SECURITIES AND EXCHANGE COMMISSION
Washinton, D. C. 20549
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FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report: April 5, 1999 Commission file number: 1-6187
ALBERTSON'S, INC.
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(Exact name of Registrant as specified in its Charter)
Delaware 82-0184434
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(State of Incorporation) (Employer Identification Number)
250 Parkcenter Blvd., P.O. Box 20, Boise, Idaho 83726
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (208) 395-6200
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<PAGE>
Item 5. Other Events.
On March 30, 1999, Albertson's, Inc. (the "Company") entered into
a revolving credit agreement with a syndicate of banks, whereby the
Company may borrow principal amounts up to $1.5 billion at verying
interest rates any time prior to March 28, 2000 (expiration date). At
the expiration of the credit agreement and upon due notice, the
Company may extend the term for an additional 364-day period if
lenders holding at least 75% of committments agree. The agreement also
contains an option which would allow the Company, upon due notice, to
convert any outstanding amounts at the expiration date to term loans.
The agreement contains certain covenants, the most restrictive of
which requires the Company to maintain consolidated tangible net
worth, as defined, of at least $2.1 billion.
Item 7. Exhibits.
Exhibit
No. Description
10.28 Credit Agreement (dated March 30, 1999)
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 13 or 15 (d) of the Securities Exchange
Act of 1934, Albertson's, Inc. has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
ALBERTSON'S, INC.
Date: April 5, 1999 BY: /s/ A. Craig Olson
A. Craig Olson
Executive Vice President
and Chief Financial Officer
<PAGE>
INDEX TO EXHIBITS
FILED WITH THE CURRENT REPORT
ON FORM 8-K DATED APRIL 5, 1999
Exhibit
No. Description
10.28 Credit Agreement (dated March 30, 1999)
<PAGE>
EXHIBIT 10.28
$1,500,000,000
CREDIT AGREEMENT
Dated as of March 30, 1999
among
ALBERTSON'S, INC.
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Administrative Agent,
WACHOVIA BANK, N.A.
as Syndication Agent,
THE FIRST NATIONAL BANK OF CHICAGO
and THE CHASE MANHATTAN BANK,
as Co-Documentation Agents,
and
THE OTHER FINANCIAL INSTITUTIONS PARTY HERETO
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NationsBanc Montgomery Securities LLC
and Wachovia Bank, N.A.
Joint Lead Arrangers
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TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS 1
1.01 Certain Defined Terms.................................................1
1.02 Other Interpretive Provisions........................................13
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1.03 Accounting Principles................................................14
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ARTICLE II THE CREDITS........................................................15
2.01 Amounts and Terms of Commitments.....................................15
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2.02 Loan Accounts........................................................15
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2.03 Procedure for Borrowing..............................................16
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2.04 Conversion and Continuation Elections................................17
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2.05 Swingline Loans......................................................18
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2.06 Voluntary Termination or Reduction of Commitments....................21
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2.07 Optional Prepayments.................................................21
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2.08 Repayment............................................................22
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2.09 Interest.............................................................22
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2.10 Fees.................................................................23
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2.11 Computation of Fees and Interest.....................................24
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2.12 Payments by the Company..............................................24
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2.13 Payments by the Banks to the Agent...................................24
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2.14 Sharing of Payments, Etc.............................................26
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2.15 Revolving Termination Date Extensions................................26
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ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY............................27
3.01 Taxes................................................................27
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3.02 Illegality...........................................................28
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3.03 Increased Costs and Reduction of Return..............................29
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3.04 Funding Losses.......................................................30
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3.05 Inability to Determine Rates.........................................31
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3.06 Certificates of Banks................................................31
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3.07 Base Rate Loans Substituted for Affected Offshore Rate Loans.........31
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3.08 Reserves on Offshore Rate Loans......................................32
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3.09 Substitution of Banks................................................32
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3.10 Survival.............................................................32
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ARTICLE IV CONDITIONS PRECEDENT...............................................32
4.01 Conditions of Initial Loans..........................................32
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4.02 Condition Precedent to the Term Loans................................34
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4.03 Conditions to All Borrowings.........................................34
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ARTICLE V REPRESENTATIONS AND WARRANTIES......................................35
5.01 Corporate Existence and Power........................................35
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5.02 Subsidiaries.........................................................35
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5.03 Corporate and Governmental Authorization; No Contravention...........35
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5.04 Binding Effect.......................................................36
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5.05 Litigation...........................................................36
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5.06 ERISA Compliance.....................................................36
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5.07 Use of Proceeds; Margin Regulations..................................36
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5.08 Title to Properties; Liens...........................................36
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5.09 Taxes................................................................36
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5.10 Financial Information................................................36
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5.11 Environmental Matters................................................37
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5.12 Regulated Entities...................................................37
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5.13 Insurance............................................................37
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5.14 Full Disclosure......................................................38
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5.15 Year 2000............................................................38
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ARTICLE VI AFFIRMATIVE COVENANTS..............................................38
6.01 Information..........................................................38
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6.02 Conduct of Business and Maintenance of Existence.....................40
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6.03 Maintenance of Property..............................................40
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6.04 Insurance............................................................40
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6.05 Payment of Obligations...............................................40
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6.06 Compliance with Laws.................................................41
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6.07 Inspection of Property, Books and Records............................41
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6.08 Use of Proceeds......................................................41
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6.09 Further Assurances...................................................41
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ARTICLE VII NEGATIVE COVENANTS................................................41
7.01 Limitation on Liens..................................................41
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7.02 Disposition of Assets................................................43
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7.03 Limitation on Subsidiary Indebtedness and Swap Contracts.............43
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7.04 Use of Proceeds......................................................44
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7.05 Minimum Consolidated Tangible Net Worth..............................44
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ARTICLE VIII EVENTS OF DEFAULT................................................44
8.01 Event of Default................................................... 44
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8.02 Remedies.............................................................46
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8.03 Rights Not Exclusive.................................................46
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ARTICLE IX THE AGENT 47
9.01 Appointment and Authorization; "Agent"....... .......................47
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9.02 Delegation of Duties.................................................47
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9.03 Liability of Agent..... .............................................47
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9.04 Reliance by Agent....................................................48
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9.05 Notice of Default....................................................48
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9.06 Credit Decision......................................................48
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9.07 Indemnification of Agent............................................ 49
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9.08 Agent in Individual Capacity.........................................49
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9.09 Successor Agent......................................................49
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9.10 Withholding Tax......................................................50
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9.11 Co-Agents; Joint Lead Arrangers......................................51
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ARTICLE X MISCELLANEOUS.......................................................52
10.01 Amendments and Waivers...............................................52
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10.02 Notices..............................................................53
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10.03 No Waiver; Cumulative Remedies.......... ...........................53
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10.04 Costs and Expenses...................................................53
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10.05 Company Indemnification..............................................54
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10.06 Payments Set Aside...................................................54
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10.07 Binding Effect; Successors and Assigns...............................54
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10.08 Assignments, Participations, Etc.....................................55
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10.09 Confidentiality......................................................57
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10.10 Set-off..............................................................57
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10.11 Notification of Addresses, Lending Offices, Etc......................57
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10.12 Counterparts.........................................................58
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10.13 Severability.........................................................58
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10.14 No Third Parties Benefited...........................................58
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10.15 Governing Law and Jurisdiction.......................................58
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10.16 Waiver of Jury Trial.................................................58
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10.17 Entire Agreement.....................................................59
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<PAGE>
ANNEXES
Annex I Pricing Grid
SCHEDULES
Schedule 2.01 Commitments and Pro Rata Shares
Schedule 10.02 Payment Offices; Addresses for Notices; Lending Offices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Notice of Conversion/Continuation
Exhibit C Form of Compliance Certificate
Exhibit D Form of Legal Opinion of Company's Counsel
Exhibit E Form of Assignment and Acceptance
Exhibit F Form of Revolving Note
Exhibit G Form of Term Note
<PAGE>
CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of March 30, 1999, among
Albertson's, Inc., a Delaware corporation (the "Company"), the several financial
institutions from time to time party to this Agreement (individually, a "Bank"
and, collectively, the "Banks"), The First National Bank of Chicago and The
Chase Manhattan Bank, as co-documentation agents (the "Co-Documentation
Agents"), Wachovia Bank, N.A., as syndication agent (in such capacity, the
"Syndication Agent"), and Bank of America National Trust and Savings
Association, as Swingline Bank and administrative agent for itself and the other
Banks (in such capacity, the "Agent").
WHEREAS, the Banks have agreed to make available to the Company a
revolving credit facility with a swingline subfacility and a term loan option,
upon the terms and conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the mutual agreements, provisions
and covenants contained herein, the parties agree as follows:
ARTICLEI
DEFINITIONS
1.01 Certain Defined Terms. The following terms have the following meanings
(including in the Recitals hereof):
"Affiliate" means, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under
common control with, such Person. A Person shall be deemed to control
another Person if the controlling Person possesses, directly or
indirectly, the power to direct or cause the direction of the
management and policies of the other Person, whether through the
ownership of voting securities, membership interests, by contract, or
otherwise.
"Agent" means BofA in its capacity as administrative agent for
the Banks hereunder, and any successor agent arising under Section
9.09.
"Agent-Related Persons" means BofA and any successor agent
arising under Section 9.09, together with their respective Affiliates
(including, in the case of BofA, NMS), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agent's Payment Office" means the address for payments set
forth on Schedule 10.02 or such other address as the Agent may from
time to time specify.
"Aggregate Commitment" means the combined Commitments of the
Banks.
"Agreement" means this Credit Agreement.
<PAGE>
"Applicable Fee Amount" means with respect to the fees payable
hereunder, the amount set forth opposite the indicated Indebtedness
Rating or Facility Usage percentage, as the case may be, below the
headings "Facility Fee" and "Utilization Fee" in the pricing grid set
forth on Annex I in accordance with the parameters for calculations of
such amount, also set forth on Annex I.
"Applicable Margin" means, with respect to Base Rate Loans and
Offshore Rate Loans, the amount set forth opposite the indicated
Indebtedness Rating below the heading "Base Rate Spread," or "Offshore
Rate Spread" in the pricing grid set forth on Annex I in accordance
with the parameters for calculations of such amounts also set forth on
Annex I.
"Assignee" has the meaning specified in subsection 10.08(a).
"Assignment and Acceptance Date" has the meaning set forth in
Subsection 10.08(b).
"Attorney Costs" means and includes all reasonable fees and
disbursements of any law firm or other external counsel.
"Bank" means the institutions specified in the introductory
clause hereto. References to the "Banks" shall include the Swingline
Bank in its capacity as such unless the context otherwise clearly
requires. For purposes of clarification only, to the extent that the
Swingline Bank may have any rights or obligations in addition to those
of the Banks due to its status as Swingline Bank, its status as such
will be specifically referenced.
"Bankruptcy Code" means the Federal Bankruptcy Reform Act of
1978 (11 U.S.C. ss.101, et seq.).
"Base Rate" means, for any day, the higher of: (a) 0.50% per
annum above the latest Federal Funds Rate; and (b) the rate of interest
in effect for such day as publicly announced from time to time by BofA
in San Francisco, California, as its "reference rate." (The "reference
rate" is a rate set by BofA based upon various factors including BofA's
costs and desired return, general economic conditions and other
factors, and is used as a reference point for pricing some loans, which
may be priced at, above, or below such announced rate.) Any change in
the reference rate announced by BofA shall take effect at the opening
of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the
Base Rate.
"Benefit Arrangement" means at any time an employee benefit
plan within the meaning of Section 3(3) of ERISA which is not a Plan or
a Multiemployer Plan and which is maintained or otherwise contributed
to by any member of the ERISA Group.
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"BofA" means Bank of America National Trust and Savings
Association, a national banking association.
"Borrowing" means a borrowing hereunder consisting of (i)
Revolving Loans or Term Loans of the same Type made to the Company on
the same day by the Banks under Article II and (ii) a Swingline Loan
(or Swingline Loans) made to the Company on the same day by the
Swingline Bank, and, other than in the case of Base Rate Loans, having
the same Interest Period.
"Borrowing Date" means any date on which a Borrowing occurs
under Section 2.03.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks in New York City or San Francisco
are authorized or required by law to close and, if the applicable
Business Day relates to any Offshore Rate Loan, means such a day on
which dealings are carried on in the applicable offshore Dollar
interbank market.
"Capital Adequacy Regulation" means any guideline, request or
directive of any central bank or other Governmental Authority, or any
other law, rule or regulation, whether or not having the force of law,
in each case, regarding capital adequacy of any bank or of any
corporation controlling a bank.
"Change of Control" means any person or group of persons
(within the meaning of Section 13 or 14 of the Exchange Act) shall have
acquired beneficial ownership (within the meaning of Rule 13d-3
promulgated by the SEC under said Act) of 40% or more of the
outstanding shares of common stock of the Company; or, during any
period of twelve consecutive calendar months, individuals who were
directors of the Company on the first day of such period shall cease to
constitute a majority of the board of directors of the Company.
"Closing Date" means the date occurring on or before March 31,
1999 on which all conditions precedent set forth in Section 4.01 are
satisfied or waived by all Banks (or, in the case of subsection
4.01(e), waived by the Person entitled to receive such payment).
"Code" means the Internal Revenue Code of 1986.
"Co-Documentation Agent" means each of The First National Bank
of Chicago and The Chase Manhattan Bank in its capacity as
co-documentation agent hereunder.
"Commitment", as to each Bank, has the meaning specified in
Section 2.01.
"Compliance Certificate" means a certificate substantially in
the form of Exhibit C.
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"Company's 1997 Form 10-K" means the Company's Annual Report
on Form 10-K for the fiscal year ended January 29, 1998, as filed with
the SEC pursuant to the Exchange Act.
"Consolidated Subsidiary" means at any date any Subsidiary or
other Person the accounts of which would be consolidated with those of
the Company in its consolidated financial statements as of such date.
"Consolidated Tangible Net Worth" means at any date (a) the
consolidated stockholders' equity of the Company and its Consolidated
Subsidiaries as reflected on the Company's consolidated balance sheet,
plus their consolidated deferred investment tax credits as reflected on
the Company's consolidated balance sheet, minus (b) their consolidated
Intangible Assets, all determined as of such date. For purposes of this
definition, "Intangible Assets" means the amount (to the extent
reflected in determining such consolidated stockholders' equity) of (i)
all write-ups (other than write-ups resulting from foreign currency
translations and write-ups of assets of a going concern business made
within twelve months after the acquisition of such business) subsequent
to January 28, 1999 in the book value of any asset owned by the Company
or a Consolidated Subsidiary, (ii) all investments in unconsolidated
Subsidiaries and all equity investments in Persons which are not
Subsidiaries and (iii) all unamortized debt discount and expense,
unamortized deferred charges (except deferred income taxes), goodwill,
patents, trademarks, service marks, trade names, copyrights,
organization or developmental expenses and other intangible items
(except leasehold improvements and liquor licenses).
"Conversion/Continuation Date" means any date on which, under
Section 2.04, the Company (a) converts Loans of one Type to another
Type, or (b) continues as Loans of the same Type, but with a new
Interest Period, Loans having Interest Periods expiring on such date.
"Default" means any event or circumstance which, with the
giving of notice, the lapse of time, or both, would (if not cured or
otherwise remedied during such time) constitute an Event of Default.
"Dollars", "dollars" and "$" each mean lawful money of the
United States.
"Eligible Assignee" means (a) a commercial bank organized
under the laws of the United States, or any state thereof, and having a
combined capital and surplus of at least $250,000,000; (b) a commercial
bank organized under the laws of any other country which is a member of
the Organization for Economic Cooperation and Development (the "OECD"),
or a political subdivision of any such country, and having a combined
capital and surplus of at least $250,000,000, provided that such bank
is acting through a branch or agency located in the United States; and
(c) a Person that is primarily engaged in the business of commercial
lending and that is (i) a Subsidiary of a Bank, (ii) a Subsidiary of a
Person of which a Bank is a Subsidiary, or (iii) a Person of which a
Bank is a Subsidiary.
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"Environmental Laws" means all federal, state, local or
foreign laws, statutes, common law duties, rules, regulations,
ordinances and codes, together with all administrative orders, directed
duties, requests, licenses, authorizations and permits of, and
agreements with, any Governmental Authorities, in each case relating to
the environment or to emissions, discharges or releases of pollutants,
contaminants, petroleum or petroleum products, chemicals or industrial,
toxic or hazardous substances or wastes into the environment including
ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants,
petroleum or petroleum products, chemicals or industrial, toxic or
hazardous substances or wastes or the clean-up or other remediation
thereof.
"ERISA" means the Employee Retirement Income Security Act of
1974.
"ERISA Group" means the Company and all members of a
controlled group of corporations and all trades or businesses (whether
or not incorporated) under common control which, together with the
Company, are treated as a single employer under Section 414 of the
Code.
"Event of Default" means any of the events or circumstances
specified in Section 8.01.
"Exchange Act" means the Securities Exchange Act of 1934.
"Excluded Taxes" means any and all present or future taxes,
levies, assessments, imposts, duties, deductions, fees, withholding or
similar charges and all liabilities with respect thereto, other than
those taxes included in the definition of Taxes.
"Facility Period" means the period from the Closing Date to
the Revolving Termination Date (or, if Term Loans are made hereunder,
the Term Maturity Date), or, if earlier, the date of termination of the
Aggregate Commitment in its entirety and the repayment of all Loans
outstanding hereunder.
"Federal Funds Rate" means, for any day, the rate set forth in
the weekly statistical release designated as H.15(519), or any
successor publication, published by the Federal Reserve Bank of New
York with respect to the preceding Business Day opposite the caption
"Federal Funds (Effective)"; or, if for any relevant day such rate is
not so published with respect to any such preceding Business Day, the
rate for such day will be the arithmetic mean as determined by the
Agent of the rates for the last transaction in overnight Federal funds
arranged prior to 9:00 a.m. (New York City time) on that day by each of
three leading brokers of Federal funds transactions in New York City
selected by the Agent.
"Fee Letter" has the meaning specified in subsection 2.10(a).
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"Foundation Stock Agreement" means the agreement dated May 21,
1997, between the Company and the J.A.and Kathryn Albertson Foundation,
Inc. and any successor agreement.
"FRB" means the Board of Governors of the Federal Reserve
System, and any Governmental Authority succeeding to any of its
principal functions.
"GAAP" means generally accepted accounting principles as in
effect from time to time.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof, any central bank (or
similar monetary or regulatory authority) thereof, any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government, and any
corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" means, as to any Person, any direct or
indirect liability of that Person, whether or not contingent, with or
without recourse, with respect to any obligation (the "primary
obligations") of another Person (the "primary obligor"), including any
obligation of that Person (i) to purchase, repurchase or otherwise
acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such
primary obligation, or to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency
or any balance sheet item, level of income or financial condition of
the primary obligor, (iii) to purchase property, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation, or (iv) otherwise to assure or hold harmless
the holder of any such primary obligation against loss in respect
thereof. The amount of any Guaranty Obligation shall be deemed equal to
the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect
thereof.
"Indebtedness" of any Person means, without duplication, (a)
all indebtedness for borrowed money; (b) all obligations evidenced by
notes, bonds, debentures or similar instruments, (c) all obligations
issued, undertaken or assumed as the deferred purchase price of
property or services, (d) all obligations with respect to capital
leases (but not obligations with respect to operating leases), (e) all
obligations of such Person to purchase securities or other property
which arise out of or in connection with the sale of the same or
substantially similar securities or property, (f) all non-contingent
obligations (and, for purposes of Section 7.01 and the definition of
Material Indebtedness all contingent obligations) of such Person to
reimburse any bank or other Person in respect of amounts paid under any
Surety Instrument, (g) all indebtedness of others of the type referred
to in clauses (a) through (f) secured by a Lien on any asset of such
Person, whether or not such indebtedness is assumed by such Person, (h)
all Guaranty Obligations of such Person in respect of indebtedness of
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others of the type referred to in clauses (a) through (f), and (i) all
preferred stock of such Person redeemable at the option of the holder
during the Facility Period. Insurance reserves, tax reserves and
interest thereon, salaries payable, taxes payable, dividends payable,
trade accounts payable arising in the ordinary course of business,
deferred investment tax credits, deferred compensation, deferred rents
payable under non-capital leases, benefits payable, unearned income and
other similar liabilities shall not constitute "Indebtedness."
