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EXHIBIT 4.1
AMENDMENT AND WAIVER NO. 1
DATED AS OF DECEMBER 17, 1997
TO CREDIT AGREEMENT
DATED AS OF SEPTEMBER 18, 1997
THIS AMENDMENT AND WAIVER NO. 1 TO CREDIT AGREEMENT ("AMENDMENT") is made
as of this 17th day of December, 1997 by and among THE TJX COMPANIES, INC., (the
"BORROWER"), the financial institutions parties thereto as lenders (the
"LENDERS"), THE FIRST NATIONAL BANK OF CHICAGO, as Administrative Agent (the
"ADMINISTRATIVE AGENT"), BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent, THE BANK OF NEW YORK, as Documentation Agent, BANKBOSTON,
N.A., as Managing Agent and CIBC, INC., DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH, FLEET NATIONAL BANK, MELLON BANK, N.A. AND PNC BANK,
NATIONAL ASSOCIATION, as Co-Agents under that certain Credit Agreement dated as
of September 18, 1997 by and among the Borrower, the Lenders, the Administrative
Agent, the Syndication Agent, the Documentation Agent, the Managing Agent and
the Co-Agents (the "CREDIT AGREEMENT"). Capitalized terms used herein and not
otherwise defined herein shall have the meaning given to them in the Credit
Agreement.
WITNESSETH
WHEREAS, the Borrower, the Lenders, and the Administrative Agent are
parties to the Credit Agreement; and
WHEREAS, the Borrower has requested that the Credit Agreement be amended;
WHEREAS, the Borrower, the Lenders and the Administrative Agent have agreed
to amend the Credit Agreement on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises set forth above, the terms
and conditions contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Lenders and the Administrative Agent have agreed to the following amendment to
the Credit Agreement.
1. AMENDMENT TO CREDIT AGREEMENT. Effective as of the date hereof and
subject to the satisfaction of the conditions precedent set forth in Section 3
below, SECTION 6.13 of the Credit Agreement is amended to add a new clause (g)
which reads in its entirety as follows:
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(g) Loans, capital contributions and other Investments made by any
Subsidiary in the Borrower.
2. WAIVER. UPON THE EFFECTIVENESS OF THIS AMENDMENT AND WAIVER IN
ACCORDANCE WITH THE PROVISIONS OF SECTION 3 BELOW, THE LENDERS HEREBY WAIVE ANY
DEFAULT OR UNMATURED DEFAULT WHICH MAY HAVE OCCURRED AS A RESULT OF ANY LOAN,
CAPITAL CONTRIBUTION OR OTHER INVESTMENT MADE BY ANY SUBSIDIARY IN THE BORROWER
PRIOR TO THE EFFECTIVE DATE HEREOF.
3. CONDITIONS OF EFFECTIVENESS. This Amendment shall not become effective
unless this Amendment shall have been executed by the Borrower, the
Administrative Agent and the Required Lenders on or before December 17, 1997.
4. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The Borrower hereby
represents and warrants as follows:
(a) This Amendment and the Credit Agreement as previously executed and as
amended hereby, constitute legal, valid and binding obligations of the Borrower,
enforceable against it in accordance with their terms (except as enforceability
may be limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditor's rights generally).
(b) Upon the effectiveness of this Amendment, the Borrower hereby
reaffirms all covenants, representations and warranties made in the Credit
Agreement and the other Transaction Documents to the extent the same are not
amended hereby, agrees that all such covenants, representations and warranties
shall be deemed to have been remade as of the effective date of this Amendment.
(c) Upon the effectiveness of this Amendment, there exists no Default or
Unmatured Default.
5. REFERENCE TO THE EFFECT ON THE CREDIT AGREEMENT.
(a) Upon the effectiveness of Section 1 hereof, on and after the date
hereof, each reference in the Credit Agreement to "this Credit Agreement,"
"hereunder," "hereof," "herein" or words of like import shall mean and be a
reference to the Credit Agreement as amended hereby.
(b) Except as specifically amended above, the Credit Agreement and all
other documents, instruments and agreements executed and/or delivered in
connection therewith, shall remain in full force and effect, and are hereby
ratified and confirmed.
(c) The execution, delivery and effectiveness of this Amendment shall not,
except as expressly provided herein, operate as a waiver of any right, power of
remedy of the Agent or the Lenders, nor constitute a waiver of any provision of
the Credit Agreement or any other documents, instruments and agreements executed
and/or delivered in connection therewith.
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6. GOVERNING LAW. This Amendment shall be governed by and construed in
accordance with the internal laws (as opposed to the conflict of law provisions)
of the State of Illinois.
7. HEADINGS. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8. COUNTERPARTS. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any of the parties hereto may execute this Agreement by signing any such
counterpart. This Agreement shall be effective when it has been executed by the
Borrower, the Administrative Agent and the Required Lenders and each such party
has notified the Administrative Agent by facsimile or telephone that it has
taken such action.
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IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and
year first above written.
THE TJX COMPANIES, INC.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President, Finance-Treasurer
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Xxxx Xxxxxx
----------------------------------------
Name: Xxxx Xxxxxx
Title: Manager Director
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ Xxxxxx X. Xxxx
----------------------------------------
Name: Xxxxxx X. Xxxx
Title: Managing Director
THE BANK OF NEW YORK
By: /s/ Xxxxxx X. Xxxxxx, Xx.
----------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
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BANKBOSTON, N.A.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
CIBC, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxxxx
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxxxx
Title: Executive Director, CIBC
Oppenheime Corp., as Agent
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
By: /s/ Xxxxx X. X'Xxxxxx
----------------------------------------
Name: Xxxxx X. X'Xxxxxx
Title: Director
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Vice President
MELLON BANK, N.A.
By: /s/ Xxxxxxxx Xxxxxxxx
----------------------------------------
Name: Xxxxxxxx Xxxxxxxx
Title: Vice President
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FLEET NATIONAL BANK
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Xxxx Xxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxx
Title: Vice President
ABN AMRO BANK N.V.
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: SVP
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
Title: GVP
XXXXXXX BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: VP - US Banking
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FIRST AMERICAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
STANDARD CHARTERED BANK
By: /s/ Xxxxxxxx X. Tee
----------------------------------------
Name: Xxxxxxxx X. Tee
Title: V.P.
By: /s/ Xxxxxxxx XxXxxxx
----------------------------------------
Name: Xxxxxxxx XxXxxxx
Title: V.P.
STATE STREET BANK AND TRUST COMPANY
By: /s/ F. Xxxxxx Xxxxx
----------------------------------------
Name: F. Xxxxxx Xxxxx
Title: Vice President
THE TOYO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH
By: /s/ T. Mikumo
----------------------------------------
Name: T. Mikumo
Title: Vice President
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XXXXX XXXX XX XXXXXXXXXX, N.A.
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
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EXECUTION COPY
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U.S. $500,000,000
CREDIT AGREEMENT
Dated as of September 18, 1997
Among
THE TJX COMPANIES, INC.,
as the Borrower,
THE FINANCIAL INSTITUTIONS NAMED HEREIN,
as the Lenders,
THE FIRST NATIONAL BANK OF CHICAGO,
as Administrative Agent,
BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION,
as Syndication Agent,
THE BANK OF NEW YORK,
as Documentation Agent,
BANKBOSTON, N.A.,
as Managing Agent,
and
CIBC, INC.,
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH,
FLEET NATIONAL BANK,
MELLON BANK, N.A., and
PNC BANK, NATIONAL ASSOCIATION,
as Co-Agents.
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TABLE OF CONTENTS
Section Page
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ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms ........................................... 1
ARTICLE II
THE CREDITS
2.1. The Syndicated Loans ......................................... 15
2.2. Repayment of the Syndicated Loans ............................ 15
2.3. Ratable Loans; Types of Syndicated Advances .................. 15
2.4. Minimum Amount of Each Syndicated Advance .................... 16
2.5. Optional Prepayments of Syndicated Loans ..................... 16
2.6. Method of Selecting Types and Interest Periods
for New Syndicated Advances .................................. 16
2.7. Conversion and Continuation of Outstanding
Syndicated Advances .......................................... 17
2.8. Payment of Interest on Syndicated Advances; Changes
in Interest Rate ............................................. 17
2.9. Swing Line Loans ............................................. 18
2.10. The Bid Rate Advances ........................................ 19
2.11. Facility Fee; Reductions in Aggregate Commitment ............. 22
2.12. Rates Applicable After Default ............................... 23
2.13. Method of Payment ............................................ 23
2.14. Notes; Telephonic Notices .................................... 23
2.15. Notification of Advances, Interest Rates, Prepayments
and Commitment Reductions .................................... 23
2.16. Lending Installations ........................................ 24
2.17. Non-Receipt of Funds by the Administrative Agent ............. 24
2.18. Withholding Tax Exemption .................................... 24
2.19. Termination .................................................. 25
2.20. Letter of Credit Facility. ................................... 25
2.20.1. Obligation to Issue. ......................................... 25
2.20.2. Types and Amounts ............................................ 25
2.20.3. Conditions. .................................................. 25
2.20.4. Procedure for Issuance of Letters of Credit .................. 26
2.20.5. Letter of Credit Participation ............................... 26
2.20.6. Reimbursement Obligation ..................................... 27
2.20.7. Letter of Credit Fees ........................................ 27
2.20.8. Issuing Lender Reporting Requirements. ....................... 27
2.20.9. Indemnification; Exoneration ................................. 28
2.20.10. Cash Collateral .............................................. 29
2.21. Pricing. ..................................................... 29
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Section Page
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ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection ............................................... 30
3.2. Changes in Capital Adequacy Regulations ........................ 31
3.3. Availability of Types of Syndicated Advances ................... 31
3.4. Funding Indemnification ........................................ 32
3.5. Mitigation; Lender Statements; Survival of Indemnity ........... 32
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Effectiveness; Initial Advance ................................. 33
4.2. Each Advance and Letter of Credit .............................. 34
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1. Corporate Existence and Standing ............................... 35
5.2. Authorization and Validity ..................................... 35
5.3. No Conflict; Government Consent ................................ 36
5.4. Financial Statements ........................................... 37
5.5. Material Adverse Change ........................................ 37
5.6. Taxes .......................................................... 37
5.7. Litigation and Contingent Obligations .......................... 37
5.8. Subsidiaries ................................................... 37
5.9. ERISA .......................................................... 38
5.10. Accuracy of Information ........................................ 38
5.11. Regulations G, T, U and X ...................................... 38
5.12. Material Agreements ............................................ 38
5.13. Compliance With Laws ........................................... 38
5.14. Ownership of Property .......................................... 39
5.15. Labor Matters .................................................. 39
5.16. Investment Company Act ......................................... 39
5.17. Public Utility Holding Company Act ............................. 39
ARTICLE VI
COVENANTS
6. Covenants ...................................................... 40
6.1. Financial Reporting ............................................ 40
6.2. Use of Proceeds ................................................ 41
6.3. Other Notices .................................................. 42
6.4. Conduct of Business ............................................ 42
6.5. Taxes .......................................................... 42
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Section Page
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6.6. Insurance ...................................................... 42
6.7. Compliance with Laws ........................................... 42
6.8. Maintenance of Properties ...................................... 43
6.9. Inspection ..................................................... 43
6.10. Merger ......................................................... 43
6.11. Sale of Assets ................................................. 43
6.12. Affiliates ..................................................... 44
6.13. Investments .................................................... 45
6.14. Contingent Obligations ......................................... 45
6.15. Liens .......................................................... 46
6.16. Maximum Leverage Ratio ......................................... 48
6.17. Minimum Fixed Charge Coverage .................................. 48
6.18. Acquisitions ................................................... 48
6.19. Rate Hedging Obligations. ...................................... 49
6.20. Material Subsidiaries .......................................... 49
6.21. Subsidiary Indebtedness. ....................................... 49
6.22. Subordination of Intercompany Indebtedness. .................... 50
ARTICLE VII
DEFAULTS .............................................................. 50
7. Defaults ....................................................... 50
7.1. Breach of Representation or Warranty. .......................... 50
7.2. Payment Default. ............................................... 50
7.3. Breach of Certain Covenants. ................................... 50
7.4. Breach of Other Provisions. .................................... 50
7.5. Default on Material Indebtedness. .............................. 51
7.6. Voluntary Insolvency Proceedings. .............................. 51
7.7. Involuntary Insolvency Proceedings. ............................ 51
7.8. Condemnation. .................................................. 51
7.9. Judgments. ..................................................... 52
7.10. ERISA Matters. ................................................. 52
7.11. Environmental Matters. ......................................... 52
7.12. Change of Control. ............................................. 52
7.13. Change of Subsidiary Ownership; Guaranty Defaults. ............. 52
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration ................................................... 53
8.2. Amendments ..................................................... 53
8.3. Preservation of Rights ......................................... 54
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Section Page
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ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations .................................... 54
9.2. Governmental Regulation ........................................ 54
9.3. Taxes; Stamp Duties ............................................ 54
9.4. Headings ....................................................... 55
9.5. Entire Agreement ............................................... 55
9.6. Several Obligations; Benefits of this Agreement ................ 55
9.7. Expenses; Indemnification ...................................... 55
9.8. Numbers of Documents ........................................... 57
9.9. Accounting ..................................................... 57
9.10. Severability of Provisions ..................................... 57
9.11. Nonliability of Lenders ........................................ 57
9.12. Governing Law. ................................................. 58
9.13. Consent to Jurisdiction; Service of Process; Jury Trial. ....... 58
9.14. Confidentiality ................................................ 60
9.15. Facility Guaranty Releases ..................................... 60
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1. Appointment; Nature of Relationship ............................ 60
10.2. Powers ......................................................... 61
10.3. General Immunity ............................................... 61
10.4. No Responsibility for Loans, Creditworthiness,
Collateral, Recitals, Etc. ..................................... 61
10.5. Action on Instructions of Lenders .............................. 62
10.6. Employment of Agents and Counsel ............................... 62
10.7. Reliance on Documents; Counsel ................................. 62
10.8. The Administrative Agent's Reimbursement and
Indemnification ................................................ 63
10.9. Rights as a Lender ............................................. 63
10.10. Lender Credit Decision ......................................... 63
10.11. Successor Administrative Agent ................................. 63
10.12. Administrative Agent's Fee. .................................... 64
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff ......................................................... 64
11.2. Ratable Payments ............................................... 64
11.3. Application of Payments ........................................ 65
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Section Page
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ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns ......................................... 66
12.2. Participations ................................................. 66
12.3. Assignments .................................................... 67
12.4. Dissemination of Information ................................... 68
12.5. Tax Treatment .................................................. 68
ARTICLE XIII
NOTICES
13.1. Giving Notice .................................................. 68
13.2. Change of Address .............................................. 69
ARTICLE XXX
XXXXXXXXXXXX
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SCHEDULES
Schedule 1 Disclosure Schedule
Schedule 2.20 Issuing Lender's Maximum Amounts
Schedule 5.3 Governmental Authorizations
Schedule 5.6 Tax Liens
Schedule 5.7 Litigation
Schedule 5.8 Subsidiaries
Schedule 5.13 Environmental, Health or Safety Requirements of Law
Schedule 5.14 Liens and Encumbrances
Schedule 6.11 Asset Sales
Schedule 6.13 Investments
Schedule 6.14 Contingent Obligations
Schedule 6.21 Subsidiary Indebtedness
Schedule 6.22 Subordination
EXHIBITS
Exhibit A-1 Form of Syndicated Note
Exhibit A-2 Form of Bid Rate Note
Exhibit A-3 Form of Swing Line Note
Exhibit B Required Opinions
Exhibit C Form of Compliance Certificate
Exhibit D Form of Assignment Agreement
Exhibit E Form of Loan/Credit Related Money Transfer Instruction
Exhibit F-1 Form of Syndicated Advance Borrowing Notice
Exhibit F-2 Form of Bid Rate Advance Borrowing Notice
Exhibit G Form of Prepayment Notice
Exhibit H Form of Conversion/Continuation Notice
Exhibit I Form of Facility Guaranty
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THIS CREDIT AGREEMENT, dated as of September 18, 1997, is among THE TJX
COMPANIES, INC., as the Borrower, THE FINANCIAL INSTITUTIONS NAMED HEREIN, as
the Lenders, and THE FIRST NATIONAL BANK OF CHICAGO, as the Administrative
Agent, BANK OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as Syndication
Agent, THE BANK OF NEW YORK, as Documentation Agent, and BANKBOSTON, N.A., as
Managing Agent. The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. CERTAIN DEFINED TERMS. As used in this Agreement the following
terms shall have the following meanings, such meanings being equally applicable
to both the singular and plural forms of the terms defined:
"ABSOLUTE RATE AUCTION" has the meaning specified in
SECTION 2.10(b)(i).
"ACCOUNTING CHANGES" has the meaning specified in SECTION 9.9.
"ACQUISITION" means any transaction, or any series of related
transactions, by which the Borrower or any of its Subsidiaries (a) acquires any
going business or all or substantially all of the assets of any firm,
corporation or division thereof which constitutes a going business, whether
through purchase of assets, merger or otherwise or (b) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency), or a majority (by percentage or voting power) of the outstanding
partnership interests of a partnership or a majority (by percentage or voting
power) of the outstanding ownership interests of a limited liability company.
"ADMINISTRATIVE AGENT" means First Chicago in its capacity as
contractual representative for the Lenders pursuant to ARTICLE X, and not in its
capacity as a Lender, and any successor Administrative Agent appointed pursuant
to ARTICLE X.
"ADVANCE" means a Syndicated Advance or a Bid Rate Advance.
"AFFILIATE" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 20% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise; PROVIDED THAT no
individual shall be an Affiliate solely by reason of being, or actions taken as,
a director, officer or employee.
"AGGREGATE COMMITMENT" means the aggregate of the Commitments of all
the Lenders, as reduced from time to time pursuant to the terms hereof.
"AGREEMENT" means this Credit Agreement, as it may from time to time be
amended, restated, supplemented or otherwise modified.
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"AGREEMENT ACCOUNTING PRINCIPLES" means generally accepted accounting
principles as in effect as of the date of this Agreement, applied in a manner
consistent with that used in preparing the financial statements referred to in
Section 5.4. An Affiliate of the Borrower which is consolidated with the
accounts of the Borrower in accordance with Agreement Accounting Principles
shall for all accounting and financial tests contained in this Agreement be
treated as a Subsidiary hereunder.
"ALTERNATE BASE RATE" means, for any day, a rate of interest per annum
equal to the higher of (a) the Corporate Base Rate for such day and (b) the sum
of Federal Funds Effective Rate for such day plus 0.50% per annum.
"APPLICABLE FACILITY FEE RATE" means, from time to time, the Applicable
Facility Fee Rate set forth in SECTION 2.21.
"ARTICLE" means an article of this Agreement unless another document is
specifically referenced.
"AUTHORIZED OFFICER" means any of the President, the Chief Executive
Officer, the Chief Financial Officer, the Chief Operating Officer, the
Controller or the Treasurer of the Borrower, acting singly.
"BID RATE ADVANCE" means a borrowing consisting of simultaneous Bid
Rate Loans to the Borrower from each of the Lenders whose offer to make a Bid
Rate Loan as part of such borrowing has been accepted by the Borrower under the
applicable auction bidding procedure described in SECTION 2.10.
"BID RATE ADVANCE BORROWING NOTICE" has the meaning specified in
SECTION 2.10(b)(i).
"BID RATE LOAN" means a loan by a Lender to the Borrower as part of a
Bid Rate Advance resulting from the applicable auction bidding procedure
described in SECTION 2.10.
"BID RATE NOTE" means a promissory note of the Borrower payable to the
order of any Lender, in substantially the form of EXHIBIT A-2 hereto, evidencing
the indebtedness of the Borrower to such Lender resulting from the Bid Rate
Loans made by such Lender to the Borrower.
"BID RATE REDUCTION" has the meaning specified in SECTION 2.1.
"BORROWER" means The TJX Companies, Inc., a Delaware corporation, and
its successors and assigns.
"BORROWING DATE" means a date on which an Advance or a Swing Line Loan
is made hereunder.
"BORROWING NOTICE" means a Syndicated Advance Borrowing Notice or a Bid
Rate Advance Borrowing Notice.
"BUSINESS DAY" means (a) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open
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in Chicago, Pittsburgh, New York City and London for the conduct of
substantially all of their commercial lending activities and (b) for all other
purposes, a day (other than a Saturday or Sunday) on which banks generally are
open in Chicago for the conduct of substantially all of their commercial lending
activities.
"CAPITALIZED LEASE" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"CAPITALIZED LEASE OBLIGATIONS" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"CHANGE" has the meaning specified in SECTION 3.2.
"CHANGE IN CONTROL" means:
(a) the acquisition by any Person, or "group" (within the
meaning of Sections 13(d) and 14(d)(2) of the Securities Exchange Act
of 1934, as amended) of Persons acting in concert, of beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and
Exchange Commission under the Securities Exchange Act of 1934, as
amended), directly or indirectly, of 50% or more of the outstanding
shares of voting stock of the Borrower; or
(b) during any period of twelve (12) consecutive calendar
months, individuals:
(i) who were directors of the Borrower on the first day of
such period; or
(ii) whose election or nomination for election to the board of
directors of the Borrower was recommended or approved by at
least a majority of the directors then still in office who
were directors of the Borrower on the first day of such
period, or whose election or nomination for election was so
approved,
shall cease to constitute a majority of the board of directors of the
Borrower.
"CHIEF FINANCIAL OFFICER" means, at any time, the Person who reports to
the board of directors of the Borrower on the financial affairs of the Borrower
and its Subsidiaries.
"CODE" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"COMMITMENT" means, for each Lender, the obligation of such Lender to
make Syndicated Loans and to purchase participations in Letters of Credit and in
Swing Line Loans not exceeding, in the aggregate, the amount set forth opposite
its signature below or as set forth in any Notice of Assignment relating to any
assignment that has become effective pursuant to SECTION 12.3.2, as such amount
may be modified from time to time pursuant to the terms hereof.
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"CONDEMNATION" has the meaning specified in SECTION 7.8.
"CONSOLIDATED FIXED CHARGES" for any period means, on a consolidated
basis for the Borrower and all of its Subsidiaries for such period, the sum of
(a) Consolidated Interest Expense (net of consolidated interest income) and (b)
all payments of Consolidated Rentals by the Borrower or any of its Subsidiaries,
all as determined in accordance with Agreement Accounting Principles.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, the aggregate
amount of interest, including payments in the nature of interest under
Capitalized Lease Obligations, paid in cash by the Borrower and its Subsidiaries
on a consolidated basis in accordance with Agreement Accounting Principles.
"CONSOLIDATED NET INCOME" means, for any period, the consolidated net
income (or loss) of the Borrower and its Subsidiaries for such period determined
in accordance with Agreement Accounting Principles; provided, that there shall
be excluded (i) the income (or loss) of any Affiliate of the Borrower or other
Person (other than a Subsidiary of the Borrower) in which any Person (other than
the Borrower or any of its Subsidiaries) has a joint interest, except to the
extent of the amount of dividends or other distributions actually paid to the
Borrower or any of its Subsidiaries by such Affiliate or other Person during
such period and (ii) the income (or loss) of any Person accrued prior to the
date it becomes a Subsidiary of the Borrower or is merged into or consolidated
with the Borrower or any of its Subsidiaries or that Person's assets are
acquired by the Borrower or any of its Subsidiaries.
"CONSOLIDATED NET WORTH" means, as of the date of any determination
thereof, the consolidated shareholders' equity of the Borrower and its
Subsidiaries determined in accordance with Agreement Accounting Principles.
"CONSOLIDATED RENTALS" means, for any period, the aggregate rental
amounts payable by the Borrower and its Subsidiaries for such period under any
lease of Property having an original term (including any required renewals or
any renewals at the option of the lessor or lessee) of one year or more (but
does not include any amounts payable under Capitalized Leases), determined in
accordance with Agreement Accounting Principles; provided, however, that there
shall be excluded from such calculation rentals in respect of discontinued
operations and other store closings reflected in the Borrower's consolidated
financial statements (or the footnotes thereto) to the extent such rentals
relate to operations for which a charge has been taken and/or reserve
established in accordance with Agreement Accounting Principles and which do not
exceed the amount of such charge and/or reserve, the amount of which charge
and/or reserve has been established consistent with Agreement Accounting
Principles.
"CONTINGENT OBLIGATION" of a Person means any agreement, written
undertaking or contractual arrangement by which such Person assumes, guarantees,
endorses, contingently agrees to purchase or provide funds for the payment of,
or otherwise becomes or is contingently liable upon, the financial or monetary
obligation or financial or monetary liability of any other Person (excluding
customary indemnification obligations arising from a purchase and sale agreement
negotiated at arm's length and typical for transactions of a similar nature),
or agrees in writing to maintain the net worth or working capital or other
financial condition of any other Person, or otherwise assures any creditor of
such other Person in writing against loss, including, without limitation, any
operating agreement,
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take-or-pay contract or application for or reimbursement agreement with respect
to a letter of credit (including any Letter of Credit).
