
be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. The Agent also may rely upon any statement made to it orally
or by telephone and believed by it to have been made by the proper Person,
and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan that by its
terms must be fulfilled to the satisfaction of a Lender, the Agent may
presume that such condition is satisfactory to such Lender unless the Agent
shall have received notice to the contrary from such Lender prior to the
making of such Loan. The Agent may consult with legal counsel (who may be
counsel for the Borrower), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
Section 8.5 Delegation of Duties.
The Agent may perform any and all of its duties and exercise its rights and
powers hereunder or under any other Loan Document by or through any one or
more sub-agents appointed by the Agent. The Agent and any such sub-agent may
perform any and all of its duties and exercise its rights and powers by or
through their respective Related Parties. The exculpatory provisions of this
Article shall apply to any such sub-agent and to the Related Parties of the
Agent and any such sub-agent, and shall apply to their respective activities
in connection with the syndication of the credit facilities provided for
herein as well as activities as Agent.
Section 8.6 Resignation of Agent.
The Agent may at any time give notice of its resignation to the Lenders and
the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, with the consent of the Borrower at all times
other than during the existence of a Default or an Event of Default (which
consent of the Borrower shall not be unreasonably withheld or delayed), to
appoint a successor, which shall be a Lender with an office in the United
States, or an Affiliate of any such Lender with an office in the United
States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the
retiring Agent gives notice of its resignation, then the retiring Agent may
on behalf of the Lenders appoint a successor Agent meeting the qualifications
set forth above; provided that if the Agent shall notify the Borrower and the
Lenders that no qualifying Person has accepted such appointment, then such
resignation shall nonetheless become effective in accordance with such notice
and (1) the retiring Agent shall be discharged from its duties and
obligations hereunder and under the other Loan Documents and (2) all
payments, communications and determinations provided to be made by, to or
through the Agent shall instead be made by or to each Lender directly (at the
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account and location on file with the Agent, which the retiring Agent shall
furnish to the Borrower), until such time as the Required Lenders appoint a
successor Agent as provided for above in this Section. Upon the acceptance
of a successor's appointment as Agent hereunder, such successor shall succeed
to and become vested with all of the rights, powers, privileges and duties of
the retiring (or retired) Agent, and the retiring Agent shall be discharged
from all of its duties and obligations hereunder or under the other Loan
Documents (if not already discharged therefrom as provided above in this
Section). The fees payable by the Borrower to a successor Agent shall be the
same as those payable to its predecessor unless otherwise agreed between the
Borrower and such successor. After the retiring Agent's resignation
hereunder and under the other Loan Documents, the provisions of this
Article and Section 9.1 shall continue in effect for the benefit of such
retiring Agent, its sub-agents and their respective Related Parties in
respect of any actions taken or omitted to be taken by any of them while the
retiring Agent was acting as Agent.
Section 8.7 Non-Reliance on Agent and Other Lenders.
Each Lender acknowledges that it has, independently and without reliance upon
the Agent or any other Lender or any of their Related Parties 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 also
acknowledges that it will, independently and without reliance upon the Agent
or any other Lender or any of their Related Parties and based on such
documents and information as it shall from time to time deem appropriate,
continue to make its own decisions in taking or not taking action under or
based upon this Agreement, any other Loan Document or any related agreement
or any document furnished hereunder or thereunder.
Section 8.8 No Other Duties, Etc.
Anything herein to the contrary notwithstanding, none of the bookrunners,
arrangers, syndication agents, documentation agents or co-agents listed on
the cover page hereof shall have any powers, duties or responsibilities under
this Agreement or any of the other Loan Documents, except in its capacity, as
applicable, as the Agent or a Lender hereunder.
Section 8.9 Agent May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Borrower, the Agent (irrespective of
whether the principal of any Loan shall then be due and payable as herein
expressed or by declaration or otherwise and irrespective of whether the
Agent shall have made any demand on the Borrower) shall be entitled and
empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal and
interest owing and unpaid in respect of the Loans and all other Obligations
that are owing and unpaid and to file such other documents as may be
necessary or advisable in order to have the claims of the Lenders and the
Agent (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders and the Agent and their respective
agents and counsel and all other amounts due the Lenders and the Agent under
Sections 2.6, 9.1 and 9.2 allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
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other similar official in any such judicial proceeding is hereby authorized
by each Lender to make such payments to the Agent and, in the event that the
Agent shall consent to the making of such payments directly to the Lenders,
to pay to the Agent any amount due for the reasonable compensation, expenses,
disbursements and advances of the Agent and its agents and counsel, and any
other amounts due the Agent under Sections 2.6, 9.1 and 9.2.
Nothing contained herein shall be deemed to authorize the Agent to authorize
or consent to or accept or adopt on behalf of any Lender any plan of
reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Agent to vote in
respect of the claim of any Lender in any such proceeding.
ARTICLE 9
MISCELLANEOUS
Section 9.1. Expenses.
The Borrower shall pay on demand:
(a) any and all reasonable attorneys' fees and disbursements (including
allocated costs of in-house counsel) and out-of-pocket costs and expenses
incurred by the Agent and its Affiliates in connection with the development,
drafting, negotiation and administration of the Loan Documents, any
amendments thereto and the syndication and closing of the transactions
contemplated thereby; and
(b) all reasonable 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.
The foregoing costs and expenses shall include all out-of-pocket expenses
incurred by the Agent and the cost of independent public accountants and
other outside experts retained by the Agent or any Lender. All amounts due
under this Section 9.1 shall be payable within ten Business Days after demand
therefor. The agreements in this Section shall survive the termination of
the Revolving Commitments and repayment of all other Obligations.
Section 9.2 Indemnity; Damages.
(a) Indemnification by the Borrower. The Borrower shall indemnify the Agent
(and any sub-agent thereof), each Lender, and each Related Party of any of
the foregoing Persons (each such Person being called an "Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee), and shall
indemnify and hold harmless each Indemnitee from all reasonable fees and time
charges and disbursements for attorneys who may be employees of any
Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by
any third party or by the Borrower arising out of, in connection with, or as
a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the
performance by such Indemnitee hereto of its obligations hereunder or
thereunder, the consummation of the transactions contemplated hereby or
thereby, or, in the case of the Agent (and any sub-agent thereof) and its
Page 49
Related Parties only, the administration of this Agreement and the other Loan
Documents or (ii) any actual or threatened claim, litigation, investigation
or proceeding relating to any of the foregoing, whether based on contract,
tort or any other theory, whether brought by a third party or by the
Borrower, and regardless of whether any Indemnitee is a party thereto;
provided that such indemnity shall not, as to any Indemnitee, be available to
the extent that such losses, claims, damages, liabilities or related expenses
(x) are determined by a court of competent jurisdiction by final judgment to
have resulted from the gross negligence or willful misconduct of such
Indemnitee or (y) result from a claim brought by the Borrower against an
Indemnitee for breach in bad faith of such Indemnitee's obligations hereunder
or under any other Loan Document, if the Borrower has obtained a final
judgment in its favor on such claim as determined by a court of competent
jurisdiction.