"Indebtedness Rating" has the meaning set forth in Annex I.
"Indemnified Liabilities" has the meaning specified in Section
10.05.
"Indemnified Person" has the meaning specified in Section
10.05.
"Independent Auditor" has the meaning specified in subsection
6.01(a).
"Insolvency Proceeding" means, with respect to any Person,(a)
any case, action or proceeding with respect to such Person before any
court or other Governmental Authority relating to bankruptcy,
reorganization, insolvency, liquidation, receivership, dissolution,
winding-up or relief of debtors, or (b) any general assignment for the
benefit of creditors, composition, marshalling of assets for
creditors, or other similar arrangement in respect of its creditors
generally or any substantial portion of its creditors, in either case
undertaken under U.S. Federal, state or foreign law, including the
Bankruptcy Code.
"Interest Payment Date" means, as to (i) any Offshore Rate
Loan, the last day of each Interest Period applicable to such Loan,
(ii) as to any Base Rate Loan which is not a Swingline Loan, the last
day of each calendar quarter and the Revolving Termination Date, and
(iii) with respect to any Base Rate Loan that is a Swingline Loan, the
Business Day on which the principal of such Swingline Loan is repaid or
as otherwise provided in Section 2.05(e), provided, however, that if
any Interest Period for an Offshore Rate Loan exceeds three months, the
date that falls three months after the beginning of such Interest
Period and after each Interest Payment Date thereafter is also an
Interest Payment Date.
"Interest Period" means, as to any Offshore Rate Loan, the
period commencing on the Borrowing Date of such Loan or on the
Conversion/Continuation Date on which the Loan is converted into or
continued as an Offshore Rate Loan, and ending on the date one, two,
three or six months thereafter as selected by the Company in its Notice
of Borrowing or Notice of Conversion/Continuation;
provided that:
(i) if any Interest Period would otherwise end on a day that
is not a Business Day, that Interest Period shall be extended to the
following Business Day unless, in the case of an Offshore Rate Loan,
the result of such extension would be to carry such Interest Period
into another calendar month, in which event such Interest Period shall
end on the preceding Business Day;
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(ii) no Interest Period applicable to a Term Loan or portion
thereof shall extend beyond any date upon which is due any scheduled
principal payment in respect of the Term Loans unless the aggregate
principal amount of Term Loans represented by Base Rate Loans, or
Offshore Rate Loans having Interest Periods that will expire on or
before such date, equals or exceeds the amount of such principal
payment;
(iii) any Interest Period pertaining to an Offshore Rate Loan
that begins on the last Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iv) no Interest Period for any Term Loan shall extend beyond
the Term Maturity Date and no Interest Period for any Revolving Loan
shall extend beyond the Revolving Termination Date.
"IRS" means the Internal Revenue Service, and any Governmental
Authority succeeding to any of its principal functions under the Code.
"Lead Arrangers" means NMS and Wachovia Bank, N.A.
"Lending Office" means, as to any Bank, the office or offices
of such Bank specified as its "Lending Office" or "Domestic Lending
Office" or "Offshore Lending Office", as the case may be, on Schedule
10.02, or such other office or offices as such Bank may from time to
time notify the Company and the Agent.
"Lien" means, with respect to any asset, any mortgage, lien,
pledge, charge, security interest or encumbrance of any kind in respect
of such asset. For the purposes of this Agreement, the Company or any
Subsidiary shall be deemed to own subject to a Lien any asset which it
has acquired or holds subject to the interest of a vendor or lessor
under any conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means an extension of credit by a Bank to the Company
in the form of a Term Loan, Revolving Loan or a Swingline Loan under
Article II, and may be a Base Rate Loan, or an Offshore Rate Loan
(each, a "Type" of Loan).
"Loan Documents" means this Agreement, any Notes, the Fee
Letter, and all other documents delivered to the Agent or any Bank in
connection with the transactions contemplated by this Agreement.
"Majority Banks" means at any time Banks then holding more
than 50% of the then aggregate unpaid principal amount of the Credit
Exposure, or, if no such principal amount is then outstanding, Banks
then having more than 50% of the Aggregate Commitment. As used in this
definition, the "Credit Exposure" of any Bank means (i) with respect to
any outstanding Revolving Loans or Term Loans, the aggregate
outstanding principal amount of the Loans made by such Bank, and (ii)
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with respect to any outstanding Swingline Loans, the participating
interest therein equal to such Bank's Pro Rata Share thereof.
"Margin Stock" means "margin stock" as such term is defined in
Regulation T, U or X of the FRB.
"Markus-Stiftung Stock Agreement" means the agreement dated
February 15, 1980, among the Company, Theo Albrecht Stiftung (now known
as Markus-Stiftung) and Theo Albrecht, as amended by the First
Amendment thereto dated as of April 11, 1984, the Second Amendment
thereto dated as of September 25, 1989 and the Third Amendment thereto
dated as of December 5, 1994 and any successor agreement.
"Material Adverse Effect" means (a) a material adverse change
in, or a material adverse effect upon, the operations, business,
assets, liabilities or financial condition of the Company and its
Consolidated Subsidiaries taken as a whole; (b) a material impairment
of the ability of the Company to perform under any Loan Document and to
avoid any Event of Default; or (c) a material adverse effect upon the
legality, validity, binding effect or enforceability against the
Company of any Loan Document.
"Material Indebtedness" means Indebtedness (other than the
Loans ) of the Company and/or one or more of its Subsidiaries, arising
in one or more related or unrelated transactions, in an aggregate
outstanding principal amount exceeding $30,000,000.
"Material Plan" means at any time a Plan or Plans having
aggregate Unfunded Liabilities in excess of $30,000,000.
"Minimum Amount" means (i) in respect of any Borrowing,
conversion or continuation of Loans, (A) in the case of Base Rate Loans
(other than Swingline Loans), an aggregate minimum amount of $5,000,000
or any integral multiple of $1,000,000 in excess thereof, (B) in the
case of Swingline Loans, an aggregate minimum amount of $500,000 or any
integral multiple of $100,000 in excess thereof, and (C) in the case of
Offshore Rate Loans, an aggregate minimum amount of $5,000,000 or any
integral multiple of $1,000,000 in excess thereof, and (ii) in the case
of any reduction of the Commitments under Section 2.06, or optional
prepayment of Loans under Section 2.07, $5,000,000 or any multiple of
$1,000,000 in excess thereof.
"Multiemployer Plan" means at any time an employee pension
benefit plan within the meaning of Section 4001(a)(3) of ERISA to which
any member of the ERISA Group is then making or accruing an obligation
to make contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to
be a member of the ERISA Group during such five year period.
"NMS" means NationsBanc Montgomery Securities LLC, a Delaware
limited liability company.
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"Non-Continuing Bank" means, at any time, each Bank the
Revolving Termination Date of which has not been extended pursuant to
Section 2.15.
"Note" means a promissory note executed by the Company in
favor of a Bank pursuant to subsection 2.02(b), in substantially the
form of Exhibit F (a "Revolving Note") or Exhibit G (a "Term Note").
"Notice of Borrowing" means a notice in substantially the form
of Exhibit A.
"Notice of Conversion/Continuation" means a notice in
substantially the form of Exhibit B.
"Obligations" means all advances, debts, liabilities,
obligations, covenants and duties arising under any Loan Document owing
by the Company to any Bank, the Swingline Bank, the Agent, or any
Indemnified Person, whether direct or indirect (including those
acquired by assignment), absolute or contingent, due or to become due,
now existing or hereafter arising.
"Offshore Rate" means for any Interest Period: (i) with
respect to Offshore Rate Loans comprising part of the same Borrowing,
the rate of interest per annum determined by the Agent to be the rate
of interest per annum (rounded upward to the nearest 1/100th of 1%)
appearing on Dow Jones Page 3750 (as defined below) for deposits in
Dollars in the approximate amount of the Offshore Rate Loan to be made,
continued or converted by BofA and having a maturity comparable to such
Interest Period, at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period, subject to
clause (ii) below; or (ii) if for any reason the rate is not available
as provided in the preceding clause (i) of this definition, the
"Offshore Rate" instead means the rate of interest per annum determined
by the Agent to be the arithmetic mean (rounded upward to the nearest
1/16th of 1%) of the rates of interest per annum notified to the Agent
by each Reference Bank as the rate of interest at which deposits in
Dollars in the approximate amount of the Offshore Rate Loan to be made,
continued or converted by such Reference Bank, and having a maturity
comparable to such Interest Period, would be offered to major banks in
the London interbank market or other applicable interbank market at
their request at approximately 11:00 a.m. (London time) two Business
Days prior to the commencement of such Interest Period. As used in this
definition, "Dow Jones Page 3750" means the display designated as
"3750" on the Dow Jones Market Service (formerly known as the Telerate
Service) or any replacement page thereof.
"Offshore Rate Loan" means a Loan that bears interest based on
the Offshore Rate.
"Other Taxes" means any present or future stamp or documentary
taxes or any other excise taxes, charges or similar levies which arise
from any payment made hereunder or from the execution, delivery,
performance, enforcement or registration of, or otherwise with respect
to, this Agreement or any other Loan Documents.
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"Participant" has the meaning specified in subsection
10.08(d).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
Governmental Authority succeeding to any of its principal functions
under ERISA.
"Person" means an individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, Governmental Authority, or
any other entity of whatever nature.
"Plan" means at any time an employee pension benefit plan
(other than a Multiemployer Plan) which is covered by Title IV of ERISA
or subject to the minimum funding standards under Section 412 of the
Code and either (i) is maintained, or contributed to, by any member of
the ERISA Group for employees of any member of the ERISA Group or (ii)
has at any time within the preceding five years been maintained, or
contributed to, by any Person which was at such time a member of the
ERISA Group for employees of any Person which was at such time a member
of the ERISA Group.
"Pro Rata Share" means, as to any Bank at any time, the
percentage equivalent (expressed as a decimal, rounded to the ninth
decimal place) at such time of such Bank's Commitment divided by the
Aggregate Commitment (or, if all Commitments have been terminated, the
aggregate principal amount of such Bank's Loans divided by the
aggregate principal amount of the Loans then held by all Banks). The
initial Pro Rata Share of each Bank is set forth opposite such Bank's
name in Schedule 2.1 under the heading "Pro Rata Share."
"Reference Bank" means each of BofA, Wachovia Bank, N.A. and
The First National Bank of Chicago.
"Replacement Bank" has the meaning specified in Section 3.09.
"Requirement of Law" means, as to any Person, any law
(statutory or common), treaty, rule or regulation or determination of
an arbitrator or of a Governmental Authority, in each case applicable
to or binding upon the Person or any of its property or to which the
Person or any of its property is subject.
"Responsible Officer" means, as to any Person, the chief
executive officer, the chief financial officer, or the treasurer or the
president of such Person, or any other officer having substantially the
same authority and responsibility; or, with respect to compliance with
financial covenants, the chief financial officer or the treasurer of
such Person, or any other officer having substantially the same
authority and responsibility.
"Revolving Loan" has the meaning specified in Section 2.01.
"Revolving Note" has the meaning specified in the definition
of "Note".
"Revolving Termination Date" means the earlier to occur of:
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(a) March 28, 2000 as the same may be extended from
time to time pursuant to Section 2.15; and
(b) the date on which the Commitments terminate in
accordance with the provisions of this Agreement.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Subsidiary" of a Person means any corporation or other
business entity of which more than 50% of the voting stock, membership
interests or other equity interests (in the case of Persons other than
corporations), is owned or controlled directly or indirectly by the
Person, or one or more of the Subsidiaries of the Person, or a
combination thereof. Unless the context otherwise clearly requires,
references herein to a "Subsidiary" refer to a Subsidiary of the
Company.
"Surety Instruments" means all letters of credit (including
standby and commercial), banker's acceptances, bank guaranties,
shipside bonds, surety bonds and similar instruments.
"Swap Contract" means any agreement, whether or not in
writing, relating to any transaction that is a rate swap, basis swap,
forward rate transaction, commodity swap, commodity option, equity or
equity index swap or option, bond, note or bill option, interest rate
option, forward foreign exchange transaction, cap, collar or floor
transaction, currency swap, cross-currency rate swap, swaption,
currency option or any other, similar transaction (including any option
to enter into any of the foregoing) or any combination of the
foregoing, and, unless the context otherwise clearly requires, any
master agreement relating to or governing any or all of the foregoing.
"Swap Termination Value" means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a) for
any date on or after the date such Swap Contracts have been closed out
and termination value(s) determined in accordance therewith, such
termination value(s), and (b) for any date prior to the date referenced
in clause (a) the amount(s) determined as the mark-to-market value(s)
for such Swap Contracts, as determined by the Company based upon one or
more mid-market or other readily available quotations provided by any
recognized dealer in such Swap Contracts (which may include any Bank.)
"Swingline Bank" means BofA, in its capacity as maker of
Swingline Loans hereunder. Specific reference to the Swingline Bank
shall exclude the Swingline Bank in its capacity as a Bank hereunder.
"Swingline Commitment" has the meaning specified in subsection
2.05(a).
"Swingline Loan" has the meaning specified in subsection
2.05(a).
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"Syndication Agent" means Wachovia Bank, N.A., in its capacity
as syndication agent hereunder.
"Taxes" means any and all present or future taxes, levies,
assessments, imposts, duties, deductions, fees, withholdings or similar
charges, and all liabilities with respect thereto, excluding, in the
case of each Bank and the Agent, respectively, (a) income or franchise
taxes imposed on (or measured by) its net income (i) by the United
States, (ii) by the jurisdiction under the laws of which such recipient
is organized or in which its principal office is located, (iii) by any
jurisdiction solely as a result of such Bank's activities in or contact
with such jurisdiction unrelated to the transactions contemplated by
this Agreement, or (iv) by the jurisdiction in which in the Lending
Office of the recipient is located, and (b) any branch profits taxes
imposed by the United States or any similar tax imposed by any other
jurisdiction in which any recipient is located.
"Term Loan" has the meaning specified in Section 2.01.
"Term Maturity Date" means the one year anniversary date of
the borrowing date of the Term Loan.
"Term Note" has the meaning specified in the definition of
"Note".
"Type" has the meaning specified in the definition of "Loan."
"Unfunded Liability" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all
benefits under such Plan exceeds (ii) the fair market value of all Plan
assets allocable to such benefits (excluding any accrued but unpaid
contributions), all determined as of the then most recent valuation
date for such Plan, but only to the extent that such excess represents
a potential liability of a member of the ERISA Group to the PBGC or any
other Person under Title IV of ERISA.
"United States" and "U.S." each means the United States of
America.
"Wholly-Owned Consolidated Subsidiary" means any Consolidated
Subsidiary all of the shares of capital stock or other ownership
interests of which (except directors' qualifying shares) are at the
time directly or indirectly owned by the Company.
1.02 Other Interpretive Provisions.
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) The words "hereof", "herein", "hereunder" and similar words refer
to this Agreement as a whole and not to any particular provision of this
Agreement; and subsection, Section, Schedule and Exhibit references are to this
Agreement unless otherwise specified.
(c) (i) The term "documents" includes any and all instruments,
documents, agreements, certificates,indentures, notices and other writings,
however evidenced.
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(ii) The term "including" is not limiting and means "including
without limitation."
(iii) In the computation of periods of time from a specified date
to a later specified date, the word "from" means "from and including";
the words "to" and "until" each mean "to but excluding", and the word
"through" means "to and including."
(iv) The term "property" includes any kind of property or asset,
real, personal or mixed, tangible or intangible.
(d) Unless otherwise expressly provided herein, (i) references to
agreements (including this Agreement) and other contractual instruments shall be
deemed to include all subsequent amendments and other modifications thereto, but
only to the extent such amendments and other modifications are not prohibited by
the terms of any Loan Document, and (ii) references to any statute or regulation
are to be construed as including all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute or
regulation.
(e) The captions and headings of this Agreement are for convenience of
reference only and shall not affect the interpretation of this Agreement.
(f) This Agreement and other Loan Documents may use several different
limitations, tests or measurements to regulate the same or similar matters. All
such limitations, tests and measurements are cumulative and shall each be
performed in accordance with their terms.
(g) This Agreement and the other Loan Documents are the result of
negotiations among and have been reviewed by counsel to the Agent, the Company
and the other parties, and are the products of all parties. Accordingly, they
shall not be construed against the Banks or the Agent merely because of the
Agent's or Banks' involvement in their preparation.
1.03 Accounting Principles.
(a) Unless the context otherwise clearly requires, all
accounting terms not expressly defined herein shall be construed, and all
financial computations required under this Agreement shall be made, in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Company's Independent Auditor) with the most recent audited
consolidated financial statements of the Company and its Consolidated
Subsidiaries delivered to the Banks, and giving pro forma effect to the merger
of Abacus Holdings, Inc. into American Stores Company ("ASC"), resulting in ASC
becoming a Subsidiary of the Company, except that accounting terms used in
Sections 7.01, 7.03 and 7.05 shall be interpreted, and all accounting
determinations and calculations required to establish whether the Company is or
was in compliance with the requirements of said Sections shall be prepared in
accordance with generally accepted accounting principles as in effect on the
date hereof (subject to the above-referenced pro forma adjustment), applied on a
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basis consistent with the audited consolidated financial statements of the
Company and its Consolidated Subsidiaries referred to in Section 5.10(a).
(b) References herein to "fiscal year" and "fiscal quarter"
refer to such fiscal periods of the Company.
ARTICLE II
THE CREDITS
2.01 Amounts and Terms of Commitments.
(a) The Revolving Credit. Each Bank severally agrees, on the
terms and conditions set forth herein, to make loans to the Company (each such
loan, a "Revolving Loan") from time to time on any Business Day during the
period from the Closing Date to the Revolving Termination Date, in an aggregate
amount not to exceed at any time outstanding the amount set forth opposite such
Bank's name on Schedule 2.01 under the heading "Commitment" (such amount as the
same may be reduced under Section 2.06 or reduced or increased as a result of
one or more assignments under Section 10.08, such Bank's "Commitment");
provided, however, that, after giving effect to any Borrowing of Revolving
Loans, (i) the aggregate principal amount of all outstanding Revolving Loans,
together with the aggregate principal amount of all Swingline Loans outstanding
at such time, shall not at any time exceed the Aggregate Commitment and (ii) the
aggregate principal amount of all outstanding Revolving Loans of any Bank, plus
the participation of such Bank in the aggregate principal amount of all
outstanding Swingline Loans, shall not at any time exceed such Bank's
Commitment. Within the limits of each Bank's Commitment, and subject to the
other terms and conditions hereof, the Company may borrow under this Section
2.01, prepay under Section 2.07 and reborrow under this Section 2.01.
(b) The Term Loan Option. Not less than five days and not more
than thirty days prior to the Revolving Termination Date then in effect, and in
lieu of any extension of the Revolving Termination Date under Section 2.15(a),
the Company may provide written notice to the Agent, who shall forward a copy of
such notice to each of the Banks, that the Revolving Loans outstanding as of the
Revolving Termination Date shall be converted into Term Loans. If such notice is
given, each Bank severally agrees, on the terms and conditions hereinafter set
forth, to make a term loan (each a "Term Loan" and, collectively, the "Term
Loans") to the Company on the Revolving Termination Date, in a principal amount
up to but not exceeding such Bank's outstanding Revolving Loans. Any amount of
any Bank's Term Loan repaid may not be reborrowed.