"CONTROLLED GROUP" means all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with the Borrower or any of its Subsidiaries, are
treated as a single employer under SECTION 414 of the Code.
"CONVERSION/CONTINUATION NOTICE" has the meaning specified in SECTION
2.7.
"CORPORATE BASE RATE" means a rate per annum equal to the corporate
base rate of interest announced by First Chicago from time to time, changing
when and as said corporate base rate changes.
"CREDIT RATINGS" has the meaning specified in SECTION 2.21.
"DEFAULT" means an event described in ARTICLE VII.
"DOLLARS" and "$" mean the lawful money of the United States.
"EBITDAR" for any period means the sum, without duplication, of (a)
Consolidated Net Income during such period, PLUS (to the extent deducted in
determining Consolidated Net Income) (b) all provisions for any foreign,
federal, state and local taxes paid or accrued by the Borrower or any of its
Subsidiaries during such period, PLUS (to the extent deducted in determining
Consolidated Net Income) (c) Consolidated Interest Expense of the Borrower or
any of its Subsidiaries during such period, MINUS (to the extent included in
determining Consolidated Net Income) (d) extraordinary gains (and any unusual
gains whether or not arising in the ordinary course of business not included in
extraordinary gains) to the extent not included in income from continuing
operations, PLUS (to the extent deducted in determining Consolidated Net Income)
(e) consolidated depreciation, PLUS (to the extent deducted in determining
Consolidated Net Income) (f) consolidated amortization expense, including
without limitation, amortization of goodwill and other intangible assets and
other non-cash charges but excluding reserves, PLUS (to the extent deducted in
determining Consolidated Net Income) (g) Consolidated Rentals; (to the extent
deducted in determining Consolidated Net Income) PLUS (h) extraordinary losses
(but only to the extent such losses do not exceed extraordinary gains); all of
such items as determined in accordance with Agreement Accounting Principles.
"ELIGIBLE PARTICIPANT" means (i) a Lender or any Affiliate thereof
which is a commercial bank or (ii) any other commercial bank having capital and
surplus in excess of $100,000,000.
"ENVIRONMENTAL, HEALTH OR SAFETY REQUIREMENTS OF LAW" means all
Requirements of Law derived from or relating to federal, state and local laws or
regulations relating to or addressing pollution or protection of the
environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and Liability
Act, 42 X.X.X.xx 9601 ET SEQ., the Occupational Safety and Health Act of 1970,
29 X.X.X.xx 651 et seq., and the Resource Conservation and Recovery Act of 1976,
42 X.X.X.xx 6901 ET SEQ., in each case including any amendments thereto, any
successor statutes, and any regulations or guidance promulgated thereunder, and
any state or local equivalent thereof.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"EURODOLLAR ADVANCE" means a Syndicated Advance denominated in Dollars
that bears interest at a Eurodollar Rate.
"EURODOLLAR APPLICABLE MARGIN" means, from time to time, the Eurodollar
Applicable Margin set forth in SECTION 2.21.
"EURODOLLAR BASE RATE" means, with respect to a Eurodollar Advance for
the relevant Eurodollar Interest Period, or a Bid Rate Advance priced based on
the Eurodollar Base Rate for an interest period designated by the Borrower, the
applicable London interbank offered rate for deposits in U.S. dollars appearing
on Dow Xxxxx Markets (Telerate) Page 3750 as of 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period, and having a
maturity approximately equal to such Eurodollar Interest Period or, in the event
of a Bid Rate Advance, approximately equal to the interest period designated by
the Borrower. If no London interbank offered rate of such maturity then appears
on Dow Xxxxx Markets (Telerate) Page 3750, then the Eurodollar Base Rate shall
be equal to the London interbank offered rate for deposits in U.S. dollars
maturing immediately before or immediately after such maturity, whichever is
higher, as determined by the Administrative Agent from Dow Xxxxx Markets
(Telerate) Page 3750. If Dow Xxxxx Markets (Telerate) Page 3750 is not
available, the applicable Eurodollar Base Rate for the relevant Eurodollar
Interest Period or interest period designated by the Borrower, as applicable,
shall be the rate determined by the Administrative Agent to be the rate at which
First Chicago offers to place deposits in U.S. dollars with first-class banks in
the London interbank market at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Eurodollar Interest Period or
interest period designated by the Borrower, as applicable, in the approximate
amount of First Chicago's relevant portion of the Eurodollar Advance or Bid Rate
Advance, as applicable, and having a maturity approximately equal to such
Eurodollar Interest Period or interest period designated by the Borrower, as
applicable.
"EURODOLLAR INTEREST PERIOD" means, with respect to a Eurodollar
Advance, a period of one, two, three or six months commencing on a Business Day
selected by the Borrower pursuant to this Agreement. Such Eurodollar Interest
Period shall end on (but exclude) the day which corresponds numerically to such
date one, two, three or six months thereafter, unless there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, in which case such Eurodollar Interest Period shall end on the last
Business Day of such next, second, third or sixth succeeding month. If a
Eurodollar Interest Period would otherwise end on a day which is not a Business
Day, such Eurodollar Interest Period shall end on the next succeeding Business
Day, unless said next succeeding Business Day falls in a new calendar month, in
which case such Eurodollar Interest Period shall end on the immediately
preceding Business Day.
"EURODOLLAR LOAN" means a Syndicated Loan or Bid Rate Loan denominated
in Dollars which bears interest at a Eurodollar Rate.
"EURODOLLAR RATE" means, with respect to a Eurodollar Advance for the
relevant Eurodollar Interest Period, the sum of (a) the quotient of (i) the
Eurodollar Base Rate applicable to such Eurodollar Interest Period, divided by
(ii) one minus the Reserves (expressed as a decimal) applicable to such
Eurodollar Interest Period, plus (b) the Eurodollar Applicable Margin in effect
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from time to time during such Eurodollar Interest Period. The Eurodollar Rate
shall be rounded to the next higher multiple of 1/16 of 1% if the rate is not
such a multiple.
"FACILITY GUARANTY" means a Guaranty, substantially in the form of
EXHIBIT I hereto, duly executed and delivered by a Material Subsidiary of the
Borrower to and in favor of the Administrative Agent for the benefit of itself,
the Issuing Lenders, the Swing Line Lender, and the Lenders, as the same may
from time to time be amended, restated, supplemented or otherwise modified.
"FACILITY TERMINATION DATE" means September 18, 2002.
"FAIR VALUE" means the value of the relevant asset determined in an
arm's-length transaction conducted in good faith between an informed and willing
buyer and an informed and willing seller under no compulsion to buy or sell.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, an interest 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 for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"FIRST CHICAGO" means The First National Bank of Chicago in its
individual capacity, and its successors.
"FIXED CHARGE COVERAGE RATIO" means the ratio of (a) EBITDAR to (b)
Consolidated Fixed Charges.
"FLOATING RATE" means, for any day, a rate per annum equal to the
Alternate Base Rate for such day, changing when and as the Alternate Base Rate
changes.
"FLOATING RATE ADVANCE" means a Syndicated Advance denominated in
Dollars which bears interest at the Floating Rate.
"FLOATING RATE LOAN" means a Syndicated Loan denominated in Dollars
which bears interest at the Floating Rate.
"FUNDED DEBT" of any Person means, without duplication, all obligations
of such Person for money borrowed which in accordance with Agreement Accounting
Principles shall be classified upon a balance sheet of such Person as
liabilities of such Person, and in any event shall include (a) all Capitalized
Lease Obligations of such Person and (b) all Contingent Obligations of such
Person with respect to money borrowed, but shall exclude (i) notes, bills and
checks presented in the ordinary course of business by such Person to banks for
collection or deposit, (ii) with reference to the Borrower and its Subsidiaries,
all obligations of the Borrower and its Subsidiaries of the character referred
to in this definition to the extent owing to the Borrower or any Subsidiary,
(iii) bankers acceptances which, in accordance with Agreement Accounting
Principles, are classified as accounts
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payable and (iv) Contingent Obligations set forth on Schedule 6.14. Without in
any way limiting the foregoing, Funded Debt of the Borrower shall include all
Loans outstanding under this Agreement and the Notes.
"GAAP" means the generally accepted accounting principles as generally
applied by the Borrower as at the end of its fiscal year ending January 25,
1997.
"GOVERNMENTAL ACTS" has the meaning specified in SECTION 2.20.9.
"GOVERNMENTAL AUTHORITY" means any country or nation, any political
subdivision of such country or nation, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government of any country or nation or political subdivision thereof.
"GROSS NEGLIGENCE" means either recklessness or actions taken or
omitted with conscious indifference to or the complete disregard of
consequences. Gross Negligence does not mean the absence of ordinary care or
diligence, or an inadvertent act or inadvertent failure to act. If the term
"gross negligence" is used with respect to the Administrative Agent or any
Lender or any indemnitee in any of the other Loan Documents, it shall have the
meaning set forth herein.
"INDEBTEDNESS" of a Person means, without duplication, such Person's
(a) obligations for borrowed money, (b) obligations representing the deferred
purchase price of Property or services (other than (i) accounts payable and (ii)
bankers acceptances classified in accordance with Agreement Accounting
Principles as accounts payable, in each case arising in the ordinary course of
such Person's business payable on terms customary in the trade), (c)
obligations, whether or not assumed, secured by Liens or payable out of the
proceeds or production from Property now or hereafter owned or acquired by such
Person, (d) obligations which are evidenced by notes, acceptances (to the extent
not classified as accounts payable in accordance with Agreement Accounting
Principles), or other similar instruments, (e) Capitalized Lease Obligations,
(f) obligations of such Person to purchase securities or other property arising
out of or in connection with the sale of the same or substantially similar
securities or property, and (g) any other obligation in writing for borrowed
money or financial accommodation with respect to other items included in the
definition of Indebtedness above which in accordance with Agreement Accounting
Principles would be shown as a liability on the consolidated balance sheet of
such Person. but excluding, in any event, (i) amounts payable by such Person in
respect of covenants not to compete, and (ii) with reference to the Borrower and
its Subsidiaries, all obligations of the Borrower and its Subsidiaries of the
character referred to in this definition to the extent owing to the Borrower or
any Subsidiary of the Borrower.
"INDEMNIFIED MATTERS" has the meaning specified in SECTION 9.7(b).
"INDEMNITEES" has the meaning specified in SECTION 9.7(b).
"INDEXED RATE AUCTION" has the meaning specified in SECTION 2.10(b)(i).
"INTELLECTUAL PROPERTY" means (i) any and all intangible personal
property consisting of intellectual property, whether or not registered with any
governmental entity, including, without limitation, franchises, licenses,
patents, technology and know-how, copyrights, trademarks, trade secrets, service
marks, logos and trade names and (ii) any and all contract rights (including,
without
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limitation, applications for governmental registrations, license agreements,
trust agreements and assignment agreements) creating, evidencing or conveying an
interest or right in or to any of the intellectual property described in the
preceding clause (i).
"INTEREST PERIOD" means a Eurodollar Interest Period.
"INVESTMENT" of a Person means any loan, advance (other than
commission, travel and other loans, credits and advances to officers and
employees made in the ordinary course of business), extension of credit (other
than accounts receivable arising in the ordinary course of business on terms
customary in the trade), deposit account or contribution of capital by such
Person to any other Person or any investment in, or purchase or other
acquisition of, the stock, partnership interests, ownership interests in any
limited liability company, notes, debentures or other securities of any other
Person made by such Person (other than anticipatory prepayments to vendors in
the ordinary course of business consistent with past practice).
"ISSUING LENDER" means First Chicago and any other Lender which, at the
Borrower's request, agrees, in each such Lender's sole discretion, to become an
Issuing Lender for the purpose of issuing Letters of Credit, and their
respective successors and assigns, in each case in such Lender's separate
capacity as an issuer of Letters of Credit pursuant to SECTION 2.20. The
designation of any Lender as an Issuing Lender after the date hereof shall be
subject to the prior written consent of the Administrative Agent which consent
shall not be unreasonably withheld.
"L/C DRAFT" means a draft drawn on an Issuing Lender pursuant to any of
the Letters of Credit.
"L/C INTEREST" has the meaning specified in SECTION 2.20.5.
"L/C OBLIGATIONS" means an amount equal to the sum (without
duplication) of (i) the aggregate of the amount then available for drawing under
each of the Letters of Credit, (ii) the face amounts of all outstanding L/C
Drafts corresponding to the Letters of Credit, which L/C Drafts have been
accepted by the Issuing Lenders and (iii) the aggregate outstanding amount of
Reimbursement Obligations at such time.
"LENDERS" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns.
"LENDING INSTALLATION" means, with respect to a Lender, any office,
branch, subsidiary or affiliate of such Lender.
"LETTER OF CREDIT" means any standby or commercial letter of credit
issued pursuant to SECTION 2.20.
"LEVERAGE RATIO" means the ratio of:
(i) the sum of (a) Funded Debt of the Borrower and its
Subsidiaries on a consolidated basis, PLUS (b) an amount equal
to the product of four (4) multiplied by Consolidated Rentals
for such period to
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(ii) the sum of (a) Funded Debt of the Borrower and its
Subsidiaries on a consolidated basis, plus (b) an amount equal
to the product of four (4) multiplied by Consolidated Rentals
for such period plus (c) Consolidated Net Worth.
"LIEN" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).
"LOAN" means a Syndicated Loan, a Bid Rate Loan or a Swing Line Loan.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Facility
Guaranties and the applications, reimbursement agreements and other instruments
and agreements related to the Letters of Credit and L/C Interests.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (a) the
business, financial condition, operations, performance or Property of the
Borrower and its Subsidiaries on a consolidated basis, (b) the ability of the
Borrower to perform its obligations under the Loan Documents, or (c) the
validity or enforceability of any of the Loan Documents or any material rights
or remedies of the Administrative Agent or the Lenders thereunder.
"MATERIAL INDEBTEDNESS" means any Indebtedness, or group of different
Indebtedness, in an aggregate principal amount of at least $10,000,000.
"MATERIAL SUBSIDIARY" means (a) Marshalls of MA, Inc., Marmaxx
Operating Corp., NBC Fourth Realty Corp., Marshall's of Nevada, Inc.; (b) any
domestic Subsidiary of the Borrower which owns, directly or indirectly, greater
than ten percent (10%) of the total consolidated assets of the Borrower and its
Subsidiaries; and (c) any other domestic Subsidiary in connection with which the
Borrower shall provide written notice to the Agent designating such entity to be
a Material Subsidiary and which shall become a party to the Facility Guaranty
pursuant to the terms of SECTION 6.20.
"MONEY MARKET RATE" is defined in SECTION 2.9(a).
"MONEY MARKET RATE LOAN" is means a Swing Line Loan which bears
interest at a Money Market Rate.
"MOODY'S" means Xxxxx'x Investors Service, Inc.
"MULTIEMPLOYER PLAN" means a Plan, if any, maintained pursuant to a
collective bargaining agreement or any other arrangement to which the Borrower
or any member of the Controlled Group is a party to which more than one
non-Affiliated employer is obligated to make contributions.
"1995 CREDIT AGREEMENT" has the meaning specified in SECTION 4.1(g).
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"NOTE" means a Syndicated Note, a Bid Rate Note or a Swing Line Note.
"NOTICE OF ASSIGNMENT" has the meaning specified in SECTION 12.3.2.
"OBLIGATIONS" means all unpaid principal of and accrued and unpaid
interest on the Notes, all L/C Obligations, all accrued and unpaid fees and all
expenses, reimbursements, indemnities and other obligations of the Borrower to
the Lenders or to any Lender, the Administrative Agent or any indemnified party
hereunder arising under the Loan Documents.
"PARTICIPANT" has the meaning specified in SECTION 12.2.1.
"PAYMENT OFFICE" means the principal office of the Administrative Agent
in Chicago, Illinois, located on the date hereof at Xxx Xxxxx Xxxxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxx 00000 or such other office of the Administrative Agent as the
Administrative Agent may from time to time designate by written notice to the
Borrower and the Lenders.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"PERMITTED ACQUISITION" means any Acquisition made by the Borrower or
any of its Subsidiaries provided that upon giving effect to each such
Acquisition (a) the Person so acquired by the Borrower shall have either been
merged into the Borrower or a Subsidiary (with the Borrower or the Subsidiary as
the surviving entity) or such Person shall have become a Subsidiary of the
Borrower; (b) no Default or Unmatured Default shall exist; (c) the Acquisition
is consummated pursuant to a negotiated acquisition agreement on a non-hostile
basis approved by a majority of the board of directors of all Persons parties
thereto; and (d) involves the purchase of a business line similar, related,
complementary or incidental to that of the Borrower and its Subsidiaries as of
the date of this Agreement.
"PERSON" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"PLAN" means an employee pension benefit plan which is covered by Title
IV of ERISA or subject to the minimum funding standards under Section 412 of the
Code as to which the Borrower or any member of the Controlled Group may have any
liability.
"PREPAYMENT NOTICE" has the meaning specified in SECTION 2.5.
"PRO RATA SHARE" means, with respect to any Lender, the percentage
obtained by dividing (A) such Lender's Commitment at such time (as adjusted from
time to time in accordance with the provisions of this Agreement) by (B) the sum
of the Aggregate Commitments at such time; PROVIDED, that if the Commitments are
terminated pursuant to the terms of this Agreement, then "Pro Rata Share" means
the percentage obtained by dividing (x) the sum of each Lender's L/C
Obligations, Loans and Swing Line Loans by (y) the aggregate amount of all
Loans, Swing Line Loans and L/C Obligations.
"PROPERTY" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
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"PURCHASERS" has the meaning specified in SECTION 12.3.1.
"RATED DEBT" means the Borrower's senior unsecured non-credit-enhanced
long-term Indebtedness, which Indebtedness does not benefit from guaranties or
other credit enhancement provided by any of the Borrower's Subsidiaries.
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"REGULATION U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
"REIMBURSEMENT OBLIGATION" is defined in SECTION 2.20.6.
"REPORTABLE EVENT" means a reportable event as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days of
the occurrence of such event; provided, however, that a failure to meet the
minimum funding standard of Section 412 of the Code and of SECTION 302 of ERISA
shall be a Reportable Event regardless of the issuance of any such waiver of the
notice requirement in accordance with either Section 4043(a) of ERISA or Section
412(d) of the Code.
"REQUIRED LENDERS" means Lenders having, in the aggregate, at least 51%
of the Aggregate Commitment; provided, however, that in the event any of the
Lenders shall have failed to fund a portion of any Syndicated Advance requested
by the Borrower, any participation in any Letter of Credit or any refunding of
or participation in any Swing Line Loan which such Lenders are obligated to fund
under the terms of this Agreement and any such failure has not been cured, then
for so long as such failure continues, "Required Lenders" means Lenders
(excluding all such defaulting Lenders) having, in the aggregate, at least 51%
of the aggregate Commitments of such non-defaulting Lenders; provided, further,
however, that, if the Aggregate Commitment has been terminated pursuant to the
terms of this Agreement, "Required Lenders" means Lenders (without regard to
such Lenders' performance of their respective obligations hereunder) whose
aggregate outstanding principal balance of all Syndicated Loans and L/C
Obligations is equal to or greater than 51%; provided, further, however, if the
Aggregate Commitment has been terminated at a time when only Bid Rate Loans are
outstanding, "Required Lenders" means Lenders whose aggregate outstanding
principal balance of all Bid Rate Loans is equal to or greater than 51%.
"REQUIREMENTS OF LAW" means, as to any Person, the charter and by-laws
or other organizational or governing documents of such Person, and any law, rule
or regulation, or determination of an arbitrator or a court or other
Governmental Authority, in each case applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is subject
including, without limitation, the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, Regulations G, T, U and X, ERISA,
the Fair Labor Standards Act, the Worker Adjustment and Retraining Notification
Act, Americans with Disabilities Act of
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1990, and any certificate of occupancy, zoning ordinance, building,
environmental or land use requirement or permit or environmental, labor,
employment, occupational safety or health law, rule or regulation, including
Environmental, Health or Safety Requirements of Law.
"RESERVES" means, with respect to a Eurodollar Interest Period, the
maximum aggregate reserves (including all basic, supplemental, marginal and
other reserves) imposed under Regulation D on Eurocurrency liabilities.
"RISK-BASED CAPITAL GUIDELINES" has the meaning specified in SECTION
3.2.
"S&P" means S&P Ratings Group, a division of XxXxxx-Xxxx, Inc.
"SALE AND LEASEBACK TRANSACTION" means any sale or other transfer of
Property by any Person with intent to lease such Property as lessee pursuant to
a Capitalized Lease.
"SECTION" means a numbered section of this Agreement, unless another
document is specifically referenced.
"SINGLE EMPLOYER PLAN" means a Plan, if any, maintained by the Borrower
or any member of the Controlled Group for employees of the Borrower or any
member of the Controlled Group. The term "Single Employer Plan" does not include
any Multiemployer Plan.
"SPECIFIED REMITTANCE TIME" means (a) if the relevant Payment Office is
located in Chicago, 1:00 p.m. (Chicago time) and (b) if the relevant Payment
Office is located elsewhere, such time as the Administrative Agent shall specify
after consultation with the Lenders and the consent of the Borrower, which
consent shall not be unreasonably withheld.
"SUBSIDIARY" of a Person means (a) any corporation more than 50% of the
outstanding securities having ordinary voting power of which shall at the time
be owned or controlled, directly or indirectly, by such Person or by one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries, or
(b) any partnership, limited liability company, association, joint venture or
similar business organization more than 50% of the ownership interests having
ordinary voting power of which shall at the time be so owned or controlled.
Unless otherwise expressly provided, all references herein to a "Subsidiary"
shall mean a Subsidiary of the Borrower.
"SUBSTANTIAL PORTION" means, with respect to the Property of any Person
and its Subsidiaries, Property which:
(a) when aggregated with all other Property in accordance with
SECTION 6.11 (i) represents more than 15% of the consolidated assets of
such Person and its Subsidiaries as would be shown in the consolidated
financial statements of such Person and its Subsidiaries as at the
beginning of the fiscal year in which such determination is made, or
(ii) is responsible for more than 15% of the consolidated net sales of
such Person and its Subsidiaries as reflected in the financial
statements referred to in clause (i) above or
(b) in any individual transaction or series of related
transactions (i) represents more than 10% of the consolidated assets of
such Person and its Subsidiaries as
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would be shown in the consolidated financial statements of such Person
and its Subsidiaries as at the beginning of the fiscal year in which
such determination is made, or (ii) is responsible for more than 10% of
the consolidated net sales of such Person and its Subsidiaries as
reflected in the financial statements referred to in clause (i) above.
"SWING LINE COMMITMENT" means the obligation of the Swing Line Lender
to make Swing Line Loans up to a maximum principal amount of $25,000,000 at any
one time outstanding.
"SWING LINE LENDER" means First Chicago or any other Lender as a
successor Swing Line Lender.
"SWING LINE LOAN" means a loan made available to the Borrower by the
Swing Line Lender pursuant to SECTION 2.9.
"SWING LINE NOTE" means a Note in substantially the form of Exhibit A-3
hereto duly executed by the Borrower and payable to the order of the Swing Line
Lender in the amount of its Swing Line Commitment.
"SYNDICATED ADVANCE" means a borrowing consisting of simultaneous
Syndicated Loans of the same Type made to the Borrower by each of the Lenders
pursuant to SECTION 2.1, and, in the case of Eurodollar Advances, for the same
Interest Period.
"SYNDICATED ADVANCE BORROWING NOTICE" has the meaning specified in
SECTION 2.6.
"SYNDICATED LOAN" means a loan by a Lender to the Borrower as part of a
Syndicated Advance.
"SYNDICATED NOTE" means a promissory note of the Borrower payable to
the order of any Lender, in substantially the form of Exhibit A-1 hereto,
evidencing the aggregate indebtedness of the Borrower to such Lender resulting
from the Syndicated Loans made by such Lender to the Borrower.
"TRANSFEREE" has the meaning specified in SECTION 12.4.
"TYPE" means, (a) with respect to any Syndicated Loan, its nature as a
Floating Rate Loan or a Eurodollar Loan and (b) with respect to any Syndicated
Advance, its nature as a Floating Rate Advance or a Eurodollar Advance.
"UNFUNDED LIABILITIES" means the amount (if any) by which the present
actuarial value of all vested nonforfeitable benefits under all Single Employer
Plans (based on the actuarial assumptions for each such plan) exceeds the Fair
Value of all such Plan assets allocable to such benefits, all determined as of
the then most recent valuation date for such Plans.
"UNITED STATES" and "U.S." mean the United States of America.