(b) Reimbursement by Lenders. To the extent that the Borrower for any reason
fails to indefeasibly pay any amount required under Section 9.1 or
subsection (a) of this Section to be paid by it to the Agent (or any
sub-agent thereof) or any Related Party of any of the foregoing, each Lender
severally agrees to pay to the Agent (or any such sub-agent) or such Related
Party, as the case may be, such Lender's Revolving Commitment Percentage
(determined as of the time that the applicable unreimbursed expense or
indemnity payment is sought) of such unpaid amount, provided that the
unreimbursed expense or indemnified loss, claim, damage, liability or related
expense, as the case may be, was incurred by or asserted against the Agent
(or any such sub-agent) in its capacity as such, or against any Related Party
of any of the foregoing acting for the Agent (or any such sub-agent) in
connection with such capacity. The obligations of the Lenders under this
subsection (b) are subject to the provisions of Section 2.1(e).
(c) Payments. All amounts due under this Section shall be payable not later
than ten Business Days after demand therefor.
(d) Survival. The agreements in this Section shall survive the resignation
of the Agent, the replacement of any Lender, the termination of the Revolving
Commitments and the repayment, satisfaction or discharge of all the other
Obligations.
(e) Limit on Indemnity. To the extent that the undertaking to indemnify and
hold harmless set forth in Section 9.2(a) may be unenforceable as violative
of any Applicable Law or public policy, the Borrower shall make the maximum
contribution to the payment and satisfaction of its obligations set forth in
Section 9.2(a) that is permissible under Applicable Law.
Section 9.3. Amendments; Waivers; Modifications in Writing.
No amendment of any provision of this Agreement or any other Loan Document
(including a waiver thereof or consent relating thereto) shall be effective
unless the same shall be in writing and signed by the Agent and the Required
Lenders and, except as to a waiver or consent requested by or to the benefit
of the Borrower, the Borrower, provided further:
(a) no amendment, waiver, consent, forbearance or other agreement that has
the effect of (i) reducing the rate or amount, or extending the stated
maturity or due date, of any amount payable by the Borrower to any Lender
Party under the Loan Documents, (other than as a result of waiving the
applicability of the Post-Default Rate of interest), (ii) increasing the
amount, or extending the stated termination or reduction date, of any
Lender's Revolving Commitment hereunder or subjecting any Lender Party to any
additional obligation to extend credit (it being understood and agreed that a
waiver of any Default or Event of Default or a waiver of any mandatory
reduction in the Revolving Commitments shall not constitute a change in the
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terms of any Revolving Commitment of any Lender), (iii) altering the rights
and obligations of the Borrower to prepay the Loans, or (iv) changing this
Section 9.3 or the definition of the term "Required Lenders" or any other
percentage of Lenders specified in this Agreement to be the applicable
percentage to act on specified matters shall be effective unless the same
shall be signed by or on behalf of each of the Lenders affected thereby;
(b) no amendment that modifies Article 8 or otherwise has the effect of
(i) increasing the duties or obligations of the Agent, (ii) increasing the
standard of care or performance required on the part of the Agent, or
(iii) reducing or eliminating the indemnities or immunities to which the
Agent is entitled (including any amendment of this Section 9.3), shall be
effective unless the same shall be signed by or on behalf of the Agent; and
(c) any waiver or consent shall be effective only in the specific instance
and for the specific purpose for which given.
Except as required herein, no notice to or demand on the Borrower in any case
shall entitle the Borrower to any other or further notice or demand in
similar or other circumstances. Any amendment effected in accordance with
this Section 9.3 shall be binding upon each present and future Lender Party
and the Borrower.
Section 9.4. Cumulative Remedies: Failure or Delays.
The rights and remedies provided for under this Agreement are cumulative and
are not exclusive of any rights and remedies that may be available to the
Lender Parties under Applicable Law or otherwise. No failure or delay on the
part of any Lender Party in the exercise of any power, right or remedy under
the Loan Documents shall impair such power, right or remedy or operate as a
waiver thereof, nor shall any single or partial exercise of any such power,
right or remedy preclude other or further exercise thereof or of any other
power, right or remedy.
Section 9.5 Notices; Effectiveness; Electronic Communication.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except as
provided in subsection (b) below), all notices and other communications
provided for herein shall be in writing and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by
telecopier as follows, and all notices and other communications expressly
permitted hereunder to be given by telephone shall be made to the applicable
telephone number, as follows:
(i) if to the Borrower or the Agent, to the address, telecopier number,
electronic mail address or telephone number specified for such Person on
Schedule 9.5; and
(ii) if to any other Lender, to the address, telecopier number, electronic
mail address or telephone number specified in its Administrative
Questionnaire.
Notices sent by hand or overnight courier service, or mailed by certified or
registered mail, shall be deemed to have been given when received; notices
sent by telecopier shall be deemed to have been given when sent (except that,
if not given during normal business hours for the recipient, shall be deemed
to have been given at the opening of business on the next business day for
the recipient). Notices delivered through electronic communications to the
extent provided in subsection (b) below, shall be effective as provided in
such subsection (b).
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(b) Electronic Communications. Notices and other communications to the
Lenders hereunder may be delivered or furnished by electronic communication
(including e-mail and Internet or intranet websites) pursuant to procedures
approved by the Agent, provided that the foregoing shall not apply to notices
to any Lender pursuant to Article II if such Lender has notified the Agent
that it is incapable of receiving notices under such Article by electronic
communication. The Agent or the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic
communications pursuant to procedures approved by it in writing, provided
that approval of such procedures may be limited to particular notices or
communications and neither the Borrower nor the Agent shall have any
obligation to agree to accept any electronic notices.
Unless the Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the sender's receipt
of an acknowledgement from the intended recipient (such as by the "return
receipt requested" function, as available, return e-mail or other written
acknowledgement), provided that if such notice or other communication is
received after the normal business hours of the recipient, such notice or
communication shall be deemed to have been received at the opening of
business on the next business day for the recipient, and (ii) notices or
communications posted to an Internet or intranet website shall be deemed
received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefor.