2.02 Loan Accounts.
(a) The Loans made by each Bank shall be evidenced by one or
more loan accounts or records maintained by such Bank in the ordinary course of
business. The loan accounts or records maintained by the Agent and each Bank
shall be conclusive absent manifest error of the amount of the Loans made by the
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Banks to the Company and the interest and payments thereon. Any failure so to
record or any error in doing so shall not, however, limit or otherwise affect
the obligation of the Company hereunder to pay any amount owing with respect to
the Loans.
(b) Upon the request of any Bank made through the Agent, the
Loans made by such Bank may be evidenced by one or more Notes, instead of or in
addition to loan accounts. Each such Bank shall endorse on the schedules annexed
to its Note(s) the date, amount and maturity of each Loan made by it and the
amount of each payment of principal made by the Company with respect thereto.
Each such Bank is irrevocably authorized by the Company to endorse its Note(s)
and each Bank's record shall be conclusive absent manifest error; provided,
however, that the failure of a Bank to make, or an error in making, a notation
thereon with respect to any Loan shall not limit or otherwise affect the
obligations of the Company hereunder or under any such Note to such Bank.
2.03 Procedure for Borrowing.
(a) Each Borrowing shall be made upon the Company's
irrevocable written notice delivered to the Agent in the form of a Notice of
Borrowing (which notice must be received by the Agent prior to 10:00 a.m. (San
Francisco time) (i) at least three Business Days prior to the requested
Borrowing Date, in the case of Offshore Rate Loans, and (ii) on the requested
Borrowing Date, in the case of Base Rate Loans, specifying:
(A) the amount of the Borrowing, which shall be in a
Minimum Amount;
(B) the requested Borrowing Date, which shall be a
Business Day;
(C) the Type of Loans comprising the Borrowing and
whether Revolving Loans or Term Loans are requested; and
(D) the duration of the Interest Period applicable to
such Loans included in such notice (subject to the provisions
of the definition of "Interest Period" herein). If the Notice
of Borrowing fails to specify the duration of the Interest
Period for any Borrowing comprised of Offshore Rate Loans,
such Interest Period shall be three months.
(b) The Agent will promptly notify each Bank of its receipt of
any Notice of Borrowing and of the amount of such Bank's Pro Rata Share of that
Borrowing.
(c) Each Bank will make the amount of its Pro Rata Share of
each Borrowing available to the Agent for the account of the Company at the
Agent's Payment Office by 11:00 a.m. (San Francisco time) on the Borrowing Date
requested by the Company in funds immediately available to the Agent. The
proceeds of all such Borrowings will then be made available to the Company by
the Agent at such office by crediting the account of the Company on the books of
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BofA with the aggregate of the amounts made available to the Agent by the Banks
and in like funds as received by the Agent, or if requested by the Company, by
wire transfer in accordance with written instructions provided to the Agent by
the Company of such funds as received by the Agent, unless on the date of the
Borrowing all or any portion of the proceeds thereof shall then be required to
be applied to the repayment of any outstanding Loans, in which case such
proceeds or portion thereof shall be applied to the payment of such Loans.
(d) After giving effect to any Borrowing, unless the Agent
shall otherwise consent, there may not be more than fifteen different Interest
Periods in effect.
2.04 Conversion and Continuation Elections.
(a) The Company may, upon irrevocable written notice to the
Agent in accordance with subsection 2.04(b):
(i) elect, as of any Business Day, in the case of
Base Rate Loans (other than Swingline Loans), or as of the last day of
the applicable Interest Period, in the case of any other Type of Loans,
to convert any such Loans (or any part thereof in a Minimum Amount)
into Loans of any other Type; or
(ii) elect, as of the last day of the applicable
Interest Period, to continue any Loans having Interest Periods expiring
on such day (or any part thereof in a Minimum Amount);
provided that if at any time the aggregate amount of Offshore Rate Loans in
respect of any Borrowing is reduced, by payment, prepayment, or conversion of
part thereof to be less than $5,000,000, such Offshore Rate Loans shall
automatically convert into Base Rate Loans, and on and after such date the right
of the Company to continue such Loans as, and convert such Loans into, Offshore
Rate Loans, shall terminate.
(b) The Company shall deliver a Notice of Conversion /
Continuation to be received by the Agent not later than 10:00 a.m. (San
Francisco time) (i) at least three Business Days in advance of the Conversion /
Continuation Date, if the Loans are to be converted into or continued as
Offshore Rate Loans; and (ii) on the Conversion / Continuation Date, if the
Loans are to be converted into Base Rate Loans, specifying:
(A) the proposed Conversion / Continuation Date;
(B) the aggregate amount of Loans to be converted or
continued;
(C) the Type of Loans resulting from the proposed
conversion or continuation; and
(D) other than in the case of conversions into Base Rate
Loans, the duration of the requested Interest Period (subject
to the provisions of the definition of "Interest Period"
herein).
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(c) If upon the expiration of any Interest Period applicable
to Offshore Rate Loans, the Company has failed to select timely a new Interest
Period to be applicable to such Offshore Rate Loans, or if any Default or Event
of Default then exists, the Company shall be deemed to have elected to convert
such Offshore Rate Loans into Base Rate Loans effective as of the expiration
date of such Interest Period.
(d) The Agent will promptly notify each Bank of its receipt of
a Notice of Conversion / Continuation, or, if no timely notice is provided by
the Company, the Agent will promptly notify each Bank of the details of any
automatic conversion. All conversions and continuations shall be made ratably
according to the respective outstanding principal amounts of the Loans with
respect to which the notice was given held by each Bank.
(e) Unless the Majority Banks otherwise consent, during the
existence of a Default or Event of Default, the Company may not elect to have a
Loan converted into or continued as an Offshore Rate Loan.
(f) After giving effect to any conversion or continuation of
Loans, unless the Agent shall otherwise consent, there may not be more than
fifteen different Interest Periods in effect.
2.05 Swingline Loans. (a) Subject to the terms and conditions hereof, the
Swingline Bank agrees to make a portion of the Aggregate Commitment
available to the Company by making Swingline loans (individually, a
"Swingline Loan", and, collectively, the "Swingline Loans") to the Company
on any Business Day during the period from the Closing Date to the
Revolving Termination Date in accordance with the procedures set forth in
this Section 2.05 in an aggregate principal amount at any one time
outstanding not to exceed Twenty-Five Million Dollars ($25,000,000),
notwithstanding the fact that such Swingline Loans, when aggregated with
any other Loans made by or participated in by the Swingline Bank, may
exceed the Swingline Bank's Commitment (the amount of such commitment of
the Swingline Bank to make Swingline Loans to the Company pursuant to this
subsection 2.05(a), as the same shall be reduced pursuant to subsection
2.06(b) or as a result of any assignment pursuant to Section 10.08, the
Swingline Bank's "Swingline Commitment"); provided, that at no time shall
(i) the sum of the aggregate principal amount of all outstanding Swingline
Loans plus the aggregate principal amount of all outstanding Revolving
Loans exceed the Aggregate Commitment, or (ii) the aggregate principal
amount of outstanding Swingline Loans exceed the Swingline Commitment.
Additionally, no more than three Swingline Loans may be outstanding at any
one time, and all Swingline Loans shall at all times be Base Rate Loans or
accrue interest at such other rate as may be agreed to by the Swingline
Bank and the Company. Within the foregoing limits, and subject to the other
terms and conditions hereof, the Company may borrow under this subsection
2.05(a), prepay pursuant to Section 2.07 and reborrow pursuant to this
subsection 2.05(a).
(b) The Company shall provide the Agent irrevocable written notice
(including notice by a telephone call confirmed immediately via facsimile)
in the form of a Notice of Borrowing of any Swingline Loan requested
hereunder (which notice must be received by the Agent prior to 12:00 noon
(San Francisco time) on the requested Borrowing Date) specifying (i) the
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amount to be borrowed, which shall be in a Minimum Amount (unless otherwise
agreed by the Swingline Bank), and (ii) the requested Borrowing Date, which
shall be a Business Day. Unless the Swingline Bank has received notice
prior to 12:00 noon (San Francisco time) on such Borrowing Date from the
Agent (including at the request of any Bank) (A) directing the Swingline
Bank not to make the requested Swingline Loan as a result of the
limitations set forth in the proviso set forth in the first sentence of
subsection 2.05(a); or (B) that one or more conditions specified in Article
IV are not then satisfied; then, subject to the terms and conditions
hereof, the Swingline Bank will, not later than 2:00 p.m. (San Francisco
time) on the Borrowing Date specified in such Notice of Borrowing, make the
amount of its Swingline Loan available to the Company by crediting the
account of the Company on the books of BofA or if requested by the Company,
by wire transfer in accordance with written instructions provided to the
Agent by the Company. The Agent will notify the Banks on a quarterly basis
if any Swingline Loan Borrowings occurred during such quarter.
(c) The Company shall repay to the Swingline Bank in full on the Revolving
Termination Date the aggregate principal amount of the Swingline Loans
outstanding on the Revolving Termination Date.
(d) For one Business Day during each successive 30 Business Day period the
aggregate principal amount of Swingline Loans shall be $0 (a "Clean-Up
Day"). The Company shall prepay the outstanding principal amount of the
Swingline Loans in whole to the extent required so that a Clean-Up Day may
occur in each such 30 Business Day period as provided in this subsection
2.05(d) (which Swingline Loans may not be reborrowed until such Clean-Up
Day has ended); provided that the foregoing may be from the proceeds of
Revolving Loans hereunder.
(e) If: (i) any Swingline Loans shall remain outstanding at 5:00 p.m. (San
Francisco time) on the Business Day immediately prior to a Clean-Up Day and
by such time on such Business Day the Agent shall have received neither:
(A) a Notice of Borrowing delivered pursuant to Section 2.03
requesting that Revolving Loans be made pursuant to
subsection 2.01 on the Clean-Up Day in an amount at least
equal to the aggregate principal amount of such Swingline
Loans; nor
(B) any other notice indicating the Company's intent to repay
such Swingline Loans with funds obtained from other
sources; or
(ii) any Swingline Loans shall remain outstanding during the
existence of a Default or Event of Default and the Swingline Bank shall
in its sole discretion notify the Agent that the Swingline Bank desires
that such Swingline Loans be converted into Revolving Loans;
then the Agent shall be deemed to have received a Notice of Borrowing from the
Company pursuant to Section 2.03 requesting that Base Rate Loans be made
pursuant to subsection 2.01 on such Clean-Up Day (in the case of the
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circumstances described in clause (i) above) or on the first Business Day
subsequent to the date of such notice from the Swingline Bank (in the case of
the circumstances described in clause (ii) above) in an amount equal to the
aggregate amount of such Swingline Loans, and the procedures set forth in
subsections 2.03(b) and 2.03(c) shall be followed in making such Base Rate
Loans; provided that such Base Rate Loans shall be made notwithstanding the
Company's failure to comply with Section 4.03; and provided, further, that if a
Borrowing of Revolving Loans becomes legally impracticable and if so required by
the Swingline Bank at the time such Revolving Loans are required to be made by
the Banks in accordance with this subsection 2.05(e), each Bank agrees that in
lieu of making Revolving Loans as described in this subsection 2.05(e), such
Bank shall purchase a participation from the Swingline Bank in the applicable
Swingline Loans in an amount equal to such Bank's Pro Rata Share of such
Swingline Loans, and the procedures set forth in subsections 2.03(b) and 2.03(c)
shall be followed in connection with the purchases of such participations. Upon
such purchases of participations the prepayment requirements of subsection
2.05(d) shall be deemed waived with respect to such Swingline Loans. If any
Swingline Loan shall remain outstanding in lieu of a Borrowing of Revolving
Loans as provided above, interest on such Swingline Loan shall be due and
payable on demand, and 1% per annum shall be added to the interest rate
applicable to such Swingline Loan. The proceeds of such Base Rate Loans, or
participations purchased, shall be applied to repay such Swingline Loans. A copy
of each notice given by the Agent to the Banks pursuant to this subsection
2.05(e) with respect to the making of Revolving Loans, or the purchases of
participations, shall be promptly delivered by the Agent to the Company. Each
Bank's obligation in accordance with this Agreement to make the Revolving Loans,
or purchase the participations, as contemplated by this subsection 2.05(e),
shall be absolute and unconditional and shall not be affected by any
circumstance, including (1) any set-off, counterclaim, recoupment, defense or
other right which such Bank may have against the Swingline Bank, the Company or
any other Person for any reason whatsoever; (2) the occurrence or continuance of
a Default, an Event of Default or a Material Adverse Effect; or (3) any other
circumstance, happening or event whatsoever, whether or not similar to any of
the foregoing.
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2.06 Voluntary Termination or Reduction of Commitments. (a) The Company
may, upon not less than three Business Days' prior notice to the Agent,
terminate the Commitments, or permanently reduce the Commitments, provided
that the aggregate amount of any partial reduction is in a Minimum Amount;
unless, after giving effect thereto and to any prepayments of Loans made on
the effective date thereof, the then-outstanding principal amount of the
Loans would exceed the amount of the Aggregate Commitment then in effect. A
notice of termination of the Commitments delivered by the Company may state
that such notice is conditioned upon the effectiveness of other credit
facilities, in which case such notice may be revoked by the Company by
notice to the Agent on or prior to the specified date if such condition is
not satisfied. Once reduced in accordance with this Section, the
Commitments may not be increased. Any reduction of the Commitments shall be
applied to each Bank according to its Pro Rata Share. If and to the extent
specified by the Company in the notice to the Agent, some or all of the
reduction in the Aggregate Commitment shall be applied to reduce the
Swingline Commitment. All accrued commitment fees to, but not including the
effective date of any reduction or termination of Commitments, shall be
paid on the effective date of such reduction or termination.
(b) At no time shall the Swingline Commitment exceed the Aggregate
Commitment, and any reduction of the Commitments which reduces the
Aggregate Commitment below the then-current amount of the Swingline
Commitment shall result in an automatic corresponding reduction of the
Swingline Commitment to the amount of the Aggregate Commitment, as so
reduced, without any action on the part of the Swingline Bank. At no time
shall the Swingline Commitment exceed the Commitment of the Swingline Bank,
and any reduction of the Commitments which reduces the Commitment of the
Swingline Bank below the then-current amount of the Swingline Commitment
shall result in an automatic corresponding reduction of the Swingline
Commitment to the amount of the Commitment of the Swingline Bank, as so
reduced, without any action on the part of the Swingline Bank.
2.07 Optional Prepayments. Subject to Section 3.04, the Company may, at any
time or from time to time, upon notice to the Agent, ratably prepay Loans
in whole or in part, in Minimum Amounts or, with respect to Swingline
Loans, in other amounts with the consent of the Swingline Bank. The Company
shall deliver a notice of prepayment in accordance with Section 10.02 to be
received by the Agent not later than 10:00 a.m. (San Francisco time) (i) at
least three Business Days in advance of the prepayment date if the Loans to
be prepaid are Offshore Loans and (ii) at least one Business Day in advance
of the prepayment date if the Loans to be prepaid are Base Rate Loans. Such
notice shall not thereafter be revocable by the Company and the Agent will
promptly notify the Swingline Bank thereof (in the case of any prepayment
of Swingline Loans), and each Bank thereof and of such Bank's Pro Rata
Share of such prepayment (if any). Such notice of prepayment shall specify
the date and amount of such prepayment and the Type(s) of Loans to be
prepaid and whether such prepayment is of Base Rate Loans, Offshore Rate
Loans, Revolving Loans or Swingline Loans (or any combination thereof). If
such notice is given by the Company, the Company shall make such prepayment
and the payment amount specified in such notice shall be due and payable on
the date specified therein, together with accrued interest to each such
date on the amount of Offshore Rate Loans prepaid and any amounts required
pursuant to Section 3.04.
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2.08 Repayment.
(a) The Revolving Credit. The Company shall repay to the Agent
for the account of the Banks on the Revolving Termination Date the aggregate
principal amount of Loans outstanding on such date.
(b) The Term Credit. The Company shall repay to the Agent for
the account of the Banks the aggregate principal amount of the Term Loans
outstanding on the Term Maturity Date.
2.09 Interest.
(a) (i) Each Loan (other than a Swingline Loan) shall bear
interest on the outstanding principal amount thereof from the applicable
Borrowing Date at a rate per annum equal to the Offshore Rate or the Base Rate,
as the case may be (and subject to the Company's right to convert to other Types
of Loans under Section 2.04), plus the Applicable Margin. (ii) Each Swingline
Loan shall bear interest on the outstanding principal amount thereof from the
applicable Borrowing Date at a rate per annum equal to the Base Rate plus the
Applicable Margin, or at such other rate as may be agreed to by the Swingline
Bank.
(b) Interest on each Loan shall be paid in arrears on each
Interest Payment Date. Interest shall also be paid on the date of any prepayment
of Offshore Rate Loans under Section 2.07 for the portion of the Offshore Rate
Loans so prepaid and upon payment (including prepayment) in full thereof.
(c) Notwithstanding subsection (a) of this Section, if any
amount of principal of or interest on any Loan, or any other amount payable
hereunder or under any other Loan Document is not paid in full when due (whether
at stated maturity, by acceleration, demand or otherwise), the Company agrees to
pay interest on such unpaid principal or other amount, from the date such amount
becomes due until the date such amount is paid in full, and after as well as
before any entry of judgment thereon to the extent permitted by law, payable on
demand, at a rate per annum which is determined by adding 1% per annum to the
Applicable Margin then in effect for such Loans and, in the case of Obligations
not subject to an Applicable Margin, at a rate per annum equal to the Base Rate,
plus the Applicable Margin then in effect for Base Rate Loans, plus 1% per
annum.
(d) If any Reference Bank's Commitment terminates (other than
on termination of all the Commitments), or for any reason whatsoever any
Reference Bank ceases to be a Bank hereunder, that Reference Bank shall
thereupon cease to be a Reference Bank, and the Offshore Rate shall be
determined on the basis of the rates as notified by the remaining Reference
Banks; provided that if, as a result, there shall only be one Reference Bank
remaining, the Agent (after consultation with the Banks and with the consent of
the Company (which shall not be unreasonably withheld)) shall, by notice to the
Company and the Banks, designate another Bank as a Reference Bank so that there
shall at all times be at least two Reference Banks.
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(e) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Agent as contemplated hereby. If any of the Reference
Banks fails to supply such rates to the Agent upon its request, the rate of
interest shall be determined on the basis of the quotations of the remaining
Reference Bank(s).
(f) Anything herein to the contrary notwithstanding, the
obligations of the Company to any Bank hereunder shall be subject to the
limitation that payments of interest shall not be required for any period for
which interest is computed hereunder, to the extent (but only to the extent)
that contracting for or receiving such payment by such Bank would be contrary to
the provisions of any law applicable to such Bank limiting the highest rate of
interest that may be lawfully contracted for, charged or received by such Bank,
and in such event the Company shall pay such Bank interest at the highest rate
permitted by applicable law.
2.10 Fees.
(a) Arrangement, Agency Fees. The Company shall pay fees as
required by the letter agreement ("Fee Letter") between the Company and NMS, the
Syndication Agent and the Agent dated December 4, 1998.
(b) Facility Fee. The Company shall pay to the Agent for the
account of each Bank a facility fee on such Bank's Commitment, regardless of
usage, computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter, at a rate per annum equal to the Applicable Fee Amount. Such
facility fee shall accrue from the Closing Date to the Revolving Termination
Date and shall be due and payable quarterly in arrears on the last Business Day
of each quarter commencing on the last Business Day of the fiscal quarter
following the Closing Date through the Revolving Termination Date, with the
final payment to be made on the Revolving Termination Date; provided that, in
connection with any reduction or termination of Commitments under Section 2.06,
the accrued facility fee calculated for the period ending on such date shall
also be paid on the date of such reduction or termination, with the following
quarterly payment being calculated on the basis of the period from such
reduction or termination date to such quarterly payment date. The facility fee
provided in this subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more conditions in
Article IV are not met.