"UNMATURED DEFAULT" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
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"WHOLLY-OWNED SUBSIDIARY" of a Person means (a) any Subsidiary all of
the outstanding voting securities of which (other than directors qualifying
shares and shares required by applicable corporate law to be owned by foreign
nationals) shall at the time be owned or controlled, directly or indirectly, by
such Person or one or more Wholly-Owned Subsidiaries of such Person, or by such
Person and one or more Wholly-Owned Subsidiaries of such Person, or (b) any
partnership, association, joint venture or similar business organization 100% of
the ownership interests having ordinary voting power of which (other than
directors qualifying shares and shares required by applicable corporate law to
be owned by foreign nationals) shall at the time be so owned or controlled.
ARTICLE II
THE CREDITS
2.1. THE SYNDICATED LOANS. From and including the date of this
Agreement and prior to the Facility Termination Date, each Lender severally
agrees, on the terms and conditions set forth in this Agreement (including,
without limitation, the terms and conditions of SECTION 2.11 and SECTION 8.1
relating to the reduction, suspension or termination of the Aggregate
Commitment), to make Syndicated Loans to the Borrower from time to time in an
aggregate amount not to exceed at any one time outstanding the amount of such
Lender's Commitment; PROVIDED, HOWEVER, that the Aggregate Commitment shall be
deemed used from time to time to the extent of (a) the aggregate amount of the
Bid Rate Loans then outstanding, and such deemed use of the Aggregate Commitment
shall be applied to the Lenders ratably according to their respective
Commitments (such deemed use of the aggregate amount of the Commitments being a
"BID RATE REDUCTION"), (b) the aggregate L/C Obligations then outstanding, and
such deemed use of the Aggregate Commitment shall be applied to the Lenders
ratably according to their respective Commitments and (c) the aggregate amount
of the Swing Line Loans then outstanding, and such deemed use of the Aggregate
Commitment shall be applied to the Lenders ratably according to their respective
Commitments. Subject to the terms of this Agreement (including, without
limitation, the terms and conditions of SECTION 2.11 and SECTION 8.1 relating to
the reduction, suspension or termination of the Aggregate Commitment), the
Borrower may borrow, repay and reborrow Syndicated Loans at any time prior to
the Facility Termination Date. Unless earlier terminated in accordance with the
terms and conditions of this Agreement, the Commitments of the Lenders to lend
hereunder shall expire on the Facility Termination Date. Notwithstanding
anything herein to the contrary, each of the Lenders shall be required to fund
its ratable share of any Advance made in connection with any L/C Drafts
notwithstanding that such Advance may be made on or after the date of any
reduction, suspension or termination of the Aggregate Commitment pursuant to
SECTION 2.11(b) or SECTION 8.1 of this Agreement.
2.2. REPAYMENT OF THE SYNDICATED LOANS. Any outstanding
Syndicated Loans shall be paid in full by the Borrower on the Facility
Termination Date; PROVIDED, HOWEVER, that (a) all Syndicated Loans made in
connection with any of the Letters of Credit shall be paid in full by the
Borrower on the later of the Facility Termination Date and the Business Day
immediately following the date the relevant Syndicated Loan is made, and (b)
nothing in this SECTION 2.2 shall be construed as limiting or modifying the
obligation of the Borrower to repay any or all of the outstanding Syndicated
Loans at any earlier time in accordance with the terms of this Agreement.
2.3. RATABLE LOANS; TYPES OF SYNDICATED ADVANCES. Each
Syndicated Advance hereunder shall consist of Syndicated Loans made from the
several Lenders ratably in proportion to the ratio that their respective
Commitments bear to the Aggregate Commitment. Any Syndicated
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Advance may be a Floating Rate Advance or a Eurodollar Advance, as the Borrower
shall select in accordance with SECTIONS 2.6 and 2.7.
2.4. MINIMUM AMOUNT OF EACH SYNDICATED ADVANCE. Each
Eurodollar Advance shall be in the minimum amount of $15,000,000 (and an
integral multiple of $5,000,000 if in excess thereof) and each Floating Rate
Advance shall be in the minimum amount of $10,000,000 (and an integral multiple
of $1,000,000 if in excess thereof); provided, however, that any Syndicated
Advance may be in the amount of the unused Aggregate Commitment.
2.5. OPTIONAL PREPAYMENTS OF SYNDICATED LOANS. Subject to
Section 3.4 and the requirements of Section 2.4, the Borrower may (a) following
notice given to the Administrative Agent by the Borrower, in the form attached
hereto as EXHIBIT G (a "Prepayment Notice") by not later than 1:00 p.m. (Chicago
time) on the date of the proposed prepayment, such notice specifying the
aggregate principal amount of and the proposed date of the prepayment, and if
such notice is given the Borrower shall, prepay the outstanding principal
amounts of the Floating Rate Loans comprising part of the same Syndicated
Advance in whole or ratably in part, together with accrued interest to the date
of such prepayment on the principal amount prepaid and (b) following a
Prepayment Notice given to the Administrative Agent by the Borrower by not later
than 1:00 p.m. (Chicago time) on, if the Advance to be prepaid is a Eurodollar
Advance, the third Business Day preceding the date of the proposed prepayment,
such notice specifying the Advance to be prepaid and the proposed date of the
prepayment, and, if such notice is given, such Borrower shall, prepay the
outstanding principal amounts of the Eurodollar Loans comprising a Eurodollar
Advance in whole (and not in part), together with accrued interest to the date
of such prepayment on the principal amount prepaid. In the case of a Floating
Rate Advance, each partial prepayment shall be in an aggregate principal amount
not less than $10,000,000 (and an integral multiple of $1,000,000 if in excess
thereof).
2.6. METHOD OF SELECTING TYPES AND INTEREST PERIODS FOR NEW
SYNDICATED ADVANCES. The Borrower shall select the Type of each Syndicated
Advance and, in the case of a Eurodollar Advance, the Interest Period applicable
to such Syndicated Advance from time to time. The Borrower shall give the
Administrative Agent irrevocable notice, in the form attached hereto as EXHIBIT
F-1 (a "Syndicated Advance Borrowing Notice"), not later than 11:00 a.m.
(Chicago time) (i) on the Borrowing Date for each Floating Rate Advance and (ii)
at least three Business Days before the Borrowing Date for each Eurodollar
Advance, specifying:
(a) the Borrowing Date, which shall be a Business Day, of such
Advance,
(b) the aggregate amount of such Advance,
(c) the Type of such Advance, and
(d) in the case of each Eurodollar Advance, the Interest
Period applicable thereto.
Not later than the Specified Remittance Time on each Borrowing Date, each Lender
shall make available its Syndicated Loan or Syndicated Loans to the
Administrative Agent in immediately available funds at the relevant Payment
Office. To the extent that the Administrative Agent has received funds from the
Lenders as specified in the preceding sentence and the applicable conditions set
forth in Article IV have been fulfilled, the Administrative Agent will make such
funds available to the Borrower at the relevant Payment Office promptly
following the Specified Remittance Time,
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it being understood that if the relevant Payment Office is located in Chicago,
the Administrative Agent will make the applicable funds available to the
Borrower by depositing such funds to such account with First Chicago as the
Borrower shall designate.
2.7. CONVERSION AND CONTINUATION OF OUTSTANDING SYNDICATED
ADVANCES. Floating Rate Advances shall continue as Floating Rate Advances unless
and until such Floating Rate Advances are converted into Eurodollar Advances or
prepaid pursuant to SECTION 2.5. Each Eurodollar Advance shall continue as a
Eurodollar Advance until the end of the then applicable Interest Period
therefor, at which time such Eurodollar Advance shall be automatically converted
into a Floating Rate Advance unless the Borrower shall have given the
Administrative Agent a Conversion/Continuation Notice requesting that, at the
end of such Interest Period, such Eurodollar Advance either continue as a
Eurodollar Advance for the same or another Interest Period or be converted into
an Advance of another Type. Subject to the terms of SECTION 2.6, the Borrower
may elect from time to time to convert all or any part of a Syndicated Advance
of any Type into any other Type or Types of Syndicated Advances; provided that
any conversion of any Eurodollar Advance shall be made on, and only on, the last
day of the Interest Period applicable thereto. The Borrower shall give the
Administrative Agent irrevocable notice in the form of EXHIBIT H hereto (a
"CONVERSION/CONTINUATION NOTICE") of each conversion of an Advance or
continuation of a Eurodollar Advance not later than 11:00 a.m. (Chicago time)
(i) in the case of a conversion into a Floating Rate Advance on the date of such
conversion and (ii) in the case of a conversion into or continuation of a
Eurodollar Advance, at least three Business Days before the date of such
conversion or continuation, specifying:
(a) the requested date, which shall be a Business Day, of such
conversion or continuation;
(b) the aggregate amount and Type of the Syndicated Advance
which is to be converted or continued; and
(c) the amount and Type(s) of Syndicated Advance(s) into which
such Advance is to be converted or continued and, in the case of a
conversion into or continuation of a Eurodollar Advance, the duration
of the Interest Period applicable thereto.
2.8. PAYMENT OF INTEREST ON SYNDICATED ADVANCES; CHANGES IN
INTEREST RATE. (a) Interest accrued on each Floating Rate Advance shall be
payable in arrears on the last Business Day of each fiscal quarter and on the
earliest of the Facility Termination Date, the date of the reduction to zero of
the Aggregate Commitment pursuant to SECTION 2.11 and the date of the
acceleration of the Obligations pursuant to SECTION 8.1. Interest accrued on
each Eurodollar Advance shall be payable in arrears on the last day of its
applicable Interest Period, on any date on which the Eurodollar Advance is
prepaid, whether by acceleration or otherwise, and at maturity. Interest accrued
on each Eurodollar Advance having an Interest Period longer than three months
shall also be payable on the last day of each three-month interval during such
Interest Period. Interest on Floating Rate Advances shall be calculated for
actual days elapsed on the basis of a 365/366 -day year. Interest on Eurodollar
Advances shall be calculated for actual days elapsed on the basis of a 360-day
year. Interest shall be payable for the day a Syndicated Advance is made but not
for the day of any payment on the amount paid if payment is received prior to
1:00 p.m. (local time) at the place of payment. If any payment of principal of
or interest on a Syndicated Advance shall become due on a day which is not a
Business Day, such payment shall be made on the next succeeding Business Day
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and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.
(b) Each Floating Rate Advance shall bear interest on the
outstanding principal amount thereof, for each day from and including
the date such Advance is made or is converted from a Eurodollar Advance
into a Floating Rate Advance pursuant to SECTION 2.7(b) to but
excluding the date it becomes due or is converted into a Eurodollar
Advance pursuant to SECTION 2.7(b), at a rate per annum equal to the
Floating Rate for such day. Changes in the rate of interest on each
Syndicated Advance maintained as a Floating Rate Advance will take
effect simultaneously with each change in the Alternate Base Rate. Each
Eurodollar Advance shall bear interest from and including the first day
of the Interest Period applicable thereto to (but not including) the
last day of such Interest Period at the Eurodollar Rate determined as
applicable to such Eurodollar Advance. No Interest Period may end after
the Facility Termination Date.
2.9. SWING LINE LOANS. (a) Amount of Swing Line Loans. Upon
the satisfaction of the conditions precedent set forth in Sections 4.1 and 4.2,
from and including the date of this Agreement and prior to the Facility
Termination Date, the Swing Line Lender agrees, on the terms and conditions set
forth in this Agreement, to make Swing Line Loans to the Borrower from time to
time in an amount not to exceed the least of (i) $25,000,000, (ii) the amount by
which the Aggregate Commitment exceeds the sum of the outstanding principal
amount of Syndicated Advances, Bid Rate Advances and L/C Obligations, or (iii)
the available amount of the Swing Line Lender's Commitment. Each Swing Line Loan
shall be in a minimum amount of $1,000,000 and increments of $1,000,000 in
excess thereof and all interest payable on the Swing Line Loans shall be payable
to the Swing Line Lender for the account of such Swing Line Lender. In no event
shall the number of Swing Line Loans outstanding at any time be greater than
five. The Swing Line Lender agrees, upon the Borrower's request therefor,
promptly to provide information regarding the applicable interest rate at which
the Swing Line Lender will make Swing Line Loans to the Borrower on the Business
Day of such request or the immediately following Business Day if such request is
received after 1:00 p.m. (Chicago time) (the "Money Market Rate"), which Money
Market Rate, in any event, shall not exceed the Floating Rate then applicable to
Floating Rate Advances.
(b) Borrowing Notice. The Borrower shall deliver to the
Administrative Agent and the Swing Line Lender a Borrowing Notice
signed by it not later than 11:00 a.m. (Chicago time) on the Borrowing
Date of each Swing Line Loan specifying (i) the applicable Borrowing
Date (which shall be a Business Day) and (ii) the aggregate amount of
the requested Swing Line Loan. The Swing Line Loans shall at all times
be Money Market Rate Loans.
(c) Making of Swing Line Loans. Promptly after receipt of the
Borrowing Notice under Section 2.9(b), the Administrative Agent shall
notify each Lender of the requested Swing Line Loan. Promptly on the
applicable Borrowing Date, the Swing Line Lender shall make available
its Swing Line Loan in funds immediately available in Chicago to the
Administrative Agent at the address specified by the Administrative
Agent. The Administrative Agent will promptly make such funds available
to the Borrower.
(d) Repayment of Swing Line Loans. The Swing Line Loans shall
be evidenced by the Swing Line Note and each Swing Line Loan shall be
paid in full by the Borrower on or before the fifth Business Day after
the Borrowing Date for such Swing Line Loan. Outstanding Swing Line
Loans may be repaid from the proceeds of Syndicated Advances, Bid Rate
Advances or Swing Line
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Loans. Any repayment of a Swing Line Loan shall be accompanied by accrued
interest thereon and shall be in the minimum amount of $500,000 and in
increments of $100,000 in excess thereof or the full amount of such Swing Line
Loan. If the Borrower at any time fails to repay a Swing Line Loan on the
applicable date when due, the Borrower shall be deemed to have elected to borrow
a Floating Rate Advance under SECTION 2.1 as of such date equal in amount to the
unpaid amount of the Swing Line Loan and interest thereon (notwithstanding the
minimum amount of Syndicated Advances as provided in SECTION 2.4). The proceeds
of any such Advance shall be used to repay the Swing Line Loan and interest
thereon. Unless the Required Lenders shall have notified the Swing Line Lender
prior to its making any Swing Line Loan, that the applicable conditions
precedent set forth in Article IV have not then been satisfied, each Lender's
obligation to make Loans pursuant to SECTION 2.1 and this SECTION 2.9(d) to
repay Swing Line Loans shall be unconditional, continuing, irrevocable and
absolute and shall not be affected by any circumstances, including the
occurrence or continuance of a Default. In the event that any Lender fails to
make payment to the Administrative Agent of any amount due under this SECTION
2.9(d), the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to such
Lender hereunder until the Administrative Agent receives such payment from such
Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make payment to the
Administrative Agent of any amount due under this SECTION 2.9(d), such Lender
shall be deemed, at the option of the Administrative Agent, to have
unconditionally and irrevocably purchased from the Swing Line Lender, without
recourse or warranty, an undivided interest in and participation in the
applicable Swing Line Loan in the amount of the Loan such Lender was required to
make pursuant to this SECTION 2.9(d) and such interest and participation may be
recovered from such Lender together with interest thereon at the Federal Funds
Effective Rate for each day during the period commencing on the date of demand
by the Administrative Agent and ending on the date such obligation is fully
satisfied.
2.10. THE BID RATE ADVANCES. (a) Each Lender severally agrees
that, on the terms and conditions set forth in this Agreement, the Borrower may
request and receive Bid Rate Advances under this SECTION 2.10 from time to time
on any Business Day during the period from the date hereof until the date
occurring 30 days prior to the Facility Termination Date in the manner set forth
below; PROVIDED, HOWEVER, that, following the making of each Bid Rate Advance,
the aggregate amount of the Advances then outstanding plus the aggregate amount
of the Swing Line Loans then outstanding plus the aggregate amount of the L/C
Obligations then outstanding shall not exceed the Aggregate Commitment of the
Lenders (computed without regard to any Bid Rate Reduction) and the aggregate
amount of Bid Rate Advances then outstanding shall not exceed fifty percent
(50%) of the Aggregate Commitment of the Lenders (computed without regard to any
Bid Rate Reduction).
(b) The procedures for the solicitation and acceptance of Bid
Rate Loans are set forth below:
(i) The Borrower may request a Bid Rate Advance under this
SECTION 2.10(b) by giving the Administrative Agent irrevocable notice,
in the form attached hereto as EXHIBIT F-2 (a "BID RATE ADVANCE
BORROWING NOTICE"), specifying the date and aggregate amount of the
proposed Bid Rate Advance, the maturity date for repayment of each Bid
Rate Loan to be made as part of such Bid Rate Advance (which maturity
date may not be earlier than in the case of an Absolute Rate Auction,
the date occurring one day, and in the case of an Indexed Rate Auction,
the date occurring one month after the date of the related Bid Rate
Advance or later than, in either case, the
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earlier of the day occurring 180 days after the date of such Bid Rate
Advance and the Facility Termination Date and, in the case of an
Indexed Rate Auction, the earlier of the day occurring six months after
the date of such Bid Rate Advance and the Facility Termination Date),
and any other terms to be applicable to such Bid Rate Advance, not
later than 11:00 a.m. (Chicago time) (A) one Business Day prior to the
date of the proposed Bid Rate Advance, if the Borrower shall specify in
the Bid Rate Advance Borrowing Notice that the rates of interest to be
offered by the Lenders shall be absolute rates per annum (such type of
solicitation being an "Absolute Rate Auction"), and (B) five Business
Days prior to the date of the proposed Bid Rate Advance, if the
Borrower shall specify in the Bid Rate Advance Borrowing Notice that
the rates of interest to be offered by the Lenders shall be rates per
annum at a margin greater than or less than the Eurodollar Base Rate
(such type of solicitation being an "Indexed Rate Auction"). The
Administrative Agent shall, promptly following its receipt of a Bid
Rate Advance Borrowing Notice under this Section 2.10(b), notify each
Lender of such request by sending such Lender a copy of such Bid Rate
Advance Borrowing Notice.
(ii) Each Lender may, if, in its sole discretion, it elects to
do so, irrevocably offer to make one or more Bid Rate Loans to the
Borrower as part of such proposed Bid Rate Advance at a rate or rates
of interest specified by such Lender in its sole discretion, by
notifying the Administrative Agent (which shall give prompt notice
thereof to the Borrower), before 10:00 a.m. (Chicago time) (or if such
Lender is the Administrative Agent, before 9:45 a.m. (Chicago time))
(A) on the date of such proposed Bid Rate Advance, in the case of an
Absolute Rate Auction, and (B) four Business Days before the date of
such proposed Bid Rate Advance, in the case of an Indexed Rate Auction
of the minimum amount and maximum amount of each Bid Rate Loan which
such Lender would be willing to make as part of such proposed Bid Rate
Advance (which amounts may, subject to the proviso to the first
sentence of Section 2.10(a), exceed such Lender's Commitment), the rate
or rates of interest therefor and such Lender's Lending Installation
with respect to such Bid Rate Loan.
(iii) The Borrower shall, in turn, before (A) 11:00 a.m.
(Chicago time) on the date of such proposed Bid Rate Advance, in the
case of an Absolute Rate Auction, and (B) 10:00 a.m. (Chicago time)
three Business Days before the date of such proposed Bid Rate Advance,
in the case of an Indexed Rate Auction for a Bid Rate Advance, either:
(x) cancel such Bid Rate Advance by giving the
Administrative Agent notice to that effect, or
(y) accept, subject to Section 2.10(d), one or more of
the offers made by any Lender or Lenders pursuant to
SECTION 2.10(b)(ii) above, in its sole discretion, by
giving notice to the Administrative Agent of the
amount of each Bid Rate Loan (which amount shall be
equal to or greater than the minimum amount, and
equal to or less than the maximum amount, notified to
the Borrower by the Administrative Agent on behalf of
such Lender for such Bid Rate Loan pursuant to
SECTION 2.10(b)(ii)) to be made by each Lender as
part of such Bid Rate Advance, and reject any
remaining offers made by Lenders
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pursuant to SECTION 2.10(b)(ii) by giving the
Administrative Agent notice to that effect.
(iv) If the Borrower notifies the Administrative Agent that
such Bid Rate Advance is canceled pursuant to SECTION 2.10(b)(iii)(x)
above, the Administrative Agent shall give prompt notice thereof to the
Lenders and such Bid Rate Advance shall not be made.
(v) If the Borrower accepts one or more of the offers made by
any Lender or Lenders pursuant to SECTION 2.10(b)(iii)(y) above, the
Administrative Agent shall in turn promptly notify (A) each Lender that
has made an offer as described in SECTION 2.10(b)(ii) of the date, and
aggregate amount of such Bid Rate Advance and whether or not any offer
or offers made by such Lender pursuant to SECTION 2.10(b)(ii) have been
accepted by the Borrower and (B) each Lender that is to make a Bid Rate
Loan as part of such Bid Rate Advance, of the amount of each Bid Rate
Loan to be made by such Lender as part of such Bid Rate Advance. Each
Lender that is to make a Bid Rate Loan as part of such Bid Rate Advance
shall, not later than the Specified Remittance Time on the date of such
Bid Rate Advance specified in the notice received from the
Administrative Agent pursuant to clause (A) of the preceding sentence,
make available for the account of its Lending Installation to the
Administrative Agent at the relevant Payment Office such Lender's
portion of such Bid Rate Advance, in same day funds. Upon fulfillment
of the applicable conditions set forth in ARTICLE IV and after receipt
by the Administrative Agent of such funds, the Administrative Agent
will make such funds available to the Borrower at the Administrative
Agent's address specified pursuant to ARTICLE XIII. Promptly after each
Bid Rate Advance the Administrative Agent will notify each Lender of
the amount of the Bid Rate Advance, the consequent Bid Rate Reduction
and the dates upon which such Bid Rate Reduction commenced and will
terminate.
(vi) Notwithstanding the other provisions of this SECTION
2.10(b), the Borrower may elect at its own discretion to assume the
responsibilities of the Administrative Agent in connection with the
solicitation and acceptance of Bid Rate Loans as described in this
section. In the event that the Borrower makes the election described in
this subsection, all notices to be given by the Borrower to the
Administrative Agent pursuant to this SECTION 2.10(b) shall be given by
the Borrower directly to the Administrative Agent and the Lenders, all
notices to be given by the Administrative Agent to the Lenders pursuant
to this SECTION 2.10(b) shall be given by the Borrower to the Lenders,
and all notices to be given by the Lenders to the Administrative Agent
pursuant to this SECTION 2.10(b) shall be given by the Lenders to the
Borrower and the Administrative Agent.
(c) Each Bid Rate Advance shall be in an aggregate amount not
less than $10,000,000 or an integral multiple of $1,000,000 in excess
thereof, and, following the making of each Bid Rate Advance, the
Borrower shall be in compliance with the limitation set forth in the
proviso to the first sentence of SECTION 2.10(a).
(d) Each acceptance by the Borrower pursuant to SECTION
2.10(b)(iii)(y) of the offers made in response to a Bid Rate Advance
Borrowing Notice shall be treated as an acceptance of such offers in
ascending order of the rates or margins, as applicable, at which the
same were made but if,
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as a result thereof, two or more offers at the same such rate or margin
would be partially accepted, then the amounts of the Bid Rate Loans in
respect of which such offers are accepted shall be treated as being the
amounts which bear the same proportion to one another as the respective
amounts of the Bid Rate Loans so offered bear to one another but, in
each case, rounded as the Administrative Agent (or the Borrower in the
event the Borrower runs the bid rate process under clause (b)(vi)
above) may consider necessary to ensure that the amount of each such
Bid Rate Loan is $5,000,000 or an integral multiple thereof.
(e) Within the limits and on the conditions set forth in this
Section 2.10, the Borrower may from time to time borrow under this
SECTION 2.10, repay pursuant to SECTION 2.10(f) below, and reborrow
under this SECTION 2.10.
(f) The Borrower shall repay to the Administrative Agent for
the account of each Lender which has made a Bid Rate Loan to it, on the
maturity date of such Bid Rate Loan (such maturity date being that
specified by the Borrower for repayment of such Bid Rate Loan in the
related Bid Rate Advance Borrowing Notice), or, if earlier, the
acceleration of the Obligations pursuant to SECTION 8.1, the then
unpaid principal amount of such Bid Rate Loan. The Borrower shall have
no right to prepay any principal amount of any Bid Rate Loan unless,
and then only on the terms, specified by the Borrower for such Bid Rate
Loan in the related Bid Rate Advance Borrowing Notice and subject to
SECTION 3.4.