(c) Effectiveness of Facsimile Documents and Signatures. Loan Documents may
be transmitted and/or signed by facsimile. The effectiveness of any such
documents and signatures shall, subject to applicable Law, have the same
force and effect as manually-signed originals and shall be binding on the
Borrower, the Agent and the Lenders. The Agent may also require that any
such documents and signatures be confirmed by a manually-signed original
thereof; provided, however, that the failure to request or deliver the same
shall not limit the effectiveness of any facsimile document or signature.
(d) The Platform. THE PLATFORM IS PROVIDED "AS IS" AND "AS AVAILABLE." THE
AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS
OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY
DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS.
NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE
DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS
OR THE PLATFORM. In no event shall the Agent or any of its Related Parties
(collectively, the "Agent Parties") have any liability to the Borrower, any
Lender or any other Person for losses, claims, damages, liabilities or
expenses of any kind (whether in tort, contract or otherwise) arising out of
the Borrower's or the Agent's transmission of Borrower Materials through the
Internet, except to the extent that such losses, claims, damages, liabilities
or expenses are determined by a court of competent jurisdiction by a final
judgment to have resulted from the gross negligence or willful misconduct of
such Agent Party; provided, however, that in no event shall any Agent Party
have any liability to the Borrower, any Lender or any other Person for
indirect, special, incidental, consequential or punitive damages (as opposed
to direct or actual damages).
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(e) Change of Address, Etc. Each of the Borrower or the Agent may change its
address, telecopier or telephone number for notices and other communications
hereunder by notice to the other parties hereto. Each other Lender may
change its address, telecopier or telephone number for notices and other
communications hereunder by notice to the Borrower and the Agent. In
addition, each Lender agrees to notify the Agent from time to time to ensure
that the Agent has on record (i) an effective address, contact name,
telephone number, telecopier number and electronic mail address to which
notices and other communications may be sent and (ii) accurate wire
instructions for such Lender.
(f) Reliance by Agent and Lenders. The Agent and the Lenders shall be
entitled to rely and act upon any notices (including telephonic notices)
purportedly given by or on behalf of the Borrower even if such notices were
not made in a manner specified herein, were incomplete or were not preceded
or followed by any other form of notice specified herein. The Borrower shall
indemnify the Agent, each Lender and the Related Parties of each of them from
all reasonable losses, costs, expenses and liabilities resulting from the
reliance by such Person on each notice purportedly given by or on behalf of
the Borrower. All telephonic notices to and other telephonic communications
with the Agent may be recorded by the Agent, and each of the parties hereto
hereby consents to such recording.
Section 9.6. Successors and Assigns; Designations.
(a) Successors and Assigns Generally. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations
hereunder without the prior written consent of each Lender and no Lender may
assign or otherwise transfer any of its rights or obligations hereunder
except (i) to an Eligible Assignee in accordance with the provisions of
subsection (b) of this Section, (ii) by way of participation in accordance
with the provisions of subsection (d) of this Section, (iii) by way of pledge
or assignment of a security interest subject to the restrictions of
subsection (f) of this Section, or (iv) to an SPC (as defined in Section
9.6(h)) in accordance with the provisions of subsection (h) of this Section
(and any other attempted assignment or transfer by any party hereto shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the
extent provided in subsection (d) of this Section and, to the extent
expressly contemplated hereby, the Related Parties of each of the Agent and
the Lenders) any legal or equitable right, remedy or claim under or by reason
of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Revolving Commitment and the
Loans at the time owing to it); provided that
(i) except in the case of an assignment of the entire remaining amount of the
assigning Lender's Revolving Commitment and the Loans at the time owing to it
or in the case of an assignment to a Lender or an Affiliate of a Lender or an
Approved Fund with respect to a Lender, the aggregate amount of the Revolving
Commitment (which for this purpose includes Loans outstanding thereunder) or,
if the Revolving Commitment is not then in effect, the principal outstanding
balance of the Loans of the assigning Lender subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Agent or, if "Trade Date" is specified in the
Assignment and Assumption, as of the Trade Date, shall not be less than
$10,000,000 unless each of the Agent and, so long as no
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Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);
provided, however, that concurrent assignments to members of an Assignee
Group and concurrent assignments from members of an Assignee Group to a
single Eligible Assignee (or to an Eligible Assignee and members of its
Assignee Group) will be treated as a single assignment for purposes of
determining whether such minimum amount has been met;
(ii) each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Lender's rights and obligations under
this Agreement with respect to the Loans or the Revolving Commitment
assigned;
(iii) any assignment of a Revolving Commitment must be approved by the Agent
(such approval not to be unreasonably withheld) unless the Person that is the
proposed assignee is itself a Lender (whether or not the proposed assignee
would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and deliver to the Agent an
Assignment and Assumption, together with a processing and recordation fee in
the amount, if any, required as set forth in Schedule 9.6, and the Eligible
Assignee, if it shall not be a Lender, shall deliver to the Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Agent pursuant to
subsection (c) of this Section, from and after the effective date specified
in each Assignment and Assumption, the Eligible Assignee thereunder shall be
a party to this Agreement and, to the extent of the interest assigned by such
Assignment and Assumption, have the rights and obligations of a Lender under
this Agreement, and the assigning Lender thereunder shall, to the extent of
the interest assigned by such Assignment and Assumption, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender's rights and obligations
under this Agreement, such Lender shall cease to be a party hereto but shall
continue to be entitled to the benefits of Sections 2.13, 2.14, 2.16, 9.1 and
9.2 with respect to facts and circumstances occurring prior to the effective
date of such assignment and shall continue to retain the obligations with
respect thereto as well). Upon request, the Borrower (at its expense) shall
execute and deliver applicable Note(s) to the assignee Lender, and the
assignor Lender shall surrender and cancel any Notes, if requested. Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in
such rights and obligations in accordance with subsection (d) of this
Section.
(c) Register. The Agent, acting solely for this purpose as an agent of the
Borrower, shall maintain a copy of each Assignment and Assumption delivered
to it and a register for the recordation of the names and addresses of the
Lenders, and the Revolving Commitments of, and principal amounts of the Loans
owing to, each Lender pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, absent
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register pursuant to the terms hereof as
a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the
Borrower, at any reasonable time and from time to time upon reasonable prior
notice, and the Borrower may also receive a copy of the Register upon
request. In addition, at any time that a request for a consent for a material
or other substantive change to the Loan Documents is pending, any Lender
wishing to consult with other Lenders in connection therewith may request and
receive from the Agent a copy of the Register.