(c) Utilization Fee. The Company shall pay to the Agent for
the account of each Bank a utilization fee on the outstanding Revolving Loans at
any time that the aggregate outstanding Loans (including Swingline Loans) exceed
the levels of the Aggregate Commitment determined in accordance with Annex I, at
a rate per annum equal to the Applicable Fee Amount. Such utilization fee shall
be computed on a quarterly basis in arrears on the last Business Day of each
calendar quarter, shall accrue from the Closing Date to the Revolving
Termination Date and shall be payable in arrears on the last Business Day of
each quarter commencing on the last Business Day of the fiscal quarter following
the Closing Date through the Revolving Termination Date, with the final payment
to be made on the Revolving Termination Date. The utilization fee, if
applicable, will be added to the Applicable Margin.
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2.11 Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the
Base Rate is determined by BofA's "reference rate" shall be made on the basis of
a year of 365 or 366 days, as the case may be, and actual days elapsed. All
other computations of fees and interest shall be made on the basis of a 360-day
year and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365-day year). Interest and fees shall accrue during
each period during which interest or such fees are computed from the first day
thereof to the last day thereof.
(b) Each determination of an interest rate by the Agent shall
be conclusive and binding on the Company and the Banks in the absence of
manifest error.
2.12 Payments by the Company.
(a) Except as otherwise expressly provided herein, all
payments by the Company shall be made to the Agent for the account of the Banks
at the Agent's Payment Office, and shall be made from an account of the Company
maintained within the United States, in Dollars, and in immediately available
funds, no later than 12:00 noon (San Francisco time) on the date specified
herein. The Agent will promptly distribute to each Bank its Pro Rata Share (or
other applicable share as expressly provided herein) of such payment in like
funds as received. Any payment received by the Agent later than 12:00 noon (San
Francisco time) shall be deemed to have been received on the following Business
Day and any applicable interest or fee shall continue to accrue.
(b) Subject to the provisions set forth in the definition of
"Interest Period" herein, whenever any payment is due on a day other than a
Business Day, such payment shall be made on the following Business Day, and such
extension of time shall in such case be included in the computation of interest
or fees, as the case may be.
(c) Unless the Agent receives notice from the Company prior to
the date on which any payment is due to the Banks that the Company will not make
such payment in full as and when required, the Agent may assume that the Company
has made such payment in full to the Agent on such date in immediately available
funds and the Agent may (but shall not be so required), in reliance upon such
assumption, distribute to each Bank on such due date an amount equal to the
amount then due such Bank. If and to the extent the Company has not made such
payment in full to the Agent, each Bank shall repay to the Agent on demand such
amount distributed to such Bank, together with interest thereon at the Federal
Funds Rate for each day from the date such amount is distributed to such Bank
until the date repaid.
2.13 Payments by the Banks to the Agent.
(a) Unless the Agent receives notice from a Bank on or prior
to the Closing Date or, with respect to any Borrowing after the Closing Date, on
the date of such Borrowing, that such Bank will not make available as and when
required hereunder to the Agent for the account of the Company the amount of
that Bank's Pro Rata Share of the Borrowing, the Agent may assume that each Bank
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has made such amount available to the Agent in immediately available funds on
the Borrowing Date and the Agent may (but shall not be so required), in reliance
upon such assumption, make available to the Company on such date a corresponding
amount. If and to the extent any Bank shall not have made its full amount
available to the Agent in immediately available funds and the Agent in such
circumstances has made available to the Company such amount, that Bank shall on
the Business Day following such Borrowing Date make such amount available to the
Agent, together with interest at the Federal Funds Rate for each day during such
period. A notice of the Agent submitted to any Bank with respect to amounts
owing under this subsection (a) shall be conclusive, absent manifest error. If
such amount is so made available, such payment to the Agent shall constitute
such Bank's Loan on the date of Borrowing for all purposes of this Agreement. If
such amount is not made available to the Agent on the Business Day following the
Borrowing Date, the Agent will notify the Company of such failure to fund and,
upon demand by the Agent, the Company shall pay such amount to the Agent for the
Agent's account, together with interest thereon for each day elapsed since the
date of such Borrowing, at a rate per annum equal to the interest rate
applicable at the time to the Loans comprising such Borrowing.
(b) The failure of any Bank to make any Loan on any Borrowing
Date shall not relieve any other Bank of any obligation hereunder to make a Loan
on such Borrowing Date, but no Bank shall be responsible for the failure of any
other Bank to make the Loan to be made by such other Bank on any Borrowing Date.
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2.14 Sharing of Payments, Etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Loans made by it
any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) in excess of its Pro Rata Share (or other
share contemplated hereunder), such Bank shall immediately (a) notify the
Agent of such fact, and (b) purchase from the other Banks such
participations in the Loans made by them as shall be necessary to cause
such purchasing Bank to share the excess payment pro rata with each of
them; provided, however, that if all or any portion of such excess payment
is thereafter recovered from the purchasing Bank, such purchase shall to
that extent be rescinded and each other Bank shall repay to the purchasing
Bank the purchase price paid therefor, together with an amount equal to
such paying Bank's ratable share (according to the proportion of (i) the
amount of such paying Bank's required repayment to (ii) the total amount so
recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered.
The Company agrees that any Bank so purchasing a participation from another
Bank may, to the fullest extent permitted by law, exercise all its rights
of payment (including the right of set-off, but subject to Section 10.10)
with respect to such participation as fully as if such Bank were the direct
creditor of the Company in the amount of such participation. The Agent will
keep records (which shall be conclusive and binding in the absence of
manifest error) of participations purchased under this Section and will in
each case notify the Banks following any such purchases or repayments.
2.15 Revolving Termination Date Extensions.
(a) Not less than 30 days and not more than 60 days prior to
the Revolving Termination Date then in effect, and in lieu of the exercise at
such time of the term out option under Section 2.01(b), the Company may make a
written request to the Agent, who shall forward a copy of each such request to
each of the Banks, that the Revolving Termination Date then in effect be
extended to the date which occurs 364 days after the Revolving Termination Date
then in effect. Each request by the Company pursuant to the immediately
preceding sentence shall specify a date (the "Requested Extension Effective
Date"), which shall be not earlier than 20 days after the giving of the
respective notice and not later than 15 days prior to the Revolving Termination
Date then in effect, as the date by which the Banks should respond to the
requested extension request and which would be the date of the effectiveness of
the change to the Revolving Termination Date. Each request pursuant to the first
sentence of this Section 2.15 shall also be accompanied by a certificate of an
officer of the Company stating that no Default or Event of Default has occurred
and is continuing. Each Bank, acting in its sole discretion and with no
obligation to grant any extension pursuant to this Section 2.15, shall, by
written notice to the Company and the Agent, such notice to be given on or prior
to the Requested Extension Effective Date, advise the Company and the Agent
whether or not such Bank agrees to such extension, provided that any Bank which
fails to so notify the Company and the Agent as provided above shall be deemed
to have elected not to grant such extension. If less than all the Banks shall
agree to such extension, the extension contemplated in this Section may
nonetheless occur with respect to the consenting Banks, provided that any such
extension shall be conditioned upon an agreement to such extension by Banks with
at least 75% of the Aggregate Commitment. The Agent shall notify the Company and
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each of the Banks as to which Banks have agreed to such extension and as to the
new Revolving Termination Date as a result thereof, or that such extension shall
not occur, as the case may be.
(b) In the event that the Revolving Termination Date is
extended by some but not all of the Banks, on the existing Revolving Termination
Date for any Bank not extending (each a "Non-Continuing Bank"), the Company
shall either (i) repay all Revolving Loans of such Non-Continuing Bank, together
with all accrued and unpaid interest thereon, and all fees and other amounts
owing to such Non-Continuing Bank, and upon such payment each such
Non-Continuing Bank shall cease to constitute a Bank hereunder, except with
respect to the indemnification provisions under this Agreement, which shall
survive as to such Non-Continuing Bank or (ii) in lieu of an extension of the
Revolving Loan Termination Date under this Section 2.15, elect to convert the
outstanding Revolving Loans into Term Loans pursuant to Section 2.01(b).
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.
(a) Unless otherwise required by applicable law, any and all
payments by the Company to each Bank or the Agent under this Agreement and any
other Loan Document shall be made free and clear of, and without deduction or
withholding for, any Taxes.
(b) If the Company shall be required by law to deduct or
withhold any United States federal Taxes from or in respect of any sum payable
hereunder to any Bank or the Agent, and subject to Section 9.10, then:
(i) the sum payable shall be increased as necessary
so that, after making all required deductions and withholdings
(including deductions and withholdings applicable to additional sums
payable under this Section), such Bank or the Agent, as the case may
be, receives and retains an amount equal to the sum it would have
received and retained had no such deductions or withholdings been made;
(ii) the Company shall make such deductions and
withholdings; and
(iii) the Company shall pay the full amount deducted
or withheld to the relevant taxing authority in accordance with
applicable law.
(c) In addition, the Company shall pay any Other Taxes.
(d) The Company agrees to indemnify and hold harmless each
Bank and the Agent for the full amount of Other Taxes, and, subject to Section
9.10, Taxes referred to in Subsection 3.01(b). Without limiting the generality
of the foregoing, if the Company fails to pay any Other Taxes or any such Taxes
when due to the appropriate taxing authority or fails to remit to the Banks and
the Agent the required documentary evidence referred to in Subsection 3.01(c)
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and the Company received from the Agent or the affected Bank prior notice of its
obligation to make the payment of Other Taxes or such Taxes, the Company agrees
to indemnify and hold harmless each Bank and the Agent for any incremental
taxes, interest or penalties that may become payable by any Bank or the Agent as
a result of any such failure. Payment pursuant to this indemnification shall be
made within 30 days after the date such Bank or the Agent makes written demand
therefor setting forth in reasonable detail the basis of the Company's
obligation to indemnify such Bank or the Agent pursuant to this Section 3.01.
(e) Within 60 days after the date of any payment of any Taxes
or Other Taxes pursuant to Subsections 3.01(a), (b) or (c), the Company shall
furnish to each Bank and the Agent, at its address referred to in Section 10.02,
documentary evidence reasonably satisfactory to each Bank and the Agent of
payment thereof, but only to the extent such documentary evidence is furnished
to the Company by the relevant taxing authority.
(f) If the Company is required to pay any additional amount to
the Agent or any Bank or any taxing authority for the account of the Agent or
any Bank pursuant to this Section 3.01, the Company shall have the right, upon
notice to such Bank, to (i) prepay, on a non-pro rata basis, the principal
amount or any portion thereof held by such Bank plus all interest, fees, and
other amounts owing to such Bank as of the date of such prepayment (including
any amounts owing under Section 3.04), or (ii) require such Bank to use
reasonable efforts to designate a different Lending Office for funding or
booking its Loan (or any Loan participation) hereunder or to assign its rights
and obligations hereunder to another of its offices, branches or Affiliates, if,
in the sole judgment of such Bank, such designation or assignment (A) would
eliminate or reduce amounts payable pursuant to Subsection 3.01(b) in the future
and (B) would not subject such Bank to any unreimbursed cost or expense and
would not otherwise be disadvantageous to such Bank. With respect to the
foregoing clause (ii) the Company hereby agrees to pay all reasonable costs and
expenses incurred by any Bank in connection with any such designation or
assignment.
(g) Each Bank agrees that it will (i) take all reasonable
actions requested in writing by the Company that are without material cost or
risk to such Bank to maintain all exemptions, if any, available to it from
withholding taxes (whether available by treaty or existing administrative
waiver), and (ii) to the extent reasonable and without material cost or risk to
it, otherwise cooperate with the Company to minimize any amounts payable by the
Company under this Section 3.01.
(h) Each non-United States Bank represents and warrants to the
Agent and the Company as of the date hereof that under applicable law and
treaties such Bank is entitled to claim the benefit of complete exemption from
imposition of United States withholding tax or that the income receivable
pursuant to this Agreement is effectively connected with the conduct of a trade
or business in the United States.
3.02 Illegality.
(a) If any Bank determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
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interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office to make
Offshore Rate Loans, then, on notice thereof by such Bank to the Company through
the Agent, any obligation of that Bank to make Offshore Rate Loans (or convert
Loans into Offshore Rate Loans) shall be suspended until such Bank notifies the
Agent and the Company that the circumstances giving rise to such determination
no longer exist.
(b) If a Bank determines that it is unlawful to maintain any
Offshore Rate Loan, the Company shall, upon its receipt of notice of such fact
and demand from such Bank (with a copy to the Agent), prepay in full such
Offshore Rate Loans of that Bank then outstanding, together with interest
accrued thereon and amounts required under Section 3.04, either on the last day
of the Interest Period thereof, if such Bank may lawfully continue to maintain
such Offshore Rate Loans to such day, or immediately, if such Bank may not
lawfully continue to maintain such Offshore Rate Loan. If the Company is
required to so prepay any Offshore Rate Loan, then concurrently with such
prepayment, the Company shall borrow from the affected Bank, in the amount of
such repayment, a Base Rate Loan.
(c) If the obligation of any Bank to make or maintain Offshore
Rate Loans has been so terminated or suspended, the Company may elect, by giving
notice to such Bank through the Agent that all Loans which would otherwise be
made by such Bank as Offshore Rate Loans shall be instead Base Rate Loans.
(d) Before giving any notice to the Agent under this Section,
the affected Bank shall designate a different Lending Office with respect to its
Offshore Rate Loans if such designation will avoid the need for giving such
notice or making such demand and will not, in the judgment of such Bank, be
illegal or otherwise disadvantageous to such Bank.
3.03 Increased Costs and Reduction of Return.
(a) If any Bank determines that, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation (other than any such introduction or change in respect of any law or
regulation relating to Taxes or Excluded Taxes which shall be governed solely by
Section 3.01) or (ii) the compliance by that Bank with any guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law), there shall be any increase in the cost to such Bank of agreeing
to make or making, funding or maintaining any Offshore Rate Loans, by an amount
deemed by such Bank to be material, then the Company shall be liable for, and
shall from time to time, within 15 days after demand by such Bank (with a copy
of such demand to be sent to the Agent), pay to the Agent for the account of
such Bank, additional amounts as are sufficient to compensate such Bank for such
increased costs.
(b) If any Bank shall have determined that (i) the
introduction of any Capital Adequacy Regulation, (ii) any change in any Capital
Adequacy Regulation, (iii) any change in the interpretation or administration of
any Capital Adequacy Regulation by any central bank or other Governmental
Authority charged with the interpretation or administration thereof, or (iv)
compliance by such Bank (or its Lending Office) or any corporation controlling
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such Bank with any Capital Adequacy Regulation, affects or would affect the
amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank and (taking into consideration such Bank's or
such corporation's policies with respect to capital adequacy and such Bank's
desired return on capital) determines that the amount of such capital is
increased as a consequence of its Commitment, loans, credits or obligations
under this Agreement, by an amount deemed by such Bank to be material, then,
within 15 days after demand by such Bank to the Company through the Agent, the
Company shall pay to such Bank, from time to time as specified by such Bank,
additional amounts sufficient to compensate such Bank for such increase.
(c) Each Bank will promptly notify the Company and the Agent
of any event of which it has knowledge, occurring after the date hereof, which
will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the sole
judgment of such Bank, be otherwise disadvantageous to such Bank.
Notwithstanding the foregoing subsections (a) and (b) of this Section 3.03, the
Company shall only be obligated to compensate any Bank for any amount arising or
accruing during (i) any time or period commencing not more than 30 days prior to
the date on which such Bank notifies the Agent and the Company that it proposes
to demand such compensation and identifies to the Agent and the Company the
statute, regulation or other basis upon which the claimed compensation is or
will be based and (ii) any time or period during which, because of the
retroactive application of such statute, regulation or other such basis, such
Bank did not know that such amount would arise or accrue.
3.04 Funding Losses. The Company shall reimburse each Bank and hold each
Bank harmless from any loss or expense which such Bank may sustain or incur as a
consequence of:
(a) the failure of the Company to make on a timely basis any payment
of principal of any Offshore Rate Loan;
(b) the failure of the Company to borrow, continue or convert a Loan
after the Company has given (or is deemed to have given) a Notice of Borrowing
or a Notice of Conversion / Continuation;
(c) the failure of the Company to make any prepayment in accordance
with any notice delivered under Section 2.07;
(d) the prepayment (including pursuant to Section 2.07 or other
payment (including after acceleration thereof) of an Offshore Rate Loan on a day
that is not the last day of the relevant Interest Period; or
(e) the conversion under Section 2.04 of any Offshore Rate Loan to a
Base Rate Loan on a day that is not the last day of the relevant Interest
Period;
including any such loss or expense arising from the liquidation or reemployment
of funds obtained by it to maintain its Offshore Rate Loans or from fees payable
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to terminate the deposits from which such funds were obtained. For purposes of
calculating amounts payable by the Company to the Banks under this Section and
under subsection 3.03(a), each Offshore Rate Loan made by a Bank (and each
related reserve, special deposit or similar requirement) shall be conclusively
deemed to have been funded at the London interbank offered rate used in
determining the Offshore Rate for such Offshore Rate Loan by a matching deposit
or other borrowing in the interbank eurodollar market for a comparable amount
and for a comparable period, whether or not such Offshore Rate Loan is in fact
so funded.
3.05 Inability to Determine Rates. If on or prior to the first day of any
Interest Period:
(a) the Agent is advised by the Reference Banks that deposits in
Dollars (in the applicable amounts) are not being offered to the
Reference Banks in the relevant market for such Interest Period, or
(b) the Majority Banks advise the Agent that the Offshore Rate,
as determined by the Agent, will not adequately and fairly reflect the
cost to such Banks of funding their Offshore Rate Loans for such
Interest Period, the Agent will promptly so notify the Company and
each Bank. Thereafter, the obligation of the Banks to make or maintain
Offshore Rate Loans hereunder shall be suspended until the Agent upon
the instruction of the Majority Banks revokes such notice in writing.
Upon receipt of such notice, the Company may revoke any Notice of
Borrowing or Notice of Conversion / Continuation then submitted by it.
If the Company does not revoke such Notice, the Banks shall make,
convert or continue the Loans,as proposed by the Company, in the
amount specified in the applicable notice submitted by the Company,
but such Loans shall be made, converted or continued as Base Rate
Loans instead of Offshore Rate Loans.
3.06 Certificates of Banks. Any Bank claiming reimbursement or compensation
under this Article III shall deliver to the Company (with a copy to the
Agent) a certificate setting forth in reasonable detail the amount payable
to such Bank hereunder and such certificate shall be conclusive and binding
on the Company in the absence of manifest error. In determining any amount
due under this Article III, a Bank may use any reasonable averaging and
attribution methods.
3.07 Base Rate Loans Substituted for Affected Offshore Rate Loans. If (i)
the obligation of any Bank to make Offshore Rate Loans has been suspended
pursuant to Section 3.02 or (ii) any Bank has demanded compensation under
Section 3.03(a) and the Company shall, by at least five Business Days'
prior notice to such Bank through the Agent, have elected that the
provisions of this Section shall apply to such Bank, then, unless and until
such Bank notifies the Company that the circumstances giving rise to such
suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as
Offshore Rate Loans, shall be made instead as Base Rate Loans (on
which interest and principal shall be payable contemporaneously with
the related Offshore Rate Loans of the other Banks); and
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(b) after each of its Offshore Rate Loans has been repaid, all
payments of principal which would otherwise be applied to repay such
Offshore Rate Loans shall be applied to repay its Base Rate Loans
instead.