(g) The Borrower shall pay interest on the unpaid principal
amount of each Bid Rate Loan made to it, from the date of such Bid Rate
Loan to the date the principal amount of such Bid Rate Loan is repaid
in full, at the rate of interest for such Bid Rate Loan specified by
the Lender making such Bid Rate Loan in the related notice submitted by
such Lender pursuant to SECTION 2.10(b)(ii), payable on the interest
payment date or dates specified by the Borrower for such Bid Rate Loan
in the related Bid Rate Advance Borrowing Notice and on any date on
which such Bid Rate Loan is prepaid, whether by acceleration or
otherwise, and at maturity. In the event the term of any Bid Rate Loan
shall be longer than three months, interest thereon shall be payable
not less frequently than once each three-month period during such term.
Interest on Bid Rate Advances shall be calculated for actual days
elapsed on the basis of a 360-day year.
2.11. FACILITY FEE; REDUCTIONS IN AGGREGATE COMMITMENT. (a)
The Borrower agrees to pay to the Administrative Agent for the account of each
Lender a facility fee at a rate per annum equal to the Applicable Facility Fee
Rate in effect from time to time on such Lender's Commitment (determined without
giving effect to any Bid Rate Reduction or any other usage of the Commitments)
from the date hereof to but excluding the earliest of the Facility Termination
Date, the date of the reduction to zero of the Aggregate Commitment pursuant to
SECTION 2.11 and the date of the termination of the Aggregate Commitment
pursuant to Section 8.1. Such facility fees shall be payable in arrears on the
last Business Day of each March, June, September and December, and on the
earliest of the Facility Termination Date, the date of the reduction to zero of
the Aggregate Commitment pursuant to SECTION 2.11 and the date of the
termination of the Aggregate Commitment pursuant to Section 8.1. Facility fees
shall be calculated for actual days elapsed on the basis of a 360-day year.
(b) The Borrower may permanently reduce the Aggregate
Commitment in whole or in part ratably among the Lenders in integral
multiples of $15,000,000, upon at least two Business Days' written
notice to the Administrative Agent, which notice shall specify the
amount of any such reduction; provided, however, that the amount of the
Aggregate Commitment may not be reduced
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below the sum of the aggregate principal amount of the outstanding Advances and
the aggregate outstanding L/C Obligations and Swing Line Loans.
2.12. RATES APPLICABLE AFTER DEFAULT. Notwithstanding anything
to the contrary contained in Section 2.8, during the continuance of a Default or
Unmatured Default no Syndicated Advance may be made as, converted into or
continued past the end of the applicable Interest Period as a Eurodollar
Advance. During the continuance of a Default upon notice given to the Borrower,
(a) each Advance shall bear interest until paid in full at a rate per annum
equal to the Floating Rate or Eurodollar Rate, as the case may be, plus 2% per
annum and (b) the letter of credit fees payable under SECTION 2.20.5 shall be
increased by two percent (2.0%) per annum.
2.13. METHOD OF PAYMENT. All payments of the Obligations
hereunder shall be made, without setoff, deduction, or counterclaim, in
immediately available funds to the Administrative Agent at the Administrative
Agent's address specified pursuant to ARTICLE XIII, or at any other Lending
Installation of the Administrative Agent specified in writing by the
Administrative Agent to the Borrower, by 1:00 p.m. (local time) on the date when
due and shall be remitted by the Administrative Agent to the Lenders according
to their respective interests therein. Each payment delivered to the
Administrative Agent for the account of any Lender shall be delivered promptly
by the Administrative Agent to such Lender in the same type of funds that the
Administrative Agent received at its address specified pursuant to ARTICLE XIII
or at any Lending Installation specified in a notice received by the
Administrative Agent from such Lender. The Administrative Agent is hereby
authorized, but is not obligated, to charge the accounts of the Borrower
maintained with First Chicago into which proceeds of Advances are remitted
pursuant to SECTION 2.6 for each payment of interest and fees as it becomes due
hereunder, for each payment of principal, in accordance with the applicable
Prepayment Notice or when otherwise due and payable in accordance with the terms
hereof, and for each payment of Reimbursement Obligations when due and payable
in accordance with the terms hereof.
2.14. NOTES; TELEPHONIC NOTICES. Each Lender is hereby
authorized to record the date and principal amount of each of its Syndicated
Loans and the date and amount of each repayment on the schedule attached to its
Syndicated Note; PROVIDED, HOWEVER, that the failure to so record shall not
affect the Borrower's obligations under such Syndicated Note. Each Lender making
a Bid Rate Loan is hereby authorized to record the principal amount, interest
rate, maturity date and other terms of such Bid Rate Loan, as specified in the
relevant Bid Rate Advance Borrowing Notice and the related notice submitted by
such Lender pursuant to SECTION 2.10(b)(ii), on the schedule attached to its Bid
Rate Note; PROVIDED, HOWEVER, that the failure to so record shall not affect the
Borrower's obligations under such Bid Rate Note. The Borrower hereby authorizes
the Lenders and the Administrative Agent to extend, convert or continue Advances
and effect selections of Types of Syndicated Advances based on telephonic
notices made by any person or persons the Administrative Agent in good faith
believes to be acting on behalf of the Borrower. The Borrower agrees to deliver
promptly to the Administrative Agent a written confirmation, if such
confirmation is requested by the Administrative Agent or any Lender, of each
telephonic notice signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Lenders, the records of the Administrative Agent of the relevant
telephonic notice shall govern absent manifest error.
2.15. NOTIFICATION OF ADVANCES, INTEREST RATES, PREPAYMENTS
AND COMMITMENT REDUCTIONS. Promptly after receipt thereof, the Administrative
Agent will notify each Lender of the contents of each Aggregate Commitment
reduction notice, Borrowing Notice,
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Conversion/Continuati on Notice, and Prepayment Notice received by it hereunder.
The Administrative Agent will notify each Lender of the interest rate applicable
to each Eurodollar Advance promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.16. LENDING INSTALLATIONS. Each Lender may book its Loans at
any one or more Lending Installations selected by such Lender and may change any
such Lending Installation from time to time. All terms of this Agreement shall
apply to any such Lending Installation and the Notes shall be deemed held by
each Lender for the benefit of such Lending Installation. Each Lender may, by
written or telex notice to the Administrative Agent and the Borrower, designate
a Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made.
2.17. NON-RECEIPT OF FUNDS BY THE ADMINISTRATIVE AGENT. Unless
the Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the date on which it is scheduled to make payment to the Administrative
Agent of (a) in the case of a Lender, the proceeds of a Loan or (b) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in fact
made such payment to the Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (a) in the case of repayment by a
Lender, the Federal Funds Effective Rate for such day or (b) in the case of
repayment by the Borrower, the interest rate applicable to the relevant Loan.
2.18. WITHHOLDING TAX EXEMPTION. At least five Business Days
prior to the first date on which interest or fees are payable hereunder for the
account of any Lender, each Lender that is not incorporated under the laws of
the United States of America, or a state thereof, agrees that it will deliver to
each of the Borrower and the Administrative Agent two duly completed copies of
United States Internal Revenue Service Form 1001 or 4224, certifying in either
case that such Lender is entitled to receive payments under this Agreement and
the Notes without deduction or withholding of any United States federal income
taxes. Each Lender which so delivers a Form 1001 or 4224 further undertakes to
deliver to each of the Borrower and the Administrative Agent two additional
copies of such form (or any successor form or related form as may from time to
time be required under applicable law) on or before the date that such form
expires (currently, three successive calendar years for Form 1001 and one
calendar year for Form 4224) or becomes obsolete or after the occurrence of any
event requiring a change in the most recent forms so delivered by it, and such
amendments thereto or extensions or renewals thereof as may be reasonably
requested by the Borrower or the Administrative Agent, in each case certifying
that such Lender is entitled to receive payments under this Agreement and the
Notes without deduction or withholding of any United States federal income
taxes, unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Lender from duly completing and delivering any such form with
respect to it and such Lender advises the Borrower and the
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Administrative Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
2.19. TERMINATION. All unpaid Obligations shall be paid in
full by the Borrower on the Facility Termination Date; PROVIDED, HOWEVER, that
(a) all Syndicated Loans made in connection with any of the Letters of Credit
shall be paid in full by the Borrower on the later of the Facility Termination
Date and the Business Day immediately following the date the relevant Syndicated
Loan is made, and (b) nothing in this SECTION 2.19 shall be construed as
limiting or modifying the obligation of the Borrower to repay any or all of the
outstanding Obligations at any earlier time in accordance with the terms of this
Agreement.
2.20. LETTER OF CREDIT FACILITY.
2.20.1. OBLIGATION TO ISSUE. Subject to the terms and
conditions of this Agreement and in reliance upon the representations,
warranties and covenants of the Borrower herein set forth, each Issuing Lender
hereby agrees to issue for the account of the Borrower through such Issuing
Lender's branches as it and the Borrower may jointly agree, one or more Letters
of Credit in accordance with this SECTION 2.20, from time to time during the
period, commencing on the date hereof and ending on the third Business Day prior
to the Facility Termination Date; PROVIDED, HOWEVER, no Issuing Lender shall
have any obligation to issue any Letter of Credit if, after taking into account
such issuance, the aggregate L/C Obligations outstanding under Letters of Credit
issued by it would exceed the amount specified on SCHEDULE 2.20 next to its
name. SCHEDULE 2.20 may be updated from time to time by the Administrative Agent
in connection with the addition of any Issuing Lender.
2.20.2. TYPES AND AMOUNTS. No Issuing Lender shall have any
obligation to and no Issuing Lender shall:
(i) issue any Letter of Credit if on the date of issuance,
before or after giving effect to the Letter of Credit requested
hereunder, (a) the amount of the Advances, the L/C Obligations and the
Swing Line Loans outstanding at such time would exceed the Aggregate
Commitment or (b) the aggregate outstanding amount of the L/C
Obligations would exceed $100,000,000; or
(ii) issue any Letter of Credit which has an expiration date
later than the date which is the earlier of one (1) year after the date
of issuance thereof or three (3) Business Days immediately preceding
the Facility Termination Date.
2.20.3. CONDITIONS. In addition to being subject to the
satisfaction of the conditions contained in SECTIONS 4.1 and 4.2, the obligation
of an Issuing Lender to issue any Letter of Credit is subject to the
satisfaction in full of the following conditions:
(i) the Borrower shall have delivered to the applicable
Issuing Lender at such times and in such manner as such Issuing Lender
may reasonably prescribe, a written request for issuance of such Letter
of Credit, duly executed applications for such Letter of Credit, and
such other documents, instructions and agreements as may be reasonably
required pursuant to the terms thereof, and the proposed Letter of
Credit shall be reasonably satisfactory to such Issuing Lender as to
form and content; and
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(ii) as of the date of issuance no order, judgment or decree of any
court, arbitrator or Governmental Authority shall purport by its terms
to enjoin or restrain the applicable Issuing Lender from issuing such
Letter of Credit and no law, rule or regulation applicable to such
Issuing Lender and no request or directive (whether or not having the
force of law) from a Governmental Authority with jurisdiction over such
Issuing Lender shall prohibit or request that such Issuing Lender
refrain from the issuance of Letters of Credit generally or the
issuance of that Letter of Credit.
If any provision in a letter of credit application delivered in connection with
the foregoing is inconsistent with or more restrictive than a provision
contained in this Agreement, the provisions contained in this Agreement shall
control.
2.20.4. PROCEDURE FOR ISSUANCE OF LETTERS OF CREDIT.
(a) Subject to the terms and conditions of this Section 2.20 and provided that
the applicable conditions set forth in SECTIONS 4.1 and 4.2 hereof have been
satisfied, the applicable Issuing Lender shall, on the requested date, issue a
Letter of Credit on behalf of the Borrower in accordance with such Issuing
Lender's usual and customary business practices and, in this connection, such
Issuing Lender may assume that the applicable conditions set forth in SECTION
4.2 hereof have been satisfied unless it shall have received notice to the
contrary from the Administrative Agent or a Lender or has knowledge that the
applicable conditions have not been met.
(b) The applicable Issuing Lender shall give the
Administrative Agent written or telex notice, or telephonic notice confirmed
promptly thereafter in writing, of the issuance of a Letter of Credit, provided,
however, that the failure to provide such notice shall not result in any
liability on the part of such Issuing Lender.
(c) No Issuing Lender shall extend or amend any Letter of
Credit unless the requirements of this Section 2.20 are met as though a new
Letter of Credit was being requested and issued.
2.20.5. LETTER OF CREDIT PARTICIPATION. Unless a Lender shall
have notified the Issuing Lender, prior to its issuance of a Letter of Credit,
that any applicable condition precedent set forth in SECTIONS 4.1 and 4.2 had
not then been satisfied immediately upon the issuance of each Letter of Credit
hereunder, each Lender shall be deemed to have automatically, irrevocably and
unconditionally purchased and received from the applicable Issuing Lender an
undivided interest and participation in and to such Letter of Credit, the
obligations of the Borrower in respect thereof, and the liability of such
Issuing Lender thereunder (collectively, an "L/C Interest") in an amount equal
to the amount available for drawing under such Letter of Credit multiplied by
such Lender's Pro Rata Share. Each Issuing Lender will notify each Lender
promptly upon presentation to it of an L/C Draft or upon any other draw under a
Letter of Credit. On or before the Business Day on which an Issuing Lender makes
payment of each such L/C Draft or, in the case of any other draw on a Letter of
Credit, on demand by the Administrative Agent, each Lender shall make payment to
the Administrative Agent, for the account of the applicable Issuing Lender, in
immediately available funds in an amount equal to such Lender's Pro Rata Share
of the amount of such payment or draw. The obligation of each Lender to
reimburse the Issuing Lenders under this SECTION 2.20.5 shall be unconditional,
continuing, irrevocable and absolute. In the event that any Lender fails to make
payment to the Administrative Agent of any amount due under this SECTION 2.20.5,
the Administrative Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to such Lender
hereunder until the Administrative Agent receives such payment from such Lender
or such
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obligation is otherwise fully satisfied; PROVIDED, HOWEVER, that nothing
contained in this sentence shall relieve such Lender of its obligation to
reimburse the applicable Issuing Lender for such amount in accordance with this
Section 2.20.5.
2.20.6. REIMBURSEMENT OBLIGATION. The Borrower agrees
unconditionally, irrevocably and absolutely to pay immediately to the
Administrative Agent, for the account of the Lenders, the amount of each advance
which may be drawn under or pursuant to a Letter of Credit or an L/C Draft
related thereto (such obligation of the Borrower to reimburse the Administrative
Agent for an advance made under a Letter of Credit or L/C Draft being
hereinafter referred to as a "REIMBURSEMENT OBLIGATION" with respect to such
Letter of Credit or L/C Draft). If the Borrower at any time fails to repay a
Reimbursement Obligation pursuant to this SECTION 2.20.6, the Borrower shall be
deemed to have elected to borrow Floating Rate Loans from the Lenders, as of the
date of the advance giving rise to the Reimbursement Obligation, equal in amount
to the amount of the unpaid Reimbursement Obligation. Such Floating Rate Loans
shall be made as of the date of the payment giving rise to such Reimbursement
Obligation, automatically, without notice and without any requirement to satisfy
the conditions precedent otherwise applicable to an Advance of Floating Rate
Loans. Such Floating Rate Loans shall constitute a Floating Rate Advance, the
proceeds of which Advance shall be used to repay such Reimbursement Obligation.
If, for any reason, the Borrower fails to repay a Reimbursement Obligation on
the day such Reimbursement Obligation arises and, for any reason, the Lenders
are unable to make or have no obligation to make Floating Rate Loans, then such
Reimbursement Obligation shall bear interest from and after such day, until paid
in full, at the interest rate applicable to a Floating Rate Advance.
2.20.7. LETTER OF CREDIT FEES. The Borrower agrees to pay (a)
to the Administrative Agent for the ratable benefit of the Lenders, a letter of
credit fee equal to (i) for standby Letters of Credit, the Eurodollar Applicable
Margin in effect from time to time on the aggregate daily amount available for
drawing under the outstanding standby Letters of Credit and (ii) for commercial
Letters of Credit, fifty percent (50%) of the Eurodollar Applicable Margin in
effect from time to time on the aggregate daily amount available for drawing
under the outstanding commercial Letters of Credit, such fee to be paid in
arrears on the last Business Day of each calendar quarter and on the Facility
Termination Date and (b) to the Administrative Agent for the benefit of the
Issuing Lenders, a fronting fee of 0.125% and all customary fees and other
issuance, amendment, negotiation and presentment expenses and related charges in
connection with the issuance, amendment, presentation of L/C Drafts, and the
like customarily charged by the applicable Issuing Lender with respect to
standby letters of credit and commercial letters of credit, including, without
limitation, standard commissions with respect to commercial letters of credit,
payable at the time of invoice of such amounts.
2.20.8. ISSUING LENDER REPORTING REQUIREMENTS. In addition to
the notices required by Section 2.20.4, each Issuing Lender shall, no later than
the tenth Business Day following the last day of each month, provide to the
Administrative Agent, upon the Administrative Agent's request, schedules, in
form and substance reasonably satisfactory to the Administrative Agent, showing
the date of issue, account party, amount, expiration date and the reference
number of each Letter of Credit issued by it outstanding at any time during such
month and the aggregate amount payable by the Borrower during such month. In
addition, upon the request of the Administrative Agent, each Issuing Lender
shall furnish to the Administrative Agent copies of any Letter of Credit and any
application for or reimbursement agreement with respect to a Letter of Credit to
which such Issuing Lender is party and such other documentation as may
reasonably be requested by the Administrative
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Agent. Upon the request of any Lender, the Administrative Agent will provide to
such Lender information concerning such Letters of Credit.
2.20.9. INDEMNIFICATION; EXONERATION. (a) In addition to
amounts payable as elsewhere provided in this Section 2.20, the Borrower hereby
agrees to protect, indemnify, pay and save harmless the Administrative Agent,
each Issuing Lender and each Lender from and against any and all liabilities and
costs which the Administrative Agent, such Issuing Lender or such Lender may
incur or be subject to as a consequence, direct or indirect, of (i) the issuance
of any Letter of Credit other than, in the case of the applicable Issuing
Lender, as a result of its Gross Negligence or willful misconduct, as determined
by the final judgment of a court of competent jurisdiction, or (ii) the failure
of the applicable Issuing Lender to honor a drawing under a Letter of Credit as
a result of any act or omission, whether rightful or wrongful, of any present or
future de jure or de facto Governmental Authority (all such acts or omissions
herein called "Governmental Acts").
(b) As among the Borrower, the Lenders, the Administrative
Agent and the Issuing Lenders, the Borrower assumes all risks of the acts and
omissions of, or misuse of such Letter of Credit by, the beneficiary of any
Letters of Credit. In furtherance and not in limitation of the foregoing,
subject to the provisions of the Letter of Credit applications and Letter of
Credit reimbursement agreements executed by the Borrower at the time of request
for any Letter of Credit, neither the Administrative Agent, any Issuing Lender
nor any Lender shall be responsible (in the absence of Gross Negligence or
willful misconduct in connection therewith, as determined by the final judgment
of a court of competent jurisdiction): (i) for the form, validity, sufficiency,
accuracy, genuineness or legal effect of any document submitted by any party in
connection with the application for and issuance of the Letters of Credit that
appears on its face to comply in all material respects with the requirements of
the Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) for the
validity or sufficiency of any instrument that appears on its face to comply in
all material respects with the requirements of the Letter of Credit
transferring or assigning or purporting to transfer or assign a Letter of Credit
or the rights or benefits thereunder or proceeds thereof, in whole or in part,
which may prove to be invalid or ineffective for any reason; (iii) for failure
of the beneficiary of a Letter of Credit to comply duly with conditions required
in order to draw upon such Letter of Credit; (iv) for errors, omissions,
interruptions or delays in transmission or delivery of any messages, by mail,
cable, telegraph, telex, or other similar form of teletransmission or otherwise;
(v) for errors in interpretation of technical trade terms; (vi) for any loss or
delay in the transmission or otherwise of any document required in order to make
a drawing under any Letter of Credit or of the proceeds thereof; (vii) for the
misapplication by the beneficiary of a Letter of Credit of the proceeds of any
drawing under such Letter of Credit; and (viii) for any consequences arising
from causes beyond the control of the Administrative Agent, the Issuing Lenders
and the Lenders, including, without limitation, any Governmental Acts. None of
the above shall affect, impair, or prevent the vesting of any Issuing Lender's
rights or powers under this SECTION 2.20.9.
(c) In furtherance and extension and not in limitation of the
specific provisions hereinabove set forth, any action taken or omitted by any
Issuing Lender under or in connection with the Letters of Credit or any related
certificates shall not, in the absence of Gross Negligence or willful
misconduct, as determined by the final judgment of a court of competent
jurisdiction, put the applicable Issuing Lender, the Administrative Agent or any
Lender under any resulting liability to the Borrower or relieve the Borrower of
any of its obligations hereunder to any such Person.
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(d) Without prejudice to the survival of any other agreement of
the Borrower hereunder, the agreements and obligations of the Borrower contained
in this Section 2.20 shall survive the payment in full of principal and interest
hereunder, the termination of the Letters of Credit and the termination of this
Agreement.
2.20.10. CASH COLLATERAL. Notwithstanding anything to the
contrary herein or in any application for a Letter of Credit, after the
occurrence and during the continuance of Default, the Borrower shall, upon the
Administrative Agent's demand, deliver to the Administrative Agent for the
benefit of the Lenders and the Issuing Lenders, cash, or other collateral of a
type satisfactory to the Required Lenders, having a value, as determined by such
Lenders, equal to the aggregate outstanding L/C Obligations. In addition, if the
available Aggregate Commitment is at any time less than the amount of contingent
L/C Obligations outstanding at any time, the Borrower shall deposit cash
collateral with the Administrative Agent in an amount equal to the amount by
which such L/C Obligations exceed such available Aggregate Commitment. Any such
collateral shall be held by the Administrative Agent in a separate
interest-bearing account appropriately designated as a cash collateral account
in relation to this Agreement and the Letters of Credit and retained by the
Administrative Agent for the benefit of the Lenders and the Issuing Lenders as
collateral security for the Borrower's obligations in respect of this Agreement
and each of the Letters of Credit and L/C Drafts. Such amounts shall be applied
to reimburse the Issuing Lenders for drawings or payments under or pursuant to
Letters of Credit or L/C Drafts, or if no such reimbursement is required, to
payment of such of the other Obligations as the Administrative Agent shall
determine. If no Default shall be continuing, amounts remaining in any cash
collateral account established pursuant to this SECTION 2.20.10 which are not to
be applied to reimburse an Issuing Lender for amounts actually paid or to be
paid by such Issuing Lender in respect of a Letter of Credit or L/C Draft, shall
be returned to the Borrower (after deduction of the Administrative Agent's
expenses incurred in connection with such cash collateral account).
2.21. PRICING. The Eurodollar Applicable Margin and the
Applicable Facility Fee Rate for any period shall be determined on the basis of
the publicly announced ratings ("CREDIT RATINGS") by Xxxxx'x and S&P on the
Borrower's Rated Debt during such period, in each case in accordance with the
table set forth below, to change when and as such Credit Ratings change. For
purposes of determining the Applicable Margin and the Applicable Facility Fee
Rate with respect to any period:
(i) Any change in the Credit Rating shall be deemed to become
effective on the date of public announcement thereof and shall
remain in effect until the date of public announcement that
such Credit Rating shall no longer be in effect. If any change
in Credit Rating occurs during an Interest Period, the new
Eurodollar Applicable Margin and Applicable Facility Fee Rate
shall become effective from the date of the public
announcement.
(ii) If, during any period, either Xxxxx'x or S&P shall not have a
publicly-announced Credit Rating with respect to the
Borrower's Rated Debt, the Credit Rating announced by the
other rating agency with respect thereto shall be used.
(iii) Except as provided below, in the event that the Credit Ratings
publicly announced by Xxxxx'x and S&P with respect to the
Borrower's Rated Debt appear in more than one column of the
table, the Eurodollar Applicable Margin and the Applicable
Facility Fee Rate will be based on the column which includes
the highest rating; PROVIDED,
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HOWEVER, that if there exists a differential of two or more
levels between the Credit Rating publicly announced by Xxxxx'x
and the Credit Rating publicly announced by S & P, then the
Credit Rating which is one level below the higher announced
Credit Rating will determine the Eurodollar Applicable Margin
and the Applicable Facility Fee Rate.
(iv) If, during any period, neither Xxxxx'x nor S&P shall have
publicly announced a Credit Rating with respect to the
Borrower's Rated Debt, the Eurodollar Applicable Margin and
the Applicable Facility Fee Rate shall be the margins set
forth under the column entitled "No Other Pricing Level
Applies."