Page 54
(d) Participations. Any Lender may at any time, without the consent of, or
notice to, the Borrower or the Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower's
Affiliates or Subsidiaries or any competitor of the Borrower or any of its
Affiliates or Subsidiaries or any Affiliate of a competitor of the Borrower
or any of its Affiliates or Subsidiaries) (each, a "Participant") in all or a
portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Revolving Commitment and/or the Loans;
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, shall be the sole
holder of the Note(s), if any, and Loan Documents subject to the
participation and shall have the sole right to enforce its rights and
remedies under the Loan Documents and (iii) the Borrower, the Agent and the
other Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement and
the other Loan Documents.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and the other Loan Documents and to approve any
amendment, modification or waiver of any provision of this Agreement;
provided that such agreement or instrument may provide that such Lender will
not, without the consent of the Participant, agree to any amendment, waiver
or other modification that would change the amount, interest rate or maturity
of the Loans or any other matter that requires unanimous consent of all of
the Lenders. Subject to subsection (e) of this Section, the Borrower agrees
that each Participant shall be entitled to the benefits of Sections 2.13,
2.14 and 2.16 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to subsection (b) of this Section.
(e) Limitations upon Participant Rights. A Participant shall not be entitled
to receive any greater payment under Section 2.13 or 2.14 than the applicable
Lender would have been entitled to receive with respect to the participation
sold to such Participant, unless the sale of the participation to such
Participant is made with the Borrower's prior written consent. A Participant
that would be a foreign Lender if it were a Lender shall not be entitled to
the benefits of Section 2.13 unless the Borrower is notified of the
participation sold to such Participant and the Borrower is provided with
evidence satisfactory to the Borrower that such Participant has agreed, for
the benefit of the Borrower, to comply with Sections 2.15, 2.16 and 2.17 to
the same extent as if it were a Lender and had acquired its interest pursuant
to subsection (b) of this Section.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement (including
under its Note, if any) to secure obligations of such Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank;
provided that no such pledge or assignment shall release such Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words "execution," "signed,"
"signature," and words of like import in any Assignment and Assumption shall
be deemed to include electronic signatures or the keeping of records in
electronic form, each of which shall be of the same legal effect, validity or
enforceability as a manually executed signature or the use of a paper-based
recordkeeping system, as the case may be, to the extent and as provided for
in any applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform Electronic
Transactions Act.
Page 55
(h) Special Purpose Funding Vehicles. Notwithstanding anything to the
contrary contained herein, so long as any action in accordance with this
Section 9.6(h) does not cause increased costs or expenses for the Borrower,
any Lender (a "Granting Lender") may grant to a special purpose funding
vehicle (an "SPC") the option to fund all or any part of any Loan that such
Granting Lender would otherwise be obligated to fund pursuant to this
Agreement; provided that (i) nothing herein shall constitute a commitment by
any SPC to fund any Loan, (ii) if an SPC elects not to exercise such option
or otherwise fails to fund all or any part of such Loan, the Granting Lender
shall be obligated to fund such Loan pursuant to the terms hereof, (iii) no
SPC shall have any voting rights pursuant to Section 9.3 and (iv) with
respect to notices, payments and other matters hereunder, the Borrower, the
Agent and the Lenders shall not be obligated to deal with an SPC, but may
limit their communications and other dealings relevant to such SPC to the
applicable Granting Lender. The funding of a Loan by an SPC hereunder shall
utilize the Revolving Commitment of the Granting Lender to the same extent
that, and as if, such Loan were funded by such Granting Lender. Each party
hereto hereby agrees that no SPC shall be liable for any indemnity or payment
under this Agreement for which a Lender would otherwise be liable for so long
as, and to the extent, the Granting Lender provides such indemnity or makes
such payment. Notwithstanding anything to the contrary contained in this
Agreement, any SPC may disclose any non-public information relating to its
funding of Loans to any rating agency, commercial paper dealer or provider of
any surety or guarantee to such SPC so long as such disclosure is clearly
designated as being made on a confidential basis. This Section 9.6(h) may
not be amended without the prior written consent of each Granting Lender, all
or any part of whose Loan is being funded by an SPC at the time of such
amendment.
Section 9.7. Set Off.
In addition to any rights now or hereafter granted under Applicable Law and
to the extent not prohibited by law or Contractual Obligation of such Lender
Party, during the existence of any Event of Default, each Lender Party is
hereby irrevocably authorized by the Borrower, at any time or from time to
time, without notice to the Borrower or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, including certificates of deposit,
whether matured or unmatured, but not including trust accounts) and any other
indebtedness, in each case whether direct or indirect or contingent or
matured or unmatured at any time held or owing by such Lender Party to or for
the credit or the account of the Borrower, against and on account of the
Obligations, irrespective of whether or not such Lender Party shall have made
any demand for payment, provided that such Lender Party shall, promptly
following such set off or application, give notice to the Borrower thereof,
which notice shall contain an explanation of the basis for the set off or
application.
Section 9.8. Survival of Agreements, Representations and Warranties.
All agreements, representations and warranties made hereunder and in any
other Loan Document shall survive the execution and delivery hereof and
thereof. Such representations and warranties have been or will be relied
upon by the Agent and each Lender regardless of any investigation made by the
Agent or any Lender or on their behalf (unless the Agent or such Lender, as
applicable, had actual knowledge contrary thereto prior to its reliance), and
shall continue in full force and effect as long as any Loan or any other
Obligation hereunder shall remain unpaid or unsatisfied. Without limitation,
the agreements and obligations of the Borrower contained in Sections 2.13,
2.16, 9.1, and 9.2 and the obligations of the Lenders under Sections 2.15,
2.16 and 8.7 shall survive the payment in full of all other Obligations.
Page 56
Section 9.9. Execution in Counterparts.
This Agreement may be executed in any number of counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an
original and all of which counterparts, taken together, shall constitute but
one and the same Agreement.
Section 9.10. Complete Agreement.
This Agreement, together with the other Loan Documents and the Fee Letter,
represents the entire agreement of the parties hereto and supercedes all
prior agreements and understandings, oral or written, if any, including any
commitment letters or correspondence relating to the Loan Documents or the
transactions contemplated therein.
Section 9.11. Limitation of Liability.