3.08 Reserves on Offshore Rate Loans. The Company shall pay to each Bank,
as long as such Bank shall be required under regulations of the FRB to
maintain reserves with respect to liabilities or assets consisting of or
including Eurocurrency funds or deposits (currently known as "Eurocurrency
liabilities"), additional costs on the unpaid principal amount of each
Offshore Rate Loan equal to the actual costs of such reserves allocated to
such Loan by the Bank (as determined by the Bank in good faith, which
determination shall be conclusive), payable on each date on which interest
is payable on such Loan, provided the Company shall have received at least
15 days' prior written notice (with a copy to the Agent) of such additional
interest from the Bank. If a Bank fails to give notice 15 days prior to the
relevant Interest Payment Date, such additional interest shall be payable
15 days from receipt of such notice.
3.09 Substitution of Banks. Upon the receipt by the Company from any Bank
(an "Affected Bank") of a claim for compensation under Section 3.03, upon
notice to the Agent from any Bank that it shall not consent to a request by
the Company for an extension of the Revolving Termination Date pursuant to
Section 2.15, or if the Company is required to pay any additional amount to
the Agent or any Bank pursuant to Section 3.01, the Company may: (i)
request one or more of the other Banks to acquire and assume all or part of
such Affected Bank's Loans and Commitment; or (ii) designate a replacement
commercial bank (which shall be an Eligible Assignee) satisfactory to the
Company to acquire and assume all or a ratable part of such Affected Bank's
Loans and Commitment (a "Replacement Bank"); provided, however, that the
Company shall be liable for the payment upon demand of all costs and other
amounts arising under Section 3.04 that result from the acquisition of any
Affected Bank's Loan and/or Commitment (or any portion thereof) by a Bank
or Replacement Bank, as the case may be, on a date other than the last day
of the applicable Interest Period with respect to any Offshore Rate Loan
then outstanding. Any such designation of a Replacement Bank under clause
(ii) shall be effected in accordance with, and subject to the terms and
conditions of, the assignment provisions contained in Section 10.08, and
shall in any event be subject to the prior written consent of the Agent and
the Swingline Bank (which consents shall not be unreasonably withheld).
3.10 Survival. The agreements and obligations of the Company in this
Article III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS PRECEDENT
4.01 Conditions of Initial Loans. The obligation of each Bank and the
Swingline Bank to make its initial Loan hereunder is subject to the
condition that the Agent shall have received on or before the Closing Date
all of the following, in form and substance satisfactory to the Agent and
each Bank, and in sufficient copies for each Bank:
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(a) Credit Agreement and Notes. This Agreement executed by each
party thereto and, for each Bank requesting Notes, the Revolving Notes executed
by the Company;
(b) Resolutions; Incumbency.
(i) Copies of the resolutions of the board of directors of
the Company authorizing the transactions contemplated hereby, certified
as of the Closing Date by the Secretary or an Assistant Secretary of
the Company; and
(ii) A certificate of the Secretary or Assistant Secretary
of the Company dated the Closing Date, certifying the names, titles and
true signatures of the officers of the Company authorized to execute,
deliver and perform, as applicable, this Agreement, and all other Loan
Documents to be delivered by it hereunder;
(c) Organization Documents; Good Standing. Each of the following
documents:
(i) the articles or certificate of incorporation and the bylaws
of the Company as in effect on the Closing Date, certified by the
Secretary or Assistant Secretary of the Company as of the Closing Date;
and
(ii) good standing certificates for the Company from the
Secretary of State (or similar, applicable Governmental Authority) of
its state of incorporation and the state of its principal offices;
(d) Legal Opinions.
(i) an opinion of Thomas R. Saldin, Executive Vice-President and
General Counsel to the Company and addressed to the Agent and the
Banks, dated the Closing Date, substantially in the form of Exhibit D;
and
(ii) a favorable opinion of Brobeck, Phleger & Harrison LLP,
special counsel to the Agent, dated the Closing Date;
(e) Payment of Fees. Evidenceof payment by the Company of all accrued
and unpaid fees, costs and expenses to the extent then due and payable on the
Closing Date, together with Attorney Costs of BofA and the Lead Arrangers to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute BofA's reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude final settling of accounts between
the Company and BofA); including any such costs, fees and expenses arising under
or referenced in Sections 2.10 and 10.04;
(f) Certificate. A certificate signed by a Responsible Officer, dated
as of the Closing Date, stating that:
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(i) the representations and warranties contained in Article V
are true and correct on and as of such date, as though made on and as
of such date;
(ii) no Default or Event of Default exists or would result from
the initial Borrowing; and
(iii) there has occurred since January 29, 1998 (or since the
date of any Form 10-Q or other public disclosure document filed by the
Company with the SEC prior to the Closing Date, to the extent any such
event or circumstance is disclosed in such document), no event or
circumstance that has resulted or could reasonably be expected to
result in a Material Adverse Effect; and
(g) Other Documents. Such other approvals, opinions, documents or
materials as the Agent or any Bank may reasonably request.
4.02 Condition Precedent to the Term Loans. The obligation of each Bank to
make its Term Loan on the Revolving Termination Date shall be subject to
receipt by the Agent of the Term Notes executed by the Company for each
Bank requesting a Term Note.
4.03 Conditions to All Borrowings. The obligation of each Bank and the
Swingline Bank to make any Loan to be made by it (including its initial
Loan) is subject to the satisfaction of the following conditions precedent
on the relevant Borrowing Date:
(a) Notice of Borrowing. The Agent shall have received a Notice of
Borrowing;
(b) Continuation of Representations and Warranties. The
representations and warranties in Article V shall be true and correct on and as
of such Borrowing Date with the same effect as if made on and as of such
Borrowing Date (except to the extent such representations and warranties
expressly refer to an earlier date, in which case they shall be true and correct
as of such earlier date) and except that this subsection (b) shall be deemed
instead to refer to the last day of the most recent quarter and year for which
financial statements have then been delivered, and to the most recent Form 10-K
filed by the Company with the SEC, in respect of the representations and
warranties made in subsection 5.10;
(c) No Material Adverse Effect. There has occurred since January 29,
1998 (or since the date of any Form 10-Q or other public disclosure document
filed by the Company with the SEC prior to the Closing Date, to the extent any
such event or circumstance is disclosed in such document), no event or
circumstance that has resulted or could reasonably be expected to result in a
Material Adverse Effect; and
(d) No Existing Default. No Default or Event of Default shall exist
or shall result from such Borrowing.
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Each Notice of Borrowing submitted by the Company hereunder shall constitute a
representation and warranty by the Company hereunder, as of the date of each
such notice and as of each Borrowing Date, that the conditions in this Section
4.03 are satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Company represents and warrants to the Agent and each Bank that:
5.01 Corporate Existence and Power. The Company is a corporation duly
incorporated, validly existing and in good standing under the laws of Delaware,
and has all corporate powers and all material governmental licenses,
authorizations, consents and approvals required to carry on its business as now
conducted.
5.02 Subsidiaries. Each of the Company's corporate Subsidiaries is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, and has all corporate powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted.
5.03 Corporate and Governmental Authorization; No Contravention. The
execution, delivery and performance by the Company of the Loan Documents are
within the Company's corporate powers, have been duly authorized by all
necessary corporate action, require no action by or in respect of, or filing
with, any Governmental Authority and do not contravene, or constitute a default
under, any provision of applicable law or regulation or of the certificate of
incorporation or by-laws of the Company or of any agreement, judgment,
injunction, order, decree or other instrument binding upon the Company or result
in the creation or imposition of any Lien on any asset of the Company or any of
its Subsidiaries.
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5.04 Binding Effect. This Agreement and each other Loan Document to which
the Company is a party constitutes a valid and binding agreement of the Company,
and each Note, when executed and delivered in accordance with this Agreement,
will constitute a valid and binding obligation of the Company, enforceable
against the Company in accordance with their respective terms.
5.05 Litigation. Except as disclosed in the Company's 1997 Form 10-K, there
is no action, suit or proceeding pending against, or to the knowledge of the
Company threatened against or affecting, the Company or any of its Subsidiaries
before any court or arbitrator or any Governmental Authority in which there is a
reasonable possibility of an adverse decision which could have a Material
Adverse Effect.
5.06 ERISA Compliance. Each member of the ERISA Group has fulfilled its
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and is in compliance in all material respects with the
presently applicable provisions of ERISA and the Code with respect to each Plan.
5.07 Use of Proceeds; Margin Regulations. The proceeds of the Loans are to
be used solely for the purposes set forth in and permitted by Section 6.08 and
Section 7.04.
5.08 Title to Properties; Liens. The Company and each Subsidiary have good
record and marketable title in fee simple to, or valid leasehold interests in,
all real property necessary or used in the ordinary conduct of their respective
businesses, except for such defects in title as could not, individually or in
the aggregate, have a Material Adverse Effect. The property of the Company and
its Subsidiaries is subject to no Liens, other than Liens permitted under
Section 7.01.
5.09 Taxes. The Company and its Subsidiaries have filed all United States
Federal income tax returns and all other material tax returns which are required
to be filed by them and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company or any Subsidiary, other than
any such taxes being contested in good faith and for which appropriate reserves
have been established on the books and records of the Company in accordance with
GAAP. The charges, accruals and reserves on the books of the Company and its
Subsidiaries in respect of taxes or other governmental charges are, in the
opinion of the Company, adequate.
5.10 Financial Information. (a) The consolidated balance sheet of the
Company and its Consolidated Subsidiaries as of January 29, 1998 and the related
consolidated statements of earnings, cash flows and stockholders' equity for the
fiscal year then ended, reported on by Deloitte & Touche and set forth or as
incorporated by reference in the Company's 1997 Form 10-K, a copy of which has
been delivered to each of the Banks, fairly present, in conformity with GAAP,
the consolidated financial position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such fiscal year.
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(b) The unaudited consolidated balance sheet of the Company and its
Consolidated Subsidiaries as of October 29, 1998 and the related unaudited
consolidated statements of earnings and cash flows for the thirty-nine weeks
then ended, set forth in the Company's quarterly report for the third quarter
ended October 29, 1998 filed with the SEC on Form 10-Q, a copy of which has been
delivered to each of the Banks, fairly present, in conformity with GAAP applied
on a basis consistent with the financial statements referred to in Subsection
5.10(a), the consolidated financial position of the Company and its Consolidated
Subsidiaries as of such date and their consolidated results of operations and
cash flows for such thirty-nine week period (subject to normal year-end
adjustments).
(c) The pro forma financial statements contained in the Joint Proxy
Statement/Prospectus dated October 9, 1998 provided by the Company prior to the
Closing Date were prepared in accordance with GAAP, are complete and accurate in
all material respects and fairly present the pro forma financial condition of
the Company and its Consolidated Subsidiaries as of July 30, 1998.
(d) Since January 29, 1998 (or since the date of any Form 10-Q or
other public disclosure document filed by the Company with the SEC prior to the
Closing Date, to the extent any such event or circumstance is disclosed in such
document), there has been no Material Adverse Effect.
5.11 Environmental Matters. In the ordinary course of its business, the
Company considers the effect of Environmental Laws on the business, operations
and properties of the Company and its Subsidiaries as such business, operations
and properties exist at the time. On this basis, the Company has reasonably
concluded that Environmental Laws at the time in effect are unlikely to have a
Material Adverse Effect.
5.12 Regulated Entities. The Company is not an "Investment Company" within
the meaning of the Investment Company Act of 1940. The Company is not subject to
regulation under the Public Utility Holding Company Act of 1935, the Federal
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other Federal or state statute or regulation limiting its ability to incur
Indebtedness.
5.13 Insurance. The properties of the Company and its Consolidated
Subsidiaries are insured with financially sound and reputable insurance
companies not Affiliates of the Company, in such amounts, with such deductibles
(and with such risk retention) and covering such risks as are customarily
carried by companies engaged in similar businesses and owning similar properties
in localities where the Company or such Subsidiary operates.
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5.14 Full Disclosure. All information heretofore furnished by the Company
to the Agent or any Bank for purposes of or in connection with this Agreement or
any transaction contemplated hereby is, and all such information hereafter
furnished by the Company to the Agent or any Bank will be, true and accurate in
all material respects on the date as of which such information is stated or
certified.
5.15 Year 2000. In its efforts to resolve the "Year 2000 Problem" (that is,
the inability of computers, as well as embedded microchips in non-computing
devices, to perform properly date-sensitive functions with respect to certain
dates prior to and after December 31, 1999), the Company has substantially
completed an assessment of all of its computer hardware, software, systems and
processes ("IT Systems") and non-information technology systems such as
telephones, clocks, scales, refrigeration controllers and other equipment
containing embedded microprocessor technology ("Non-IT Systems"). The completion
of upgrades, validation and forward date testing for all systems is scheduled
for early 1999, and many systems were completed by the end of 1998. The Company
expects to successfully implement the remediation of its IT Systems and Non-IT
Systems. In addition to such remediation, the Company has identified
relationships with third parties, including vendors, suppliers and service
providers, which the Company believes are critical to its business operations.
The Company is in the process of communicating with these third parties through
questionnaires, letters and interviews in an effort to determine the extent to
which they are addressing the Year 2000 problem. The Company will continue to
communicate, assess and monitor the progress of these third parties in resolving
the Year 2000 problem. The Company believes that its efforts will result in the
successful resolution of the Year 2000 problem on a timely basis.
ARTICLE VI
AFFIRMATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Majority Banks
waive compliance in writing:
6.01 Information. The Company will deliver to each of the Banks:
(a) as soon as available and in any event within 120 days
after the end of each fiscal year of the Company, a consolidated balance sheet
of the Company and its Consolidated Subsidiaries as of the end of such fiscal
year and the related consolidated statements of earnings, cash flows and
stockholders' equity for such fiscal year, setting forth in each case in
comparative form the figures for the previous fiscal year, all reported on in a
manner acceptable to the SEC by Deloitte & Touche or other independent public
accountants of nationally recognized standing (the "Independent Auditor"). Such
report shall not be qualified as to (i) going concern or (ii) any limitation in
the scope of the audit;
(b) as soon as available and in any event within 60 days after
the end of each of the first three quarters of each fiscal year of the Company,
a consolidated balance sheet of the Company and its Consolidated Subsidiaries as
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of the end of such quarter and the related consolidated statements of earnings
for such quarter and for the portion of the Company's fiscal year ended at the
end of such quarter and the related consolidated statement of cash flows for the
portion of the Company's fiscal year ended at the end of such quarter, setting
forth in comparative form the corresponding statements for the corresponding
portions of the Company's previous fiscal year, all certified (subject to normal
year-end adjustments) as to fairness of presentation, GAAP and consistency by
the chief financial officer or the chief accounting officer of the Company;
(c) simultaneously with the delivery of each set of financial
statements referred to in clauses (a) and (b) above, a Compliance Certificate of
the chief financial officer or the chief accounting officer of the Company;
(d) simultaneously with the delivery of each set of financial
statements referred to in subsection (a), a statement of the Independent Auditor
which reported on such statements (i) whether anything has come to their
attention to cause them to believe that any Default existed on the date of such
statements and (ii) confirming the calculations set forth in the Compliance
Certificate delivered simultaneously therewith pursuant to subsection (c);
(e) forthwith upon the occurrence of any Default, a
certificate of the chief financial officer or the chief accounting officer of
the Company setting forth the details thereof and the action which the Company
is taking or proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the shareholders of
the Company generally, copies of all financial statements, reports and proxy
statements so mailed and not previously delivered to each Bank pursuant to this
Section 6.01;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and any registration
statements on Form S-8 or its equivalent) and reports on Forms 10-K, l0-Q and
8-K (or their equivalents) which the Company shall have filed with the SEC and
not previously delivered to each Bank pursuant to this Section 6.01;
(h) if and when any member of the ERISA Group (i) gives or is
required to give notice to the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute grounds
for a termination of such Plan under Title IV of ERISA, or knows that the plan
administrator of any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable event given or
required to be given to the PBGC; (ii) receives notice of complete or partial
withdrawal liability under Title IV of ERISA, or notice that any Multiemployer
Plan is in reorganization, is insolvent or has been terminated, a copy of such
notice; (iii) receives notice from the PBGC under Title IV of ERISA of an intent
to terminate, impose liability (other than for premiums under Section 4007 of
ERISA) in respect of, or appoint a trustee to administer any Plan, a copy of
such notice; (iv) applies for a waiver of the minimum funding standard under
Section 412 of the Code, a copy of such application; (v) gives notice of intent
to terminate any Plan under Section 4041(c) of ERISA, a copy of such notice and
other information filed with the PBGC; (vi) gives notice of withdrawal from any
Plan pursuant to Section 4063 of ERISA, a copy of such notice; or (vii) fails to
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make any payment or contribution to any Plan or Multiemployer Plan or in respect
of any Benefit Arrangement or makes any amendment to any Plan or Benefit
Arrangement which has resulted or could result in the imposition of a Lien or
the posting of a bond or other security, a certificate of the chief financial
officer or the chief accounting officer of the Company setting forth details as
to such occurrence and action, if any, which the Company or applicable member of
the ERISA Group is required or proposes to take; and
(i) from time to time such additional information regarding
the consolidated financial position of the Company as the Agent, at the request
of any Bank, may reasonably request.
As to any information contained in materials furnished pursuant to subsection
6.01(g), the Company shall not be separately required to furnish such
information under subsection (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Company to furnish the information and
materials described in subsection (a) and (b) above at the times specified
therein.
6.02 Conduct of Business and Maintenance of Existence. The Company will
continue, and will cause each Subsidiary to continue, to engage in business of
the same general type as now conducted by the Company and its Subsidiaries, and
will preserve, renew and keep in full force and effect, and will cause each
Subsidiary to preserve, renew and keep in full force and effect their respective
corporate existence and their respective rights, privileges and franchises
necessary or desirable in the normal conduct of business; provided that the
Company may (a) discontinue operations or dispose of property in the normal
conduct of its business and (b) cause the dissolution of Subsidiaries or the
merger of a Subsidiary into the Company or into another Subsidiary as it may
from time to time reasonably deem necessary or desirable in the conduct of its
business.
6.03 Maintenance of Property. The Company will keep, and will cause each
Subsidiary to keep, all property useful and necessary in its business in good
working order and condition, ordinary wear and tear excepted; provided that the
Company and each of its Subsidiaries may discontinue operations and dispose of
property in the normal conduct of its business.
6.04 Insurance. The Company will maintain, and will cause each Subsidiary
to maintain with financially sound and reputable insurance companies, insurance
on all their real and personal property in at least such amounts and against at
least such risks (and with such risk retention)as are usually insured against by
companies of established repute engaged in the same or similar business as the
Company or such Subsidiary, and the Company will promptly furnish to the Banks
such information as to insurance carried as may be reasonably requested in
writing by the Agent.
6.05 Payment of Obligations. The Company will pay and discharge, and will
cause each Subsidiary to pay and discharge, at or before maturity, all their
respective material obligations and liabilities, including tax liabilities,
except where the same may be contested in good faith by appropriate proceedings,
and will maintain, and will cause each Subsidiary to maintain, in accordance
with GAAP, appropriate reserves for the accrual of any of the same.
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6.06 Compliance with Laws. The Company will comply, and cause each
Subsidiary to comply, in all material respects with all applicable laws,
ordinances, rules, regulations, and requirements of Governmental Authorities
(including Environmental Laws and ERISA), except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings and
non-compliance during the period of such contest could not reasonably be
expected to have a Material Adverse Effect.
6.07 Inspection of Property, Books and Records. The Company will keep, and
will cause each Subsidiary to keep, proper books of record and account in which
full, true and correct entries shall be made of all dealings and transactions in
relation to its business and activities. Upon the occurrence and during the
continuance of a Default, the Company will permit, and will cause each
Subsidiary to permit, representatives of any Bank at such Bank's expense, to
examine any of their respective books and records (except as they relate to the
Company's trade secrets or other proprietary information of the Company other
than any information required to be delivered to the Banks by the Company under
Section 6.01) and to discuss their respective finances and accounts with their
respective officers, employees and independent public accountants, all at such
reasonable times and as often as may reasonably be desired.
6.08 Use of Proceeds. The proceeds of the Loans made under this Agreement
will be used by the Company for commercial paper back-up liquidity and other
lawful corporate purposes.