Eurodollar Applicable
EURODOLLAR APPLICABLE MARGINS Applicable Facility
AND APPLICABLE FACILITY FEE RATES (Basis Points) Margin Fee
---------- ----------
CREDIT RATINGS
At Least A From S&P or A2 or Above From Xxxxx'x 13.5 6.5
At Least A- From S&P from or A3 From Xxxxx'x 15.0 7.5
At Least BBB+ From S&P or Baa1 From Xxxxx'x 17.0 9.0
At Least BBB from S&P or Baa2 From Xxxxx'x 19.0 11.0
At Least BBB- From S&P or Baa3 From Xxxxx'x 27.5 12.5
No Other Pricing Level Applies 35.0 20.0
46
ARTICLE III
CHANGE IN CIRCUMSTANCES
3.1. Yield Protection. If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), or any interpretation thereof, or the compliance
by any Lender therewith,
(a) subjects any Lender or any applicable Lending Installation
to any tax, duty, charge or withholding on or from payments due from
the Borrower (excluding federal taxation of the overall net income of
any Lender, franchise taxes and branch profit taxes), or changes the
basis of taxation of payments to any Lender or any applicable Lending
Installation in respect of its Loans, L/C Interests or other amounts
due it hereunder, or
(b) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit
extended by, any Lender or any applicable Lending Installation (other
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than reserves and assessments taken into account in determining the
interest rate applicable to Eurodollar Advances), or
(c) imposes any other condition, in each case, the result of
which is to increase the cost to any Lender or any applicable Lending
Installation of making, funding or maintaining Loans or issuing or
participating in Letters of Credit or reduces any amount receivable by
any Lender or any applicable Lending Installation in connection with
Loans or Letters of Credit, or requires any Lender or any applicable
Lending Installation to make any payment calculated by reference to the
amount of Loans or Letters of Credit held, or interest received by it,
by an amount deemed material by such Lender,
then, within 15 days of demand by such Lender, the Borrower shall pay such
Lender that portion of such increased expense incurred or reduction in an amount
received which such Lender reasonably determines is attributable to making,
funding and maintaining its Loans, its L/C Interests, the Letters of Credit and
its Commitment.
3.2. Changes in Capital Adequacy Regulations. If a Lender
determines that the amount of capital required or expected to be maintained by
such Lender, any Lending Installation of such Lender or any corporation
controlling such Lender is increased as a result of a Change (as defined below
in this SECTION 3.2), then, within 15 days of demand by such Lender, the
Borrower shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Lender reasonably determines is attributable to this Agreement, its Loans,
its L/C Interests, the Letters of Credit or its obligation to make Loans or
participate in Letters of Credit hereunder (after taking into account such
Lender's or such controlling corporation's policies as to capital adequacy).
"CHANGE" means (a) any change after the date of this Agreement in the Risk-Based
Capital Guidelines (as defined below in this SECTION 3.2) or (b) any adoption of
or change in any other law, governmental or quasi-governmental rule, regulation,
policy, guideline, interpretation, or directive (whether or not having the force
of law) after the date of this Agreement which affects the amount of capital
required or expected to be maintained by any Lender or any Lending Installation
or any corporation controlling any Lender. "RISK-BASED CAPITAL GUIDELINES" means
(a) the risk-based capital guidelines in effect in the United States on the date
of this Agreement, including transition rules, and (b) the corresponding capital
regulations promulgated by regulatory authorities outside the United States
implementing the July 1988 report of the Basle Committee on Banking Regulation
and Supervisory Practices Entitled "International Convergence of Capital
Measurements and Capital Standards," including transition rules, and any
amendments to such regulations adopted prior to the date of this Agreement. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent of
any circumstances that would cause the Borrower to pay additional amounts
pursuant to this SECTION 3.2, PROVIDED that, except as set forth in SECTION
3.5(b), the failure to give such notice shall not affect the Borrower's
obligation to pay such additional amounts hereunder.
3.3. AVAILABILITY OF TYPES OF SYNDICATED ADVANCES. If any
Lender reasonably determines that maintenance of its Eurodollar Loans at a
suitable Lending Installation would violate
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any applicable law, rule, regulation, or directive, whether or not having the
force of law, or if the Required Lenders reasonably determine that (a) deposits
of a type and maturity appropriate to match fund Eurodollar Advances are not
available or (b) the interest rate applicable to a Type of Syndicated Advance
does not accurately reflect the cost of making or maintaining such Advance, then
the Administrative Agent shall suspend the availability of the affected Type of
Syndicated Advance.
3.4. FUNDING INDEMNIFICATION. If any payment of a Eurodollar
Advance or a Bid Rate Advance occurs on a date which is not the last day of the
applicable Interest Period in the case of a Eurodollar Advance, or the
applicable maturity date in the case of a Bid Rate Advance, whether because of
acceleration, prepayment, conversion or otherwise, or a Eurodollar Advance or a
Bid Rate Advance is not made (whether by borrowing, continuation or conversion)
on the date specified by the Borrower for any reason other than default by the
Lenders, or an optional prepayment, notice of which has been given in accordance
with SECTION 2.5, is not made on the date specified therefor in such notice, the
Borrower will indemnify each Lender for any loss or cost incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Eurodollar
Advance or Bid Rate Advance, as the case may be.
3.5. MITIGATION; LENDER STATEMENTS; SURVIVAL OF INDEMNITY. (a)
To the extent reasonably possible, each Lender shall designate an alternate
Lending Installation with respect to its Eurodollar Loans to reduce any
liability of the Borrower to such Lender under SECTIONS 3.1 and 3.2 or to avoid
the unavailability of a Type of Syndicated Advance under SECTION 3.3, so long as
such designation is not disadvantageous to such Lender in its reasonable
determination. If the obligation of the Lenders to make Eurodollar Advances has
been suspended pursuant to SECTION 3.3 as a consequence of a determination by
any Lender that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law or any Lender has demanded
compensation under Section 3.1 or 3.2, the Borrower may elect (i) subject to
SECTION 3.4, to prepay any outstanding Syndicated Advances to the extent
necessary to mitigate its liability under SECTION 3.1 or 3.2, or (ii) to require
the applicable Lender to assign its outstanding Syndicated Loans, L/C Interests
and Commitment hereunder to another financial institution designated by the
Borrower and reasonably acceptable to the Administrative Agent. The obligation
of a Lender to assign its rights and obligations hereunder as contemplated by
this SECTION 3.5(a) is subject to the requirements that (x) all amounts owing to
that Lender under the Loan Documents are paid in full upon the completion of
such assignment and (y) any assignment is effected in accordance with the terms
of Section 12.3 and on terms otherwise satisfactory to that Lender (it being
understood that the Borrower or the replacement Lender shall pay the processing
fee payable to the Administrative Agent pursuant to SECTION 12.3.2 in connection
with any such assignment).
(b) In determining the amounts payable under SECTIONS 3.1, 3.2
or 3.4, each Lender shall use its reasonable efforts to make its allocations and
computations, to the extent readily determinable, consistent with the
allocations and computations applied generally by such Lender to other customers
of similar size and credit quality and under similar circumstances. Each Lender
shall deliver a written statement of such Lender as to the amount due, if any,
under SECTION 3.1, 3.2 or 3.4. Such written statement shall set forth in
reasonable detail the calculations upon which such Lender
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determined such amount and shall be final, conclusive and binding on the
Borrower in the absence of manifest error. Determination of amounts payable
under such Sections in connection with a Eurodollar Loan or Bid Rate Loan made
pursuant to an Indexed Rate Auction shall be calculated as though each Lender
funded such Loan through the purchase of a deposit of the type and maturity
corresponding to the deposit used as a reference in determining the interest
rate applicable to such Loan, whether in fact that is the case or not. Unless
otherwise provided herein, the amount specified in the written statement shall
be payable not later than fifteen (15) days after receipt by the Borrower of the
written statement. The Borrower shall not be liable for any amounts under
SECTIONS 3.1, 3.2 or 3.4 accruing more than 120 days prior to the receipt of a
demand for payment therefor. The obligations of the Borrower under SECTIONS 3.1,
3.2 and 3.4 shall survive payment of the Obligations and termination of this
Agreement.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. EFFECTIVENESS; INITIAL ADVANCE. This Agreement shall
become effective and the Lenders shall be obligated to make the initial Advance
or Swing Line Loan or purchase participations in the Letters of Credit or Swing
Line Loans hereunder only after the Administrative Agent shall have received
from the Borrower, with sufficient copies (other than in the case of the Notes)
for each of the Lenders, each of the following items in form and substance
satisfactory to the Administrative Agent:
(a) copies of the certificates of incorporation of the
Borrower and each of the Material Subsidiaries, together with all
amendments thereto and a certificate of good standing, certified by the
appropriate governmental officer of its jurisdiction of incorporation
and by the Secretary, Assistant Secretary, or other appropriate officer
of the Borrower or the Material Subsidiary, as applicable;
(b) copies, certified by the Secretary, Assistant Secretary or
other appropriate officer of the Borrower and each of the Material
Subsidiaries of its by-laws (or any comparable constitutive laws, rules
or regulations) and of its board of directors' resolutions (and
resolutions of other bodies, if any are deemed necessary by counsel for
any Lender) authorizing the execution of the relevant Loan Documents;
(c) incumbency certificates, executed by the Secretary or
Assistant Secretary or other appropriate officer of the Borrower and
each of the Material Subsidiaries, which shall identify by name and
title and bear the signature of the officers of the Borrower and each
of the Material Subsidiaries authorized to sign the relevant Loan
Documents and to make borrowings hereunder, as applicable, upon which
certificate the Administrative Agent, the Issuing Lenders, the Swing
Line Lender and the Lenders shall be entitled to rely until informed of
any change in writing by the Borrower;
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(d) a certificate, signed by the Chief Financial Officer,
stating that on the date hereof no Default or Unmatured Default has
occurred and is continuing;
(e) opinions of Ropes & Xxxx, counsel to the Borrower and the
Material Subsidiaries initially parties to the Guaranty, Xxx Xxxxxxx,
General Counsel to the Borrower and the Material Subsidiaries initially
parties to the Guaranty, and Nevada counsel to certain of such Material
Subsidiaries;
(f) the Syndicated Notes and the Bid Rate Notes payable to the
order of each of the Lenders and the Swing Line Note payable to the
order of the Swing Line Lender;
(g) written money transfer instructions, in substantially the
form of Exhibit E hereto, addressed to the Administrative Agent and
signed by an Authorized Officer, together with such other related money
transfer authorizations as the Administrative Agent may have reasonably
requested, which instructions shall, among other things, direct the
Administrative Agent to repay in full (i) the loans and advances
outstanding under that certain Credit Agreement dated as of November
17, 1995 between the Borrower and The First National Bank of Chicago,
as administrative agent, and the Co-Agents and Lenders parties thereto
(as amended, modified, restated or supplemented from time to time, the
"1995 Credit Agreement") as of the effective date of this Agreement,
together with all accrued and unpaid interest thereon and all breakage
fees and other amounts payable with respect thereto and (ii) all
commitment or other fees accrued and unpaid under the 1995 Credit
Agreement as of the effective date of this Agreement;
(h) evidence of termination of the 1995 Credit Agreement;
(i) a supplemental fee letter dated as of the date hereof;
(j) a Facility Guaranty executed by each of the Material
Subsidiaries; and
(k) such other documents as any Lender or its counsel may have
reasonably requested.
4.2. EACH ADVANCE AND LETTER OF CREDIT. No Lender shall be
required to make any Loan or purchase participations in any Letter of Credit or
Swing Line Loan, nor shall the Administrative Agent shall be required to issue
any Letter of Credit hereunder unless on the applicable Borrowing Date or date
for issuance of such Letter of Credit:
(a) there exists no Default or Unmatured Default;
(b) the representations and warranties contained in Article V
are true and correct as of such Borrowing Date or date for issuance of
such Letter of Credit except to the extent any such representation or
warranty is stated to relate solely to an earlier date, in which case
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such representation or warranty shall be true and correct on and as of
such earlier date;
(c) after giving effect to such Loan and the other Loans being
made as a part of such Advance or the issuance of such Letter of
Credit, the aggregate outstanding principal amount of all Advances and
outstanding L/C Obligations and Swing Line Loans does not exceed the
Aggregate Commitment; and
(d) all legal matters incident to the making of such Advance
or the issuance of such Letter of Credit shall be reasonably
satisfactory to the Lenders and their counsel.
Each Borrowing Notice and each Conversion/Continuation Notice with respect to a
Loan or application with respect to a Letter of Credit shall constitute a
representation and warranty by the Borrower that the conditions contained in
SECTIONS 4.2(a), (b) and (c) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce the Administrative Agent, the Swing Line Lender, the
Issuing Lenders and the Lenders to enter into this Agreement and to make the
Loans and the other financial accommodations to the Borrower and to issue the
Letters of Credit described herein, the Borrower represents and warrants to the
Administrative Agent, the Swing Line Lender, the Issuing Lenders and each Lender
as follows as of the date of this Agreement, the date of the initial extension
of credit hereunder and thereafter on each date as required by SECTION 4.2 that:
5.1. CORPORATE EXISTENCE AND STANDING. Each of the Borrower
and its Subsidiaries (other than Subsidiaries which in the aggregate
own, directly or indirectly, less than ten percent (10%) of the total
consolidated assets of the Borrower and its Subsidiaries) (i) is a
corporation duly incorporated, validly existing and in good standing
under the laws of its jurisdiction of incorporation, (ii) is duly
qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction in which it owns or leases
real property or in which the nature of its business requires it to be
so qualified, except those jurisdictions where the failure to be in
good standing or to so qualify is not reasonably likely to have a
Material Adverse Effect, and (iii) has all requisite corporate power
and authority to own, lease and operate its property and assets and to
conduct its business as presently conducted and as proposed to be
conducted.
5.2. AUTHORIZATION AND VALIDITY.
(a) Each of the Borrower and its Subsidiaries has the
requisite corporate power and authority to execute, deliver and perform
each of the Loan Documents which have been or are to be executed by it.
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(b) The execution, delivery, performance and filing, as the
case may be, of each of the Loan Documents executed or filed by the
Borrower or any of its Subsidiaries and to which the Borrower or any of
its Subsidiaries is a party, and the consummation of the transactions
contemplated thereby, have been duly approved by the respective boards
of directors and, if necessary, the shareholders of the Borrower and
its Subsidiaries, and such approvals have not been rescinded. No other
corporate action or proceedings on the part of the Borrower or its
Subsidiaries are necessary to consummate such transactions.
(c) Each of the Loan Documents to which the Borrower or any of
its Subsidiaries is a party has been duly executed, delivered or filed,
as the case may be, by it and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms (except
as enforceability may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditor's rights generally), is in
full force and effect and no material term or condition thereof has
been amended, modified or waived without the prior written consent of
the Required Lenders (or all of the Lenders if so required under
Section 8.2), and the Borrower and its Subsidiaries have performed and
complied with all the terms, provisions, agreements and conditions set
forth therein and required to be performed or complied with by such
parties and no unmatured default, default or breach of any covenant by
any such party exists thereunder. As of the date of the initial
extension of credit hereunder, to the best of the Borrower's and its
Subsidiaries' knowledge, all parties (other than the Borrower and its
Subsidiaries) have performed and complied with all the terms,
provisions, agreements and conditions set forth in the Loan Documents
and required to be performed or complied with by such parties and no
unmatured default, default or breach of any covenant by any such party
exists thereunder.
5.3. NO CONFLICT; GOVERNMENT CONSENT. Neither the execution
and delivery by the Borrower or any of its Subsidiaries of the Loan
Documents, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate
any law, rule, regulation, order, writ, judgment, injunction, decree or
award binding on the Borrower or any of its Subsidiaries or the
Borrower's or any Subsidiary's articles of incorporation or by-laws or
the provisions of any material indenture, instrument or material
agreement to which the Borrower or any of its Subsidiaries is a party
or is subject, or by which it, or its Property, is bound, or conflict
with or constitute a default thereunder, or result in the creation or
imposition of any Lien in, of or on the Property of the Borrower or a
Subsidiary pursuant to the terms of any such material indenture,
instrument or agreement. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration
with, or exemption by, any Governmental Authority is required to
authorize, or is required in connection with the execution, delivery
and performance of, or the legality, validity, binding effect or
enforceability of, any of the Loan Documents, except (i) such as have
been made or obtained as set forth on SCHEDULE 5.3 or (ii) such as set
forth on Schedule 5.3 hereto which have not been obtained or made and
which are immaterial.
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5.4. FINANCIAL STATEMENTS. The January 25, 1997 audited
consolidated financial statements of the Borrower and its Subsidiaries
heretofore delivered to the Administrative Agent and the Lenders were
prepared in accordance with generally accepted accounting principles in
effect on the respective dates such statements were prepared and fairly
present in all material respects the consolidated financial condition
and operations of the Borrower and its Subsidiaries at such dates and
the consolidated results of their operations for the respective periods
then ended.
5.5. MATERIAL ADVERSE CHANGE. As of the date of this Agreement
and as of the initial extension of credit hereunder, since January 25,
1997 with respect to the Borrower and its Subsidiaries, there has been
no material adverse change in the business, financial condition,
operations, performance or Property of the Borrower and its
Subsidiaries on a consolidated basis.
5.6. TAXES. The Borrower and its Subsidiaries have filed all
United States federal tax returns and all other tax returns which are
required to be filed and have paid all taxes due pursuant to said
returns or pursuant to any assessment received by the Borrower or any
of its Subsidiaries, except such taxes, if any, as are being contested
in good faith, as to which adequate reserves have been provided in
accordance with Agreement Accounting Principles and as to which no tax
lien has been filed. The United States income tax returns of the
Borrower and its Subsidiaries have been audited by the Internal Revenue
Service through the fiscal year ended January 25, 1992. No tax liens
have been filed and, except as set forth on SCHEDULE 5.6 hereto, no
written claims are being made and no other claims are, to the knowledge
of the executive officers of the Borrower, asserted with respect to any
such taxes except for liens and claims which, in the aggregate, are not
reasonably expected to exceed $25,000,000. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect
of any taxes or other governmental charges have been established in
accordance with Agreement Accounting Principles and, to the knowledge
of the executive officers of the Borrower, are adequate.
5.7. LITIGATION AND CONTINGENT OBLIGATIONS. Except as set
forth on SCHEDULE 5.7 hereto, there is no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the
knowledge of any of their executive officers, threatened against or
affecting the Borrower or any of its Subsidiaries which, if adversely
determined, could reasonably be expected to result in a Material
Adverse Effect. Other than any liability incident to such litigation,
arbitration or proceedings, the Borrower and its Subsidiaries have no
material contingent obligations not provided for or disclosed in the
financial statements referred to in SECTION 5.4.
5.8. SUBSIDIARIES. SCHEDULE 5.8 hereto contains an accurate
list of all of the presently existing Subsidiaries of the Borrower,
setting forth their respective jurisdictions of incorporation and the
percentage of their respective capital stock owned by the Borrower or
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other Subsidiaries. All of the issued and outstanding shares of capital
stock of such Subsidiaries have been duly authorized and issued and are
fully paid and non-assessable.
5.9. ERISA. The Unfunded Liabilities of all Single Employer
Plans do not in the aggregate exceed $40,000,000. Neither the Borrower
nor any other member of the Controlled Group has failed to make any
required installment or any other required payment under Section 412 of
the Code on or before the due date for such installment or other
payment with respect to a Single Employer Plan, or has failed to make a
required contribution or payment to a Multiemployer Plan. Neither the
Borrower nor any other member of the Controlled Group has any potential
liability, whether direct or indirect, contingent or otherwise, under
SECTION 4069, 4204 or 4212(c) of ERISA. Each Plan complies in all
material respects with all applicable requirements of law and
regulations and has been administered in all material respects in
accordance with its terms. No Reportable Event has occurred with
respect to any Plan, neither the Borrower nor any other member of the
Controlled Group has withdrawn from any Plan or initiated steps to do
so, no steps have been taken to reorganize or terminate any Plan, no
event has occurred which imposes an obligation on the Borrower or any
member of the Controlled Group under SECTION 4041 of ERISA to provide
affected parties written notice of intent to terminate a Plan in a
distress termination described in SECTION 4041(c) of ERISA; no event or
condition has occurred which is reasonably likely to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment
of a trustee to administer, any Plan, in any such case where such event
could reasonably be expected to have a Material Adverse Effect.
5.10. ACCURACY OF INFORMATION. No written information, exhibit
or report furnished by the Borrower or any of its Subsidiaries to the
Administrative Agent, the Swing Line Lender, any Issuing Lender or the
Lenders contained any material misstatement of fact or omitted to state
a material fact or any fact necessary to make the statements contained
therein not misleading in light of the circumstances under which they
were made.
5.11. REGULATIONS G, T, U AND X. Margin stock (as defined in
Regulation U) constitutes less than 25% of those assets of the Borrower
and its Subsidiaries which are subject to any limitation on sale,
pledge, or other restriction hereunder. Neither the Borrower nor any of
its Subsidiaries is engaged in the business of purchasing or carrying
margin stock.
5.12. MATERIAL AGREEMENTS. Neither the Borrower nor any
Subsidiary is in default in the performance, observance or fulfillment
of any of the obligations, covenants or conditions contained in (i) any
agreement to which it is a party, which default could reasonably be
expected to have a Material Adverse Effect or (ii) any agreement or
instrument evidencing or governing Material Indebtedness.
5.13. COMPLIANCE WITH LAWS. The Borrower and its Subsidiaries
have complied with all applicable statutes, rules, regulations, orders
and restrictions of any Governmental
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Authority having jurisdiction over the conduct of their respective
businesses or the ownership of their respective Property except where
the failure to so comply could not reasonably be expected to result in
a Material Adverse Effect. Except as set forth in SCHEDULE 5.13 hereto,
neither the Borrower nor any Subsidiary has received any notice to the
effect that its operations are not in material compliance with any
Environmental, Health or Safety Requirements of Law or the subject of
any federal or state investigation evaluating whether any remedial
action is needed to respond to a release of any petroleum, toxic or
hazardous waste or substance into the environment, which non-compliance
or remedial action could reasonably be expected to have a Material
Adverse Effect.
5.14. OWNERSHIP OF PROPERTY. Except as set forth on SCHEDULE
5.14 hereto, on the date of this Agreement, the Borrower and its
Subsidiaries have good title, free of all Liens other than those
permitted by SECTION 6.15, to all of the Property and assets reflected
in the financial statements referred to in SECTION 5.4 as owned by it.
The Borrower and each of its Subsidiaries owns (or is licensed to use)
all Intellectual Property which is necessary or appropriate in any
material respect for the conduct of its respective business as
conducted on the date of this Agreement, without any material conflict
with the rights of any other Person. Neither the Borrower nor any
Subsidiary is aware of (i) any material existing or threatened
infringement or misappropriation of any of its Intellectual Property by
any third party or (ii) any material third party claim that any aspect
of the business of the Borrower or any Subsidiary (as conducted on the
date of this Agreement) infringes or will infringe upon, any
Intellectual Property or other property right of any other Person, in
each case that could reasonably be expected to have a Material Adverse
Effect.
5.15. LABOR MATTERS. There are no labor controversies pending
or, to the best of the Borrower's and its Subsidiaries' knowledge,
threatened against the Borrower or any Subsidiary, which, if adversely
determined, could reasonably be expected to have a Material Adverse
Effect. The Borrower and each of its Subsidiaries are in substantial
compliance in all material respects with the Fair Labor Standards Act,
as amended.
5.16. INVESTMENT COMPANY ACT. Neither the Borrower nor any
Subsidiary thereof is an "investment company" or a company "controlled"
by an "investment company", within the meaning of the Investment
Company Act of 1940, as amended.
5.17. PUBLIC UTILITY HOLDING COMPANY ACT. Neither the Borrower
nor any Subsidiary is a "holding company" or a "subsidiary company" of
a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the
Public Utility Holding Company Act of 1935, as amended.
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ARTICLE VI
COVENANTS
6. COVENANTS. During the term of this Agreement, unless the
Required Lenders shall otherwise consent in writing:
6.1. FINANCIAL REPORTING. The Borrower will maintain, for
itself and its Subsidiaries, a system of accounting established and
administered in accordance with generally accepted accounting
principles, and will furnish or cause to be furnished to the
Administrative Agent with sufficient copies for each of the Lenders:
(a) As soon as practicable but in any event within 105 days
after the close of each of its fiscal years, an audit report (which
audit report shall be unqualified or shall be otherwise reasonably
acceptable to the Required Lenders; PROVIDED that such report may set
forth qualifications to the extent such qualifications pertain solely
to changes in generally accepted accounting principles from the
Agreement Accounting Principles applied during earlier accounting
periods, the implementation of which changes (with the concurrence of
such accountants) is reflected in the financial statements accompanying
such report), certified by independent certified public accountants who
are reasonably acceptable to the Required Lenders, prepared in
accordance with Agreement Accounting Principles on a consolidated basis
for itself and its Subsidiaries, including balance sheets as of the end
of such period and the related statements of income, and consolidated
stockholder's equity and cash flows, accompanied by a certificate of
said accountants that, in the course of their examination necessary for
their certification of the foregoing, they have obtained no knowledge
of any Default or Unmatured Default, or if, in the opinion of such
accountants, any Default or Unmatured Default shall exist, stating the
nature and status thereof.