No claim shall be made by the Borrower or any Lender Party against any party
hereto or the Affiliates, directors, officers, employees or agents of any
party hereto for any special, indirect, consequential or punitive damages in
respect of any claim for breach of contract or under any other theory of
liability arising out of or related to the transactions contemplated by this
Agreement, or any act, omission or event occurring in connection therewith;
and the Borrower and each Lender Party waives, releases and agrees not to xxx
upon any claim for any such damages, whether or not accrued and whether or
not known or suspected to exist in its favor.
Section 9.12. WAIVER OF TRIAL BY JURY.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER
PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 9.13. Confidentiality.
Each of the Agent and the Lenders agrees to maintain the confidentiality of
the Information (as defined below), except that Information may be disclosed
(a) to its Affiliates and to its and its Affiliates' respective partners,
directors, officers, employees, agents, advisors and representatives (it
being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to
keep such Information confidential), (b) to the extent requested by any
regulatory authority purporting to have jurisdiction over it, (c) to the
extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with
the exercise of any remedies hereunder or under any other Loan Document or
any action or proceeding relating to this Agreement or any other Loan
Document or the enforcement of rights hereunder or thereunder, (f) subject to
an agreement containing provisions substantially the same as those of this
Section, to (i) any Eligible Assignee of or Participant in, or any
prospective Eligible Assignee of or Participant in, any of its rights or
Page 57
obligations under this Agreement or (ii) any actual or prospective
counterparty (or its advisors) to any swap or derivative transaction relating
to the Borrower and its obligations, (g) with the consent of the Borrower or
(h) to the extent such Information (x) becomes publicly available other than
as a result of a breach of this Section or (y) becomes available to the Agent
and any Lender or any of their respective Affiliates on a nonconfidential
basis from a source other than the Borrower; or (i) to the National
Association of Insurance Commissioners or any other similar organization;
provided that with respect to clause (c) above, the Agent or the Lender, as
applicable, will use reasonable efforts to notify the Borrower prior to any
such disclosure. In addition, the Agent and the Lenders may disclose the
existence of this Agreement and information about this Agreement (to the
extent such information constitutes public information pursuant to the
Borrower's SEC disclosure) to market data collectors, similar service
providers to the lending industry, and service providers to the Agent and the
Lenders in connection with the administration and management of this
Agreement, the other Loan Documents and the Revolving Commitments.
For purposes of this Section, "Information" means all information received
from the Borrower or any Subsidiary relating to the Borrower or any
Subsidiary or any of their respective businesses, including, without
limitation, inventions, improvements, trade secrets, processes, data,
software programs, techniques, marketing plans, strategies, forecasts,
forward looking statements and projections, estimates and assumptions
concerning anticipated results, unpublished copyrightable material, customer
lists, customer information, sources of supply, prospects or projections,
manufacturing techniques, formulas, research or experimental work, work in
process and all information regarding transactions between the Borrower or
any Subsidiary and its customers, including without limitation, sales
documents, transactions receipts, customer names, account numbers,
transaction amounts and dates, other than any such information that is
available to the Agent or any Lender on a nonconfidential basis prior to
disclosure by the Borrower or any Subsidiary. Any Person required to
maintain the confidentiality of Information as provided in this Section shall
be considered to have complied with its obligation to do so if such Person
has exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information
except to the extent that Applicable Law imposes additional requirements in
which case such Person shall be required to abide by such additional
requirements.
Each of the Agent and the Lenders acknowledges that (a) the Information may
include material non-public information concerning the Borrower or a
Subsidiary, as the case may be, (b) it has developed compliance procedures
regarding the use of material non-public information and (c) it will handle
such material non-public information in accordance with Applicable Law,
including Federal and state securities Laws.
In addition, the Agent may disclose to any agency or organization that
assigns standard identification numbers to loan facilities such basic
information describing the facilities provided hereunder as is necessary to
assign unique identifiers (and, if requested, supply a copy of this
Agreement), it being understood that the Person to whom such disclosure is
made will be informed of the confidential nature of such Information and
instructed to make available to the public only such Information as such
person normally makes available in the course of its business of assigning
identification numbers.
Section 9.14. Binding Effect; Continuing Agreement.
(a) This Agreement shall become effective at such time when all of the
conditions set forth in Section 3.1 have been satisfied or waived by the
Lenders and it shall have been executed by the Borrower, the Agent, and each
Lender, and thereafter this Agreement shall be binding upon and inure to the
benefit of the Borrower, the Agent and each Lender and their respective
successors and assigns.
Page 58
(b) This Agreement shall be a continuing agreement and shall remain in full
force and effect until all Loans, interest, Fees and other Obligations have
been paid in full and the Revolving Commitments are terminated. Upon
termination, the Borrower shall have no further obligations (other than the
indemnification provisions that survive) under the Loan Documents; provided
that should any payment, in whole or in part, of the Obligations be rescinded
or otherwise required to be restored or returned by the Agent or any Lender,
whether as a result of any proceedings in bankruptcy or reorganization or any
similar reason, then the Loan Documents shall automatically be reinstated and
all amounts required to be restored or returned and all costs and expenses
incurred by the Agent or any Lender in connection therewith shall be deemed
included as part of the Obligations.
Section 9.15. NO ORAL AGREEMENTS.
ORAL AGREEMENTS OR ORAL COMMITMENTS TO LOAN MONEY, EXTEND CREDIT, OR TO
FORBEAR FROM ENFORCING REPAYMENT OF A DEBT ARE NOT ENFORCEABLE UNDER
WASHINGTON LAW.
Section 9.16. USA Patriot Act Notice.
Each Lender that is subject to the Act (as hereinafter defined) and the Agent
(for itself and not on behalf of any Lender) hereby notifies the Borrower
that pursuant to the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the "Act"), it is required to
obtain, verify and record information that identifies the Borrower, which
information includes the name and address of the Borrower and other
information that will allow such Lender or the Agent, as applicable, to
identify the Borrower in accordance with the Act.
[SIGNATURE PAGES FOLLOW]
Page 59
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
IN WITNESS WHEREOF, each of the parties hereto has caused a counterpart of
this Agreement to be duly executed and delivered as of the date first above
written.
BORROWER: NORDSTROM, INC.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: DVP & Treasurer
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
AGENT: BANK OF AMERICA, N.A., in its
capacity as Agent
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Vice President
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
LENDERS: BANK OF AMERICA, N.A.
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Senior Vice President
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Managing Director
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
XXXXX FARGO BANK, N.A.