6.09 Further Assurances. Promptly upon request by the Agent or the Majority
Banks, the Company shall do, execute, acknowledge, and deliver, any and all such
further acts, certificates, assurances and other instruments the Agent or such
Banks, as the case may be, may reasonably require from time to time in order to
carry out more effectively the purposes of this Agreement or any other Loan
Document.
ARTICLE VII
NEGATIVE COVENANTS
So long as any Bank shall have any Commitment hereunder, or any Loan or
other Obligation shall remain unpaid or unsatisfied, unless the Majority Banks
waive compliance in writing:
7.01 Limitation on Liens. Neither the Company nor any Consolidated
Subsidiary will create, assume or suffer to exist any Lien on any asset now
owned or hereafter acquired by it, except:
(a) Liens existing on the date of this Agreement securing
Indebtedness outstanding on the date of this Agreement in an aggregate principal
amount not exceeding $500,000,000;
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(b) any Lien existing on any specific tangible asset or assets
of any Person at the time such Person becomes a Consolidated Subsidiary and not
created in contemplation of such event, subject to subsection 7.01(e);
(c) any Lien on any asset securing Indebtedness incurred or
assumed for the purpose of financing all or any part of the cost of acquiring
such asset, provided that (i) in the case of land acquired for the purpose of
constructing new business or operating facilities thereon, (A) such Lien
attaches to such land within 24 months after the acquisition thereof and (B)
construction of such new business or operating facilities thereon is
substantially complete within 24 months after the acquisition of such land and
(ii) in the case of any asset other than an asset of the type described in the
preceding clause (i), such Lien attaches to such asset concurrently with or
within 180 days after the acquisition thereof;
(d) any Lien on any specific tangible asset or assets of any
Person existing at the time such Person is merged or consolidated with or into
the Company or a Consolidated Subsidiary and not created in contemplation of
such event, subject to subsection 7.01(e);
(e) any Lien existing on any specific tangible asset or assets
prior to the acquisition thereof by the Company or a Consolidated Subsidiary and
not created in contemplation of such acquisition; provided that in the case of
any Lien permitted under this subsection (e) or under subsections (b) and (d),
any such Lien does not by its terms cover any such tangible assets after the
time the Company directly or indirectly acquires such assets which were not
covered immediately prior thereto, and any such Lien does not by its terms
secure any Indebtedness other than Indebtedness existing immediately prior to
the time of acquisition of such assets;
(f) any Lien arising out of the refinancing, extension,
renewal or refunding of any Indebtedness secured by any Lien permitted by any of
the foregoing clauses of this Section, provided that such Indebtedness is not
increased and is not secured by any additional assets;
(g) Liens arising in the ordinary course of its business which
(i) do not secure Indebtedness and (ii) do not in the aggregate materially
detract from the value of its assets or materially impair the use thereof in the
operation of its business;
(h) Liens arising from the Company's or a Subsidiary's
pledging of equipment, not otherwise permitted by the foregoing clauses of this
Section, securing Indebtedness in an aggregate principal amount at any time
outstanding not to exceed $500,000,000; and
(i) Liens on real property; provided that the aggregate value
of real property owned by the Company (not including for purposes of this
proviso any real property acquired or held by the Company subject to the
interest of a lessor under a capital lease relating to such real property), as
determined on a lower of cost or Fair Market Value basis (as defined below),
exceeds the aggregate principal amount of Indebtedness secured by Liens on such
real property in an amount not less than $250,000,000.
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For the purposes of Section 7.01, "Fair Market Value" means with
respect to any real property of the Company or any Subsidiary at any date the
open market cash purchase price that an informed and willing purchaser would pay
for such real property in an arm's-length transaction to a willing and informed
owner under no compulsion to sell, all as determined (i) if no Default has
occurred and is continuing, at the option of the Majority Banks either (A) in
good faith by the Board of Directors of the Company or (B) by an appraisal
conducted by an independent appraiser satisfactory to the Agent and the Company,
the cost of such appraisal to be shared equally by the Company and the Banks,
and (ii) if a Default has occurred and is continuing, by an appraisal conducted
by an independent appraiser satisfactory to the Agent and the Company, the cost
of such appraisal to be borne solely by the Company.
7.02 Disposition of Assets. The Company will not (i) consolidate or merge
with or into any other Person or (ii) directly or indirectly sell, lease or
otherwise transfer all or any substantial part of the assets of the Company and
its Consolidated Subsidiaries, considered as a whole, to any other Person;
provided that the Company may merge with another Person if (A) the Company is
the Person surviving such merger and (B) immediately after giving effect to such
merger, no Default shall have occurred and be continuing.
7.03 Limitation on Subsidiary Indebtedness and Swap Contracts. The Company
shall not permit any Subsidiary to create, incur, assume, suffer to exist, or
otherwise become or remain directly or indirectly liable with respect to, any
Indebtedness or Swap Contracts except:
(a) Indebtedness incurred pursuant to this Agreement;
(b) endorsements for collection or deposit in the ordinary
course of business;
(c) Swap Contracts outstanding as of the Closing Date or
entered into thereafter in the ordinary course of business;
(d) Surety Instruments in the ordinary course of business;
(e) Indebtedness existing on the Closing Date in an amount not
to exceed $4,200,000,000; provided that not more than 30 days after the merger
of American Stores Company into the Company or any Subsidiary thereof, such
amount shall be reduced by no less than $1,000,000,000;
(f) Indebtedness secured by Liens permitted by subsections
7.01(b), (c), (d), (e) and (i);
(g) capital leases entered into by any Subsidiary after the
Closing Date to finance the acquisition of equipment;
(h) Indebtedness of Wholly-Owned Consolidated Subsidiaries of
the Company to the Company or to other Wholly-Owned Consolidated Subsidiaries of
the Company; and
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(i) additional Indebtedness incurred after the Closing Date
not exceeding $500,000,000 in aggregate principal amount at any time
outstanding.
7.04 Use of Proceeds.
(a) The Company shall not, and shall not suffer or permit any
Subsidiary to, use any portion of the Loan proceeds, directly or indirectly, (i)
to purchase or carry Margin Stock, (ii) to repay or otherwise refinance
Indebtedness of the Company or others incurred to purchase or carry Margin
Stock, (iii) to extend credit for the purpose of purchasing or carrying any
Margin Stock or (iv) for any other purpose which violates Regulations T, U or X
of the FRB.
(b) The Company shall not, directly or indirectly, use any
portion of the Loan proceeds to purchase during the underwriting period, or for
thirty days thereafter, Ineligible Securities underwritten by the Arranger. The
Arranger is a wholly-owned subsidiary of BankAmerica Corporation and a
registered broker-dealer which is permitted to underwrite and deal in certain
Ineligible Securities; and "Ineligible Securities" means securities which may
not be underwritten or dealt in by member banks of the Federal Reserve System
under Section 16 of the Banking Act of 1933 (12 U.S.C. ss. 24, Seventh).
7.05 Minimum Consolidated Tangible Net Worth. The Company shall not permit
its Consolidated Tangible Net Worth at any time to be less than $2,100,000,000;
provided that upon (a) the purchase from time to time of common stock of the
Company by the Company from one or more of the J.A. and Kathryn Albertson
Foundation, Inc., or donees pursuant to the terms of the Foundation Stock
Agreement, or (b) the purchase from time to time of common stock of the Company
by the Company from Theo Albrecht or from the Markus-Stiftung pursuant to the
terms of the Markus-Stiftung Stock Agreement, Consolidated Tangible Net Worth
shall be increased, for purposes of subsequent calculations hereunder, by an
amount (the "CTNW Adjustment") equal to the excess (if any) of (i) the amount by
which the purchase price of such common stock reduces Consolidated Tangible Net
Worth over (ii) the amount by which Consolidated Tangible Net Worth has been
increased through the sale of common stock subsequent to the date of such
purchase, excluding the effect of the exercise of employee stock options, all as
determined in accordance with GAAP.
ARTICLE VIII
EVENTS OF DEFAULT
8.01 Event of Default. Any of the following shall constitute an "Event of
Default":
(a) Non-Payment. The Company fails to make, (i) when and as
required to be made herein, payments of any amount of principal of any Loan, or
(ii) within five Business Days after the same becomes due, payment of any
interest, fee or any other amount payable hereunder or under any other Loan
Document; or
(b) Representation or Warranty. Any representation, warranty,
certification or statement made by the Company in this Agreement or in any
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certificate, financial statement or other document delivered pursuant to this
Agreement shall prove to have been incorrect in any material respect on or as of
the date made (or deemed made); or
(c) Specific Defaults. The Company shall fail to observe or
perform any covenant contained in Sections 7.01 through 7.05, inclusive; or
(d) Other Defaults. The Company shall fail to observe or
perform any covenant or agreement contained in this Agreement (other than those
covered by clause (a), (b) or (c) above) for 15 Business Days after the earlier
of (i) the date upon which the chief financial officer, chief accounting officer
or other senior officer of the Company knew or reasonably should have known of
such failure or (ii) notice thereof has been given to the Company by the Agent
at the request of any Bank; or
(e) Cross-Default. (i) The Company or any Subsidiary (A) fails
to make any payment in respect of any Material Indebtedness (other than in
respect of Swap Contracts), when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and such failure continues after
the applicable grace or notice period, if any, specified in the relevant
document on the date of such failure; or (B) fails to perform or observe any
other condition or covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any Material Indebtedness, and
such failure continues after the applicable grace or notice period, if any,
specified in the relevant document on the date of such failure if the effect of
such failure, event or condition is to cause, or to permit the holder or holders
of such Material Indebtedness or beneficiary or beneficiaries of such Material
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause such Material Indebtedness to be declared
to be due and payable, or to be prepaid prior to its stated maturity, or to
become payable, or cash collateral in respect thereof to be demanded; or (ii)
there occurs under any Swap Contract an Early Termination Date (as defined in
such Swap Contract) resulting from (1) any event of default under such Swap
Contract as to which the Company or any Subsidiary is the Defaulting Party (as
defined in such Swap Contract) or (2) any Termination Event (as so defined) as
to which the Company or any Subsidiary is an Affected Party (as so defined),
and, in either event, the Swap Termination Value owed by the Company or such
Subsidiary as a result thereof is greater than $30,000,000; or
(f) Insolvency; Voluntary Proceedings. The Company or any
Subsidiary (i) ceases or fails to be solvent, or generally fails to pay, or
admits in writing its inability to pay, its debts as they become due, subject to
applicable grace periods, if any, whether at stated maturity or otherwise; (ii)
voluntarily ceases to conduct its business in the ordinary course; (iii)
consents to or commences a voluntary Insolvency Proceeding with respect to
itself, or (iv) takes any corporate action to authorize any of the foregoing; or
(g) Involuntary Proceedings. (i) An involuntary Insolvency
Proceeding shall be commenced or filed against the Company or any Subsidiary, or
any writ, judgment, warrant of attachment, execution or similar process, is
issued or levied against a substantial part of the Company's or any Subsidiary's
properties, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within 60 days after commencement, filing or
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levy; (ii) the Company or any Subsidiary admits the material allegations of a
petition against it in any Insolvency Proceeding, or an order for relief (or
similar order under non-U.S. law) is ordered in any Insolvency Proceeding; or
(iii) the Company or any Subsidiary acquiesces in the appointment of a receiver,
trustee, custodian, conservator, liquidator, mortgagee in possession (or agent
therefor), or other similar Person for itself or a substantial portion of its
property or business; or
(h) ERISA. Any member of the ERISA Group shall fail to pay
when due an amount or amounts aggregating in excess of $30,000,000 which it
shall have become liable to pay under Title IV of ERISA; or notice of intent to
terminate a Material Plan shall be filed under Title IV of ERISA by any member
of the ERISA Group, any plan administrator or any combination of the foregoing;
or the PBGC shall institute proceedings under Title IV of ERISA to terminate, to
impose liability (other than for premiums under Section 4007 of ERISA) in
respect of or to cause a trustee to be appointed to administer any Material
Plan; or a condition shall exist by reason of which the PBGC would be entitled
to obtain a decree adjudicating that any Material Plan must be terminated; or
there shall occur a complete or partial withdrawal from, or a default, within
the meaning of Section 4219(c)(5) of ERISA, with respect to, one or more
Multiemployer Plans which could cause one or more members of the ERISA Group to
incur a current payment obligation in excess of $30,000,000; or
(i) Monetary Judgments. A judgment or order for the payment of
money in excess of $30,000,000 shall be rendered against the Company or any
Subsidiary and such judgment or order shall continue unsatisfied and unstayed
for a period of 30 days; or
(j) Change of Control. There occurs any Change of Control.
8.02 Remedies. If any Event of Default occurs, then, and in every such
event, the Agent shall (i) if requested or consented to by the Majority Banks,
by notice to the Company terminate the Commitments and they shall thereupon
terminate, (ii) if requested or consented to by the Majority Banks, by notice to
the Company declare the Loans (together with accrued interest thereon and all
other amounts owing under the Loan Documents) to be, and the Loans (and such
interest and other amounts) shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Company and (iii) if requested or consented to by the
Majority Banks, exercise on behalf of itself and the Banks all rights and
remedies available to it and the Banks under the Loan Documents or applicable
law; provided that in the case of any of the Events of Default specified in
subsections (f) or (g) (in the case of clause (i) of subsection (g) upon the
expiration of the 60-day period mentioned therein), without any notice to the
Company or any other act by the Agent or the Banks, the Commitments shall
thereupon terminate and the Loans (together with accrued interest thereon and
all other amounts owing under the Loan Documents) shall become immediately due
and payable without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Company.
8.03 Rights Not Exclusive. The rights provided for in this Agreement and
the other Loan Documents are cumulative and are not exclusive of any other
rights, powers, privileges or remedies provided by law or in equity, or under
any other instrument, document or agreement now existing or hereafter arising.
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ARTICLE IX
THE AGENT
9.01 Appointment and Authorization; "Agent". Each Bank hereby irrevocably
(subject to Section 9.09) appoints, designates and authorizes the Agent to take
such action on its behalf under the provisions of this Agreement and each other
Loan Document and to exercise such powers and perform such duties as are
expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Bank, and no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Agent. Without limiting the generality of the
foregoing sentence, the use of the term "agent" in this Agreement with reference
to the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
9.02 Delegation of Duties. The Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.
9.03 Liability of Agent. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by the Company or any Subsidiary or
Affiliate of the Company, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by the Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or or any failure of the Company or any other party to
any Loan Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Agreement or any other Loan Document, or to
inspect the properties, books or records of the Company or any of the Company's
Subsidiaries or Affiliates.
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9.04 Reliance by Agent.
(a) The Agent shall be entitled to rely, and shall be fully
protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to the
Company), independent accountants and other experts selected by the Agent. The
Agent shall be fully justified in failing or refusing to take any action under
this Agreement or any other Loan Document unless it shall first receive such
advice or concurrence of the Majority Banks as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Banks
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement or
any other Loan Document in accordance with a request or consent of the Majority
Banks and such request and any action taken or failure to act pursuant thereto
shall be binding upon all of the Banks.
(b) For purposes of determining compliance with the conditions
specified in Section 4.01, each Bank that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent (or made available) by the Agent to such
Bank for consent, approval, acceptance or satisfaction, or required thereunder
to be consented to or approved by or acceptable or satisfactory to such Bank.
9.05 Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Agent for the account of the Banks, unless the Agent shall have received
written notice from a Bank or the Company referring to this Agreement,
describing such Default or Event of Default and stating that such notice is a
"notice of default". The Agent will notify the Banks of its receipt of any such
notice. The Agent shall take such action with respect to such Default or Event
of Default as may be requested by the Banks in accordance with Article VIII;
provided, however, that unless and until the Agent has received any such
request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Event of
Default as it shall deem advisable or in the best interest of the Banks.
9.06 Credit Decision. Each Bank acknowledges that none of the Agent-
Related Persons has made any representation or warranty to it, and that no act
by the Agent hereinafter taken, including any review of the affairs of the
Company and its Subsidiaries, shall be deemed to constitute any representation
or warranty by any Agent-Related Person to any Bank. Each Bank represents to the
Agent that it has, independently and without reliance upon any Agent- Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthi- ness of
the Company and its Subsidiaries, and all applicable bank regulatory laws
relating to the transactions contemplated hereby, and made its own decision to
enter into this Agreement and to extend credit to the Company hereunder. Each
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Bank also represents that it will, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis, a
ppraisals and decisions in taking or not taking action under this Agreement and
the other Loan Documents, and to make such investigations as it deems necessary
to inform itself as to the business, prospects, operations, property, financial
and other condition and creditworthiness of the Company. Except for notices,
reports and other documents expressly herein required to be furnished to the
Banks by the Agent, the Agent shall not have any duty or responsibility to
provide any Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Company or any Subsidiary which may come into the
possession of any of the Agent-Related Persons.
9.07 Indemnification of Agent. Whether or not the transactions contemplated
hereby are consummated, the Banks shall indemnify upon demand the Agent-Related
Persons (to the extent not reimbursed by or on behalf of the Company and without
limiting the obligation of the Company to do so), pro rata, from and against any
and all Indemnified Liabilities; provided, however, that no Bank shall be liable
for the payment to the Agent-Related Persons of any portion of such Indemnified
Liabilities resulting from such Person's gross negligence or willful misconduct.
Without limitation of the foregoing, each Bank shall reimburse the Agent upon
demand for its ratable share of any costs or out-of-pocket expenses (including
Attorney Costs) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Agreement, any other
Loan Document, or any document contemplated by or referred to herein, to the
extent that the Agent is not reimbursed for such expenses by or on behalf of the
Company. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of the Agent.
9.08 Agent in Individual Capacity. BofA and its Affiliates may make loans
to, issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,financial
advisory, underwriting or other business with the Company and its Subsidiaries
and Affiliates as though BofA were not the Agent hereunder and without notice to
or consent of the Banks. The Banks acknowledge that,pursuant to such activities,
BofA or its Affiliates may receive information regarding the Company or its
Affiliates (including information that may be subject to confidentiality
obligations in favor of the Company or such Subsidiary) and acknowledge that the
Agent shall be under no obligation to provide such information to them. With
respect to its Loans, BofA shall have the same rights and powers under this
Agreement as any other Bank and may exercise the same as though it were not the
Agent, and the terms "Bank" and "Banks" include BofA in its individual capacity.
9.09 Successor Agent. The Agent may, and at the request of the Majority
Banks shall, resign as Agent upon 30 days' notice to the Banks. If the Agent
resigns under this Agreement, the Majority Banks shall appoint from among the
Banks a successor agent for the Banks which successor agent shall be approved by
the Company (such approval not to be unreasonably withheld). If no successor
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agent is appointed prior to the effective date of the resignation of the Agent,
the Agent may appoint, after consulting with the Banks and the Company, a
successor agent from among the Banks. Upon the acceptance of its appointment as
successor agent hereunder, such successor agent shall succeed to all the rights,
powers and duties of the retiring Agent and the term "Agent" shall mean such
successor agent and the retiring Agent's appointment, powers and duties as Agent
shall be terminated. After any retiring Agent's resignation hereunder as Agent,
the provisions of this Article IX and Sections 10.04 and 10.05 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement. If no successor agent has accepted appointment as
Agent by the date which is 30 days following a retiring Agent's notice of
resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Banks shall perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Banks appoint a successor
agent as provided for above. Notwithstanding the foregoing, however, BofA may
not be removed as the Agent at the request of the Majority Banks unless BofA
shall also simultaneously be replaced as "Swingline Bank" hereunder pursuant to
documentation in form and substance reasonably satisfactory to BofA.