(b) As soon as practicable but in any event within 60 days
after the close of each of the first three quarterly periods of each of
its fiscal years, for itself and its Subsidiaries on a consolidated
basis, balance sheets as of the end of such period and the related
statements of income, and consolidated stockholder's equity and cash
flows for the period from the beginning of such fiscal year to the end
of such quarter, all certified by its Chief Financial Officer,
Controller or Treasurer as to fairness of presentation and prepared,
with respect to such consolidated statements, in accordance with
Agreement Accounting Principles (subject to normal year end
adjustments).
(c) Together with the financial statements required hereunder,
a compliance certificate in substantially the form of EXHIBIT "C"
hereto signed by its Chief Financial Officer, Controller or Treasurer
showing the calculations necessary to determine compliance with
SECTIONS 6.16 and 6.17 and stating that no Default or Unmatured Default
exists, or if any Default or Unmatured Default exists, stating the
nature and status thereof and the Borrower's plans with respect
thereto.
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(d) As soon as possible and in any event within 10 days after
an executive officer of the Borrower knows that any Reportable Event or
any other event described in Section 5.9 has occurred with respect to
any Plan, a statement, signed by the Chief Financial Officer or
Treasurer of the Borrower, describing said Reportable Event or other
event and the action which the Borrower proposes to take with respect
thereto.
(e) As soon as possible and in any event within 10 days after
receipt by the Borrower or any Subsidiary, a copy of (a) any notice or
claim to the effect that the Borrower or any of its Subsidiaries is or
may be liable to any Person as a result of the release by the Borrower,
any of its Subsidiaries, or any other Person of any petroleum, toxic or
hazardous waste or substance into the environment, and (b) any notice
alleging any violation of any Environmental, Health or Safety
Requirements of Law by the Borrower or any of its Subsidiaries, which,
in either case, could reasonably be expected to have a Material Adverse
Effect or subject the Borrower and its Subsidiaries to liability,
individually or in the aggregate, in excess of $10,000,000 (in each
case, determined after giving effect to claims which the Borrower has
demonstrated to the reasonable satisfaction of the Administrative Agent
are covered by applicable third-party insurance policies (other than
retro-premium insurance or other policies with similar self-insurance
attributes) of the Borrower or any of its Subsidiaries unless the
insurers of such claims have disclaimed coverage or reserved the right
to disclaim coverage).
(f) Promptly upon the furnishing thereof to the shareholders
of the Borrower, copies of all financial statements, reports and proxy
statements so furnished.
(g) Promptly upon the filing thereof, copies of all final
registration statements, proxy statements and annual, quarterly,
monthly or other reports which the Borrower or any of its Subsidiaries
files with the Securities and Exchange Commission (provided the
Borrower shall not be obligated to provide copies of routine reports
which are required to be filed concerning the management of employee
benefit plans, including, without limitation, stock purchases or the
exercise of stock options made under any such employee benefit plan).
(h) Except to the extent that such items are redundant with
reports or information otherwise provided pursuant to this Section 6.1,
promptly upon the furnishing thereof to the holders thereof, copies of
all financial statements and reports furnished to the holders of (or
trustee or other representative for the holders of) any Indebtedness
for money borrowed of the Borrower or its Subsidiaries.
(i) Such other information (including non-financial
information) as any Lender through the Administrative Agent may from
time to time reasonably request.
6.2. USE OF PROCEEDS. The Borrower will, and will cause each
of its Subsidiaries to, use the proceeds of the Advances and the Swing
Line Loans to repay outstanding loans and advances made under the 1995
Credit Agreement, to repay Advances, Reimbursement
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Obligations and the Swing Line Loans or for general corporate or
working capital purposes. The Borrower will not, nor will it permit any
Subsidiary, to use proceeds of the Advances and the Swing Line Loans
other than as contemplated in this SECTION 6.2.
6.3. OTHER NOTICES. Promptly after the Borrower or relevant
subsidiary becomes aware of such occurrence, the Borrower will, and
will cause each of its Subsidiaries to, give notice in writing to the
Lenders of the occurrence of: (a) any Default or Unmatured Default; and
(b) any other development, financial or otherwise, which could
reasonably be expected to have a Material Adverse Effect; PROVIDED, no
separate notice of the occurrence of any such development under this
CLAUSE (b) needs to be given to the extent such item has been disclosed
in the Borrower's annual, quarterly or other reports (i.e., 10-K, 10-Q
or 8-K) filed with the Securities and Exchange Commission and delivered
pursuant to SECTION 6.1(g) or in a press release issued by the Borrower
or one of its Subsidiaries. Any such notice shall state the nature and
status of the occurrence and any and all actions taken with respect
thereto.
6.4. CONDUCT OF BUSINESS. The Borrower will, and will cause
each of its Subsidiaries to, carry on and conduct its business in
substantially the same manner and in substantially the same or
complementary fields of enterprise as it is presently conducted and to
do all things necessary to remain duly incorporated, validly existing
and in good standing as a domestic corporation in its jurisdiction of
incorporation and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted except
for transactions permitted under SECTIONS 6.10, 6.11, 6.13, or 6.18 or
where the failure to maintain such authority could not reasonably be
expected to have a Material Adverse Effect.
6.5. TAXES. The Borrower will, and will cause each of its
Subsidiaries to, pay when due all material taxes, assessments and
governmental charges and levies upon it or its income, profits or
Property, except those which are being contested in good faith by
appropriate proceedings and with respect to which adequate reserves
have been set aside in accordance with Agreement Accounting Principles
and in connection with which no tax Lien has been filed.
6.6. INSURANCE. The Borrower will, and will cause each of its
Subsidiaries to, maintain with financially sound and reputable
insurance companies insurance on all their Property in such amounts and
covering such risks as is consistent with sound business practice, and
the Borrower will furnish to the Administrative Agent upon request of
any Lender full information as to the insurance carried.
6.7. COMPLIANCE WITH LAWS. The Borrower will, and will cause
each of its Subsidiaries to, comply in all material respects with all
laws (including, without limitation, all environmental laws), rules,
regulations, orders, writs, judgments, injunctions, decrees or awards
to which it may be subject, except where the failure to so comply could
not reasonably be expected to have a Material Adverse Effect.
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6.8. MAINTENANCE OF PROPERTIES. The Borrower will, and will
cause each of its Subsidiaries to, do all things necessary to maintain,
preserve, protect and keep its material Property in good repair,
working order and condition, ordinary wear and tear excepted, and make
all necessary and proper repairs, renewals and replacements so that its
business carried on in connection therewith may be properly conducted
at all times. The Borrower will, and will cause each Subsidiary to, do
all things necessary to maintain, preserve and protect all of its
material Intellectual Property including, without limitation, perform
each of its respective obligations under any and all license agreements
and other contracts and agreements evidencing or relating to
Intellectual Property, using the same in interstate or foreign
commerce, properly marking such Intellectual Property and maintaining
all necessary and appropriate governmental registrations (both domestic
and foreign) except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect.
6.9. INSPECTION. The Borrower will, and will cause each of its
Subsidiaries to, permit the Administrative Agent and any or each
Lender, by its respective representatives and agents, to inspect any of
the Property, corporate books and financial records of the Borrower and
each of its Subsidiaries, to examine and make copies of the books of
accounts and other financial records of the Borrower and each of its
Subsidiaries, and to discuss the affairs, finances and accounts of the
Borrower and each of its Subsidiaries with, and to be advised as to the
same by, their respective officers at such reasonable times and
intervals as the Administrative Agent or such Lender may designate.
Prior to the occurrence of a Default or Unmatured Default, the Lenders
will use reasonable efforts to coordinate their inspection through the
Administrative Agent so as to minimize any disruption to the business
of the Borrower and its Subsidiaries.
6.10. MERGER. The Borrower will not, nor will it permit any of
its Subsidiaries to, merge, amalgamate or consolidate with or into any
other Person, except that a Wholly-Owned Subsidiary may merge with the
Borrower or a Wholly-Owned Subsidiary of the Borrower, subject to the
further conditions that (a) if the Borrower is a party to any such
permitted merger, the Borrower shall be the surviving corporation and
(b) if any Material Subsidiary is a party to any such permitted merger,
the surviving corporation shall either be or become a party to the
Facility Guaranty pursuant to the terms of Section 6.21. Nothing herein
shall prohibit a transaction otherwise in compliance with Section 6.11,
6.13, or 6.18.
6.11. Sale of Assets. Except as disclosed in Schedule 6.11,
the Borrower will not, nor will it permit any of its Subsidiaries to,
lease, sell or otherwise dispose of its Property, to any other Person
except for:
(a) Sales of inventory in the ordinary course of business
(which in the business of the Borrower and its Subsidiaries may include
sales of larger quantities of inventory other than to consumers
provided such sales are consistent with the Borrower's and its
Subsidiaries' past practices and which are not extraordinary
transactions under Agreement Accounting Principles);
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(b) The sale, discount, or transfer of delinquent accounts
receivable in the ordinary course of business for purposes of
collection only;
(c) Occasional sales, leases or other dispositions of
immaterial assets for cash consideration and for not less than fair
market value;
(d) Sales, leases or other dispositions of assets that are
obsolete or have negligible fair market value;
(e) Sales of equipment for cash consideration and for fair
market value (but if replacement equipment is necessary for the proper
operation of the business of the seller, the seller must promptly
replace the sold equipment);
(f) Leases, sales or other dispositions of its Property to the
Borrower or a Wholly-Owned Subsidiary of the Borrower;
(g) Other leases, sales or other dispositions of its Property
subject to the requirement that the net proceeds of each such lease,
sale or other disposition of Property are reinvested in the business of
the Borrower and the Subsidiaries as conducted in accordance with the
requirements of SECTION 6.4 or are used for other general corporate
purposes;
(h) Sales of assets in the ordinary course of business and
consistent with past practices for not less than fair market value,
including store closings.
Notwithstanding anything herein to the contrary, the aggregate amount of
Property of the Borrower and its Subsidiaries leased, sold or disposed of
pursuant to CLAUSES (g) and (h) (excluding any equipment which has been promptly
replaced) during the twelve-month period ending with the month in which any such
lease, sale or other disposition occurs shall not: (1) in any single transaction
or series of related transactions constitute a Substantial Portion of the
Property of the Borrower and its Subsidiaries under clause (b) of the definition
of Substantial Portion or (2) in the aggregate constitute a Substantial Portion
of the Property of the Borrower and its Subsidiaries under CLAUSE (a) of the
definition of Substantial Portion. Notwithstanding anything herein to the
contrary, after consummation of any transaction permitted under this SECTION
6.11, the Borrower shall own not less than eighty percent (80%) of the
outstanding capital stock of Material Subsidiaries the domestic assets of which
Material Subsidiaries together with the domestic assets of the Borrower
represent at least eighty-five percent (85%) of the total domestic consolidated
assets of the Borrower and its Subsidiaries immediately after the consummation
of such transaction.
6.12. AFFILIATES. Except in connection with transactions
otherwise permitted pursuant to the terms of this Article VI, the Borrower will
not, nor will it permit any of its Subsidiaries
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to, enter into any transaction (including, without limitation, the purchase or
sale of any Property or service) with, or make any payment or transfer to, any
Affiliate except in the ordinary course of business and pursuant to the
reasonable requirements of the Borrower's or such Subsidiary's business and upon
fair and reasonable terms no less favorable to the Borrower or such Subsidiary
than the Borrower or such Subsidiary would obtain in a comparable arm's-length
transaction; provided, however, that these provisions shall not be applicable
with respect to transactions among the Borrower and its Subsidiaries which are
in the ordinary course of business and consistent with past practice.
6.13. INVESTMENTS. The Borrower will not, nor will it permit
any of its Subsidiaries to, make or suffer to exist any Investments, or
commitments therefor, except:
(a) Investments by the Borrower or any of its Subsidiaries in
and to any domestic Subsidiary;
(b) Investments by the Borrower or any of its Subsidiaries in
and to any foreign Subsidiary in an aggregate amount at any time not to
exceed 20% of Consolidated Net Worth;
(c) Investments in existence as of the close of business on
the date hereof and which are described in Schedule 6.13 hereto;
(d) Subject to the proviso set forth below, investments made
in connection with Acquisitions permitted under Section 6.18;
(e) Investments consisting of cash and cash equivalents; and
(f) Other Investments in any other Persons in an aggregate
amount at any time not to exceed 10% of Consolidated Net Worth;
provided, however, not withstanding anything in this Section 6.13 or Section
6.18 to the contrary, the aggregate amount of Investments made in connection
with Acquisitions made pursuant to clause (b) of Section 6.18 and pursuant to
clause (f) above shall not exceed 10% of Consolidated Net Worth.
6.14. Contingent Obligations. The Borrower will not, nor will
it permit any of its Subsidiaries to, make or suffer to exist any Contingent
Obligation, except:
(a) by endorsement of instruments for deposit or collection in
the ordinary course of business;
62
(b) Contingent Obligations of the Borrower and any of its
Subsidiaries existing as of the close of business on the date hereof
which are described on SCHEDULE 6.14;
(c) Contingent Obligations in respect of the obligations of
any domestic Subsidiary;
(d) Reimbursement Obligations in connection with Letters of
Credit;
(e) Reimbursement Obligations in connection with letters of
credit not issued by the Issuing Lenders (provided the issuance thereof
is not violative of any other provision of this ARTICLE VI);
(f) Contingent Obligations consisting of the Borrower's
guaranty of reimbursement obligations of any Subsidiary in connection
with letters of credit not issued by the Issuing Lenders (provided the
issuance thereof is not violative of any other provision of this
ARTICLE VI);
(g) Contingent Obligations of any Subsidiary to the extent
such Contingent Obligations constitute Indebtedness permitted under
this Article VI;
(h) Guaranties of the Loans hereunder;
(i) Contingent Obligations of the Borrower to the extent such
Contingent Obligations are included in the calculation of Funded Debt;
and
(j) Contingent Obligations in an additional aggregate amount
not to exceed $100,000,000 at any one time outstanding.
6.15. LIENS. (a) The Borrower will not, nor will it permit any
of its Subsidiaries to, create, incur, or suffer to exist any Lien in, of or on
the Property of the Borrower or such Subsidiary, as applicable, except:
(i) Liens for taxes, assessments or governmental
charges or levies on its Property if the same shall not at the
time be delinquent or thereafter can be paid without penalty,
or are being contested in good faith and by appropriate
proceedings and for which adequate reserves in accordance with
Agreement Accounting Principles shall have been set aside on
its books;
(ii) Liens imposed by law, such as carriers',
warehousemen's and mechanics' liens and other similar liens
arising in the ordinary course of business which secure
payment of obligations not more than 60 days past due or which
are being contested in good faith by appropriate proceedings
and for which adequate reserves in
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accordance with Agreement Accounting Principles shall have
been set aside on its books;
(iii) Liens arising out of pledges or deposits under
worker's compensation laws, unemployment insurance, old age
pensions, or other social security or retirement benefits, or
similar legislation;
(iv) utility easements, building restrictions and
such other encumbrances or charges against real property as
are of a nature generally existing with respect to properties
of a similar character and which do not in any material way
affect the same or interfere with the use thereof in the
business of the Borrower or any Subsidiary of the Borrower;
(v) Liens existing as of the close of business on the
date hereof and which are described in Schedule 5.14;
(vi) Liens created or incurred after the date hereof,
given to secure the Indebtedness incurred or assumed in
connection with the acquisition or construction of property or
assets useful and intended to be used in carrying on the
business of the Borrower or any Subsidiary of the Borrower,
including Liens existing on such property or assets at the
time of acquisition or construction thereof or at the time of
acquisition or construction by the Borrower or such
Subsidiary, as applicable, of an interest in any business
entity then owning such property or assets, whether or not
such existing Liens were given to secure the consideration for
the property or assets to which they attach, subject to the
requirement that the Lien shall attach solely to the assets
acquired or purchased;
(vii) secured or unsecured purchase money
Indebtedness (including Capitalized Leases) incurred in the
ordinary course of business to finance the acquisition of
fixed assets or equipment used in the business of such
Subsidiary if such Indebtedness does not exceed the lower of
the fair market value or the cost of the applicable fixed
assets or equipment on the date acquired;
(viii) Liens on real property with respect to
Indebtedness the proceeds of which are used (a) for the
construction or improvement of the real property securing such
Indebtedness or (b) to finance the cost of construction or
improvement of such real property provided such financing
occurs within one hundred eighty (180) days of receipt of the
certificate of occupancy with respect to such construction or
improvement (other than with respect to a refinancing under
clause (x) below);
(ix) other Liens (a) securing Indebtedness or other
obligations not exceeding $50,000,000 at any one time
outstanding or (b) on property having in the aggregate
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a fair market value at the time of incurrence of the Lien not
exceeding $50,000,000 at any one time outstanding, whichever
is greater;
(x) any extension, renewal or replacement of any Lien
permitted by the preceding clauses (vi), (vii), (viii) or (ix)
hereof in respect of the same property or assets theretofore
subject to such Lien in connection with the extension, renewal
or refunding of the Indebtedness secured thereby; provided
that (x) such Lien shall attach solely to the same property or
assets, and (y) such extension, renewal or refunding of such
Indebtedness shall be without increase in the principal
remaining unpaid as of the date of such extension, renewal or
refunding; and
(xi) Liens on the shares of capital stock of the
Borrower's foreign Subsidiaries securing Indebtedness in an
amount which shall not exceed twenty-five percent (25%) of the
assets of all foreign Subsidiaries.
6.16. MAXIMUM LEVERAGE RATIO. The Borrower shall not permit
its Leverage Ratio to be greater than the ratio set forth below at the
end of the fiscal quarter ending on or about the corresponding date set
forth below:
Fiscal Quarters Ending
On or About the
Dates Set Forth Below: Maximum Ratio
---------------------- -------------
On or prior to July 31, 1998 70%
After August 1, 1998
but prior to or including July 31, 1999 67%
Thereafter 65%
The Leverage Ratio shall be calculated, in each case, determined as of
the last day of each fiscal quarter based upon (A) for Funded Debt and
Consolidated Net Worth, Funded Debt and Consolidated Net Worth as of
the last day of each such fiscal quarter and (B) for Consolidated
Rentals, the actual amount for the four-quarter period ending on such
day.
6.17. MINIMUM FIXED CHARGE COVERAGE. The Borrower will, at all
times in which (a) the Rated Debt of the Borrower is rated less than
BBB- by S&P or is rated less than Baa3 by Xxxxx'x or (b) the Borrower's
Leverage Ratio is greater than 60%, maintain a Fixed Charge Coverage
Ratio for the most recently ended period of four consecutive fiscal
quarters of at least 1.5 to 1.
6.18. ACQUISITIONS. The Borrower will not, nor will it permit
any of its Subsidiaries to, make any Acquisition other than (a) a
Permitted Acquisition; and (b) other Acquisitions
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(i) made at a time when no Default or Unmatured
Default exists;
(ii) consummated pursuant to a negotiated
acquisition agreement on a non-hostile basis
approved by a majority of the board of
directors of all Persons parties thereto,
(iii) the aggregate consideration for which,
individually or when aggregated with the
aggregate consideration for other
Acquisitions made under this clause (b) does
not exceed 10% of Consolidated Net Worth,
and (iv) the aggregate consideration for all
such Acquisitions plus the aggregate amount
of Investments made pursuant to SECTION
6.13(f) does not exceed 10% of Consolidated
Net Worth.
6.19. RATE HEDGING OBLIGATIONS. The Borrower shall not and
shall not permit any of its Subsidiaries to enter into any interest
rate, commodity or foreign currency exchange, swap, collar, cap or
similar agreements other than interest rate, foreign currency or
commodity exchange, swap, collar, cap, leveraged derivative or similar
agreements entered into by the Borrower pursuant to which the Borrower
or such Subsidiary has hedged its actual interest rate, foreign
currency or commodity exposure.
6.20. MATERIAL SUBSIDIARIES. The Borrower will cause each
Person that becomes a Material Subsidiary of the Borrower after the
date of this Agreement (whether as the result of an Acquisition,
creation or otherwise and whether under clause (b) of the definition of
Material Subsidiary or as a result of a designation under clause (c) of
the definition of Material Subsidiary) to execute and deliver a
supplement to the Facility Guaranty in substantially the form set forth
in Exhibit I hereto to and in favor of the Administrative Agent for the
benefit of itself, the Issuing Lenders, the Swing Line Lender and the
Lenders, together with an opinion of counsel, corporate resolutions and
such other corporate documentation as the Administrative Agent may
reasonably request, all in form and substance satisfactory to the
Administrative Agent and in each case (a) within 30 days after becoming
a Material Subsidiary of the Borrower, for a Material Subsidiary under
clause (b) of the definition thereof and (b) at the time of
designation, for a Material Subsidiary under clause (c) of the
definition thereof. In addition, the Borrower will designate an
additional Subsidiary or Subsidiaries as "Material Subsidiaries" under
clause (c) of the definition of Material Subsidiary such that at the
end of each fiscal quarter ending on or prior to the Facility
Termination Date the Borrower and its Material Subsidiaries in the
aggregate shall own at least eighty-five percent (85%) of the total
consolidated domestic assets of the Borrower and its Subsidiaries.
6.21. SUBSIDIARY INDEBTEDNESS. The Borrower will not permit
any Subsidiary to create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness existing on the date hereof or
proposed to be incurred, each as described in Schedule 6.21
hereto;
(b) Indebtedness of any Subsidiary to third parties,
which Indebtedness for all such Subsidiaries does not exceed
20% of Consolidated Net Worth; and
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(c) Indebtedness of any Subsidiary to the Borrower or
to any other Subsidiary.
6.22. SUBORDINATION OF INTERCOMPANY INDEBTEDNESS. The Borrower
will not and will not permit any of its domestic Subsidiaries to
create, incur, assume or suffer to exist any intercompany Indebtedness
where the obligor on such Indebtedness is the Borrower or any
Subsidiary which is a party to the Guaranty, unless such indebtedness
is subordinated to the Obligations hereunder on the terms described in
SCHEDULE 6.22.
ARTICLE VII
DEFAULTS
7. DEFAULTS. The occurrence of any one or more of the
following events shall constitute a Default:
7.1. BREACH OF REPRESENTATION OR WARRANTY. Any representation
or warranty made or deemed made by or on behalf of the Borrower or any
of its Subsidiaries to the Lenders, the Swing Line Lender, the Issuing
Lenders or the Administrative Agent under or in connection with this
Agreement, any Loan, any Letter of Credit or any certificate or
information delivered in connection with this Agreement or any other
Loan Document shall be materially false on the date as of which made or
deemed made.
7.2. PAYMENT DEFAULT. Nonpayment of principal of any Loan,
Note or L/C Obligations when due, or nonpayment of interest upon any
Loan or Note or of any fee or other obligations under any of the Loan
Documents within five Business Days after the same becomes due.
7.3. BREACH OF CERTAIN COVENANTS. The breach by the Borrower
of (a) any of the terms or provisions of SECTIONS 6.2, and 6.4, CLAUSE
(a) of SECTION 6.3, any of SECTIONS 6.10 through 6.13, SECTION 6.15,
SECTIONS 6.18 through 6.19 or (b) any of the terms of SECTIONS 6.16 or
6.17 and such breach under this clause (b) continues for 10 days after
the first to occur of (i) the date an executive officer of the Borrower
first knows of or should have known of such breach or (ii) the date the
Borrower receives written notice from any Lender (acting through the
Administrative Agent) of such breach.
7.4. BREACH OF OTHER PROVISIONS. The breach by the Borrower
(other than a breach which constitutes a Default under SECTION 7.1, 7.2
or 7.3) of any of the terms or provisions of this Agreement, and such
breach continues for 30 days after the first to occur of (i) the date
an executive officer of the Borrower first knows of or should have
known of such breach or (ii) the date the Borrower receives written
notice from any Lender (acting through the Administrative Agent) of
such breach.
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7.5. DEFAULT ON MATERIAL INDEBTEDNESS. Failure of the Borrower
or any of its Subsidiaries to make a payment on Material Indebtedness
when due (after giving effect to any applicable grace period); or the
default by the Borrower or any of its Subsidiaries in the performance
of any term, provision or condition contained in any agreement or
agreements under which any Material Indebtedness was created or is
governed (and any applicable grace period(s) shall have expired), or
any other event shall occur or condition exist, the effect of which is
to cause, or to permit the holder or holders of such Material
Indebtedness to cause, such Material Indebtedness to become due prior
to its stated maturity; or any Indebtedness of the Borrower or any of
its Subsidiaries equal to or exceeding $10,000,000 in the aggregate
shall be declared to be due and payable or required to be prepaid
(other than by a regularly scheduled payment) prior to the stated
maturity thereof; or the Borrower or any of its Subsidiaries shall not
pay, or shall admit in writing its inability to pay, its debts
generally as they become due.