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
THE BANK OF NEW YORK
By: /s/ Xxxxxxxx X.X. Xxxxxxx
Name: Xxxxxxxx X.X. Xxxxxxx
Title: Vice President
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
FIFTH THIRD BANK
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: Corporate Banking Officer
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
KEYBANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxxx X. Xxxx
Name: Xxxxxxxx X. Xxxx
Title: Vice President
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
THE ROYAL BANK OF SCOTLAND, PLC
By: /s/ Xxxxxxxxx Xxxx
Name: Xxxxxxxxx Xxxx
Title: Managing Director
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Vice President & Manager
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
BANK OF HAWAII
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
Signature Page
Nordstrom, Inc.
Revolving Credit Agreement
THE NORTHERN TRUST COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Senior Vice President
EXHIBIT 2.1(c)
FORM OF
NOTICE OF BORROWING
TO: BANK OF AMERICA, N.A., as Agent
0000 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Reference is hereby made to the Revolving Credit Agreement, dated as of
November 4, 2005 (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"), JPMORGAN CHASE BANK, N.A. and
XXXXX FARGO BANK, N.A., as Syndication Agents, U.S. BANK, NATIONAL
ASSOCIATION, 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 2.1 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 ____________,
20__ 1 with an Interest Period of ____________ 2; or
(b) Base Rate Loans in the amount of $__________ on ____________, 20__ 3;
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);
(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:
------------------------------
Name:
------------------------------
Title:
------------------------------
------------------------
1. Must be a Euro Dollar Business Day.
2. With respect to each Euro Dollar Rate Loan, permissible Interest Periods
are periods one, two, three or six months.
3. Must be a Business Day.
EXHIBIT 2.1(c)(iii)
FORM OF
NOTICE OF RESPONSIBLE OFFICERS
TO: BANK OF AMERICA, N.A., as Agent
0000 Xxxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Reference is hereby made to the Revolving Credit Agreement, dated as of
November 4, 2005 (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"), JPMORGAN CHASE BANK, N.A. and
XXXXX FARGO BANK, N.A., as Syndication Agents, U.S. BANK, NATIONAL
ASSOCIATION, 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 Loans, continue outstanding Loans, convert
Loans to another Type and request rate and balance information and take other
actions with respect to Loans on behalf of the Borrower (but not to amend the
Credit Agreement or the Notes) 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 a Senior
Officer of the Borrower. In accordance with the Credit Agreement, the Agent
shall have no duty to verify the authenticity of the certifying signature
appearing on any subsequent Notices of Responsible Officers to the extent the
Agent believes in good faith that such signature is of a Senior Officer of
the Borrower.
The foregoing supersedes any Notice of Responsible Officers presently
in effect under the Credit Agreement.
Date: ,
---------------- ----
-----------------------------
By: 1
-----------------------------
Name:
----------------------------
Title:
-----------------------------
---------------------------
1. Must be a Senior Officer
EXHIBIT 2.2(b)(i)
FORM OF
BID LOAN QUOTE REQUEST
TO: BANK OF AMERICA, N.A., as Agent
0000 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Reference is hereby made to the Revolving Credit Agreement, dated as of
November 4, 2005 (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"), JPMORGAN CHASE BANK, N.A. and
XXXXX FARGO BANK, N.A., as Syndication Agents, U.S. BANK, NATIONAL
ASSOCIATION, 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) 1:
Funding Date 2 Amount 3 Interest Period 4
----------------------------------------------------------------------------
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: 5
--------------------------------
Name:______________________________
------------------------------
Title:_______________________________
-------------------------------
---------------------------
1. Up to three
2. Must be a Business Day
3. Each amount must be at least $2,000,000 and an integral multiple of
$1,000,000 in excess thereof.
4. A period of not less than 7 and not more than 30 days after the Funding
Date and ending on a Business Day.
EXHIBIT 2.2(b)(ii)
FORM OF
BID LOAN QUOTE
TO: BANK OF AMERICA, N.A., as Agent
0000 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Reference is hereby made to the Revolving Credit Agreement, dated as of
November 4, 2005 (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"), JPMORGAN CHASE BANK, N.A. and
XXXXX FARGO BANK, N.A., as Syndication Agents, U.S. BANK, NATIONAL
ASSOCIATION, 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. Name, address, phone number and fax number of 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 the following rate(s):
Funding Date 1 Amount 2 Interest Period 3 Quote 4
-----------------------------------------------------------------------------
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(b)(ii) of the Credit Agreement.
Date: ,
---------------- ----
-------------------------------
By: 5
-----------------------------
Name:
----------------------------
Title:
-----------------------------
---------------------------
1. As specified in the Bid Loan Quote Request
2. The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $2,000,000 and
an integral multiple of $1,000,000 in excess thereof.
3. As specified in the bid Loan Quote Request
4. Specify rate of interest per annum ([quoted on an "all-in" basis] and
rounded to the nearest 1/10,000 of 1%).
5. Must be an authorized officer.
EXHIBIT 2.4(b)(ii)
FORM OF
NOTICE OF CONVERSION/CONTINUATION
TO: BANK OF AMERICA, N.A., as Agent
0000 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Reference is hereby made to the Revolving Credit Agreement, dated as of
November 4, 2005 (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 financial institutions that either now or in the future are parties
thereto as lenders (the "Lenders"), JPMORGAN CHASE BANK, N.A. and XXXXX FARGO
BANK, N.A., as Syndication Agents, U.S. BANK, NATIONAL ASSOCIATION, 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 2.4(b) of the Credit Agreement:
[FOR CONVERSION OF BASE RATE INTO EURO-DOLLAR RATE]
The Borrower hereby requests to convert $ of presently
-------
outstanding Base Rate Loans on , 1 into Euro-Dollar Rate
---------------- ----
Loans with an Interest Period of 2.
---------------------
[FOR CONVERSION OF EURO-DOLLAR RATE INTO BASE RATE]
The Borrower hereby requests to convert $ of presently
-------
outstanding Euro-Dollar Rate Loans with an Interest Period of
2 , expiring on , into Base Rate Loans.
-------------------- ------------- ----
[FOR CONTINUATION OF EURO-DOLLAR RATE]
The Borrower hereby requests to 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 2.
---------------------
Date: ,
------------ ----
NORDSTROM, INC.,
a Washington corporation
By: 3
-------------------------------
Name:
-----------------------------
Title:
------------------------------
---------------------------
1. Must be a Euro-Dollar Business Day
2. With respect to Euro-Dollar Rate Loans, permissible Interest Periods are
periods of one, two, three or six months.