9.10 Withholding Tax.
(a) Each Bank organized under the laws of a jurisdiction
outside the United States shall, on or prior to the date of its execution and
delivery of this Agreement, and on the Assignment and Acceptance Date pursuant
to which it becomes a party to this Agreement in the case of each other Bank,
and from time to time thereafter if requested in writing by the Company or the
Agent (but only so long thereafter as such Bank remains lawfully able to do so),
provide the Agent and the Company with (i) an accurate, complete, and duly
executed Internal Revenue Service form W-8BEN or W-8ECI, as appropriate, or any
successor or substitute form prescribed or permitted by the Internal Revenue
Service, certifying that such Bank is entitled to claim the benefit of complete
exemption from imposition of United States withholding tax under an income tax
treaty to which the United States is a party in respect of payments made under
this Agreement or certifying that the income receivable pursuant to this
Agreement is effectively connected with the conduct of a trade or business in
the United States and (ii) in the event that, by virtue of a change in law or
regulations, such forms are no longer valid evidence of a Person's exemption
from withholding which is reasonably satisfactory to the Company, other
appropriate evidence supporting such Person's exemption from withholding as the
Company may reasonably request.
(b) For any period with respect to which a Bank or an Assignee
has failed to provide the Company with the appropriate form described in
Subsection 9.10(a) (other than if such failure is due to a change in law
occurring after the date on which a form originally was required to be provided
or if such form otherwise is not required under Subsection 9.10(a)), such Bank
or Assignee shall not be entitled to indemnification under Section 3.01(b) or
(d) with respect to Taxes imposed by the United States.
(c) If any Bank claims exemption from, or reduction of,
withholding tax under a United States tax treaty by providing IRS Form W-8BEN
and such Bank sells, assigns, grants a participation in, or otherwise transfers
all or part of the Obligations of the Company owing to such Bank, such Bank
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agrees to notify the Company and Agent of the percentage amount in which it is
no longer the beneficial owner of Obligations of the Company owing to such Bank.
To the extent of such percentage amount, the Agent will treat such Bank's IRS
Form W-8BEN as no longer valid.
(d) If any Bank claiming exemption from United States
withholding tax by filing IRS Form W-8ECI with the Agent sells, assigns, grants
a participation in, or otherwise transfers all or part of the Obligations of the
Company owing to such Bank, such Bank agrees to undertake sole responsibility
for complying with the withholding tax requirements imposed by Sections 1441 and
1442 of the Code.
(e) If any Bank is entitled to a reduction in the applicable
withholding tax, the Agent may withhold from any interest payment to such Bank
an amount equivalent to the applicable withholding tax after taking into account
such reduction. However, if the forms or other documentation required by
subsection (a) of this Section are not delivered to the Company and Agent, then
the Company or Agent may withhold from any interest payment to such Bank not
providing such forms or other documentation an amount equivalent to the
applicable withholding tax imposed by Sections 1441 and 1442 of the Code,
without reduction.
(f) If the IRS or any other Governmental Authority of the
United States or other jurisdiction asserts a claim that the Agent did not
properly withhold tax from amounts paid to or for the account of any Bank
(because the appropriate form was not delivered or was not properly executed, or
because such Bank failed to notify the Agent of a change in circumstances which
rendered the exemption from, or reduction of, withholding tax ineffective, or
for any other reason) such Bank shall indemnify the Company or the Agent, as the
case may be, fully for all amounts paid, directly or indirectly, by the Company
or the Agent, as the case may be, as tax or otherwise, including penalties and
interest, and including any taxes imposed by any jurisdiction on the amounts
payable to the Company or the Agent, as the case may be, under this Section,
together with all costs and expenses (including Attorney Costs). The obligation
of the Banks under this subsection shall survive the payment of all Obligations
and the resignation or replacement of the Agent.
9.11 Co-Agents; Joint Lead Arrangers. None of the Banks identified on the
facing page or signature pages of this Agreement as a "Co-Documentation Agent",
"Syndication Agent" or "Joint Lead Arranger" shall have any right, power,
obligation, liability, responsibility or duty under this Agreement other than
those applicable to all Banks as such. Without limiting the foregoing, none of
the Banks so identified shall have or be deemed to have any fiduciary
relationship with any Bank. Each Bank acknowledges that it has not relied, and
will not rely, on any of the Banks so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
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ARTICLE X
MISCELLANEOUS
10.01 Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Loan Document, and no consent with respect to any
departure by the Company or any applicable Subsidiary therefrom, shall be
effective unless the same shall be in writing and signed by the Majority Banks
(or by the Agent at the written request of the Majority Banks) and the Company
and acknowledged by the Agent, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided, however, that no such waiver, amendment, or consent shall,
unless in writing and signed by all the Banks and the Company and acknowledged
by the Agent, do any of the following:
(a) increase or extend the Commitment of any Bank or the
Swingline Commitment of the Swingline Bank (or reinstate any Commitment
terminated pursuant to Section 8.02);
(b) postpone or delay any date fixed by this Agreement or any
other Loan Document for any payment of principal, interest, fees or other
amounts due to the Banks (or any of them) hereunder or under any other Loan
Document (including the date of any mandatory prepayment hereunder);
(c) reduce the principal of, or the rate of interest specified
herein on any Loan, or (subject to clause (ii) below) any fees or other amounts
payable hereunder or under any other Loan Document;
(d) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Loans which is required for the Banks
or any of them to take any action hereunder;
(e) amend this Section 10.01, subsection 2.04(e), Section
2.14, the definition of "Majority Banks" herein, or any provision herein
providing for consent or other action by all Banks or some specified amount of
Banks; or
and, provided further, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Majority Banks or all the
Banks, as the case may be, affect the rights or duties of the Agent under this
Agreement or any other Loan Document, (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Swingline Bank in addition to the
Majority Banks or all the Banks, as the case may be, increase the Swingline
Commitment or otherwise affect the rights or duties of the Swingline Bank under
this Agreement, and (iii) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed by the parties thereto.
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10.02 Notices. .
(a) All notices, requests, consents, approvals, waivers and
other communications shall be in writing (including, unless the context
expressly otherwise provides, by facsimile transmission) and mailed, faxed or
delivered, to the address or facsimile number specified for notices on Schedule
10.02; or, as directed to the Company or the Agent, to such other address as
shall be designated by such party in a written notice to the other parties, and
as directed to any other party, at such other address as shall be designated by
such party in a written notice to the Company and the Agent.
(b) All such notices, requests and communications shall, when
transmitted by overnight delivery, or faxed, be effective when delivered for
overnight (next-day) delivery, or transmitted in legible form by facsimile
machine, respectively, or if mailed, upon the third Business Day after the date
deposited into the mails, or if delivered, upon delivery; except that notices
pursuant to Article II or IX to the Agent shall not be effective until actually
received by the Agent; and notices pursuant to Article II to the Swingline Bank
shall not be effective until actually received by the Swingline Bank at the
address specified for such Person on Schedule 10.02.
(c) Any agreement of the Agent and the Banks herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Company. The Agent and the Banks shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by the Company
to give such notice and the Agent and the Banks shall not have any liability to
the Company or other Person on account of any action taken or not taken by the
Agent or the Banks in reliance upon such telephonic or facsimile notice. The
obligation of the Company to repay the Loans shall not be affected in any way or
to any extent by any failure by the Agent and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt by the Agent
and the Banks of a confirmation which is at variance with the terms understood
by the Agent and the Banks to be contained in the telephonic or facsimile
notice.
10.03 No Waiver; Cumulative Remedies. No failure to exercise and no delay
in exercising, on the part of the Agent or any Bank, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude any
other or further exercise thereof or the exercise of any other right,remedy,
power or privilege.
10.04 Costs and Expenses. The Company shall:
(a) whether or not the transactions contemplated hereby are
consummated, pay or reimburse BofA (including in its capacity as Agent) within
five Business Days after demand (subject to subsection 4.01(e)) for all
reasonable costs and expenses incurred by BofA (including in its capacity as
Agent) and the Lead Arrangers in connection with (i) the development,
preparation, delivery and execution of, and any amendment, supplement, waiver or
modification to (in each case, whether or not consummated), this Agreement, any
Loan Document and any other documents prepared in connection herewith or
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<PAGE>
therewith and (ii) the consummation of the transactions contemplated hereby and
thereby, including reasonable Attorney Costs incurred by BofA (including in its
capacity as Agent) with respect thereto; and
(b) pay or reimburse the Agent, the Lead Arrangers and each
Bank within five Business Days after demand (subject to subsection 4.01(e)) for
all costs and expenses (including Attorney Costs) incurred by them in connection
with the enforcement, attempted enforcement, or preservation of any rights or
remedies under this Agreement or any other Loan Document during the existence of
an Event of Default or after acceleration of the Loans (including in connection
with any "workout" or restructuring regarding the Loans, and including in any
Insolvency Proceeding or appellate proceeding).
10.05 Company Indemnification. Whether or not the transactions contemplated
hereby are consummated, the Company shall indemnify, defend and hold the Agent-
Related Persons, and each Bank and each of its respective officers, directors,
employees, counsel, agents and attorneys-in-fact (each, an "Indemnified Person")
harmless from and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, charges, expenses and disbursements
(including Attorney Costs)of any kind or nature whatsoever which may at any time
(including at any time following repayment of the Loans and the termination,
resignation or replacement of the Agent or replacement of any Bank) be imposed
on, incurred by or asserted against any such Person in any way relating to or
arising out of this Agreement, the other Loan Documents or any document
contemplated by or referred to therein, or the transactions contemplated hereby,
or any action taken or omitted by any such Person under or in connection with
any of the foregoing, including with respect to any investigation, litigation or
proceeding (including any Insolvency Proceeding or appellate proceeding) related
to or arising out of this Agreement or the Loans or the use of the proceeds
thereof, whether or not any Indemnified Person is a party thereto (all the
foregoing, collectively, the "Indemnified Liabilities"); provided that the
Company shall have no obligation hereunder to any Indemnified Person with
respect to Indemnified Liabilities to the extent resulting from the gross
negligence or willful misconduct of such Indemnified Person. The agreements in
this Section shall survive payment of all other Obligations.
10.06 Payments Set Aside. To the extent that the Company makes a payment to
the Agent or the Banks, or the Agent or the Banks exercise their right of
set-off, and such payment or the proceeds of such set-off or any part thereof
are subsequently invalidated, declared to be fraudulent or preferential, set
aside or required (including pursuant to any settlement entered into by the
Agent or such Bank in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any Insolvency Proceeding or otherwise, then (a)
to the extent of such recovery the obligation or part thereof originally
intended to be satisfied shall be revived and continued in full force and effect
as if such payment had not been made or such set-off had not occurred, and (b)
each Bank severally agrees to pay to the Agent upon demand its Pro Rata Share of
any amount so recovered from or repaid by the Agent.
10.07 Binding Effect; Successors and Assigns. This Agreement shall become
effective when it shall have been executed by the Company, the Agent and the
Banks and thereafter shall be binding upon and inure to the benefit of the
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<PAGE>
parties hereto and their respective successors and assigns, except that the
Company may not assign or transfer any of its rights or obligations under this
Agreement without the prior written consent of the Agent and each Bank.
10.08 Assignments, Participations, Etc.
(a) Any Bank may, with the written consent of the Company, the
Swingline Bank and the Agent (which in each case shall not be unreasonably
withheld), at any time assign and delegate to one or more Eligible Assignees
(each an "Assignee") all, or any ratable part of all, of the Loans, the
Commitment and the other rights and obligations of such Bank hereunder;
provided, however, that (i) no written consent of the Company shall be required
during the existence of a Default or an Event of Default; (ii) no written
consent of the Company or the Agent or the Swingline Bank shall be required in
connection with any assignment and delegation by a Bank to an Eligible Assignee
that is a United States Affiliate of such Bank or another Bank; and (iii) except
in connection with an assignment of all of a Bank's rights and obligations with
respect to its Commitment and Loans, any such assignment (A) to an Eligible
Assignee that is a Bank or an Affiliate of a Bank hereunder shall be equal to or
greater than $5,000,000 or (B) to an Eligible Assignee that is not a Bank or an
Affiliate of a Bank hereunder shall be equal to or greater than $10,000,000; and
(iv) each such partial assignment shall be of a ratable part of the Loans, the
Commitment and the other interests, rights and obligations hereunder of such
assigning Bank; and provided further, however, that the Company, the Swingline
Bank and the Agent may continue to deal solely and directly with such Bank in
connection with the interest so assigned to an Assignee until (A) such Bank and
its Assignee shall have delivered to the Company and the Agent an Assignment and
Acceptance Agreement substantially in the form of Exhibit E (an "Assignment and
Acceptance"), together with any Note or Notes subject to such assignment; (B) a
written notice of such assignment, together with payment instructions, addresses
and related information with respect to the Assignee, in substantially the form
of the Notice of Assignment and Acceptance attached as Schedule 1 to the
Assignment and Acceptance, shall have been given to the Company and the Agent by
such Bank and the Assignee; (C) the assignor Bank or Assignee shall have paid to
the Agent a processing fee in the amount of $3,500; and (D) the Agent, the
Swingline Bank and the Company each shall have provided any required consent to
such assignment in accordance with this Section. In connection with any
assignment by BofA, its Swingline Commitment may be assigned in whole (and not
part) and only in connection with an assignment transaction involving an
assignment of all of its Commitment and Loans, and the Assignment and Acceptance
may be appropriately modified to include an assignment and delegation of its
Swingline Commitment and any outstanding Swingline Loans.
(b) From and after the date that the Agent notifies the
assignor Bank that the Agent has received (and, if required, provided its
consent with respect thereto and, if necessary, received any other consents
required under this Section 10.08) an executed Assignment and Acceptance and
payment of the above-referenced processing fee (such date referred to herein as
the "Assignment and Acceptance Date"), (i) the Assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, shall have the rights
and obligations of a Bank under the Loan Documents, (ii) this Agreement shall be
55
<PAGE>
deemed to be amended to the extent, but only to the extent, necessary to reflect
the addition of the Assignee and the resulting adjustment of the Commitments
arising therefrom, and (iii) the assignor Bank shall, to the extent that rights
and obligations hereunder and under the other Loan Documents have been assigned
by it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under the Loan Documents; provided, however, that
the assignor Bank shall not relinquish its rights under Article III or under
Sections 10.04 and 10.05 (and any equivalent provisions of the other Loan
Documents) to the extent such rights relate to the time prior to the effective
date of the Assignment and Acceptance. The Commitment allocated to each Assignee
shall reduce the Commitment of the assigning Bank pro tanto.
(c) Within five Business Days after the Company's receipt of
notice by the Agent that it has received (and, if necessary, consented to) an
executed Assignment and Acceptance and payment of the processing fee (and
provided that the Company and the Swingline Bank consents to such assignment in
accordance with subsection 10.08(a)), the Company shall execute and deliver to
the Agent any new Notes requested by such Assignee evidencing such Assignee's
assigned Loans and Commitment and, if the assignor Bank has retained a portion
of its Loans and its Commitment, replacement Notes as requested by the assignor
Bank evidencing the Loans and Commitment retained by the assignor Bank (such
Notes to be in exchange for, but not in payment of, the Notes held by such Bank,
if any).
(d) Any Bank may at any time sell to one or more commercial
banks or other Persons not Affiliates of the Company (a "Participant")
participating interests in any Loans, the Commitment of that Bank and the other
interests of that Bank (the "originating Bank") hereunder and under the other
Loan Documents; provided, however, that (i) the originating Bank's obligations
under this Agreement shall remain unchanged, (ii) the originating Bank shall
remain solely responsible for the performance of such obligations, (iii) the
Company and the Agent shall continue to deal solely and directly with the
originating Bank in connection with the originating Bank's rights and
obligations under this Agreement and the other Loan Documents, and (iv) no Bank
shall transfer or grant any participating interest under which the Participant
has rights to approve any amendment to, or any consent or waiver with respect
to, this Agreement or any other Loan Document, except to the extent such
amendment, consent or waiver would require unanimous consent of the Banks as
described in the first proviso to Section 10.01. In the case of any such
participation, the Participant shall not have any rights under this Agreement,
or any of the other Loan Documents, and all amounts payable by the Company
hereunder shall be determined as if such Bank had not sold such participation;
except that, if amounts outstanding under this Agreement are due and unpaid, or
shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the
right of set-off in respect of its participating interest in amounts owing under
this Agreement to the same extent as if the amount of its participating interest
were owing directly to it as a Bank under this Agreement.
(e) Notwithstanding any other provision in this Agreement, any
Bank may at any time create a security interest in, or pledge, all or any
portion of its rights under and interest in this Agreement and any Note held by
it (other than in respect of Swingline Loans) in favor of any Federal Reserve
Bank in accordance with Regulation A of the FRB or U.S. Treasury Regulation 31
56
<PAGE>
C.F.R. ss. 203.14, and such Federal Reserve Bank may enforce such pledge or
security interest in any manner permitted under applicable law.
10.09 Confidentiality. Each Bank agrees to take and to cause its Affiliates
to take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all information identified as "confidential" or "secret" by
the Company and provided to it by the Company or any Subsidiary, or by the Agent
on the Company's or such Subsidiary's behalf, under this Agreement or any other
Loan Document, and neither it nor any of its Affiliates shall use any such
information other than in connection with or in enforcement of this Agreement
and the other Loan Documents or in connection with other business now or
hereafter existing or contemplated with the Company or any Subsidiary; except to
the extent such information (i) was or becomes generally available to the public
other than as a result of disclosure by such Bank, or (ii) was or becomes
available on a non-confidential basis from a source other than the Company,
provided that such source is not bound by a confidentiality agreement with the
Company known to such Bank; provided, however, that any Bank may disclose such
information (A) at the request or pursuant to any requirement of any
Governmental Authority to which such Bank is subject or in connection with an
examination of such Bank by any such authority; (B) pursuant to subpoena or
other court process; (C) when required to do so in accordance with the
provisions of any applicable Requirement of Law; (D) to the extent reasonably
required in connection with any litigation or proceeding to which the Agent, any
Bank or their respective Affiliates may be party; (E) to the extent reasonably
required in connection with the exercise of any remedy hereunder or under any
other Loan Document; (F) to such Bank's independent auditors, legal counsel and
other professional advisors; (G) to any Participant or Assignee, actual or
potential, provided that such Person agrees in writing to keep such information
confidential to the same extent required of the Banks hereunder; (H) as to any
Bank or its Affiliate, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which the Company or any
Subsidiary is party or is deemed party with such Bank or such Affiliate; and (I)
to its Affiliates.
10.10 Set-off. In addition to any rights and remedies of the Banks provided
by law, if an Event of Default exists or the Loans have been accelerated, each
Bank is authorized at any time and from time to time, without prior notice to
the Company, any such notice being waived by the Company to the fullest extent
permitted by law, to set off and apply any and all deposits (general or special,
time or demand, provisional or final) at any time held by, and other
indebtedness at any time owing by, such Bank to or for the credit or the account
of the Company against any and all Obligations owing to such Bank, now or
hereafter existing. Each Bank agrees promptly to notify the Company and the
Agent after any such set-off and application made by such Bank; provided,
however, that the failure to give such notice shall not affect the validity of
such set-off and application.
10.11 Notification of Addresses, Lending Offices, Etc. Each Bank shall
notify the Agent in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agent shall reasonably request.
57
<PAGE>
10.12 Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
10.13 Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
10.14 No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Company, the Banks, the Agent
and the Agent-Related Persons, the Indemnified Persons and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Loan Documents.
10.15 Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK; PROVIDED THAT
THE COMPANY, THE AGENT AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER
FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE
OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND
BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF THE COMPANY, THE AGENT AND
THE BANKS CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE
NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH OF THE COMPANY, THE AGENT AND
THE BANKS IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO 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 ACTION OR PROCEEDING IN SUCH
JURISDICTION IN RESPECT OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. THE
COMPANY, THE AGENT AND THE BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
NEW YORK LAW.
10.16 Waiver of Jury Trial. THE COMPANY, THE BANKS AND THE AGENT EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS,
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS, OR OTHERWISE. THE COMPANY, THE BANKS AND THE
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<PAGE>
AGENT EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER LOAN DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS.