7.6. VOLUNTARY INSOLVENCY PROCEEDINGS. The Borrower or any of
its Subsidiaries shall (a) have an order for relief entered with
respect to it under the United States bankruptcy laws as now or
hereafter in effect or cause or allow any similar event to occur under
any bankruptcy or similar law or laws for the relief of debtors as now
or hereafter in effect in any other jurisdiction, (b) make an
assignment for the benefit of creditors, (c) apply for, seek, consent
to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator, monitor or similar official for it or any
Substantial Portion of its Property, (d) institute any proceeding
seeking an order for relief under the United States bankruptcy laws as
now or hereafter in effect or seeking to adjudicate it a bankrupt or
insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or any of
its property or its debts under any law relating to bankruptcy,
insolvency or reorganization or compromise of debt or relief of debtors
as now or hereafter in effect in any jurisdiction, or any organization,
arrangement or compromise of debt under the laws of its jurisdiction of
incorporation or fail to promptly file an answer or other pleading
denying the material allegations of any such proceeding filed against
it, (e) take any corporate action to authorize or effect any of the
foregoing actions set forth in this SECTION 7.6 or (f) fail to contest
in good faith, or consent to or acquiesce in, any appointment or
proceeding described in SECTION 7.7.
7.7. INVOLUNTARY INSOLVENCY PROCEEDINGS. Without the
application, approval or consent of the Borrower or any of its
Subsidiaries, a receiver, custodian, trustee, examiner, liquidator or
similar official shall be appointed (either privately or by a court)
for the Borrower or any of its Subsidiaries or any Substantial Portion
of its Property, or a proceeding described in SECTION 7.6(d) shall be
instituted against the Borrower or any of its Subsidiaries and such
appointment continues undischarged or such proceeding continues
undismissed or unstayed for a period of 60 consecutive days.
7.8. CONDEMNATION. Any court, government or governmental
agency shall condemn, seize or otherwise appropriate, or take custody
or control of (each a "Condemnation"), all or
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any portion of the Property of the Borrower and its Subsidiaries which,
when taken together with all other Property of the Borrower and its
Subsidiaries so condemned, seized, appropriated, or taken custody or
control of, during the twelve-month period ending with the month in
which any such Condemnation occurs, constitutes a Substantial Portion
of the consolidated Property of the Borrower and its Subsidiaries.
7.9. JUDGMENTS. The Borrower or any of its Subsidiaries shall
fail within 30 days to pay, bond or otherwise discharge any one or more
judgments or orders for the payment of money in excess of $10,000,000
in the aggregate (determined after giving effect to claims which the
Borrower has demonstrated to the reasonable satisfaction of the
Administrative Agent are covered by applicable third-party insurance
policies (other than retro-premium insurance or other policies with
similar self-insurance attributes) of the Borrower or any of its
Subsidiaries unless the insurers of such claims have disclaimed
coverage or reserved the right to disclaim coverage), which are
judgments are not stayed on appeal with adequate reserves set aside on
its books in accordance with Agreement Accounting Principles of the
Borrower or any of its Subsidiaries.
7.10. ERISA Matters. Any Reportable Event, the occurrence
which may reasonably be expected to give rise to Material Adverse
Effect, shall occur in connection with any Plan.
7.11. ENVIRONMENTAL MATTERS. The Borrower or any of its
Subsidiaries shall be the subject of any proceeding or investigation
pertaining to the release by the Borrower or any of its Subsidiaries or
any other Person of any petroleum, toxic or hazardous waste or
substance into the environment, or any violation of any Environmental,
Health or Safety Requirements of Law which, in either case, could
reasonably be expected to have a Material Adverse Effect or subject the
Borrower and its Subsidiaries to liability, individually or in the
aggregate, in excess of $20,000,000 (in each case, determined after
giving effect to claims which the Borrower has demonstrated to the
reasonable satisfaction of the Administrative Agent are covered by
applicable third-party insurance policies (other than retro-premium
insurance or other policies with similar self-insurance attributes) of
the Borrower or any of its Subsidiaries unless the insurers of such
claims have disclaimed coverage or reserved the right to disclaim
coverage).
7.12. CHANGE OF CONTROL. Any Change in Control shall occur.
7.13. CHANGE OF SUBSIDIARY OWNERSHIP; GUARANTY DEFAULTS. The
Borrower shall cease to own 80% of the outstanding capital stock of any
Material Subsidiary which has executed a Facility Guaranty except in
connection with a transaction expressly permitted under the terms of
SECTIONS 6.10, 6.11, 6.13 or 6.14; or any Facility Guaranty shall fail
to remain in full force or effect or any party thereto shall so assert;
or any action shall be taken to discontinue, revoke or to assert the
invalidity or unenforce ability of any Facility Guaranty; or any
Material Subsidiary shall fail to comply in any material respect with
any of the terms or provisions of any Facility Guaranty to which it is
a party; or any Material Subsidiary shall deny that it has
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any further liability under any Facility Guaranty to which it is a
party, or shall give notice to such effect.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. ACCELERATION. If any Default described in Section 7.6 or
7.7 occurs, the obligations of the Lenders to make Loans or purchase
participations in Letters of Credit or Swing Line Loans hereunder and the
obligation of the Issuing Lenders to issue Letters of Credit hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent
or any Lender, and without presentment, demand, protest or notice of any kind,
all of which the Borrower hereby expressly waives. If any other Default occurs
and is continuing (which Default has not been waived under the terms of Section
8.2) the Required Lenders may (a) terminate or suspend the obligations of the
Lenders to make Loans and purchase participations in Letters of Credit or Swing
Line Loans hereunder, whereupon the obligation of the Issuing Lenders to issue
Letters of Credit hereunder shall also terminate or be suspended, or (b) declare
the Obligations to be due and payable, whereupon the Obligations shall become
immediately due and payable, without presentment, demand, protest or notice of
any kind, all of which the Borrower hereby expressly waives, or (c) take the
action described in both the preceding clause (a) and the preceding clause (b).
If, within 30 days after acceleration of the maturity of the
Obligations or termination of the obligations of the Lenders to make Loans
hereunder as a result of any Default (other than any Default as described in
Section 7.6 or 7.7) and before any judgment or decree for the payment of the
Obligations due shall have been obtained or entered, the Required Lenders (in
their sole discretion) shall so direct, the Administrative Agent shall, by
notice to the Borrower, rescind and annul such acceleration and/or termination.
8.2. AMENDMENTS. Subject to the provisions of this Article
VIII, the Required Lenders (or the Administrative Agent with the consent in
writing of the Required Lenders) and the Borrower may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to the
Loan Documents or changing in any manner the rights of the Lenders or the
Borrower hereunder or waiving any Default or Unmatured Default hereunder;
provided, however, that no such supplemental agreement shall, without the
consent of each Lender affected thereby:
(a) extend the maturity of any Loan, Note or Reimbursement
Obligation or forgive all or any portion of the principal amount
thereof, any interest thereon or any fees or other amounts payable
hereunder, or reduce the rate or extend the time of payment of
interest, fees or other amounts payable hereunder;
(b) reduce the percentage specified in the definition of
Required Lenders;
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(c) increase the amount of the Commitment of any Lender
hereunder, or permit the Borrower to assign its rights or obligations
under this Agreement; or
(d) amend this SECTION 8.2.
No amendment of any provision of this Agreement relating in any way to the
Administrative Agent or any or all of the Letters of Credit shall be effective
without the written consent of the Administrative Agent and each Issuing Lender.
No amendment of any provision of this Agreement relating to Swing Line Loans
shall be effective without the written consent of the Swing Line Lender. The
Administrative Agent may waive payment of the fee required under SECTION 12.3.2
without obtaining the consent of any other party to this Agreement.
8.3. Preservation of Rights. No delay or omission of the
Lenders or any of them or the Administrative Agent to exercise any right under
the Loan Documents shall impair such right or be construed to be a waiver of any
Default or an acquiescence therein, and the making of a Loan notwithstanding the
existence of a Default or the inability of the Borrower to satisfy the
conditions precedent to such Loan shall not constitute any waiver or
acquiescence. Any single or partial exercise of any such right shall not
preclude any other or further exercise thereof or the exercise of any other
right, and no waiver, amendment or other variation of the terms, conditions or
provisions of the Loan Documents whatsoever shall be valid unless in writing
signed by (or with the consent of) the Lenders required pursuant to SECTION 8.2,
and then only to the extent specifically set forth in such writing. All remedies
contained in the Loan Documents or afforded by law shall be cumulative and all
shall be available to the Administrative Agent and the Lenders until the
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. SURVIVAL OF REPRESENTATIONS. All representations and
warranties of the Borrower contained in this Agreement shall survive delivery of
the Notes and the making of the Loans herein contemplated.
9.2. GOVERNMENTAL REGULATION. Anything contained in this
Agreement to the contrary notwithstanding, no Lender shall be obligated to
extend credit to the Borrower in violation of any limitation or prohibition
provided by any applicable statute or regulation.
9.3. TAXES; STAMP DUTIES. Any taxes (excluding taxes
(including income taxes, franchise taxes and branch profit taxes) as are imposed
on or measured by such Lender's, Swing Line Lender's or Issuing Lender's, as the
case may be, income by the United States of America or any Governmental
Authority of the jurisdiction under the laws of which such Lender, Swing Line
Lender or Issuing Lender, as the case may be, is organized or maintains its
Lending Installation) or other similar assessments or charges made by any
Governmental Authority or revenue authority in respect of the Loan Documents
shall be paid by the Borrower, together with interest and penalties, if any, as
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provided in Section 3.1. The Borrower shall pay and forthwith on demand
indemnify each of the Administrative Agent and each Lender against any liability
it incurs in respect of any stamp, registration and similar tax which is or
becomes payable in connection with the entry into, performance or enforcement of
any Loan Document.
9.4. HEADINGS. Section headings in the Loan Documents are for
convenience of reference only and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.5. ENTIRE AGREEMENT. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Administrative Agent and the
Lenders and supersede all prior agreements and understandings among the
Borrower, the Administrative Agent and the Lenders relating to the subject
matter thereof.
9.6. SEVERAL OBLIGATIONS; BENEFITS OF THIS AGREEMENT. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent to which
the Administrative Agent is authorized to act as such). The failure of any
Lender to perform any of its obligations hereunder shall not relieve any other
Lender from any of its obligations hereunder. This Agreement shall not be
construed so as to confer any right or benefit upon any Person other than the
parties (and their directors, officers and employees with respect to Section 9.7
to this Agreement) and their respective successors and assigns.
9.7. EXPENSES; INDEMNIFICATION. (a) The Borrower shall
reimburse the Administrative Agent for any reasonable costs, internal charges
and out-of-pocket expenses (including reasonable attorneys' fees and time
charges of attorneys for the Administrative Agent; which attorneys may be
employees of the Administrative Agent or of one outside counsel, but not both)
paid or incurred by the Administrative Agent in connection with the preparation,
negotiation, execution, delivery, syndication, review, amendment, modification,
and administration of the Loan Documents. The Borrower also agrees to reimburse
the Administrative Agent, the Issuing Lenders, the Swing Line Lender and the
Lenders for any reasonable costs, internal charges and out-of-pocket expenses
(including reasonable attorneys' fees and time charges not more than three firms
of attorneys for the Administrative Agent and the Lenders, which attorneys may
be employees of such persons) paid or incurred by the Administrative Agent or
any Lender in connection with the collection and enforcement of the Loan
Documents.
(b) The Borrower further agrees to defend, protect, indemnify,
and hold harmless the Administrative Agent, the Swing Line Lender and each and
all of the Issuing Lenders and Lenders and each of their respective Affiliates,
and each of such Person's respective officers, directors, employees, partners,
managers, shareholders, attorneys and agents (collectively, the "Indemnitees")
from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, claims, costs and expenses of any kind or
nature whatsoever (including, without limitation, the reasonable fees and
disbursements of attorneys and paralegals for such Indemnitees in connection
with any investigative, administrative or judicial proceeding, whether or not
such Indemnitees shall
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be designated a party thereto), imposed on, incurred by or asserted against such
Indemnitees in any manner relating to or arising out of:
(i) this Agreement, the other Loan Documents or any act, event or
transaction related or attendant thereto or to the making of
the Loans, and the issuance or modification of and
participation in Letters of Credit hereunder, the management
of such Loans or Letters of Credit, the use or intended use of
the proceeds of the Loans or Letters of Credit hereunder, or
any of the other transactions contemplated by the Loan
Documents; or
(ii) any liabilities, obligations, responsibilities, losses,
damages, personal injury, death, punitive damages, economic
damages, consequential damages, treble damages, intentional,
willful or wanton injury, damage or threat to the environment,
natural resources or public health or welfare, costs and
expenses (including, without limitation, attorney, expert and
consulting fees and costs of investigation, feasibility or
remedial action studies), fines, penalties and monetary
sanctions and interest, direct or indirect, known or unknown,
absolute or contingent, past, present or future relating to
violation of any Environmental, Health or Safety Requirements
of Law arising from or in connection with the past, present or
future operations of the Borrower, its Subsidiaries or any of
their respective predecessors in interest, or, the past,
present or future environmental, health or safety condition of
any respective Property of the Borrower or its Subsidiaries,
the presence of asbestos-containing materials at any
respective property of the Borrower or its Subsidiaries or the
release or threatened release of any petroleum, toxic or
hazardous waste or substance into the environment
(collectively, the "INDEMNIFIED MATTERS");
PROVIDED, HOWEVER, the Borrower shall have no obligation to an Indemnitee
hereunder with respect to Indemnified Matters caused solely by or resulting
solely from the willful misconduct or Gross Negligence of such Indemnitee as
determined by the final non-appealable judgment of a court of competent
jurisdiction. If the undertaking to indemnify, pay and hold harmless set forth
in the preceding sentence may be unenforceable because it is violative of any
law or public policy, the Borrower shall contribute the maximum portion which it
is permitted to pay and satisfy under applicable law, to the payment and
satisfaction of all Indemnified Matters incurred by the Indemnitees.
(c) The Borrower further agrees to assert no claim against any of the
Indemnitees on any theory of liability for consequential, special, indirect,
exemplary or punitive damages. No settlement shall be entered into by the
Borrower or any of its Subsidiaries with respect to any claim, litigation,
arbitration or other proceeding relating to or arising out of the transaction
evidenced by this Agreement or the other Loan Documents (whether or not the
Administrative Agent or any Lender or any other Indemnitee is a party thereto)
unless such settlement releases all Indemnitees
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from any and all liability with respect thereto. After submission of a written
request to an Indemnitee from the Borrower detailing the nature of any claim,
litigation, arbitration or other proceeding which relates to or arises out of
the transaction evidenced by this Agreement or the other Loan Documents, such
Indemnitee shall inform the Borrower as to whether it will require compliance
with the provisions of this clause (c) or whether it will waive such compliance,
any waiver of which shall be applicable only for such Indemnitee.
(d) The obligations of the Borrower under this Section shall survive
the termination of this Agreement.
9.8. NUMBERS OF DOCUMENTS. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative Agent
with sufficient counterparts so that the Administrative Agent may furnish one to
each of the Lenders.
9.9. ACCOUNTING. Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles. If any changes in generally accepted accounting principles are
hereafter required or permitted and are adopted by the Borrower or any of its
Subsidiaries with the agreement of its independent certified public accountants
and such changes result in a change in the method of calculation of any of the
financial covenants, restrictions or standards herein or in the related
definitions or terms used therein ("Accounting Changes"), the parties hereto
agree, at the Borrower's request, to enter into negotiations, in good faith, in
order to amend such provisions in a credit neutral manner so as to reflect
equitably such Accounting Changes with the desired result that the criteria for
evaluating the Borrower's and its Subsidiaries' financial condition shall be the
same after such Accounting Changes as if such Accounting Changes had not been
made; provided, however, until such provisions are amended in a manner
reasonably satisfactory to the Administrative Agent and the Required Lenders, no
Accounting Change shall be given effect in such calculations and all financial
statements and reports required to be delivered hereunder shall be prepared in
accordance with Agreement Accounting Principles without taking into account such
Accounting Changes. In the event such amendment is entered into, all references
in this Agreement to Agreement Accounting Principles shall mean generally
accepted accounting principles in effect as of the date of such amendment.
9.10. SEVERABILITY OF PROVISIONS. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.11. NONLIABILITY OF LENDERS. The relationship between the
Borrower, on the one hand, and the Lenders and the Administrative Agent, on the
other hand, shall be solely that of borrower and lender. Neither the
Administrative Agent nor any Lender shall have any fiduciary responsibilities to
the Borrower or any of its Subsidiaries. Neither the Administrative Agent nor
any
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Lender undertakes any responsibility to the Borrower or any of its Subsidiaries
to review or inform the Borrower or any of its Subsidiaries of any matter in
connection with any phase of the business or operations of the Borrower or any
of its Subsidiaries.
9.12. GOVERNING LAW. THE ADMINISTRATIVE AGENT ACCEPTS THIS
AGREEMENT, ON BEHALF OF ITSELF, THE ISSUING LENDERS, THE SWING LINE LENDER AND
THE LENDERS, AT CHICAGO, ILLINOIS BY ACKNOWLEDGING AND AGREEING TO IT THERE. ANY
DISPUTE BETWEEN THE BORROWER AND ANY OF THE ADMINISTRATIVE AGENT, ANY ISSUING
LENDER, THE SWING LINE LENDER OR ANY LENDER, OR ANY OTHER HOLDER OF THE
OBLIGATIONS ARISING OUT OF, CONNECTED WITH, RELATED TO OR INCIDENTAL TO THE
RELATIONSHIP ESTABLISHED BETWEEN THEM IN CONNECTION WITH THIS AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS, AND WHETHER ARISING IN CONTRACT, TORT, EQUITY OR
OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE INTERNAL LAWS (WITHOUT
REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
9.13. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
(A) JURISDICTION. THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR ILLINOIS STATE COURT
SITTING IN CHICAGO IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO ANY
LOAN DOCUMENTS AND THE BORROWER HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN
RESPECT OF SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH
COURT AND IRREVOCABLY WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO
THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT
SUCH COURT IS AN INCONVENIENT FORUM, BUT THE BORROWER ACKNOWLEDGES THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
CHICAGO, ILLINOIS. EXCEPT AS SET FORTH IN CLAUSE (B) BELOW, ANY JUDICIAL
PROCEEDING BY THE ADMINISTRATIVE AGENT, THE SWING LINE LENDER, ANY ISSUING
LENDER OR ANY LENDER ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT OR ANY
OF THE OTHER LOAN DOCUMENTS IF BROUGHT OTHER THAN IN ANY UNITED STATES FEDERAL
OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS, SHALL BE BROUGHT ONLY IN A
COURT IN BOSTON, MASSACHUSETTS OR NEW YORK, NEW YORK. ANY JUDICIAL PROCEEDING BY
THE BORROWER AGAINST THE ADMINISTRATIVE AGENT, THE SWING LINE LENDER, ANY
ISSUING LENDER OR ANY LENDER OR ANY AFFILIATE OF ANY SUCH PERSON INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO OR
CONNECTED WITH THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT SHALL BE BROUGHT ONLY
IN A COURT IN CHICAGO, ILLINOIS, BOSTON, MASSACHUSETTS OR
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NEW YORK, NEW YORK, TO THE EXTENT THAT JURISDICTION CAN BE OBTAINED AGAINST SUCH
PERSONS IN ANY SUCH JURISDICTION, BUT THE PARTIES HERETO ACKNOWLEDGE THAT ANY
APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
CHICAGO, ILLINOIS, BOSTON, MASSACHUSETTS OR NEW YORK, NEW YORK. EACH OF THE
PARTIES HERETO WAIVES IN ALL DISPUTES BROUGHT IN THE JURISDICTIONS IDENTIFIED IN
THIS SUBSECTION (A) ANY OBJECTION THAT IT MAY HAVE TO THE LOCATION OF THE COURT
CONSIDERING THE DISPUTE PROVIDED, WITH RESPECT TO THE ADMINISTRATIVE AGENT OR
ANY LENDER, PERSONAL JURISDICTION WITH RESPECT TO SUCH PARTY MAY BE OBTAINED IN
SUCH JURISDICTION.
(B) OTHER JURISDICTIONS. NOTHING HEREIN SHALL LIMIT THE RIGHT OF ANY
PERSON TO BRING ANY ACTION HEREUNDER IN A COURT IN ANY LOCATION TO ENABLE SUCH
PERSON TO OBTAIN PERSONAL JURISDICTION OVER ANY OTHER PERSON WITH RESPECT
HERETO. THE BORROWER AGREES THAT THE ADMINISTRATIVE AGENT, ANY ISSUING LENDER,
ANY SWING LINE LENDER, ANY LENDER OR ANY OTHER HOLDER OF THE OBLIGATIONS SHALL
HAVE THE RIGHT TO PROCEED AGAINST THE BORROWER OR ITS PROPERTY IN A COURT IN ANY
LOCATION TO ENABLE SUCH PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER
ENTERED IN FAVOR OF SUCH PERSON. THE BORROWER AGREES THAT IT WILL NOT ASSERT ANY
PERMISSIVE COUNTERCLAIMS IN ANY PROCEEDING BROUGHT UNDER THIS CLAUSE (B) BY SUCH
PERSON TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH PERSON, ALL
OF WHICH PERMISSIVE COUNTERCLAIMS SHALL BE BROUGHT BY THE BORROWER IN THE
JURISDICTIONS IDENTIFIED IN CLAUSE (A) ABOVE. THE BORROWER WAIVES ANY OBJECTION
THAT IT MAY HAVE TO THE LOCATION OF THE COURT IN WHICH SUCH PERSON HAS COMMENCED
A PROCEEDING DESCRIBED IN THIS SUBSECTION (B).
(C) SERVICE OF PROCESS; INCONVENIENT FORUM. THE BORROWER WAIVES
PERSONAL SERVICE OF ANY PROCESS UPON IT AND AGREES THAT ANY SUCH PROCESS MAY BE
SERVED BY REGISTERED MAIL TO THE BORROWER AT ITS ADDRESS FOR NOTICES PURSUANT TO
SECTION 13.1. THE BORROWER IRREVOCABLY WAIVES ANY OBJECTION (INCLUDING, WITHOUT
LIMITATION, ANY OBJECTION OF THE LAYING OF VENUE OR BASED ON THE GROUNDS OF
FORUM NON CONVENIENS) WHICH IT MAY NOW OR HEREAFTER HAVE TO THE BRINGING OF ANY
SUCH ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER
INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH
IN ANY JURISDICTION SET FORTH ABOVE.
(D) WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO IRREVOCABLY WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, ARISING OUT OF, CONNECTED
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WITH, RELATED TO OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH THIS AGREEMENT OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT
EXECUTED OR DELIVERED IN CONNECTION HEREWITH. EACH OF THE PARTIES HERETO AGREES
AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE
DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY HERETO MAY FILE AN
ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN
EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO
TRIAL BY JURY.
(E) ADVICE OF COUNSEL. EACH OF THE PARTIES REPRESENTS TO EACH OTHER
PARTY HERETO THAT IT HAS DISCUSSED THIS AGREEMENT AND, SPECIFICALLY, THE
PROVISIONS OF THIS SECTION 9.13 WITH ITS COUNSEL.
9.14. CONFIDENTIALITY. Each Lender agrees to hold any
confidential information which it may receive from the Borrower pursuant to this
Agreement in confidence, except for disclosure (i) to other Lenders and its and
their respective Affiliates, Transferees and prospective Transferees, (ii) in
confidence to legal counsel, accountants and other professional advisors to that
Lender or to Transferees or prospective Transferees pursuant to SECTION 12.4,
(iii) to regulatory officials, (iv) to any Person as requested (which request
such Lender reasonably believes could give rise to mandatory disclosure) or
pursuant to or as required by law, regulation or legal process, (v) to any
Person in connection with any legal proceeding to which that Lender is a party
with respect to any claim, litigation, arbitration or other proceeding relating
to or arising out of the transaction evidenced by this Agreement or the other
Loan Documents, (vi) to any Person in connection with any other legal proceeding
to which that Lender is a party provided such Lender uses reasonable efforts to
give the Borrower notice of any disclosure thereunder, provided any failure in
such regard shall not result in any liability on the part of such Lender, and
(vii) permitted by SECTION 12.4.
9.15. FACILITY GUARANTY RELEASES. Each of the Lenders, the
Swing Line Lender, the Issuing Lenders and the Administrative Agent agrees that
upon the consummation of any transaction involving a merger permitted under the
last sentence of Section 6.10 or the sale of all or substantially all of the
assets of a Material Subsidiary, which sale is permitted pursuant to the terms
of Section 6.11, the Administrative Agent, for itself and on behalf of the
Lenders, the Swing Line Lender and the Issuing Lenders, shall release and
terminate the Facility Guaranty with respect to the Material Subsidiary which is
the subject of such transaction.