3. Must be a Responsible Officer
EXHIBIT 2.5(a)(i)
FORM OF
REVOLVING LOAN NOTE
, 200
------------ -
FOR VALUE RECEIVED, the undersigned, NORDSTROM, INC., a Washington
corporation (the "Borrower"), hereby promises to pay to the order of [insert
name of Lender] (the "Lender"), for the account of its Applicable Lending
Office, 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 Revolving Credit
Agreement, dated as of November 4, 2005 (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"), JPMORGAN CHASE BANK, N.A.
and XXXXX FARGO BANK, N.A., as Syndication Agents, U.S. BANK, NATIONAL
ASSOCIATION, 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, defense, or Taxes (except as otherwise
provided in the Credit Agreement). 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.
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 failure to record, or any
error in recording any, such information shall not, however, affect the
obligations of the Borrower hereunder to repay the principal amount of the
Loans evidenced hereby, 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.
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.
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.
NORDSTROM, INC.,
a Washington corporation
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Date Type and Interest Interest Amount of Unpaid Principal Notation
Amount of Period Rate Principal Amount of Note Made
Loan Paid By
Or Prepaid
---------------------------------------------------------------------------
EXHIBIT 2.5(a)(ii)
FORM OF
BID LOAN NOTE
, 200
------------- -
FOR VALUE RECEIVED, the undersigned, NORDSTROM, INC., a Washington
corporation (the "Borrower"), hereby promises to pay to the order of [insert
name of Lender] (the "Lender"), for the account of its Domestic Lending
Officer, 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 Revolving Credit Agreement, dated
as of November 4, 2005 (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"), JPMORGAN CHASE BANK, N.A. and XXXXX FARGO BANK,
N.A., as Syndication Agents, U.S. BANK, NATIONAL ASSOCIATION, 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, defense, or Taxes (except as otherwise
provided in the Credit Agreement). 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.
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 failure to record, or any
error in recording any, such information shall not, however, affect the
obligations of the Borrower hereunder 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.
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.
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.
NORDSTROM, INC.,
a Washington corporation
By:
----------------------------------
Name:
-------------------------------
Title:
--------------------------------
SCHEDULE
BID LOAN NOTE
Date Type and Interest Interest Amount of Unpaid Principal Notation
Amount of Period Rate Principal Amount of Note Made
Loan Paid By
Or Prepaid
---------------------------------------------------------------------------
EXHIBIT 3.1(d)
FORM OF
CLOSING OFFICER'S CERTIFICATE
TO: BANK OF AMERICA, N.A., as Agent
0000 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Reference is hereby made to the Revolving Credit Agreement, dated as of
November 4, 2005 (the "Credit Agreement"), by and among NORDSTROM, INC., a
Washington corporation (the "Borrower"), each of the banks and other
financial institutions that are parties thereto as lenders (the "Lenders"),
JPMORGAN CHASE BANK, N.A. and XXXXX FARGO BANK, N.A., as Syndication Agents,
U.S. BANK, NATIONAL ASSOCIATION, 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(d) 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 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 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.
5. The Borrower is in compliance with all existing material financial
obligations.
Date: November 4, 2005
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President and
Chief Financial Officer
EXHIBIT 5.1(c)
FORM OF
COMPLIANCE CERTIFICATE
TO: BANK OF AMERICA, N.A., as Agent
0000 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Reference is hereby made to the Revolving Credit Agreement, dated as of
November 4, 2005 (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"), JPMORGAN CHASE BANK, N.A. and XXXXX FARGO BANK, N.A., as
Syndication Agents, U.S. BANK, NATIONAL ASSOCIATION, as Documentation Agent
and BANK OF AMERICA, N.A., as agent and representative for the Lenders (in
such capacity 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(c) of the Credit Agreement and relates to certain financial statements of
the Borrower (the "Financial Statements") as of and for [Fiscal
Quarter][Fiscal Year] ended ______________ (the "Financial Statement Date";
such [period being the "accounting period"). 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, 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 of this
Compliance Certificate, of any Default or Event of Default[,except as
follows:1].
3. The Financial Statements which accompany this Compliance Certificate
fairly present in all material respects the financial condition of the
Borrower and its Subsidiaries and have been prepared in accordance with
GAAP[, subject to change resulting from normal year end audit adjustments].
4. As of the Financial Statement Date, the Borrower is in compliance
with the Leverage Ratio set forth in Section 6.3 of the Credit Agreement as
set forth below:
-------------------------
1. Specify the nature and period of existence of each Default or Event of
Default (if any) and what action the Borrower has taken, is taking, or
proposes to take with respect thereto.
Maximum Leverage Ratio as of Financial Statement Date
A. Funded Debt as of the Financial Statement Date $
---------
B. Rent Expense for Preceding Twelve Months $
---------
C. EBITDAR for Preceding Twelve Months $
---------
Leverage Ratio as of Financial Statement Date to 1.0
---
[(A + (B x 6)] / C
Leverage Ratio required under Section 6.3 4.0 to 1.0
The undersigned has executed this Compliance Certificate as of the
day of .
----------- ----------
----------------------------------
Name:
-----------------------------
Title: 1
-----------------------------
-------------------------
1. To be signed by the chief financial officer or president of the Borrower.
EXHIBIT 9.6(b)
FORM OF
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of
Assignee] (the "Assignee"). Capitalized terms used but not defined herein
shall have the meanings given to them in the Credit Agreement identified
below (the "Credit Agreement"), receipt of a copy of which is hereby
acknowledged by the Assignee. The Standard Terms and Conditions set forth in
Annex 1 attached hereto are hereby agreed to and incorporated herein by
reference and made a part of this Assignment and Assumption as if set forth
herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard
Terms and Conditions and the Credit Agreement, as of the Effective Date
inserted by the Administrative Agent as contemplated below (i) all of the
Assignor's rights and obligations as a Lender under the Credit Agreement and
any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of the Assignor under the respective
facilities identified below and (ii) to the extent permitted to be assigned
under applicable law, all claims, suits, causes of action and any other right
of the Assignor (in its capacity as a Lender) against any Person, whether
known or unknown, arising under or in connection with the Credit Agreement,
any other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause
(i) above (the rights and obligations sold and assigned pursuant to clauses
(i) and (ii) above being referred to herein collectively as, the "Assigned
Interest"). Such sale and assignment is without recourse to the Assignor
and, except as expressly provided in this Assignment and Assumption, without
representation or warranty by the Assignor.