10.17 Entire Agreement. This Agreement, together with the other Loan
Documents, embodies the entire agreement and understanding among the Company,
the Banks, the Swingline Bank and the Agent, and supersedes all prior or
contemporaneous agreements and understandings of such Persons, verbal or
written, relating to the subject matter hereof and thereof.
(remainder of page intentionally left blank)
59
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered in San Francisco, California, by
their proper and duly authorized officers as of the day and year first above
written.
ALBERTSON'S, INC.
By:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Agent
By:
Title:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION, as Swingline Bank
and as a Bank
By:
Title:
WACHOVIA BANK, N.A., as Syndication Agent and
as a Bank
By:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Co-Documentation Agent and as a Bank
By:
Title:
THE CHASE MANHATTAN BANK, as Co-Documentation
Agent and as a Bank
By:
Title:
<PAGE>
BANCA DI ROMA, SAN FRANCISCO BRANCH
By:
Title:
BANCA NAZIONALE DEL LAVORO SPA
By:
Title:
THE BANK OF NEW YORK
By:
Title:
THE BANK OF NOVA SCOTIA
By:
Title:
CITICORP USA, INC.
By:
Title:
COMPASS BANK
By:
Title:
DEUTSCHE BANK AG, NEW YORK BRANCH AND/OR
CAYMAN ISLANDS BRANCH
By:
Title:
By:
Title:
<PAGE>
FIRST SECURITY BANK, N.A.
By:
Title:
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
By:
Title:
FIRST UNION NATIONAL BANK
By:
Title:
INTERNATIONAL BANK OF COMMERCE
By:
Title:
KEYBANK NATIONAL ASSOCIATION
By:
Title:
MELLON BANK, N.A.
By:
Title:
THE NORTHERN TRUST COMPANY
By:
Title:
STAR BANK, NATIONAL ASSOCIATION
By:
Title:
<PAGE>
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
By:
Title:
U.S. BANK NATIONAL ASSOCIATION
By:
Title:
UMB BANK, N.A.
By:
Title:
UNION BANK OF CALIFORNIA, N.A.
By:
Title:
WELLS FARGO BANK, N.A.
By:
Title:
<PAGE>
SCHEDULE 2.01
COMMITMENTS
AND PRO RATA SHARES
- --------------------------------------------------------------------------------
Bank Commitment Pro Rata Share
- --------------------------------------------------------------------------------
Bank of America National Trust
and Savings Association $145,000,000 9.666666664%
The Chase Manhattan Bank $145,000,000 9.666666667%
The First National Bank of Chicago $145,000,000 9.666666667%
Wachovia Bank, N.A. $145,000,000 9.666666667%
Deutsche Bank AG, New York Branch
and/or Cayman Islands Branch $110,000,000 7.333333333%
First Union National Bank $85,000,000 5.666666667%
The Northern Trust Company $85,000,000 5.666666667%
Union Bank of California, N.A. $85,000,000 5.666666667%
U.S. Bank National Association $85,000,000 5.666666667%
Wells Fargo Bank, N.A. $85,000,000 5.666666667%
The Bank of New York $35,000,000 2.333333333%
The Bank of Nova Scotia $35,000,000 2.333333333%
Citicorp USA, Inc. $35,000,000 2.333333333%
KeyBank National Association $35,000,000 2.333333333%
Mellon Bank, N.A. $35,000,000 2.333333333%
Suntrust Bank,
Central Florida, N.A. $35,000,000 2.333333333%
Banca di Roma,
San Francisco Branch $25,000,000 1.666666667%
Banca Nazionale del Lavoro SPA $25,000,000 1.666666667%
Compass Bank $25,000,000 1.666666667%
First Security Bank, N.A. $25,000,000 1.666666667%
International Bank of Commerce $25,000,000 1.666666667%
Star Bank, National Association $25,000,000 1.666666667%
UMB Bank, N.A. $15,000,000 1.000000000%
First Tennessee Bank
National Association $10,000,000 .666666667%
TOTALS $1,500,000,000 100.000000000%
<PAGE>
SCHEDULE 10.02
PAYMENT OFFICES; ADDRESSES FOR NOTICES;
LENDING OFFICES
COMPANY
Address for Notices:
Albertson's, Inc.
250 Park Center Blvd.
Box 20
Boise, ID 83726
Attention: Finance Department
Telephone: (208) 395-6534
Facsimile: (208) 395-6631
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
Notices for Borrowing, Conversions/Continuations, Payments:
Bank of America National Trust and Savings Association
Agency Administrative Services #5596
1850 Gateway Boulevard, 5th Floor
Concord, CA 94520
Attention: Paul Ober
Telephone (925) 675-8426
Facsimile: (925) 675-8500
Other Notices:
Bank of America National Trust and Savings Association
Retail Industries Group #3234
231 S. LaSalle Street
Chicago, IL 60604
Attention: Lorraine E. Johnson
Telephone: (312) 828-6414
Facsimile: (312) 987-1276
<PAGE>
Agent's Payment Office:
Bank of America National Trust and Savings Association
1850 Gateway Boulevard
Concord, CA 94520
Attention: Agency Administrative Services #5596
Reference: Albertson's, Inc.
For Credit to Bancontrol Acct. No. 12335-16530
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Bank
Domestic and Offshore Lending Office:
Bank of America National Trust and Savings Association
1850 Gateway Boulevard, 4th Floor
Concord, CA 94520
Attention: Sandra Schwartzkopf
Telephone: (925) 675-7342
Facsimile: (925) 603-7242
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Bank of America National Trust and Savings Association
Credit Products #7690
555 California Street, 41st Floor
San Francisco, CA 94104
Attention: James P. Johnson
Telephone: (415) 622-6177
Facsimile: (415) 622-4585
WACHOVIA BANK, N.A.
as Syndication Agent and as a Bank
Domestic and Offshore Lending Office:
Wachovia Bank, N.A.
191 Peachtree Street NE
MC-GA 370
Atlanta, GA 30303
Attention: Jackie Scott
Telephone: (404) 332-5271
Facsimile: (404) 332-4320
<PAGE>
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
Wachovia Bank, N.A.
191 Peachtree Street NE
MC-GA 370
Atlanta, GA 30303
Attention: John A. Whitner
Telephone: (404) 332-6738
Facsimile: (404) 332-6898
THE FIRST NATIONAL BANK OF CHICAGO
as Co-Documentation Agent and as a Bank
Domestic and Offshore Lending Office:
The First National Bank of Chicago
One First National Plaza
IL1-0088, 14th Floor
Chicago, IL 60670
Attention: Karen Hannusch
Telephone: (312) 732-9868
Facsimile: (312) 732-2715
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
The First National Bank of Chicago
One First National Plaza
IL1-0086, 14th Floor
Chicago, IL 60670
Attention: Eva Drinis
Telephone: (312) 732-5037
Facsimile: (312) 732-1117
THE CHASE MANHATTAN BANK
as Co-Documentation Agent and as a Bank
Domestic and Offshore Lending Office:
The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Attention: Anne Bowles
Telephone: (212) 552-7260
Facsimile: (212) 552-7500
<PAGE>
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
The Chase Manhattan Bank
270 Park Avenue
New York, NY 10017
Attention: Margaret Lane
Telephone: (212) 270-9803
Facsimile: (212) 270-5646
THE BANKS
BANCA DI ROMA, SAN FRANCISCO BRANCH
Domestic and Offshore Lending Office:
Banca di Roma, San Francisco Branch
One Market
Steuart Tower, Suite 1000
San Francisco, CA 94105
Attention: Richard G. Dietz
Telephone: (415) 977-7320
Facsimile: (415) 357-9869
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
Banca di Roma, San Francisco Branch
One Market
Steuart Tower, Suite 1000
San Francisco, CA 94105
Attention: Thomas C. Woodruff
Telephone: (415) 977-7308
Facsimile: (415) 357-9869
BANCA NAZIONALE DEL LAVORO, SPA
Domestic and Offshore Lending Office:
Banca Nazionale del Lavoro SPA
25 West 51st Street
New York, NY 10019
Attention: Lillian Francavilla
Telephone: (212) 314-0679
Facsimile: (212) 765-2978
<PAGE>
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
Banca Nazionale del Lavoro SPA
25 West 51st Street
New York, NY 10019
Attention: Roberto Mancone
Telephone: (212) 314-0734
Facsimile: (212) 765-2978
THE BANK OF NEW YORK
Domestic and Offshore Lending Office:
The Bank of New York
One Wall Street, 8th Floor
New York, NY 10286
Attention: Charlotte Sohn
Telephone: (212) 635-7869
Facsimile: (212) 635-1481/1483
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
The Bank of New York
One Wall Street, 8th Floor
New York, NY 10286
Attention: Diane Burgess
Telephone: (212) 635-1311
Facsimile: (212) 635-1481/1483
THE BANK OF NOVA SCOTIA
Domestic and Offshore Lending Office:
The Bank of Nova Scotia
600 Peachtree Street NE
Atlanta, GA 30308
Attention: Norman Campbell
Telephone: (404) 877-1523
Facsimile: (404) 888-8998
<PAGE>
Notices (other than Borrowing Notice and Notices of Conversion/Continuation):
The Bank of Nova Scotia
580 California Street
San Francisco, CA 94104
Attention: Maarty Van Otterloo
Telephone: (415) 986-1100
Facsimile: (415) 397-0791
CITICORP USA, INC.
Domestic and Offshore Lending Office:
Citicorp USA, Inc.
2 Penns Way, Suite 200
New Castle, DE 19720
Attention: Debby Friedland
Telephone: (302) 894-6058
Facsimile: (302) 894-6120
Notices (other than Borrowing Notices and Notices of Conversion Continuation):
Citicorp USA, Inc.
One Sansome Street, 27th Floor
San Francisco, CA 94104
Attention: Carolyn Wendler
Telephone: (415) 627-6363
Facsimile: (415) 433-0307
COMPASS BANK
Domestic and Offshore Lending Office:
Compass Bank
15 South 20th Street
Birmingham, AL 35233
Attention: Joyce Coe
Telephone: (205) 933-3281
Facsimile: (205) 715-7994
<PAGE>
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Compass Bank
15 South 20th Street
Birmingham, AL 35233
Attention: T. Ray Sandefur
Telephone: (202) 933-3652
Facsimile: (202) 715-7212
DEUTSCHE BANK AG, NEW YORK BRANCH
AND/OR CAYMAN ISLANDS BRANCH
Domestic and Offshore Lending Office:
Deutsche Bank AG
New York Branch and/or Cayman Islands Branch
31 West 52nd Street
New York, NY 10019
Attention: Carmen Melendez
Telephone: (212) 469-4008
Facsimile: (212) 469-4138/4139
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Deutsche Bank AG
New York Branch and/or Cayman Islands Branch
31 West 52nd Street
New York, NY 10019
Attention: Alexander Karow
Telephone: (212) 469-8532
Facsimile: (212) 469-8212
FIRST SECURITY BANK, N.A.
Domestic and Offshore Lending Office:
First Security Bank, N.A.
Commercial Loan Account Center
P.O. Box 7666
Boise, ID 83707-1666
Attention: Mary Wissel
Telephone: (208) 393-4046
Facsimile: (208) 393-4540
<PAGE>
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
First Security Bank, N.A.
Idaho Corporate Banking
119 North 9th Street
Boise, ID 83702
Attention: Mary Monroe
Telephone: (208) 393-2106
Facsimile: (208) 393-2472
FIRST TENNESSEE BANK NATIONAL ASSOCIATION
Domestic and Offshore Lending Office:
First Tennessee Bank National Association
165 Madison Avenue, 9th Floor
Memphis, TN 38103
Attention: Victor Notaro
Telephone: (901) 523-4106
Facsimile: (901) 523-4267
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
First Tennessee Bank National Association
165 Madison Avenue, 9th Floor
Memphis, TN 38103
Attention: Victor Notaro
Telephone: (901) 523-4106
Facsimile: (901) 523-4267
FIRST UNION NATIONAL BANK
Domestic and Offshore Lending Office:
First Union National Bank
301 South College Street, 4th Floor
Charlotte, NC 28288-0479
Attention: Todd Tucker
Telephone: (704) 383-0905
Facsimile: (704) 383-7999
<PAGE>
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
First Union National Bank
301 South College Street, 5th Floor
Charlotte, NC 28288-0745
Attention: Mary J. Amatore
Telephone: (704) 374-2641
Facsimile: (704) 383-7236
INTERNATIONAL BANK OF COMMERCE
Domestic and Offshore Lending Office:
International Bank of Commerce
130 East Travis
San Antonio, TX 78205
Attention: Christine D. McCullar
Telephone: (210) 518-2507
Facsimile: (201) 518-2591
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
International Bank of Commerce
130 East Travis
San Antonio, TX 78205
Attention: Michael K. Sohn
Telephone: (210) 518-2506
Facsimile: (201) 518-2591
KEYBANK NATIONAL ASSOCIATION
Domestic and Offshore Lending Office:
KeyBank National Association
831 East Parkcenter Boulevard
Boise, ID 88705
Attention: Specialty Services Team
Telephone: (800) 297-5518
Facsimile: (800) 297-5495
<PAGE>
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
KeyBank National Association
700 Fifth Avenue
WA31-10-4612
Seattle, WA 98104
Attention: Richard Ameny
Telephone: (206) 684-6012
Facsimile: (206) 684-6035
MELLON BANK, N.A.
Domestic and Offshore Lending Office:
Mellon Bank, N.A.
Three Mellon Bank Center
Pittsburgh, PA 15259
Attention: John Kyle
Telephone: (412) 234-7365
Facsimile: (412) 209-6122
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Mellon Bank, N.A.
400 South Hope Street, 5th Floor
Los Angeles, CA 90071
Attention: Lawrence C. Ivey
Telephone: (213) 553-9543
Facsimile: (213) 629-0492
THE NORTHERN TRUST COMPANY
Domestic and Offshore Lending Office:
The Northern Trust Company
50 South LaSalle
Chicago, IL 60675
Attention: Linda Honda
Telephone: (312) 444-3532
Facsimile: (312) 630-1566
<PAGE>
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
The Northern Trust Company
50 South LaSalle
Chicago, IL 60675
Attention: John Burda
Telephone: (312) 444-4575
Facsimile: (312) 444-5055
STAR BANK, NATIONAL ASSOCIATION
Domestic and Offshore Lending Office:
Star Bank, National Association
Commercial Loan Operations
425 Walnut Street, 8th Floor
Mail Location 8160
Cincinnati, OH 45202
Attention: Cathy Edison
Telephone: (513) 632-4032
Facsimile: (513) 632-2965
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Star Bank, National Association
425 Walnut Street, 8th Floor
Mail Location 8160
Cincinnati, OH 45202
Attention: Richard W. Neltner
Telephone: (513) 632-4073
Facsimile: (513) 632-2068
SUNTRUST BANK, CENTRAL FLORIDA, N.A.
Domestic and Offshore Lending Office:
Suntrust Bank, Central Florida, N.A.
200 South Orange Avenue
Orlando, FL 32801
Attention: Joanna Contreras
Telephone: (407) 237-5283
Facsimile: (407) 237-5342
<PAGE>
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Suntrust Bank, Central Florida, N.A.
200 South Orange Avenue
Orlando, FL 32801
Attention: Rick Anderson
Telephone: (407) 237-5041
Facsimile: (407) 237-6894
U.S. BANK NATIONAL ASSOCIATION
Domestic and Offshore Lending Office:
U.S. Bank National Association
101 South Capital Boulevard
Boise, ID 83702
Attention: Kathy O'Grady
Telephone: (503) 275-6715
Facsimile: (503) 275-4600
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
U.S. Bank National Association
101 South Capital Boulevard
Boise, ID 83702
Attention: James W. Henken
Telephone: (208) 383-7823
Facsimile: (208) 383-7563
UMB BANK, N.A.
Domestic and Offshore Lending Office:
UMB Bank, n.a.
1010 Grand Boulevard
Kansas City, MO 64106
Attention: Beverly Puglisi
Telephone: (816) 860-3677
Facsimile: (816) 860-3772
<PAGE>
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
UMB Bank, n.a.
1010 Grand Boulevard
Kansas City, MO 64106
Attention: David A Proffitt
Telephone: (816) 860-7935
Facsimile: (816) 860-7143
UNION BANK OF CALIFORNIA, N.A.
Domestic and Offshore Lending Office:
Union Bank of California, N.A.
Syndication Participation Group
1980 Saturn Street
Monterey Park, CA 91755
Attention: Gohar Karapetyan
Telephone: (213) 720-2676
Facsimile: (213) 724-6198
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Union Bank of California, N.A.
350 California Street, 6th Floor
San Francisco, CA 94104
Attention: Timothy P. Streb
Telephone: (415) 705-7021
Facsimile: (415) 705-7085
WELLS FARGO BANK, N.A.
Domestic and Offshore Lending Office:
Wells Fargo Bank, N.A.
707 Wilshire Boulevard, 16th Floor
MAC 2818-165
Los Angeles, CA 90017
Attention: Edith R. Lim
Telephone: (213) 614-3903
Facsimile: (213) 614-2305
<PAGE>
Notices (other than Borrowing Notices and Notices of Conversion/Continuation):
Wells Fargo Bank, N.A.
201 Third Street
MAC 0187-081
San Francisco, CA 94103
Attention: Sue Silver
Telephone: (415) 477-5374
Facsimile (primary): (415) 512-1943
Facsimile (secondary): (415) 979-0675
<PAGE>
Annex I
PRICING GRID
Applicable Margin and Applicable Fee Amount (Facility Fee): The Facility Fee and
the Applicable Margin for Offshore Rate Loans and Base Rate Loans shall be, at
any time, the rate per annum set forth in the tables below. "Indebtedness
Rating" means the long term unsecured senior, non-credit enhanced debt rating of
the Company by Standard & Poor's Ratings Group or Moody's Investors Service Inc.
(in the case of a split rating, the higher rating will apply, unless the split
results in a difference of more than one rating, in which case the rating one
rating below the highest rating will apply). If the Term Loan option is
utilized, the rate of interest on all Loans outstanding will include the
Applicable Margin plus 25 basis points. Any change in the Applicable Margin or
Applicable Fee Amount for the Facility Fee shall become effective five Business
Days after any public announcement of Indebtedness Rating requiring such a
change.
<TABLE>
<S> <C> <C> <C>
- ----------------------------- ---------------------- ------------------------ -------------------------
Indebtedness Facility Fee Offshore Base Rate Spread
Rating Rate Spread
- ----------------------------- ---------------------- ------------------------ -------------------------
Greater than or equal to
A or A2 7.0 bps 18.0 bps 0 bps
- ----------------------------- ---------------------- ------------------------ -------------------------
Greater than or equal to
A- or A3 7.5 bps 22.5 bps 0 bps
- ----------------------------- ---------------------- ------------------------ -------------------------
Greater than or equal to
BBB+ or Baa1 8.0 bps 27.0 bps 0 bps
- ----------------------------- ---------------------- ------------------------ -------------------------
Lesser than
BBB+ or Baa1 10.0 bps 35.0 bps 0 bps
- ----------------------------- ---------------------- ------------------------ -------------------------
</TABLE>
Applicable Fee Amount (Utilization Fee): The Utilization Fee applicable to
Revolving Loans shall be, at any time, the rate per annum set forth in the table
below, determined in accordance with usage:
- ------------------------ ----------------------
Facility Utilization Fee
Usage %
- ------------------------ ----------------------
- ------------------------ ----------------------
25% 5.0 bps
- ------------------------ ----------------------
- ------------------------ ----------------------
50% 10.0 bps
- ------------------------ ----------------------
- ------------------------ ----------------------
75% 25.0 bps
- ------------------------ ----------------------
If usage shall equal or exceed the applicable percentage specified above, the
utilization fee corresponding to such percentage shall apply with respect to all
outstanding Loans.