ARTICLE X
THE ADMINISTRATIVE AGENT
10.1. APPOINTMENT; NATURE OF RELATIONSHIP. The First National
Bank of Chicago is appointed by the Issuing Lenders, Swing Line Lender and
Lenders as the Administrative Agent hereunder and under each other Loan
Document, and each of the Issuing Lenders, the Swing Line Lender and the Lenders
irrevocably authorizes the Administrative Agent to act as the contractual
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representative of such Person with the rights and duties expressly set forth
herein and in the other Loan Documents. The Administrative Agent agrees to act
as such contractual representative upon the express conditions contained in this
ARTICLE X. Notwithstanding the use of the defined term "Administrative Agent" or
"agent" in reference to The First National Bank of Chicago, it is expressly
understood and agreed that the Administrative Agent shall not have any fiduciary
responsibilities to any Issuing Lender, Swing Line Lender or Lender by reason of
this Agreement and that the Administrative Agent is merely acting as the
representative of the Issuing Lenders, Swing Line Lender and Lenders with only
those duties as are expressly set forth in this Agreement and the other Loan
Documents. In its capacity as such contractual representative, the
Administrative Agent (i) does not assume any fiduciary duties to any of the
Issuing Lenders, Swing Line Lender or Lenders, (ii) is a "representative" of the
Issuing Lenders, Swing Line Lender and Lenders within the meaning of SECTION
9-105 of the Uniform Commercial Code and (iii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Agreement and the other Loan Documents. Each of the Issuing
Lenders, Swing Line Lender and Lenders agrees to assert no claim against the
Administrative Agent on any agency theory or any other theory of liability for
breach of fiduciary duty, all of which claims each Issuing Lender, Swing Line
Lender and Lender waives.
10.2. POWERS. The Administrative Agent shall have and may
exercise such powers under the Loan Documents as are specifically delegated to
the Administrative Agent by the terms of each thereof, together with such powers
as are reasonably incidental thereto. The Administrative Agent shall have no
implied duties or fiduciary duties to the Issuing Lenders, Swing Line Lender or
Lenders, or any obligation to the Issuing Lenders, Swing Line Lender or Lenders
to take any action hereunder or under any of the other Loan Documents except any
action specifically provided by the Loan Documents required to be taken by the
Administrative Agent.
10.3. GENERAL IMMUNITY. Neither the Administrative Agent nor
any of its directors, officers, agents or employees shall be liable to the
Borrower or any Issuing Lender, Swing Line Lender or Lender for any action taken
or omitted to be taken by it or them hereunder or under any other Loan Document
or in connection herewith or therewith except to the extent such action or
inaction is found in a final judgment by a court of competent jurisdiction to
have arisen solely from the Gross Negligence or willful misconduct of such
Person.
10.4. NO RESPONSIBILITY FOR LOANS, CREDITWORTHINESS,
COLLATERAL, RECITALS, ETC. Neither the Administrative Agent nor any of its
directors, officers, agents or employees shall be responsible for or have any
duty to ascertain, inquire into or verify (i) any statement, warranty or
representation made in connection with any Loan Document or any extension of
credit hereunder; (ii) the performance or observance of any of the covenants or
agreements of the Borrower, any Subsidiary or any other obligor under any Loan
Document; (iii) the satisfaction of any condition specified in Article IV,
except receipt of items required to be delivered solely to the Administrative
Agent; (iv) the existence or possible existence of any Default or (v) the
validity, effectiveness or genuineness of any Loan Document or any other
instrument or writing furnished in connection therewith. The Administrative
Agent shall not be responsible to any Issuing Lender, Swing Line Lender or
Lender for any recitals, statements, representations or warranties herein or in
any of the
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other Loan Documents or for the execution, effectiveness, genuineness, validity,
legality, enforceability, collectibility or sufficiency of this Agreement or any
of the other Loan Documents or the transactions contemplated thereby, or for the
financial condition of the Borrower or any of its Subsidiaries. The
Administrative Agent will use its reasonable efforts to distribute to each of
the Lenders, in a timely fashion, a copy of all written reports, certificates
and information required to be supplied by the Borrower or any of its
Subsidiaries to the Administrative Agent pursuant to the terms of this Agreement
or any of the other Loan Documents; provided that any failure in such regard
shall not result in any liability on the part of the Administrative Agent and
PROVIDED FURTHER that the Administrative Agent shall have no duty to disclose to
the Lenders information that is not required to be furnished by the Borrower to
the Administrative Agent at such time, but is voluntarily furnished by the
Borrower to the Administrative Agent (either in its capacity as Administrative
Agent or in its individual capacity).
10.5. ACTION ON INSTRUCTIONS OF LENDERS. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders or all of the Lenders (as applicable
under SECTION 8.2), and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Issuing Lenders, Swing Line
Lender, Lenders and any other holders of the Notes or Obligations. The
Administrative Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction (which shall not include any requirement that it
be indemnified for its willful misconduct or Gross Negligence) by the Lenders
pro rata against any and all liability, cost and expense that it may incur by
reason of taking or continuing to take any such action.
10.6. EMPLOYMENT OF AGENTS AND COUNSEL. The Administrative
Agent may execute any of its duties as the Administrative Agent hereunder and
under any other Loan Document by or through employees, agents and
attorney-in-fact and shall not be answerable to the Issuing Lenders, Swing Line
Lender or Lenders, except as to money or securities received by it or its
authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The Administrative Agent
shall be entitled to advice of counsel concerning the contractual arrangement
between the Administrative Agent and the Issuing Lenders, Swing Line Lender and
Lenders and all matters pertaining to the Administrative Agent's duties
hereunder and under any other Loan Document.
10.7. RELIANCE ON DOCUMENTS; COUNSEL. The Administrative Agent
shall be entitled to rely upon any Note, notice, consent, certificate,
affidavit, letter, telegram, statement, paper or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and, in respect of legal matters, upon the opinion of counsel selected
by the Administrative Agent, which counsel may be employees of the
Administrative Agent and which counsel may have acted as counsel for the
Administrative Agent in connection with the negotiation and execution of this
Agreement and the other Loan Documents.
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10.8. THE ADMINISTRATIVE AGENT'S REIMBURSEMENT AND
INDEMNIFICATION. The Lenders agree to reimburse and indemnify the Administrative
Agent ratably in proportion to their respective Percentage (i) for any amounts
not reimbursed by the Borrower for which the Administrative Agent is entitled to
reimbursement by the Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Administrative Agent on behalf of the Issuing Lenders,
Swing Line Lender or Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents (including with
respect to any disagreement between or among any of the Administrative Agent,
Issuing Lenders, Swing Line Lender or Lenders) and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against the Administrative Agent in any way relating
to or arising out of the Loan Documents or any other document delivered in
connection therewith or the transactions contemplated thereby, or the
enforcement of any of the terms thereof or of any such other documents, provided
that no Lender shall be liable for any of the foregoing to the extent any of the
foregoing is found in a final non-appealable judgment by a court of competent
jurisdiction to have arisen solely from the Gross Negligence or willful
misconduct of the Administrative Agent.
10.9. RIGHTS AS A LENDER. With respect to its Commitment,
Loans made by it, Letters of Credit issued by it and Notes issued to it, First
Chicago (or any other Person succeeding it as the Administrative Agent) shall
have the same rights and powers hereunder and under any other Loan Document as
any Lender, Issuing Lender or Swing Line Lender, as applicable, and may exercise
the same as though it were not the Administrative Agent, and the terms "Lender,"
"Lenders," "Issuing Lender," "Issuing Lenders," "Swing Line Lender," and "Swing
Line Lenders" shall, unless the context otherwise indicates, include First
Chicago (or any other Person succeeding it as the Administrative Agent) in its
individual capacity. First Chicago (or any other Person succeeding it as the
Administrative Agent) may accept deposits from, lend money to, and generally
engage in any kind of trust, debt, equity or other transaction, in addition to
those contemplated by this Agreement or any other Loan Document, with the
Borrower or any of its Subsidiaries in which such Person is not prohibited
hereby from engaging with any other Person.
10.10. LENDER CREDIT DECISION. Each Lender acknowledges that
it has, independently and without reliance upon the Administrative Agent or any
other Issuing Lender, Swing Line Lender or Lender and based on the financial
statements prepared by the Borrower and its Subsidiaries and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement and the other Loan Documents.
Each Lender also acknowledges that it will, independently and without reliance
upon the Administrative Agent or any other Issuing Lender, Swing Line Lender or
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents.
10.11. SUCCESSOR ADMINISTRATIVE AGENT. The Administrative
Agent may resign at any time by giving written notice thereof to the Lenders and
the Borrower, and the Administrative Agent may be removed at any time with or
without cause by written notice received by the Administrative
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Agent from the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint, without the consent of the
Borrower and on behalf of the Swing Line Lender, Issuing Lenders and Lenders, a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Lenders and shall have accepted such
appointment within thirty days after the retiring Administrative Agent's giving
notice of resignation, then the retiring Administrative Agent may appoint,
without the consent of the Borrower and on behalf of the Issuing Lenders, Swing
Line Lender and Lenders, a successor Administrative Agent, which successor
Administrative Agent shall be a Lender unless no Lender shall so agree in which
event such successor Administrative Agent may be a Person of the Administrative
Agent's choosing. Notwithstanding anything herein to the contrary, so long as
no Default has occurred and is continuing, each such successor Administrative
Agent shall be subject to approval by the Borrower, which approval shall not be
unreasonably withheld. Such successor Administrative Agent shall be a
commercial bank having capital and retained earnings of at least $100,000,000.
Upon the acceptance of any appointment as the Administrative Agent hereunder by
a successor Administrative Agent, such successor Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. After any retiring Administrative
Agent's resignation hereunder as Administrative Agent, the provisions of this
Article X shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as the Administrative
Agent hereunder and under the other Loan Documents.
10.12. ADMINISTRATIVE AGENT'S FEE. The Borrower agrees to pay
to the Administrative Agent, for its own account, the fees agreed to by the
Borrower and the Administrative Agent by separate letter agreement, or as
otherwise agreed from time to time.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. SETOFF. In addition to, and without limitation of, any
rights of the Lenders under applicable law, if the Borrower becomes insolvent,
however evidenced, or any Default or Unmatured Default occurs and is continuing,
any and all deposits (including all account balances, whether provisional or
final and whether or not collected or available) and any other Indebtedness at
any time held or owing by any Lender to or for the credit or account of the
Borrower may be offset and applied toward the payment of the Obligations owing
to such Lender, whether or not the Obligations, or any part hereof, shall then
be due.
11.2. RATABLE PAYMENTS. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Syndicated Loans (other than payments
received pursuant to SECTION 3.1, 3.2 or 3.4) in a greater proportion than that
received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Syndicated Loans held by the other Lenders so that
after such purchase each Lender will hold its ratable proportion of Syndicated
Loans. If any Lender,
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whether in connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Lender agrees, promptly upon
demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their Syndicated Loans. In
case any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.
11.3. APPLICATION OF PAYMENTS. The Administrative Agent shall,
unless otherwise specified at the direction of the Required Lenders which
direction shall be consistent with the last sentence of this Section 11.3, apply
all payments and prepayments in respect of any Obligations in the following
order:
(a) first, to pay interest on and then principal of any
portion of the Loans which the Administrative Agent may have advanced
on behalf of any Lender for which the Administrative Agent has not then
been reimbursed by such Lender or Borrower;
(b) second, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(c) third, to pay interest on and then principal outstanding
on the Swing Line Loans, applied ratably to all outstanding Swing Line
Loans;
(d) fourth, to the ratable payment of Obligations in respect
of any fees, expenses, reimbursements or indemnities then due to the
Lenders, Swing Line Lender and Issuing Lenders;
(e) fifth, to pay interest due in respect of Loans (other than
Swing Line Loans) and L/C Obligations;
(f) sixth, to the ratable payment or prepayment of principal
outstanding on Loans (other than Swing Line Loans) and Reimbursement
Obligations in such order as the Administrative Agent may determine in
its sole discretion;
(g) seventh, to provide required cash collateral, if any,
pursuant to Section 2.20.10; and
(h) eighth, to the ratable payment of all other Obligations.
Unless otherwise designated (which designation shall only be applicable if no
Default has occurred and is continuing) by the Borrower or unless otherwise
mandated by the terms of this Agreement, all principal payments in respect of
Loans shall be applied first, to repay outstanding Money Market Rate Loans,
second to repay other outstanding Floating Rate Loans, and then to repay
outstanding Eurodollar Loans with those Eurodollar Loans which have earlier
expiring Interest Periods being repaid prior to those which have later expiring
Interest Periods. The order of priority set forth in this
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SECTION 11.3 and the related provisions of this Agreement are set forth solely
to determine the rights and priorities of the Administrative Agent, the Lenders,
the Swing Line Lender and the Issuing Lenders as among themselves. The order of
priority set forth in CLAUSES (d) through (h) of this SECTION 11.3 may at any
time and from time to time be changed by the Required Lenders without necessity
of notice to or consent of or approval by Borrower or any other Person. The
order of priority set forth in CLAUSES (a) and (b) of this SECTION 11.3 may be
changed only with the prior written consent of the Administrative Agent and the
order of priority set forth in CLAUSE (c) may be changed only with the prior
written consent of the Swing Line Lender.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. SUCCESSORS AND ASSIGNS. The terms and provisions of the
Loan Documents shall be binding upon and inure to the benefit of the Borrower,
the Administrative Agent and the Lenders and their respective successors and
assigns, except that (a) the Borrower shall not have the right to assign its
rights or obligations under the Loan Documents without the consent of all of the
Lenders and (b) any assignment by any Lender must be made in compliance with
SECTION 12.3. Notwithstanding clause (b) of the preceding sentence, any Lender
may at any time, without the consent of the Borrower or the Administrative
Agent, assign all or any portion of its rights under this Agreement and its
Notes to a Federal Reserve Bank; PROVIDED, HOWEVER, that no such assignment
shall release the transferor Lender from its obligations hereunder. The
Administrative Agent may treat the payee of any Note as the owner thereof for
all purposes hereof unless and until such payee complies with SECTION 12.3 in
the case of an assignment thereof or, in the case of any other transfer, a
written notice of the transfer is filed with the Administrative Agent. Any
assignee or transferee of a Note agrees by acceptance thereof to be bound by all
the terms and provisions of the Loan Documents. Any request, authority or
consent of any Person, who at the time of making such request or giving such
authority or consent is the holder of any Note, shall be conclusive and binding
on any subsequent holder, transferee or assignee of such Note or of any Note or
Notes issued in exchange therefor.
12.2. PARTICIPATIONS.
12.2.1. PERMITTED PARTICIPANTS; EFFECT. Any Lender may, in the
ordinary course of its business and in accordance with applicable law,
at any time sell to one or more banks or other Eligible Participants
(a "PARTICIPANT") participating interests in any Loan owing to such
Lender, any Note held by such Lender, any L/C Interest held by such
Lender, the Commitment of such Lender or any other interest of such
Lender under the Loan Documents. In the event of any such sale by a
Lender of participating interests to a Participant, such Lender's
obligations under the Loan Documents shall remain unchanged, such
Lender shall remain solely responsible to the other parties hereto for
the performance of such obligations, such Lender shall remain the
holder of any such Note for all purposes under the Loan Documents, all
amounts payable by the Borrower under this Agreement shall be
determined as if such Lender had not sold such participating
interests, and the Borrower and the
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Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and obligations
under the Loan Documents. The participation agreement effecting the
sale of any participating interest shall contain a representation by
the Participant to the effect that none of the consideration used to
make the purchase of the participating interest in the Commitment,
Loans and L/C Interests under such participation agreement are "plan
assets" as defined under ERISA and that the rights and interests of the
Participant in and under the Loan Documents will not be "plan assets"
under ERISA.
12.2.2. VOTING RIGHTS. Each Lender shall retain the sole right
to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents other
than any amendment, modification or waiver with respect to any Loan,
L/C Interest or Commitment in which such Participant has an interest
which would require the consent of such Participant under SECTION 8.2
if such Participant were a Lender.
12.2.3. BENEFIT OF SETOFF. The Borrower agrees that to the
extent permitted by law each Participant shall be deemed to have the
right of setoff provided in SECTION 11.1 in respect of its
participating interest in amounts owing under the Loan Documents to the
same extent as if the amount of its participating interest were owing
directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in SECTION 11.1 with
respect to the amount of participating interests sold to each
Participant. The Lenders agree to share with each Participant, and each
Participant, by exercising the right of setoff provided in SECTION
11.1, agrees to share with each Lender, any amount received pursuant to
the exercise of its right of setoff, such amounts to be shared in
accordance with SECTION 11.2 as if each Participant were a Lender.
12.3. ASSIGNMENTS.
12.3.1. PERMITTED ASSIGNMENTS. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any
time assign to one or more commercial banks ("Purchasers") all or any
part of its Commitment and outstanding Loans and L/C Interests,
together with its rights and obligations under the Loan Documents with
respect thereto; provided, however, that (a) the amount of the
Commitment of the assigning Lender being assigned pursuant to each such
assignment (determined as of the date of such assignment) may be in the
amount of such Lender's entire Commitment but otherwise shall not be
less than $15,000,000 or an integral multiple of $1,000,000 in excess
of that amount. Such assignment shall be substantially in the form of
Exhibit D hereto or in such other form as may be agreed to by the
parties thereto. The consent of the Borrower and the Administrative
Agent shall be required prior to an assignment becoming effective with
respect to a Purchaser which is not a Lender (neither of which consents
may be unreasonably withheld or delayed); provided, however, that if a
Default has occurred and is continuing, the consent of the Borrower
shall not be required.
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12.3.2. EFFECT; EFFECTIVE DATE. Upon (a) delivery to the
Administrative Agent of a notice of assignment, substantially in the
form attached to EXHIBIT D hereto (a "NOTICE OF ASSIGNMENT"), together
with any consents required by SECTION 12.3.1, and (b) payment of a
$3,500 fee to the Administrative Agent for processing such assignment,
such assignment shall become effective on the effective date specified
in such Notice of Assignment. The Notice of Assignment shall contain a
representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Loans
under the applicable assignment agreement are "plan assets" as defined
under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and
after the effective date of such assignment, such Purchaser shall for
all purposes be a Lender party to this Agreement and any other Loan
Document executed by the Lenders and shall have all the rights and
obligations of a Lender under the Loan Documents, to the same extent as
if it were an original party hereto and thereto, and no further consent
or action by the Borrower, the Lenders or the Administrative Agent
shall be required to release the transferor Lender with respect to the
percentage of the Aggregate Commitment and Loans assigned to such
Purchaser. Upon the consummation of any assignment to a Purchaser
pursuant to this SECTION 12.3.2, the transferor Lender, the
Administrative Agent, and the Borrower shall make appropriate
arrangements so that replacement Notes are issued to such transferor
Lender and new Notes or, as appropriate, replacement Notes, are issued
to such Purchaser, in each case in principal amounts reflecting its
Commitment, as adjusted pursuant to such assignment.
12.4. DISSEMINATION OF INFORMATION. The Borrower authorizes
each Lender to disclose to any Participant or Purchaser or any other Person
acquiring an interest in the Loan Documents by operation of law (each a
"TRANSFEREE") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of the Borrower and its
Subsidiaries; provided that each Transferee and prospective Transferee agrees to
be bound by Section 9.14 of this Agreement.
12.5. TAX TREATMENT. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of SECTION 2.18.
ARTICLE XIII
NOTICES
13.1. GIVING NOTICE. Except as otherwise permitted by SECTION
2.14 with respect to telephonic notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Document
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly
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85
addressed with postage prepaid, shall be deemed given when received; any notice,
if transmitted by telex or facsimile, shall be deemed given when transmitted
(answerback confirmed in the case of telexes).
13.2. CHANGE OF ADDRESS. The Borrower, the Administrative
Agent and any Lender may each change the address for service of notice upon it
by a notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts,
all of which taken together shall constitute one agreement, and any of the
parties hereto may execute this Agreement by signing any such counterpart.
Subject to Section 4.1, this Agreement shall be effective when it has been
executed by the Borrower, the Administrative Agent and the Lenders and each
party has notified the Administrative Agent by telex or telephone that it has
taken such action.
[Remainder of this Page Intentionally Blank]
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IN WITNESS WHEREOF, the Borrower, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above
written.
THE TJX COMPANIES, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: XXXXXX XXXXXXX
Title: Vice President, Finance
Treasurer
Address:
000 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxx Xxxxxxxx, Chief Financial Officer
Facsimile No. (508) 390-2199
87
COMMITMENT:
$60,000,000.00 THE FIRST NATIONAL BANK OF CHICAGO,
as a Lender, as Administrative Agent, as Swing
Line Lender and as an Issuing Lender
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title:
Address:
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile No.: (312)
88
COMMITMENT:
$55,000,000.00 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Lender, as Syndication Agent and as an
Issuing Lender
By: /s/ Xxxx Xxxxxxxxx
----------------------------------------
Name: Xxxx Xxxxxxxxx
Title: Assistant Vice President
Address:
000 Xxxxx XxXxxxx Xxxxxx
0xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Facsimile: 312/987-7384
89
COMMITMENT:
$55,000,000.00 THE BANK OF NEW YORK,
as a Lender, as Documentation Agent and as
an Issuing Lender
By: /s/ Xxxxxx Xxxxxx, Xx.
-----------------------------------------
Name: Xxxxxx Xxxxxx, Xx.
Title:
Address:
Xxx Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxx, Xx.
Facsimile: 212/635-1483
90
COMMITMENT:
$55,000,000.00 BANKBOSTON, N.A.,
as a Lender, as Managing Agent and as an
Issuing Lender
By: /s/ Xxxxx X. Xxxxxx
----------------------------------------
Name: XXXXX X. XXXXXX
Title: MANAGING DIRECTOR
Address:
000 Xxxxxxx Xxxxxx
Mail Stop 01-09-05
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Facsimile: 617/434-0816
91
COMMITMENT:
$34,000,000.00 CIBC, INC.,
as a Lender
By: /s/ XXXXXXXXXXX X. XXXXXXXXXXX
----------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxxxx
Title:
Address (Credit Issues):
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxxx
Facsimile: 212/856-3991
Address (Operations Issues):
0000 Xxxxx Xxxxx Xxxx, Xxxxx 0000
2 Paces Xxxx
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile: 770/319-4950
92
COMMITMENT:
$34,000,000.00 DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH,
as a Lender
By: /s/ Xxxxx X. X'Xxxxxx
-----------------------------------------
Name: Xxxxx X. X'Xxxxxx
Title: Director
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Assistant Vice President
Address:
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X' Xxxxxx
Facsimile: 212/469-7936
93
COMMITMENT:
$34,000,000.00 MELLON BANK, N.A.,
as a Lender
By: /s/ Xxxxxx Xxxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxxx
Title:
Address:
Xxx Xxxxxx Xxxx Xxxxxx
Xxxx 0000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxxx
Facsimile: 412/236-1914
94
COMMITMENT:
$34,000,000.00 FLEET NATIONAL BANK,
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Address:
One Federal Street
Mail Code XX-0X-0000
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx
Facsimile: 617/346-0689
95
COMMITMENT:
$34,000,000.00 PNC BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxx Xxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxx
Title:
Address:
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxxxx
Facsimile: 212/557-5461
96
COMMITMENT:
$15,000,000.00 ABN AMRO BANK N.V.,
as a Lender
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxx
Title: Group Vice President
Address:
Xxx Xxxx Xxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: 617/988-7910
97
COMMITMENT:
$15,000,000.00 XXXXXXX BANK, N.A.,
as a Lender
By: /s/ Xxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxx Xxxxxxx
Title:
Address:
00 Xxxxx Xxxxx Xxxxxx
P.O. Box 4078
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Facsimile: 904/791-7063
98
COMMITMENT:
$15,000,000.00 FIRST AMERICAN NATIONAL BANK,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Address:
0xx xxx Xxxxx Xxxxxxx
0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx
Facsimile: 615/748-6072
99
COMMITMENT:
$15,000,000.00 STANDARD CHARTERED BANK,
as a Lender
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Vice President
Address:
7 World Trade Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx Tee
Facsimile: 212/667-0225
100
COMMITMENT:
$15,000,000.00 STATE STREET BANK AND TRUST COMPANY,
as a Lender
By: /s/ F. Xxxxxx Xxxxx
-----------------------------------------
Name: F. Xxxxxx Xxxxx
Title: Vice President
Address:
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: F. Xxxxxx Xxxxx
Facsimile: 617/664-6527
101
COMMITMENT:
$15,000,000.00 THE TOYO TRUST & BANKING CO., LTD.,
NEW YORK BRANCH,
as a Lender
By: /s/ Takishi Mikumo
-----------------------------------------
Name: Takishi Mikumo
Title:
Address:
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxxx X. Xxxxx
Facsimile: 212/307-3498
102
COMMITMENT:
$15,000,000.00 UNION BANK OF CALIFORNIA, N.A.,
as a Lender
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President
Address:
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx
Facsimile: 415/705-5093