1. Assignor:
------------------------------
2. Assignee: [and is an
------------------------------
Affiliate/Approved Fund of [identify Lender]1]
3. Borrower: Nordstrom, Inc.
4. Administrative Agent: Bank of America, N.A., as the administrative
agent under the Credit Agreement.
5. Credit Agreement: Credit Agreement, dated as of November 4, 2005,
among Nordstrom, Inc., the Lenders from time to time party thereto, and Bank
of America, N.A., as administrative agent.
6. Assigned Interest:
--------------------------
1. Select as applicable.
Facility Assigned Aggregate Amount of Percentage
Amount of Revolving Assigned of
Revolving Commitment/Loans Revolving
Commitment/Loans Assigned Commitment/
for all Lenders Loans 2
----------------------------------------------------------------------------
Revolving Committed $ $ $
Amount -------------- -------------- --------------
------------------- $ $ $
-------------- -------------- --------------
------------------- $ $ $
-------------- -------------- --------------
[7. Trade Date: ]3
------------------
Effective Date: , 20 [TO BE INSERTED BY ADMINISTRATIVE
------------------ --
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE
REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
-----------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
-----------------------------
Title:
--------------------
2. St forth, to at least 9 decimals, as a percentage of the Revolving
Commitment/Loans of all Lenders thereunder.
3. To be completed if the Assignor and the Assignee intend that the minimum
assignment amount is to be determined as of the Trade Date.
[Consented to and]4 Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
---------------------------------
Title:
[Consented to:]5
NORDSTROM, INC.
By:
---------------------------------
Title:
--------------------
-------------------
4. To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
5. To be added only if the consent of the Borrower is required by the terms
of the Credit Agreement.
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim
and (iii) it has full power and authority, and has taken all action
necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or
representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Loan Documents or any collateral
thereunder, (iii) the financial condition of the Borrower, any of its
Subsidiaries or Affiliates or any other Person obligated in respect of any
Loan Document or (iv) the performance or observance by the Borrower, any of
its Subsidiaries or Affiliates or any other Person of any of their respective
obligations under any Loan Document.
1.2 Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii)
it meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent
of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it has received a copy of the Credit Agreement, together with copies of
the most recent financial statements delivered pursuant to Section 5.1
thereof, as applicable, 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 and to purchase the Assigned Interest on the
basis of which it has made such analysis and decision independently and
without reliance on the Agent or any other Lender, and (v) if it is a foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Agent, the Assignor or any other Lender, and based on such
documents and information as it shall deem appropriate at the time, continue
to make its own credit decisions in taking or not taking action under the
Loan Documents, and (ii) it will perform in accordance with their terms all
of the obligations which by the terms of the Loan Documents are required to
be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Agent shall make all
payments in respect of the Assigned Interest (including payments of
principal, interest, fees and other amounts) to the Assignor for amounts
which have accrued to but excluding the Effective Date and to the Assignee
for amounts which have accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon,
and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in
any number of counterparts, which together shall constitute one instrument.
Delivery of an executed counterpart of a signature page of this Assignment
and Assumption by telecopy shall be effective as delivery of a manually
executed counterpart of this Assignment and Assumption. This Assignment and
Assumption shall be governed by, and construed in accordance with, the law of
the State of Washington.
SCHEDULE 1.1(c)
REVOLVING COMMITMENTS
Lender Revolving Revolving
Commitment Commitment Percentages
-----------------------------------------------------------------------------
Bank of America, N.A. $85,000,000 17.000000000%
JPMorgan Chase Bank, N.A. $75,000,000 15.000000000%
Xxxxx Fargo Bank, N.A. $75,000,000 15.000000000%
U.S. Bank, National $50,000,000 10.000000000%
Association
The Bank of New York $40,000,000 8.000000000%
Fifth Third Bank $40,000,000 8.000000000%
KeyBank National Association $40,000,000 8.000000000%
Royal Bank of Scotland plc $40,000,000 8.000000000%
Union Bank of California, N.A. $25,000,000 5.000000000%
Bank of Hawaii $15,000,000 3.000000000%
The Northern Trust Company $15,000,000 3.000000000%
Total: $500,000,000 100%
SCHEDULE 9.5
CERTAIN ADDRESSES FOR NOTICES
BORROWER:
Nordstrom, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxxx.xxxxxx@xxxxxxxxx.xxx
Copies of material notices, including notices of any Default, to:
Xxxx Xxxxxx PC
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Electronic Mail: xxxxxxxxx@xxxxxxxxxx.xxx
Copies of material notices, including notices of any Default, to:
Xxxxx & Xxx Xxxxx PLLC
000 X. Xxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxxxxxxxxx@xxxxxx.xxx
ADMINISTRATIVE AGENT:
Administrative Agent's Office
(for payments and Requests for Credit Extensions):
Bank of America, N.A.
0000 Xxxxxxx Xxxx, Xxxxxxxx X
Mail Code: CA4-702-02-25
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
Electronic Mail: xxxxxx.xxxxxxxx@xxxxxxxxxxxxx.xxx
Payment Instructions:
Bank of America, N.A.
Dallas, TX
ABA # 111 000 012
Account No.: 3750836479
Account Name: Credit Services #5596
Ref: Nordstrom, Inc.
Other Notices as Administrative Agent:
Bank of America, N.A.
Agency Management
000 Xxxxx Xxxxx Xxxxxx
Mail Code: NC1-001-15-14
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxx Xxxxx
Telephone: 000-000-0000
Facsimile: 704-409-0901
Electronic Mail: xxxxxxxx.xxxxx@xxxxxxxxxxxxx.xxx
SCHEDULE 9.6
PROCESSING AND RECORDATION FEES
The Administrative Agent will charge a processing and recordation fee (an
"Assignment Fee") in the amount of $2,500 for each assignment; provided,
however, that in the event of two or more concurrent assignments to members of
the same Assignee Group (which may be effected by a suballocation of an
assigned amount among members of such Assignee Group) or two or more concurrent
assignments by members of the same Assignee Group to a single Eligible Assignee
(or to an Eligible Assignee and members of its Assignee Group), the Assignment
Fee will be $2,500 plus the amount set forth below:
Transaction Assignement Fee
--------------------------------------------------------------
First four concurrent assignments -0-
or suballocations to members of an
Assignee Group (or from members of
an Assignee Group, as applicable)
Each additional concurrent $500
assignment or suballocation to a
member of such Assignee Group (or
from a member of such Assignee
Group, as applicable)
